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Pentani v Attorney General [2014] SBHC 130; HCSI-CC 433 of 2013 (1 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction


BETWEEN:


ROBERT PENTANI
Claimant.


AND:


ATTORNEY GENERAL
1st Defendant.


AND:


KALENA TIMBER COMPANY LTD
2nd Defendant.


AND:


FRANK DIA
3rd Defendant.


AND:


ELITE ENTERPRISES (SI) LTD
4th Defendant


For the claimant: W. Rano
For the 1st Defendant: E. Kii
For the 2nd Defendant: G. Suri
For 3rd and 4th Defendants: P. Tegavota.


Date of hearing: 12 September 2014.
Date of judgment: 1 October 2014.


RULING


Apaniai PJ


Introduction.


  1. On 15 April 2014, I granted interim ex parte orders ("Ex Parte Orders") restraining Kalena Timber Co. Ltd ("Kalena") and Elite Enterprises (SI) Ltd ("Elite"), the 4th defendant, from entering Maepu customary land and carrying out logging operations or construction of roads therein until trial or further orders of the court. The Ex Parte Orders were perfected on 23 April 2014. They were granted pending further orders of the court.
  2. At this hearing, the claimant, Robert Pentani, seeks a continuation of those orders. Elite has, however, filed an application to discharge the Ex Parte Orders. The ground for the application was that Pentani was guilty of non-disclosure in obtaining the Ex Parte Orders.

Main Issue.


  1. The issues at this hearing are, first, whether the interim orders should continue and, second, whether there has been non-disclosure by Pentani.

Legal principles governing interlocutory orders.


  1. I remind myself that the principles governing applications for interlocutory or interim restraining orders are that the applicant must show that there is a serious issue to be tried; that damages would not be an adequate remedy; that the balance of convenience favours the granting of the interim orders sought; and, that the applicant has given the usual undertaking as to damages.

Serious issue.


  1. In determining whether there is a serious issue, the court will look at the claim, or the sworn statement in support of the application, to see whether the claim or the supporting sworn statements disclose an issue that is worth investigating at trial. If the claim or the sworn statements show that some legal or equitable rights of the applicant have been invaded or are being threatened by the defendant, then there is a serious issue. The evidence must show what those rights are and that the defendant has invaded, or is threatening to invade, those rights. If no serious issue is disclosed, the application must be dismissed forthwith without having to consider the others issues.
  2. Mr. Pentani has filed a category C claim on 13 November 2013. In that claim, he seeks a declaration that the standard logging agreement ("SLA") executed between Kalena and the "Grantors" in relation to Maepu customary land is null and void on the ground that he was not a party to the agreement. He also seeks a consequential order that the felling licence (no. A101219) issued to Kalena be quashed.
  3. Pending trial of the claim, Pentani has filed an interlocutory application seeking interim orders to restrain Kalena and Elite from entering and carrying out logging in Maepu land. In support of the application, Pentani had filed a sworn statement on 13 November 2013. In that sworn statement, he said that he was one of the 10 trustees determined by the Western Customary Land Appeal Court ("WCLAC") on 26 November 2009 as the persons entitled to grant timber rights over Maepu land. He said that of the 10 trustees determined by the WCLAC, 7 have not signed the standard logging agreement ("SLA") with Kalena in relation to Maepu land which resulted in a logging licence being issued to Kalena to carry out logging in Maepu land. He also said that he had no knowledge that the SLA was executed until September 2013. He said he found out about the signing of the SLA when he carried out a search at the Ministry of Forest.
  4. The Ex Parte Orders were granted on the basis of the claim and the evidence contained in Pentani's sworn filed on 13 November 2013. Ex Parte Orders were issued pending further court orders.
  5. Mr. Pentani has now filed a further sworn statement in which he exhibited the decision by the Western Customary Land Appeal Court ("WCLAC") dated 26 November 2009 in relation to an appeal against a determination by the Western Provincial Executive ("WPE"). That judgment shows that he was one of 10 persons adjudged by the WCLAC as the rightful persons to grant timber rights over Maepu customary land ("Trustees"). In addition, Mr. Pentani has also exhibited a copy of the SLA signed between Kalena and representatives of the Soloso tribe.
  6. Mr. Jack Kegu is also one of the 10 Trustees determined by the WCLAC. He stated in his sworn statement filed on 25 June 2014 in support of the application by Mr. Pentani that he did not sign the SLA. Mr. Manross Ngoro is also one of the 10 Trustees determined by the WCLAC. He also denied having signed the SLA[1]. He said he was informed that his brother, Jimmy Ngoro, signed the SLA on his behalf. He said it is not proper for Jimmy Ngoro to sign on his behalf. However, in his sworn statement filed on 12 May 2014, Jimmy Ngoro said that it was Manross Ngoro who authorised him to sign on his (Manross') behalf.
  7. Chief Ronald Kitu is also one of the 10 Trustees determined by the WCLAC. He denied having signed the SLA in the space opposite his name[2]. However, he admitted having placed his initials on the SLA. He said he initialled the SLA because he was asked to do so by Frank Dia and Osborne Vangana. He said he initialled the SLA in March or April 2013. He said that was well after the licence had been granted to Kalena.
  8. Mr. Nepia Oka is also one of the 10 Trustees. In his sworn statement filed on 25 June 2014, he denied having signed the SLA. He said that the signature appearing opposite his name is not his signature.
  9. In opposition to the application, and in support of the 4th defendant's application to discharge the interim orders, the 3rd defendant, Mr. Frank Dia, has filed a sworn statement.
  10. The substance of Mr. Dia's sworn statement is that Maepu land is owned by the Soloso tribe of which he is a member. Mr. Pentani and Mr. Keku are not members of the Soloso tribe. According to the decision of the Roviana House of Chiefs ("RHC"), Mr. Pentani is a member of the Vasilavata tribe and Mr. Kegu is a member of the Sosopo tribe. In other words, both Pentani and Kegu are not members of the Soloso tribe which owns the Maepu customary land. Obviously, the RHC decision was made after the WCLAC determination so the issue is whether the RHC decision has nullified the WCLAC determination. This is an issue for trial.
  11. Mr. Dia also says that at two meetings of the Soloso tribe held at Kozou village and Nusahope village in 2012, the tribe had resolved that Mr. Pentani and Mr. Kegu be removed as trustees for the Soloso tribe. Mr. Dia claimed that the Vasivalata tribe and the Sosopo tribe are subtribes of the Saikile tribe of which Chief Ronald Kitu is a member. Mr. Dia also claims that because the Soloso tribe had removed Pentani and Kegu as representatives of the Soloso tribe, both are no longer entitled to execute documents on behalf of the Soloso tribe.
  12. By implication, Mr. Dia appears to be saying that Pentani and Kegu are not entitled to execute the SLA on behalf of the Soloso tribe, hence, the fact that they did not sign the SLA does not invalidate the SLA nor the felling licence (no. A101219) issued to Kalena following the SLA. That is of course a legal issue. Whether or not that is legally valid argument is a matter for trial.
  13. It seems clear from Mr. Dia's sworn statement that he does not deny the assertions by Mr. Pentani, Chief Ronald Kitu, Mr. Jack Kegu, Mr. Manross Ngoro and Mr. Nepia Oka that they did not execute the SLA. Furthermore, while Mr. Dia asserts that Mr. Pentani, Chief Ronald Kitu, Mr. Jack Kegu are not members of the Soloso tribe, he has said nothing about whether Mr. Manross Ngoro and Mr. Nepia Oka are members or not members of the Soloso tribe for if these two men are members of the Soloso tribe then their alleged non-execution of the SLA would throw doubt on the validity of the SLA. That is of course another issue for trial.
  14. I am satisfied triable issues have been disclosed which would justify the granting of interim restraining orders.

Whether damages are an adequate remedy.


  1. This is not a case where the claimant is seeking to protect the land or the environment from the adverse effects of logging. All the parties to the case want logging. Their dispute relates to the question who should be the logging company to carry out logging. I am satisfied that this is a case where damages would be an adequate remedy.

Balance of convenience.


  1. The next issue is whether the balance of convenience favours the granting of the interim orders sought. In other words, would it do more good than harm if interim orders are granted.
  2. The reason for seeking the orders is because of the allegation that the SLA is invalid for the reason that a number of those persons determined as entitled to grant timber rights over the Maepu customary land have not signed the SLA. Of course if the SLA is invalid then the licence is invalid and to carry out logging under an invalid licence is an offence under section 4 of the Forest Resources and Timber Utilisation Act )Cap. 40). The court will not lend its aid to facilitate a breach of the law or to enforce anything which is prohibited by law[3]. The fact that the 3rd defendant appears not to have disputed that some of the persons determined as entitled to grant timber rights over the Maepu customary land have not signed the SLA is sufficient ground for imposing the restraining orders sought in this application.

Usual undertaking as to damages.


  1. There is no dispute that the claimant has made the usual undertaking as to damages. There is of course no evidence that Pentani is in a financial position to compensate the defendants. Notwithstanding that, it is my view that interim injunction should still be granted for the reason given in the preceding paragraph. In the event that the defendants win their case in the end, they would no doubt be entitled to seek damages against the claimant on the basis of Pentani's undertaking.

Non-disclosure.


  1. This brings me to the application by Elite to discharge the interim orders on the basis of non-disclosure by Pentani. Elite says that Pentani has not disclosed material facts at the time he obtained the interim ex parte and, as such, has misled the court into granting the interim orders.
  2. In his submission, counsel for the 4th defendant, Mr. Philip Tegavota, submits that Mr. Pentani had not disclosed a number of documents to the court. Those documents are referred to in paragraphs 1 to 4 of the sworn statement by Frank Dia filed 6 May 2014 ("Dia's sworn statement"). Mr. Tegavota submits that Pentani knew about the documents but had failed to disclose them. He submits that had Pentani disclosed the documents, the court would not have granted the ex parte orders. Mr. Suri of counsel for the 2nd defendant supports the application on the same grounds advanced by Mr. Tegavota.

Documents not disclosed.


  1. The documents referred to in paragraphs 1 to 4 of Dia's sworn statement are the Form 2 determination by the WPE in relation to Maepu land (exhibit "ST1"), a decision by the WCLAC which had determined the 10 Trustees of Maepu land (exhibit "ST2"), Consent order in Civil Case No. 90 of 2010 whereby Chief Ronald Kitu had challenged both the Kalena landowners over Kalena land and the Soloso tribe over Maepu land ("ST3"), a letter of consent prepared by Kedson Aqo to the Commissioner of Forests ("COF") signed by the Trustees and other members of the Soloso tribe informing the COF that the Trustees have consented that Best World Timber Ltd ("BWTL") to carry out logging in Maepu land (exhibit "ST4"), letter by BWTL to the COF applying for felling licence over Maepu land ("ST5"), letter by Maepu land trustees revoking the letter of consent referred to above as exhibit "ST4" sent to the COF ("ST6"), letter by Kedson Aqo to the COF requesting the COF to issue licence ("ST7"), letter by PT Legal Services highlighting the problems with Maepu timber rights and requesting the COF to cease dealing with BWTL and other companies in regards to Maepu land ("ST8"), Minutes of meetings by Soloso tribe removing Pentani and Kegu as trustees for Soloso tribe ("ST9"), decision by the Roviana House of Chiefs declaring that Pentani is a member of Vasilavata tribe and Kegu is a member of the Sosopo tribe ("ST10") and copies of documents served on Pentani in Civil Case No. 364 of 2012 ("CC 364/12") being a case against Pentani and Kegu ("ST11"). These documents include direction orders dated 15 November 2012, application to determine issues of law, sworn statement of service by Makiva Hiele and direction orders dated 24 January 2013.
  2. The facts which need to be disclosed at an ex parte application are those that have a clear connection with the relief sought in the application. Likewise, the documents which need to be disclosed on such applications are those that contain those kinds of facts. The applicant need not disclose every fact or document relevant to the claim. He is only required to disclose the facts which have a clear connection with the relief sought in the application or the documents which contain such facts. Those facts must be facts which, if disclosed, will likely result in the court refusing to grant the application.
  3. Furthermore, the party seeking to set aside the ex parte orders for non-disclosure must prove on the balance of probabilities that the applicant for the ex parte orders had knowledge of the facts or had the documents in his possession at the time of the application for the ex parte orders and had deliberately with-held the facts or the documents from the court.
  4. In the present case, the main relief sought in Pentani's application for the interim orders is for the court to grant an interim injunction to restrain Kalena from carrying out logging in Maepu land on allegations that the timber rights agreement was not executed by some of the persons determined by the WCLAC as entitled to grant timber rights over Maepu land.
  5. The issue, therefore, is whether the documents listed in paragraphs 1 to 4 of Frank Dia's sworn statement (that is exhibits "ST1" to "ST11") contain facts which have a clear connection with the relief sought in the application. In other words, is there any fact contained in those documents which would likely have caused the court to refuse to grant the interim ex parte orders had those documents being disclosed?

Discussions.


  1. "ST1" is the Certificate of Customary Ownership issued by the WPE setting out the names of the persons entitled to grant timber rights over Maepu and Kalena customary lands. In relation to Maepu, the WCLAC determination of 26 November 2009 has superseded that Certificate. "ST1" has therefore become irrelevant and need not be disclosed.
  2. "ST2" is the WCLAC determination which included Mr. Pentani as one of the 10 trustees entitled to grant timber rights over Maepu land. That is a document, which is in favour of Mr. Pentani. The non-disclosure of that document is definitely not fatal to the ex parte orders.
  3. "ST3" is a consent order and a Deed of Release in Civil Case No. 90 of 2010. Ronald Kitu and Nelson Huti were the claimants in that case and Frank Dia, Robert Pentani, Manross Ngoro and Jack Kegu were the 2nd defendants. It appears from "ST7" that the case was brought by Ronald Kitu and Nelson Huti to challenge the WCLAC determination of 26 November 2009 appointing the 10 trustees of the Maepu land. The case was settled by consent, hence, the consent order and the Deed of Release. Clause 1 of the consent order had discharged all existing interim orders restraining logging within Maepu land while clause 2 required the claimants and the 2nd defendants to work together in any developments in respect of Maepu land. Clause 3 required the claimants to discontinue the claim against the defendants. The application by Pentani in the present proceeding is an indication that clause 2 of the consent order has not been complied with. So the question is whether a disclosure of the consent order and the Deed of Release would have resulted in the ex parte orders granted to Pentani in this proceeding being refused. I do not think so.
  4. "ST4" is a consent letter by the trustees of Maepu land informing the COF that the trustees have agreed that BWTL carry out logging in Maepu land. Frank Dia says that "ST4" is a fraudulent document in that the company agreed to by the trustees to carry out logging in Maepu land was Pacific United, not BWTL. He says that Pentani had defrauded the COL by crossing out Pacific United and inserting BWLT after the trustees have signed the letter. He says that had this document been disclosed by Pentani, it is likely the court would not have granted the ex parte orders. Unfortunately, I do not agree that the disclosure of this document would have resulted in the court refusing to grant the ex parte orders the reasons being, first, the COL had not issued any licence to BWTL to carry out logging in Maepu land as a result of this document and, second, whether or not Pentani had defrauded the COL as alleged is a matter which I understand is in dispute. It is an issue for trial.
  5. "ST5" is a Form 1 application by BWTL for timber rights over Maepu land and a covering letter accompanying the application. I see nothing in that document which would have caused the court not to grant the ex parte orders had the document been disclosed.
  6. The same can also be said in relation to "ST6" which is a letter signed by persons claiming themselves to have connections to Maepu land informing the COL that they oppose the granting of timber rights over Maepu to Pacific Crest. The fact is the COL has not issued any licence to Pacific Crest to carry out logging in Maepu land. The company which has a licence to carry out logging in Maepu land is Kalena and the ex parte orders were granted restraining Kalena from continuing with the logging operations. The opposition to granting of a licence to Pacific Crest to operate in Maepu land is not relevant to the question whether the logging operations by Kalena in Maepu land should, or should not, continue. The non-disclosure of "ST6" is not fatal to the granting of the ex parte orders.
  7. "ST7" is a letter from Kedson Aqo of the Maepu tribe to the COF. That letter has outlined the ownership of Maepu land, previous logging activities in Maepu land and related court proceedings and the consensus reached in relation to logging operations in Maepu land. The letter ends with a recommendation that the COF issue a felling licence for the Maepu customary land. The question is whether a disclosure of that letter would have caused the court to refuse the interim orders. I do not think so.
  8. "ST8" is a letter from PT Legal Services ("PT") to the COL. In that letter, PT has outlined the history of Kalena's logging operations in Maepu land and the recent timber rights process, which resulted in Kalena now holding a licence over Maepu land. PT has also outlined the events leading up to Civil Case No. 90 of 2010 and the final settlement reached in that case. He then made allegations about Pentani negotiating with logging companies to carry out logging in Maepu land without the consent or knowledge of the Maepu landowners. He also outlined what he considered to be improper dealings by Pentani and Kedson in relation to logging in Maepu land without the consent of the Maepu land-owning tribe. He demanded that the COL cease dealings with Pacific Crest, Pacific United and BWTL in relation to Maepu land. He warned that the matter might be referred to the Police for criminal investigations. The defendants submit that this document has not been disclosed to the court at the ex parte hearing. They submit that had the document been disclosed, it is likely the court would not have granted the ex parte orders. Unfortunately, I do not agree with that submission. The contents of the letter have indicated that there are a lot of issues that the parties must resolve. They are not grounds for refusing interim orders. To the contrary, they are grounds for imposing the interim orders.
  9. "ST9" are minutes of two meeting held between the Soloso tribe and their solicitor, Mr. Philip Tegavota, held at 5pm and 9.45pm on 8 May 2012. At those meetings, Mr. Tegavota briefed the tribe about the conduct of Mr. Pentani. He claimed that Mr. Pentani had been having secret meetings with Pacific United, Pacific Crest and BWTL with the aim of securing Maepu land for those companies to carry out logging. He told the meetings that Pentani had been advancing money from these companies and that if the companies are allowed to operate in Maepu, these monies will be deducted from the royalties payable to the tribe. At the meetings, the Soloso tribe passed a resolution, amongst others, that Pentani and Kegu be removed as trustees for the Soloso tribe. Neither Pentani nor Kegu were present at these meetings. It is said that Mr. Pentani should have disclosed these minutes at the ex parte application and that had he done so the court would not have granted the interim orders.
  10. Unfortunately, I do not think that can be correct. Pentani did not attend the meetings. There is no evidence that he was aware of the resolutions passed at the meetings. Even if he was aware of the documents, it is doubtful whether these minutes would have any effect on the decision to grant the ex parte orders. The fact is Mr. Pentani was determined by the WCLAC as one of the persons entitled to grant timber rights over Maepu land. The WCLAC determination was made pursuant to an appeal process prescribed under section 10(1) of the Forest Resources and Timber Utilisation Act ("FRTU Act"). Under section 10(2), a decision of the WCLAC is final and conclusive and shall not be questioned in any proceedings whatsoever. In Pitabelama v Biliki[4] ("Pitabelama"), the Court of Appeal held that a decision of the WCLAC under section 10(1) is final and conclusive and cannot be questioned in any proceedings whatsoever except where the WCLAC has committed a jurisdictional error. Whether or not the resolutions passed by the Soloso tribe are capable in law of dislodging the WCLAC determination is an issue, which would be best argued at trial. As such, I do not think the non-disclosure of the minutes is fatal to the interim orders granted on 15 April 2014.
  11. "ST10" is a decision by the Roviana Council of Chiefs ("RCC") which held that Pentani is from the Vasilavata subtribe and that Kegu is from Sosopo subtribe. Nothing in that decision specifically says that Pentani or Kegu are not persons entitled to grant timber rights over Maepu land and it remains to be seen whether the RCC decision is valid in the light of 10(2) of the FRTU Act and the Court of Appeal decision in Pitabelama. Those are issues to be argued at trial. As such, the non-disclosure of the RCC decision is not fatal to the interim orders.
  12. The final documents is "ST11" which consists of 6 documents, namely, a Category C claim in Civil Case No. 364 of 2012 seeking a declaration as to the validity of the resolutions by the Soloso tribe dated 8 May 2012 removing Pentani and Kegu as members of Soloso tribe and the decision of the RCC which held that Pentani is from the Vasilavata subtribe and that Kegu is from Sosopo subtribe; a sworn statement by Makiva Hiele filed on 13 November 2012 in relation to that case; directions orders made in relation to that case dated 15 November 2012; an application in that case to determine preliminary issues of law; a further sworn statement by Makiva Hiele filed on 21 February 2012 in relation to that case; and, further directions order dated 24 January 2013.
  13. I am not satisfied that those documents are relevant to the issue whether the interim orders should not have been imposed. It is clear that the application to determine preliminary issues of law has not yet been heard nor has the main claim been tried. I therefore fail to see how the disclosure of those documents in that case would have made caused the court not to grant the interim ex parte orders. The non-disclosure rule applies only to facts which, if disclosed, would likely result in the court refusing to grant the interim ex parte orders. This is not the case here.

Decision and orders.


  1. It follows that the application by the 4th defendant to set aside the interim ex parte orders granted on 15 April 2014 on the ground of non-disclosure must be refused.
  2. The orders of the court are:-

[1] The application by the 4th defendant to set aside the interim ex parte orders granted on 15 April 2014 on the ground of non-disclosure is dismissed.


[2] Orders 2, 3, 4, and 5 of the ex parte orders perfected on 23 April 2014 shall continue until trial or further orders of the court.


[3] The 2nd, 3rd and 4th defendants shall pay the costs of the claimant of, and connected with, these applications on standard basis to be taxed if not agreed.


THE COURT


J. Apaniai
Puisne Judge

[1] Sworn statement by Manross Ngoro filed on 12 September 2014.
[2] Sworn statement by Chief Ronald Kitu filed 25 June 2014.
[3] In re An Arbitration Between Mahmoud & Ispahani [1921] 2 KB 716.
[4] [2007] SBCA 21; CA-CAC 04 of 2006 (10 May 2007).

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