Gazokesa v Orion Ltd [2014] SBHC 17; HCSI-CC 379 of 2011 (3 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

DAVID GAZOKESA , K. TAGIA ALAVAE, G. SAPIKANA, S.SAPA, F. VIVO and J. PITAKAJI (Barokasa Determined Trustees)
1st Claimant

And:

WELMA BRADLEY (as customary replacement Trustee)
2nd Claimant

And:

ORION LIMITED
1st Defendant

And:

ISHMEAL VATOMIKI, M. ROGU, ANDREW MALASA and CHILLION POLOSO (as Barokasa Determined Trustees)
2nd Defendants

Mr. G. Suri for the 1st and 2nd Claimants.
Mr. D. Tigulu for the 1st Defendant.
Mr. A. Rose for the 2nd Defendants.

Date of hearing: 28 February 2014.
Date of Judgment: 3 April 2014.

RULING

Apaniai, PJ:

1. This is an application by the 1st defendant ("Orion") to discharge interlocutory orders granted against it on 2 April 2013. The 2nd defendants support the application.
   
2. The orders require Orion, its directors, servants and agents, including its contractor, not to enter, or carry out, logging or any logging activity in Barokasa customary land ("Barokasa") and to remove their logging machines and equipment from that land within 48 hours of the date of the orders. The orders also require the Managing Director or General Manager of Orion to file a sworn statement setting out the species of logs felled on Barokasa, their quantity, volume, FOB value and date of harvest.
   
3. The application is based on two grounds. The first is that the circumstances under which the orders were granted have changed and therefore the orders should now be discharged. The second is that material facts have not been disclosed when the orders were granted.
   
4. In regards to the first ground, the changes in circumstance are said to be threefold. First, the Barokasa landowners did not authorise Wilma Bradley ("Wilma"), the 2nd claimant herein, to file these proceedings against Orion. Orion has produced a letter dated 17 April 2013 addressed to Wilma, purportedly signed by Mathew Roqu, Ishmael Vatomiki, Samuel Sapa, Chillion Poloso, Andrew Malasa, Jimmy Pitakaji and Chief David Gazokesa, requesting Wilma to discontinue the claim against Orion and to refrain from doing anything or making any arrangement whatsoever on behalf of the Barokasa tribe. They accused Wilma of taking action without the approval of the Barokasa landowners.
   
5. This complaint can be disposed of briefly. Wilma is not the only claimant in this case. She is the 2nd claimant. The 1st claimants are D. Gazokesa, K. Tagia Alavae, I. Vatomiki, G. Sapikana, S. Sapa, F. Vivo and J. Pitakaji. There is no dispute that the 1st claimants are members of the Barokasa tribe and are also among those determined by the Choiseul Provincial Executive as the persons entitled to grant timber rights over Barokasa land ("Trustees"). So, even if Wilma is disqualified from taking action because, as is alleged, she had filed the claim without the approval of the tribe, the 1st claimants can still proceed with the claim. In any event, it is clear from the documents filed in this case that Wilma is not involved in this case as a representative of the tribe. She represents herself as a replacement for her deceased father who was one of the Trustees representing the Barokasa tribe. Furthermore, there is also no dispute that Wilma is a member of the Barokasa tribe. As such, she is entitled to appear as a party in her own right. This ground fails.
   
6. The second change in circumstance is said to be that no meeting was ever held by the Trustees or the landowners to replace any of the Trustees. This appears to be a reference to Wilma's replacement of her father as Trustee. It is alleged that there was no meeting held at Sagigae village on 25 March 2011 which means that no decision was ever made by the Trustees to terminate the logging agreement ("TRA") with Orion and therefore the letter dated 11 January 2010 (purportedly terminating the TRA) was a false document. The implication arising from this assertion is that the TRA was not validly terminated.
   
7. Again, this complaint can be disposed of briefly. The interlocutory orders were granted on the basis that the claimants have shown that there are serious issues to be tried, that the balance of convenience justifies the granting of the orders and that damages will not adequately compensate the claimants for the destruction of their forest and environment[1]. The question whether or not the TRA was validly terminated is an issue for trial. As such, the submission by Orion, relying on the allegations by Jimmy Pitakaji in his statement to the Taro police dated 3 August 2013 to the effect that no meeting was ever held by the Trustees, has no force. This ground also fails.
   
8. The third change in circumstance is said to be contained in a statement by Moses Lolo made to the Taro police on the 5 August 2013. Mr. Lolo is the son of S. Sapa who is one of the Trustees of the Barokasa tribe. In his statement, Mr. Lolo alleged that he represents his father and that his father did not support the actions of the Trustees in taking this action against Orion. He said he is in favour of Orion carrying out logging operations in Barokasa land.
   
9. I do not think this complaint has any merit. I reject it.
   
10. In my judgment, the 1st and 2nd defendants have not made out a sufficient case for discharging the interlocutory orders made on 2 April 2013 on the first ground.
    
11. I now turn to the second ground, which asserts that material facts have not been disclosed by the claimants when the interlocutory orders were granted.
    
12. It is trite law that when making an application for injunctions, in particular ex parte applications, the applicant must 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]. Facts are relevant when there is a clear nexus or connection between those facts and the relief sought in the application.
    
13. The reason for requiring such disclosure is that injunction is an equitable remedy, which is granted at the discretion of the court. To properly exercise that discretion, all relevant facts must be disclosed. The applicant must not withhold relevant facts, nor must he mislead the court either in what he says or in not saying what he was supposed to say to the court[3].
    
14. Where an injunction is granted in the absence of full disclosure, or because the court has been misled by what was said, or was not said, the court will, as a general rule, discharge the injunction. The court will do so because, by suppression of facts or by the misleading statements, the court was presented with a case, which is different from what actually exists[4].
    
15. In the present application, the material facts which are alleged as not having been disclosed are threefold. The first is that the claimants have not disclosed the fact that not all the Trustees have signed the termination letter dated 11 January 2010. The second is that the non-disclosure appears to be deliberate in that the claimants are acting in support of another competing interest. The third is that the 2nd defendants' denial in signing the termination letter is now the subject of police investigation.
    
16. Unfortunately, I do not think I should discharge the orders for those reasons. The question whether all the Trustees have not signed the termination letter dated 11 January 2010 is an issue which is yet to be decided. The time to determine that issue is at the trial stage. At the moment, the allegation that not all trustees have signed the termination letter is a mere assertion. Injunctions cannot be discharged on mere assertions, which are yet to be proved. The same can also be said of the second assertion that the claimants have acted deliberately in not disclosing material facts for the purpose of supporting another competing interest. The third allegation that there is now a police investigation into alleged denial by the 2nd defendants in signing the termination letter is also not a good reason for discharging the orders. If the 2nd defendants' denial of having signed the letter is still under investigation, it means that the matter has not yet been established as a fact. Restraining orders cannot be discharged on mere unsubstantiated allegations.
    
17. It follows therefore that, again, I am not satisfied that the 1st and 2nd defendants have made out a sufficient case for discharging the interlocutory orders on the ground of non-disclosure.
    
18. The orders of the court are:-
    

[1] The application is dismissed.

[2] The 1st and 2nd defendants shall pay the costs of the 1st and 2nd claimants on standard basis to be taxed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] See judgment of Justice Faukona in this case dated 2 April 2013.
^[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] Australian Civil Procedure by Bernard Cairns, 3^rd Edition, 1992, pages 407-408.