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Loe v Niva Integrated Development Company [2014] SBHC 145; HCSI-CC 237 of 2014 (1 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
Civil Case No. 237 of 2014


BETWEEN:


PAT LOE, HENRY NGUMI, LUXTON ZOVERE & OTHERS
1st Claimants.


AND:


METRO TEAM LIMITED
2nd Claimant.


AND:


NIVA INTEGRATED DEVELOPMENT COMPANY
1st Defendant.


AND:


XIANG LIN (SI) TIMBER LIMITED
2nd Defendant.


AND:


ATTORNEY GENERAL
(representing Commissioner of Forests)
3rd Defendant.


Civil Case No. 277 of 2014


BETWEEN:


OSCAR NIVA, NIBISASA NIVA, NIQU NIVA & MILLEY TEKULU
1st Claimant.


AND:


NIVA INTEGRATED DEVELOPMENT COMPANY
2nd Claimant.


AND:


XIANG LIN (SI) TIMBER LIMITED
3rd Claimant.


AND:


LUXTON ZOVERE, PATT LOE and HENRY NGUMI
1st Defendants.


AND:


METRO TEAM LIMITED
2nd Defendant.


AND:


ATTORNEY GENERAL
(representing Commissioner of Forests)
3rd Defendant.


Civil Case No. 283 of 2014


BETWEEN:


PAT LOE, HENRY NGUMI, LUXTON ZOVERE (representing Kindu tribe & Kindu Council of Elders)
1st Claimants.


AND:


METRO TEAM LIMITED
2nd Claimant.


AND:


DANIEL IABULE, PHILIP DICKSON, NICKSON GUAVO, STEPHEN RUBEKOLO, AARON KURIKOPE, DAVID RUPU, WILLIAM BAKILI, MAXWELL ELONA, DONALD GUA, EROFLYN MAVITI, EDDIE PAO ALENGE.
(representing themselves & Saeka Community)
1st Defendants.


AND:


EDWIN LAMANA, OSCAR BIZU, TALASI BISILI
(representing themselves & Engakuri tribe)
2nd Defendants.


AND:


SAM LOLO NIVA and LEVULA NIVA
(representing themselves & Aqo clan)
3rd Defendants.


J.S. Pitabelama for the 1st and 2nd claimants in CC 237 of 2014, 1st and 2nd defendants in CC 277 of 2014 and 1st and 2nd claimants in CC 283 of 2014.
J. Kapoke for the 1st and 2nd defendants in CC 237 of 2014 and 3rd defendants in CC 283 of 2014.
J. Zama for the 1st and 2nd defendants in CC 283 of 2014.


Date of hearing: 9 September 2014.
Date of judgment: 1 October 2014.


RULING


Apaniai PJ


Introduction.


  1. These three cases were heard together because they, more or less, relate to the same customary lands and the parties who are disputing the ownership of the lands are also more or less the same. The lands involved are Central Kohingo, Aqo Simaema customary land, Gasapatu and Lato.
  2. In Civil Case No. 237 of 2014 ("CC 237/14"), an ex parte order was obtained on 5 September 2014 by Patt Loe & others ("Kindu trustees") and Metro Team Ltd ("Metro Team") as claimants, restraining Niva Integrated Development Company ("NIDECO") and Xiang Lin (SI) Ltd ("Xiang Lin"), as 1st and 2nd defendants, from carrying out logging operations within Central Kohingo. The duration of the order was extended at an inter partes hearing on 9 September 2014 pending this ruling.
  3. In Civil Case No 277 of 2014 ("CC 277/14"), an ex parte order was obtained on 26 August 2014 by Oscar Niva & others ("Niva clan"), as claimants, restraining the Kindu trustees and Metro Team from carrying out logging operations in Gasapatu and Lato customary lands. These two lands are located within Central Kohingo.
  4. At the inter partes hearing of this application on 9 September 2014, counsel for the Kindu trustees and Metro Team says his clients are not operating in Lato and Gasapatu customary lands and therefore they do not oppose the ex parte orders in this case. They produced a map of Central Kohingo[1] in which they say that the area bounded in yellow is Central Kohingo, that the area bounded in pink is the area in which they are currently operating and the area which is being disputed by NIDECO and Xiang Lin, and, that the area coloured orange is Gasapatu and Lato customary lands. They say they are not, and they have no intention of, operating in Gasapatu and Lato (coloured orange) and therefore they do not oppose the interim injunction restraining them from operating in those two areas.
  5. Seeing that there is no dispute in regards to the orange area coloured in orange on the map marked as exhibit "PL7" annexed to the sworn statement by Raymond Puluhenue ("Exhibit PL7"), I shall order that the ex parte interim orders made in CC 277/14 on 26 August 2014 to continue in force in relation to the area coloured orange as shown in Exhibit PL7 until trial or further order of the court.
  6. In Civil Case No 283 of 2014 ("CC 283/14"), an ex parte order was obtained on 5 September 2014 by the Kindu trustees and Metro Team restraining Daniel Iabule and others, representing the Engakuri clan of the main Aqo Simaema tribe ("Engakuri clan"), from disturbing the logging operations of the Kindu trustees and Metro Team in Central Kohingo. The ex parte order was also extended on 9 September 2014 pending this ruling.
  7. So, the issue in these two applications is whether or not the interlocutory restraining orders sought against the defendants in CC 237/14 and CC 283/14 should continue.

Principles governing application for interlocutory restraining orders.


  1. The principles governing applications for interlocutory or interim restraining orders are clear. The applicant must show that there is a serious issue to be tried; that the balance of convenience favours the granting of the interim orders sought in that it will do more good than harm if the orders are granted; and, that the applicant has given the usual undertaking as to damages.

CC 237/14.


  1. In this case, the evidence shows that a timber rights application was made by the Metro Team to carry out logging in Central Kohingo and other areas. That application was heard by the Western Provincial Executive ("WPE") which made a determination on or about 26 November 2010 that the Kindu trustees and others were the persons entitled to grant timber rights over Central Kohingo.
  2. Following that determination, a timber rights agreement was executed between Metro Team and the Kindu trustees on or about 5 November 2012 and on 1 March 2013 Metro Team was issued with a logging licence (No. A10443) to carry out logging in Central Kohingo customary land. The licence did not cover Gasapatu customary land which falls within NIDECO's concession areas covered under NIDECO licence (No. A10440) issued on 11 July 2014.
  3. In a sworn statement by Raymond Puluhenue filed on 19 August 2014 in CC 237/14, Mr. Puluhenue has annexed an exhibit marked "PL7" which describes the boundaries of Central Kohingo customary land and Gasapatu customary land. That exhibit has identified the boundary of Central Kohingo as the area bounded in yellow. The area starts at Tiparere then to point "A", then along the coast to point "B" then along the coast to point "C" then along the coast to point "D" then across to point "E" then to point "F" then along the coast to point "G" then along Latohite river to point "H" then across to point "I" then to point "J" at the coast then along the coast and back to Tiparere.
  4. The exhibit also marks the Lato and Gasapatu customary lands as the area coloured in orange. It describes the boundary of that area (Lato and Gasapatu) as starting at point "G" then along the Latohite river to point "H" then across to point "I" then to point "K" (should be "J") at the coast then along the coast and back to point "G".
  5. Finally, the exhibit also refers to an area bounded by the pink colour ("Disputed area") which, Metro Team and the Kindu trustees say, is part of Central Kohingo covered under Metro Team's licence (No. A10443) but which NIDECO also claims as part of Gasapatu and Lato customary lands covered under its licence (No. A10440).
  6. These boundaries (of Central Kohingo and Gasapatu and Lato) are also similar to the ones stated by Patt Loe in his sworn statement filed on 19 August 2014.
  7. As earlier stated, Metro Team and the Kindu trustees are not interested in Gasapatu and Lato customary lands (coloured orange). Their dispute in this proceeding (CC 237/14) is in relation to the Disputed area. They say that area is part of Central Kohingo applied for in their timber rights application (Form 1) and covered by their licence (No. A10443). They say that NIDECO and Xiang Lin are operating in that area, hence, their application in this proceeding for interim restraining orders against NIDECO and Xiang Lin.
  8. It is clear in this proceeding (CC 237/14) that both Metro Team and NIDECO are claiming that the Disputed area is covered by their respective licences. Unlike NIDECO and Xiang Lin who have an interim order on foot restraining them from carrying out logging in the Disputed area, there is no restraining order on foot against the Metro Team and none has been applied for by NIDECO and Xiang Lin against the Metro Team.
  9. This is not a case where landowners are trying to protect their land and environment from the effects of logging. It is simply a case of two logging operators wanting to carry out logging in the same area with each claiming that it has a valid licence to operate in the area.
  10. I am satisfied triable issues have been disclosed in this proceeding. I am also satisfied that damages will be an adequate remedy. The only issue is where the balance of convenience lies.
  11. On that issue, it is my view that the balance of convenience lies in favour of allowing the Metro Team to continue with the logging operations in the Disputed area with appropriate orders made in respect of the proceeds of the logging operations. The reason is that it is clear from the evidence that the Metro Team licence was the first to be issued. It was issued on 1st March 2013 while the NIDECO licence was issued on 11 July 2014. Since it is not possible legally for two licences to be issued in respect of the same area, there is a strong possibility that NIDECO's licence may be invalid in respect of the Disputed area.
  12. Mr. Oscar Niva has raised ownership issues in his sworn statement filed on 8 September 2014. Unfortunately, in regards to this proceeding (CC 237/14), it matters not which of the parties herein owns the Disputed area. It is accepted that ownership is still a live issue, but the fact is both parties are not against logging in the Disputed area. The issue of land ownership is not relevant in deciding whether or not to allow logging in the Disputed area in this application.
  13. The sworn statements filed in these cases have also shown other important facts relevant to the issue of the exercise of the court's discretion in relation to such applications as those now before the court.
  14. The sworn statement by Oscar Niva filed on 22 August 2014 ("Niva's 1st sworn statement") shows the following[2]. First, the application by NIDECO to carry out logging in Gasapatu and Lato was made in September 2004. Second, the WPE determination was made in favour of NIDECO in or about December 2004. Third, there was an appeal to the WCLAC by Holmes Saeve and Luxton Zovere against the WPE determination. Fourth, the appeal was dismissed on May 2005 on two grounds, first, that the appellants had no standing to appeal because they did not attend the timber rights hearing and, second, that the WCLAC had no jurisdiction to determine issues of customary land ownership on appeals from timber rights determinations. Fifth, since the dismissal of the appeal in May 2005, NIDECO had done nothing to obtain its licence until June 2014 (a period of 9 years) when NIDECO representatives came to Honiara to see the Commissioner of Forests ("COF") in regards to the 2004 application by NIDECO to log in Gasapatu and Lato.
  15. By then, the Metro Team had already been issued with its licence (on 1 March 2013) to carry out logging in Central Kohingo. The Metro Team landed at Kinda log pond on 11 June 2013[3] and started its logging operations in Central Kohingo. After the landing, the Defendants started to interrupt the logging operations of the Claimants. I am satisfied it is the landing of the Metro Team at Kinda that caused the Defendants to come in June 2014 to consult the COF in regards to their 2004 timber rights application. They have slept on their rights for too long. It is a well established principle that equity cannot assist those who sleep on their rights. I am satisfied the interim orders granted in favour of the Kindu trustees and Metro Team should continue until trial or further order of the court.

CC 283/14.


  1. I now turn to CC 283/14. This proceeding is brought by the Kindu trustees and Metro Team ("Claimants") against Daniel Iabule and others (representing the Saeka Community) as 1st defendants and Edwin Lamana and others (representing Engakuri tribe) as 2nd defendants and Sam Lolo and others (representing the Aqo clan) as 3rd defendants. All these defendants will be referred to collectively as "Defendants" herein. It is clear from the evidence that the Defendants are all supporters of NIDECO and Xiang Lin.
  2. In this proceeding, the Claimants are seeking to restrain the Defendants from interfering with their logging operations in Central Kohingo. They claim that the Defendants have been involved in disturbing their logging activities by burning one of their excavators, erecting road blocks to stop them having access to their concession areas in Central Kohingo and threatening them harm if they continue with their logging activities in Central Kohingo.
  3. On 5 September 2014, I issued interim ex parte orders against the Defendants restraining them from disturbing the Claimants or threatening them in connection with the Claimants' logging operations in Central Kohingo. I issued the restraining orders in the light of the urgency of the matter and on being satisfied that serious issues have been disclosed, that damages will not be an adequate remedy and that the balance of convenience favours the granting of the orders. Inter partes hearing was held on 9 September 2014 at which it was agreed that the orders be extended pending this ruling.
  4. On that date, the application by the 1st and 2nd defendants seeking to restrain the Claimants from carrying out logging operations in Central Kohingo was also heard. The application was filed on 8 September 2014. Mr. Zama of counsel for the 1st and 2nd defendants in CC 283/14 has filed a Certificate of Urgency stating that the application is one of "extreme urgency".
  5. In their submission, the solicitors for the 1st and 2nd defendants, Michael Pitakaka Law Chambers, say that their clients' application is supported by Niva's 1st sworn statement and a further sworn statement by Oscar Niva filed on 8 September 2014 "in respect of this matter" (ie, CC 283/14). I have not been able to locate any sworn statement by Oscar Niva filed on 8 September 2014 in CC 283/14, although there is one by Oscar Niva filed on 8 September 2014 in CC 237/14. I assume that that is the sworn statement referred to by the solicitors. I will refer to that sworn statement as "Niva's 2nd sworn statement".
  6. In his sworn statements, Mr. Niva has put forward a number of reasons in support of their application for restraining orders against Metro Team. Firstly, he says that the NIDECO licence has already covered the areas covered by the Metro Team licence. Second, he says that they have filed an appeal to the WCLAC against the WPE determination in December 2010 granting timber rights to the Kindu trustees and others and that the appeal is still on foot. Third, he says that they have lodged a further referral to the Western Local Court following the decision by the RCC conferring ownership of Central Kohingo to the Kindu tribe. For these reasons, the Defendants argue that their application should be granted to restrain Metro Team from carrying out logging in Central Kohingo pending the hearing of their appeal by the WCLAC and the hearing by the Western Local Court of the referral relating to the ownership of Central Kohingo.
  7. Granting of injunctions are discretionary and the court can refuse to grant injunctions if the circumstances justify their refusal. In this case, unfortunately, I must refuse the application by the 1st and 2nd defendants. The reasons are as follows.
  8. Firstly, the conduct sought to be restrained the application by the 1st and 2nd Defendants have started in June 2013. That is to say, Metro Team had landed at Kinda and had commenced logging activities in Central Kohingo on or about 11 June 2013[4]. The 1st and 2nd Defendants, instead of coming to court to seek the orders they are now seeking, have decided to take matters into their own hands and have continued to block and interrupt the Claimants' logging activities until 8 September 2014 when they finally filed their application for restraining orders against the Metro Team and the Kindu trustees. That is a period of approximately 15 months. It shows that the application is not one of "extreme urgency" as claimed by counsel. I am satisfied the Defendants are guilty of laches.
  9. Secondly, in Civil Case No. 247 of 2013 ("CC 247/13"), the 2nd defendants (Edwin Lamana, Oscar Bizu and Talasi Bisili) had sought similar restraining orders against the Claimants (Kidu trustees and Metro Team) in relation to the same logging operations by the Claimants in Central Kohingo. Restraining orders were granted against the Claimants on 26 January 2014 but were subsequently discharged when the claim was struck out on 2 May 2014 on the ground that it was frivolous and vexatious. I am satisfied the 1st, 2nd and 3rd defendants in this proceeding are related to each other by blood and are therefore stopped from raising the matter again otherwise than on appeal against the judgment in CC 247/13. The parties in this proceeding and in CC 247/13 were the same, the subject matter was the same and the decision was final in that no appeal was filed against the judgment in CC 247/13.
  10. Thirdly, the Defendants have also argued that, apart from their WCLAC appeal, they have lodged a referral to the Local Court (Western) ("Local Court referral") after the RCC decision which awarded the ownership of Central Kohingo to the Kidu representatives on 26 January 2014. They argue that the Local Court referral means that the ownership issue is still a live issue.
  11. Again, in my judgment in CC 247/13, the reason for striking out the claim was that the Defendants have not referred the dispute about the ownership of Central Kohingo to the local court. This was conceded by counsel for the Defendants in that case, Mr. Philip Tegavota, at the hearing on 2 May 2014. The RCC decision was made in January 2014. They had about 4 months before 2 May 2014 within which they could have made the referral to the local court and advise their counsel for the hearing on 2 May 2014. It appears they have lodged the referral with the local court on 1 July 2014[5]. This referral was purportedly made by Oscar Niva who, according to the RCC decision, was a witness called by the Kindu trustees to give evidence on their behalf. I do not think a person who was called to be a witness in a case would have the standing to file an appeal against the judgment in that case. I do not accept the referral lodged by Oscar Niva as sufficient reason to justify granting of restraining orders against the Kindu trustees and the Metro Team.
  12. Unfortunately, the rejection of Oscar Niva's referral does not resolve the matter for there seems to be another local court referral lodged by Edwin Lamana on 9 August 2014. The referrals were of course lodged after the judgment in CC 247/13. The evidence relating to these referrals was not before the court at the time the judgment in CC 247/13 was made. That, however, does not invalidate the judgment in CC 247/13. It is of course evidence which might justify the setting aside of the judgment, but the judgment can only be set aside by way of appeal at which leave should be sought to adduce fresh evidence of the referrals. This has not been done, hence, the judgment in CC 247/13 remains a valid decision. As long as the judgment in CC 247/13 remains valid, no injunction can be granted on the basis of the referrals purported made to the local court as claimed by the Defendants.

Decision and orders.


  1. In the premises, the application by the 1st and 2nd defendants for interim injunction to restrain the logging operations of the Kindu trustees and Metro Team is refused with costs against the Defendants.
  2. The orders in these applications are:-

[1] Until trial or further order, the Kindu trustees and the Metro Team are restrained from carrying logging operations in Gasapatu and Lato being the areas coloured orange as shown in exhibit "PL7" to the sworn statement by Raymond Puluhenue filed on 19 August 2014 in CC 237/14;


[2] Until trial or further order, the 1st and 2nd defendants in CC 237/14, their servants, agents and members of their tribe or clan are restrained from entering and carrying out logging activities in areas in Central Kohingo which are covered under the 2nd claimant's licence (No. A10443); Provided that the proceeds (less 25% export duty and the claimants' certified operating costs) of any logs felled in the Disputed area (coloured pink as shown in exhibit "PL7" to the sworn statement by Raymond Puluhenue filed on 19 August 2014 in CC 237/14) and sold by the claimants shall be paid into a joint trust account to be opened in the names of the solicitors for the claimants and the 1st and 2nd defendants and to remain there until trial or further order;


[4] Order 1 of the interim orders perfected on 5 September 2014 in respect of CC 283/14 shall remain in force until trial or further order;


[5] The application for restraining orders by the 1st and 2nd Defendants in CC 283/14 filed on 8 September 2014 is refused with costs against the 1st and 2nd Defendants;


[6] Costs of the application for restraining orders in CC 277/14 shall be paid by the 1st and 2nd defendants in that case, such costs shall be on standard basis to be taxed if not agreed;


[7] Costs of the applications for restraining orders in CC 237/14 shall be paid by the 1st and 2nd defendants in that case, such costs shall be on standard basis to be taxed if not agreed;


[8] Costs of both the application by the claimants and the application by the 1st and 2nd defendants for restraining orders in CC 283/14 shall be paid by the 1st, 2nd and 3rd defendants in that case, such costs shall be on standard basis to be taxed if not agreed.


THE COURT


J. Apaniai
Puisne Judge

[1] Exhibit “PL7”, sworn statement by Raymond Puluhenue filed on 19 August 2014.
[2] See exhibit “ON1”, sworn statement by Oscar Niva filed 22 August 2014.
[3] See paragraph 8, sworn statement by Raphael Oli filed 28 August 2014.
[4] See sworn statement by Charles Hirold filed 28 August 2014.
[5] See exhibit “ON4”, sworn statement by Oscar Niva filed 8 September 2014.

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