Nguru v Tokuru [2014] SBHC 127; HCSI-CC 38 of 2014 (18 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

NEPIA NGURU and WAYNE KOLO
1st Claimants

And:

YALU REVO
2nd Claimant

And:

MICHAEL TOKURU and EDDIE TOKURU
1st Defendants

And:

COMMISSIONER OF FOREST
2nd Defendant

And:

OMEX LTD
3rd Defendant

Mr. G. Suri for the 1st and 2nd Claimants.
Mr. D. Marahare for the 1st and 3rd Defendants.
Mrs. R. Soma for the 2nd Defendant.

Date of hearing: 2 July 2014.
Date of Judgment: 18 August 2014.

RULING

Apaniai, PJ:

Introduction.

1. On 26 February 2014, interim ex parte orders were obtained by the claimants restraining the 1st and 3rd defendants ("Applicants") and their servants and agents from carrying out logging operations within Sesebu customary land.
   
2. The Applicants, by an application filed on 11 March 2014, now seek to have those orders set aside. The grounds for the application are non-disclosure of material facts at the time the interim orders were granted and lack of legal basis for the grant of the orders.
   

Non-disclosure.

3. The Applicants say that the facts not disclosed by the claimants at the time of the grant of the interim orders include the following:-
   

[1] The land affected by the felling license (Sesebu land) is part of the Kadiki land owned by the Kadiki tribe and is not owned by the Sesebu tribe and that there is no Sesebu tribe in existence; and,

[2] The reason for the claimants' objection to the 1st and 3rd defendants' logging operations is because the claimants prefer their logging contractor (Pacific Metro Ltd) to carry out the logging operations instead of the 1st defendants' logging contractor (Omex Ltd, the 3rd defendant). I understand the defendants' submission to be that this is not a case where the claimants are opposed to logging but is simply a case where the claimants want their preferred logging company to carry out the logging operations. As such, they say, the claimants' remedy lies in damages should they win the case in the end. For that reason, they say the orders should be discharged.

4. The Applicants also say that the orders lack legal basis for the reasons that:-
   

[1] The 3rd defendant had landed machines at the log pond at the concession area but have not yet commenced logging operations;

[2] The 3rd defendant is an innocent party who had acted reasonable in the process which led to the issuing of a licence to it to carry out logging in the concession area under dispute and has therefore not breached any law;

[3] The 1st defendants are among those determined as lawfully entitled to grant timber rights over the disputed area;

[4] The allegations of misrepresentation and undue influence are smoke-screens for interruption of the defendants' lawful operations - the process leading to the issuing of the license being lawful; and,

[5] There is no order for consolidation of this claim with Civil Case No. 265 of 2013 ("CC. 265/13"), hence, the claimants could not rely on CC. 265/13 as a reason for obtaining the interim orders.

The law on non-disclosure.

5. The rules regarding non-disclosure are well settled. In CTP International (SI) Company Ltd v Ghiro and others[1], I explained the rule about non-disclosure as follows:-
   

"When making an application for injunction, in particular ex parte applications, the applicant has a duty to make full disclosure to the court. Full disclosure means disclosing all relevant facts that support the application as well as all relevant facts which are unfavourable to the application[2]. The applicant must not withhold relevant facts, nor must he mislead the court either in what he says or in not saying what he is supposed to say[3]. Relevant facts are those which have a clear connection with the relief sought in the application. Those facts must be disclosed."

Issues.

6. The issues in the present application, therefore, are whether material facts relevant to the application, and material facts unfavourable to the application, have been with-held by the claimants.
   
7. The Applicants have put forward two instances of non-disclosure. First, they assert that there was non-disclosure of the fact that the land affected by the felling license (Sesebu land) is part of the Kadiki land owned by the Kadiki tribe and is not owned by the Sesebu tribe and that there is no Sesebu tribe in existence.
   
8. This submission can be disposed of briefly for the following reasons. First, that submission is contrary to the 1st defendants' conduct as shown in exhibit "YR-3" to the sworn statement of Yalu Revo filed on 25 February 2014 in support of the application for the interim orders. Exhibit "YR-3" is a Standard Logging Agreement ("Agreement") regarding Sesebu Customary Land signed between the Trustee Representatives of Sesebu Customary Land owners and Sesebu Development Enterprises. Michael Tokuru and Eddie Tokuru, the 1st defendants, were among the Trustee Representatives named as representing the Sesebu landowners in the Agreement. Although Michael Tokuru appears not to have signed the Agreement, Eddie Tokuru did. In signing the Agreement, Eddie Tokuru had acknowledged that there is a Sesebu Customary Land. He cannot now say there is no Sesebu Customary Land.
   
9. Second, Michael Tokuru has appealed against a determination by the Western Provincial Executive dated 4 August 2004[4] which named the claimants as those entitled to grant timber rights over Sesebu Customary Land. Mr Michael Tokuru later withdrew the appeal[5]. It appears that as a result of the withdrawal of the appeal, both 1st defendants were included as Trustee Representatives of the Sesebu Customary Land owners in the Standard Logging Agreement referred to above.
   
10. Third, on the materials before the court, there is prima facie evidence that there is a Sesebu Customary Land owned by the Sesebu tribe. Hence, to expect the claimants to disclose facts to the effect that the land affected by the felling license (Sesebu land) is part of the Kadiki land and that the Kadiki land is owned by the Kadiki tribe and not owned by the Sesebu tribe as well as to say that there is no Sesebu tribe in existence runs counter to the prima facie evidence that was before the court when the interim orders were granted. That cannot amount to non-disclosure. The submission by the Applicants in respect of that issue is rejected.
    
11. The second allegation of non-disclosure raised by the Applicants is that the claimants have not disclosed the fact that their objection to the 1st and 3rd defendants' logging operations is due to the claimants preference that their logging contractor, Pacific Metro Ltd, carry out the logging operations in Sesebu customary land instead of the 1st defendants' logging contractor, Omex Ltd (3rd defendant). Unfortunately that, again, is not true. In paragraph 3 of the letter by Francis Billy Hilly addressed to the Commissioner of Forests marked as exhibit "YR12" to the sworn statement by Yalu Revo filed on 25 February 2014 in support of the application for the interim orders, Mr. Hilly made reference to the fact that the directors of Sesebu Development Enterprises have signed two separate logging agreements with two separate contractors, namely, Omex Ltd and Metro Team Ltd (that is, Pacific Metro Ltd). Also in the last paragraphs of that letter, Mr. Hilly has also requested that the Commissioner to declare null and void all SLA, S/A, T/A etc, signed between Sesebu Development Enterprise and Sesebu Customary Land Trustees with Omex Ltd and Metro Team Ltd.
    
12. It is clear that exhibit "YR12" has indicated that two contractors (Omex Ltd and Team Metro Ltd) were competing for the same concession area that is under dispute in this case. I am satisfied that there is ample evidence before the court at the time the interim orders were granted that Omex Ltd and the Metro Team Ltd (that is, Pacific Metro Ltd) were competing to carry out logging on Sesebu Customary Land. Hence, to say that the claimants have not disclosed their preference of Pacific Metro Ltd is simply not the case. I reject the submission that no such disclosure was made.
    

Whether the interim orders lack legal basis.

13. The other ground raised by the Applicants in support of their application to set aside the interim orders is that the orders lack legal basis. Five instances have been raised to demonstrate lack of legal basis. They are set out in paragraph 4 above.
    
14. Unfortunately, I must also reject that ground for the reason that granting of interim orders are based on satisfying the court as to three conditions, namely, that there is a serious issue to be tried, that the balance of convenience favours the granting of interim orders and that the applicant has given the usual undertaking as to damages. As the interim orders have already been granted, albeit ex parte, it must be assumed that the court was satisfied that those three conditions existed.
    
15. The fact that the 3rd defendant had landed machines at the logpond at the concession area but had not yet commenced logging operations is no reason for setting aside an interim orders nor is the fact that the 3rd defendant was an innocent party who had acted reasonable in the process which led to the issuing of a licence to it to carry out logging in the concession area under dispute.
    
16. The submission that the 1st defendants were among those determined as lawfully entitled to grant timber rights over the disputed area confirms that there are serious issues to be tried in this case, hence, the need to maintain the status quo through the imposition of the interim orders. It is clear that the claimants are also among those determined as lawfully entitled to grant timber rights over the disputed area. So here we have a situation where the claimants and the 1st defendants, who were among those determined as entitled to grant timber rights over Sesebu land, are now asserting that the other has no rights to carry out logging on Sesebu land. This is a matter for trial. As such, I reject the Applicants' submission that this is a valid reason for discharging the interim orders.
    
17. The Applicants also submit that the allegations by the claimants of misrepresentation and undue influence are smoke-screens for interruption of the defendants' lawful operations. Unfortunately, these are mere assertions. It is clear from the Category A claim filed by the claimants on 14 February 2014 that one of the issues in this case is whether the Standard Logging Agreement is still valid having regard to the fact that the logging operations by the 3rd defendant did not commence within the six months period as required under clause 2 of the Agreement and the fact that the Agreement was signed by the 1st defendants who, the claimants say, were not persons determined by the Western Provincial Executive as entitled to grant timber rights over Sesebu customary land. These are serious issues and the interim orders are necessary to maintain the status quo until these issues are tried.
    

Decision and orders.

18. There are other minor submissions made by the Applicants in support of discharging the interim orders. I have considered those submissions. Unfortunately, I do not consider those submissions as sufficient to discharge the interim orders. Accordingly, the application to discharge the interim orders granted on 24 February 2014 is dismissed and the Applicants shall pay the costs of the Claimants on standard basis to be taxed if not agreed.
    
19. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Civil Case No. 33 of 2014.
^[2] Uiga v Habo [1998] SBHC 114; HCSI-CC 136 of 1998 (2 September 1998).
^[3] Elima v Everbright Commercial Enterprises Pty Ltd [1998] SBHC 37; HC-CC 125 of 1998 (3 August 1998).
^[4] Exhibit “YR2”, sworn statement by Yalu Revo filed 25 February 2014.
^[5] Ibid, exhibit “YR5”.