Ratusia v Attorney General [2016] SBHC 180; HCSI-CC 457 of 2015 (14 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 457 of 2015

BETWEEN: PETER LOLO RATUSIA - Claimant
(Representing himself and members of Rodo
Tribe of Vangunu Island, Western Province)

AND: ATTORNEY-GENERAL - First Defendant
(Representing the Commissioner of Forest)

AND: SIKABOKO ENTERPRISES LIMITED - Second Defendant

AND: BURNLEY KIMITORA - Third Defendant

Date of Hearing: 3^rd October 2016.
Date of Ruling: 14^th October 2016.

Mr. M. Pitakaka for the Claimant.
First Defendant Excused from hearing.
Mr. D. Marahare for the Second and Third Defendants.

KENIAPISIA; PJ:

RULING

Introduction

1. Court granted interim injunction orders; ex – parte on 6/10/2015. At time of grant of the ex – parte orders, there was no claim on foot. The Ex – parte Inter-locutory Orders (“ex – parte orders”) were granted on the basis of an urgent ex – parte application filed 8/9/2015, with a certificate of urgency and a sworn statement (“ss”) by Ratusia (Claimant), before a claim has started. This is permissible under Rule 7.9. Court can also issue injunction in judicial review claims under Rule 15.3.5.
   
2. Court granted the ex-parte orders perfected on 6/10/2015. The said orders required the claimant to file a claim by 15/10/2015. Claim was filed late on 2/11/2015. First defendant has already filed a defence on 18/3/2016. One of the orders required the Registrar to list an Inter-parte hearing as soon as possible. That did not happen. Inter – parte hearing is now taking place about one year later (on 3/10/16).
   
3. The reason for this long delay is not known but at end of 2015, it is public knowledge, that listing of cases was problematic due to lack of Judges on the High Court bench.
   
4. On taking over the file, I listed an Inter –partes hearing on 1/12/2015. Parties were not ready and asked for adjournment. Mention again on 10/12/2015 and still parties needed more time to prepare for inter – partes. Adjourn matter to 18/2/2016. Parties were not ready for Inter – partes hearing until today. Most recently, when Court checked to list inter – partes, Counsel Marahare was away overseas on national duties with the National Under-20 Soccer Team. These should explain the long delay in conducting an Inter – partes hearing.
   

Non-Compliance with Directions of the Court

5. First thing Court will deal with is the non-compliance with the ex-parte orders. On the part of the Court, the delay in listing an Inter – partes hearing is explained in paragraph 4 above.
   
6. On the part of the claimant, the claim was filed out of time in breach of Order 8 of the Ex – parte Orders. There was a delay of about two weeks. Failure to comply with a direction of the Court is an irregularity and does not make a proceeding, a document, step taken or made in a proceeding a nullity.^[1] Rule 1.17 talked about what to do when there is a failure to comply with directions of the Court. Court may declare a document or step taken to be effectual. Claimant did not explain late filing, but only say late filing does not prejudice the first and second defendants (“defendants”). Court is of the view that late filing of a claim by 2 weeks is only an irregularity and does not make the filing of the claim a nullity. Defendants were already put on notice of the claim from the Ex – parte Order and Court documents used to obtain the ex – parte Orders. Two weeks late is not too unreasonable and Counsels can appreciate this.
   

Leave to File Judicial Review Claim Out of Time

7. Second thing is “Leave” to file judicial review claim out of time. Judicial review claim must be filed in 6 months of the administrative decision complained of.^[2] This judicial review claim is seeking the relief of quashing order, against the licence issued by first defendant to second defendant. The Felling Licence was issued on or around 5^th March 2015. Urgent application for inter –locutory orders was filed before a claim on 8/9/2015. By 5^th September 2015, the 6 months period has lapsed. Only 3 days later, claimant took action to challenge the licence. In other words, claimant was 3 days late. Is 3 days late unreasonable? Was the claimant guilty of sitting on his rights (lashes)? Court is of the view that 3 days late is not unreasonable delay considering that the Licence challenged and other documents pertaining to the licence are not readily available to the claimant. Claimant deposed to how difficult he attempted to obtain knowledge about second defendant’s timber rights acquisition process. Court is satisfied that substantial justice required that time must be extended and therefore leave is granted to file this claim out of time. Court make this order also noting that the claim raises serious issues regarding the way second defendant went about obtaining the Felling Licence from the first defendant.
   
8. Claimant is not guilty of lashes. Case authorities cited by defendants on lashes showed that parties were guilty of lashes because they waited for about 10 years before asserting their rights in the Court (Civil Cases: 237/14; 283/14 and 277/14). Claimant in here was late by 3 days only. A very reasonable lateness.
   
9. A Claim is now on foot. The claim raises serious issues (repeat & reaffirm paragraph 7). At time Faukona J made the Ex – parte Orders, he was satisfied on the facts before him and therefore granted injunction. With a claim now on foot, it is quite apparent to grant leave to file claim out of time, in the interest of substantial justice, because serious issues are raised in regards to the license.
   

Setting Aside and Issues

10. Court will now deal with application to set aside Ex –parte Orders filed by defendants on 25/11/2015. The issue is whether the ex – parte orders should be set aside or should the orders be continued/maintained or discharged. Claimant argued to maintain the Ex – parte Orders. Defendants argued to discharge or set aside.
    

Legal Principles governing the Grant of Inter - Locutory Orders

11. The purpose of granting Inter-locutury Orders (Interim Injunctions) is to maintain the status quo, pending trial of the main issues in dispute between parties to the proceeding. Status quo means the position prevailing before the conduct complained of.^[3]
    
12. The principles of law that apply when determining whether or not to grant injunctive relief are settled in a number of cases in this Court based on the well-known English case of American Cyanamid^[4].
    
13. I summarise quickly the principles which I comfortably refer to as the fundamental legal requirements for the grant of inter – locutory injunctions: serious issues to be tried; damages will not be an adequate remedy; balance of convenience favours the granting of interim orders and applicant has given the usual undertaking as to damages. Other associated principles are: locus standi; irreparable harm; status quo and strength of the parties’ case.
    

Is there Triable/Serious Issues?

14. I should remind myself that at this stage, Court is not obliged to go into the substantive rights of the parties and the related substantive legal issues. That will be an exercise best left for trial. For the present purpose what must be ascertained is the question of whether on the evidence and the material before the Court, the interim Orders should be set aside or not.^[5]
    
15. In cases where interim injunctions have already been granted Ex – parte; the Court must assume that the usual conditions for the granting of interim injunctions were satisfied. As such to discharge the interim injunctions, the burden is on the applicant to satisfy the Court that none of the conditions for granting the injunctions existed or that the injunctions were obtained on misleading and untrue facts^[6]. Applied to this case, for the defendants, to discharge the ex – parte orders, they must demonstrate that if the test for inter-locutory injunction is applied, it would not be appropriate to maintain the interim injunction.
    
16. Serious issues can be deduced from pleadings and ss filed in the proceeding. Claimant filed a judicial review claim. Court also read all ss and court documents relied on by parties. Court can say that there are serious issues to be tried, emanating from the mentioned court documents. Both Counsel do agree that there are triable issues. Court should summarise briefly the triable issues:
    

16.1 Whether or not felling licence A101455, issued to second defendant, was obtained lawfully according to the statutory requirements, as per the Forest, Timber Utilization Act (Cap 40), as amended.

16.2 If you break up issue 16.1, further broad issues regarding the validity of the second defendant’s licence will come to surface. Further broad issues will include: lack of consent for second defendant to log on Vakabo land; validity of Form I Application; No Public Notice; No public Timber Rights Hearing conducted; Validity of the Standard Logging Agreement (fraud allegation) and denial of right to be heard.

16.3 Issue of transfer of Omex Holdings Limited timber rights application to Sikaboko.

17. Court is satisfied that the foregoing issues are among the serious issues that have surfaced at this stage of the proceeding. Indeed, there are serious issues to be tried.
    

Damages as Adequate Remedy

18. Cases decided in this Court have repeatedly maintained that damages is not an adequate compensation for destruction caused to the land and environment – irreparable harm is a factor to consider in granting or not granting injunction. Destruction to the environment is not relevant to consider here because both parties are in favour of logging. The only concern is which contractor to engage (second defendant or Omex Holdings Limited). Claimant is not concerned with protecting the land from logging.
    

Adequacy of Undertaking, Ability of the Applicant to pay and Balance of Convenience

19. The Ex – parte Order exempted claimant from filing an undertaking as to damages. Claimant says his tribe has given consent to Omex Holdings Limited (“Omex”) to log Vakabo land. Claimant is in effect saying Omex is his tribe’s partner investor. In this instance, claimant is not the helpless village farmer fronting up against the might of logging companies, which should in exceptional circumstances, attract exemption from damages. Court is satisfied that from claimant’s partnership with Omex, claimant does have the ability to meet damages. Accordingly, claimant will have to file undertaking as to damages.
    
20. The balance of convenience favours maintaining of the ex-parte orders, for it will do good than harm to do so. It is apparent that this is a case of a tribe divided between two contractors. Which contractor should partner with the tribe in the harvest and utilization of their forest resources? The tribe must first set its house in order.
    
21. Not only that, but this is case where the Licence is tainted with serious allegations of non-adherence to the statutory prescriptions for grant of felling licence. This Court as a custodian of the law must not allow statutory processes and procedures to be side stepped. This Court must not be seen to be aiding those who choose not to follow the law. Whether or not the defendants have not followed the law, is a matter for trial. It does more good than harm to halt logging whilst these serious allegations are investigated at trial.
    

Claimant’s Non-Disclosure upon Obtaining Injunction

22. On failure to disclose, the law requires that the applicant at ex – parte hearing has to disclose facts and documents that have a clear connection with the relief sought in the ex – parte application. The law is as discussed in Pentani –v- Attorney-General, by Apaniai J:
    

“The facts which needs to be disclosed at an ex –parte application are those that have a clear connection with the relief in the application. Likewise, the documents which need to be disclosed on such applications are those that contained those kinds of facts. The applicant need not disclosed 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.

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 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 withheld the facts or the documents from the Court”.^[7]

23. At the ex – parte application, claimant (applicant) was seeking the relief of injunction against second defendant’s felling license, pending the judicial review of the second defendant’s felling licence. Claimant was saying that his tribe had a partnership with Omex and Omex had already initiated timber rights acquisition. And that the defendants have hijacked that process initiated by the tribe and Omex, when they transferred Omex application to the second defendant. Claimant further alleges that the second defendant’s licence was obtained contrary to what the statutory prescriptions are in the relevant Forestry Statute.
    
24. Court is satisfied that claimant/applicant has disclosed facts and documents necessary and relevant to the reliefs he sought at the ex – parte application. The documents or facts subsequently disclosed by the defendants further supported the facts alleged by the applicant. Take for example, the Timber Rights determination by Western Provincial Executive shows that there was a change of name from Omex to Sikaboko. This is likely to support claimant’s allegation that defendants have hijacked the Timber Rights acquisition initially commenced by the claimant’s tribe in partnership with Omex.
    
25. Court took time to read the ss claimant used at ex – parte application. Court is satisfied that claimant had disclosed fully the facts and documents connected and relevant to the reliefs he was seeking. These include documents pertaining to Omex Timber Rights application, Minutes of Western Provincial Executive determination, Appeal to CLAC Western, Deed of Settlement, Forgery Letter, Standard Logging Agreement etc. The ss used is a very thick document disclosing 28 exhibits with 48 paragraphs.
    
26. What more did the claimant failed to disclose? Defendants failed to satisfy the Court that claimant had deliberately conceal relevant facts and documents at ex – parte hearing. Defendants tried to say claimant misled the Court in saying he was chief of Rodo tribe; that claimant had no standing to raise issues on behalf of Omex and the claimant misled Court when he say he had no knowledge of second defendant’s operation covering Vakabo land, when he was a party to the second defendant’s Standard Logging Agreement. These remain issues to determine at trial and not facts that claimant had intended to hide from the Court. Even if the Court was aware of these facts, it would matter little, when serious issues (including fraud) were raised on the manner second defendant went about the statutory prescriptions to obtain its felling licence.
    
27. In other words, the case claimant presented at ex – parte application was relatively strong on the facts and documents. And if the materials should remain the same at trial, claimant is likely to succeed. Injunctions should have been granted on this ground, because the balance of convenience would have tilted in favour of a convincing case by the applicant. And that the status quo must be maintained through injunction, whilst the strong case is investigated thoroughly at trial.

Locus Standi

28. The issue of standing can be briefly dealt with. Claimant and third defendant are both from Rodo tribe, the materials have shown. Claimant therefore has sufficient interest to bring proceedings on matters affecting that tribe. Whether he must become a chief to be able to do that, is a matter to investigate properly at trial or through an appropriate application filed.

Other Considerations and Conclusions

29. Court is of the view that the injunction orders should continue, with further orders that no logging is to take place on Vakabo land either by claimant’s preferred contractor or third defendant’s preferred contractor. The more I read the materials, the more issues continue to surface. The more I read the materials, the stronger the case is for sustaining the injunction orders (balance of convenience favours maintaining). The more I read the materials, the more I tend to think, a lot of issues raised are matters to resolve at the internal tribe level, before any logging can take place – tribe to endorse trustees, chieftaincy, tribe’s commitment to different investors etc.
    
30. Court should also order that Omex be made the second claimant. From materials filed, it is apparent that Omex must be made a party, so that the Court can make a decision fairly and effectively in this proceeding. Furthermore, it is apparent that Omex will be affected by this proceeding. Accordingly, Court is of the considered view that Omex be added as a party under Rules 3.5 and 3.6.
    
31. Orders of the Court are:
    

31.1 Ex – parte Orders 1, 2, 3, 5, 6 and 9 to continue until trial or further orders.

31.2 Claimant shall file an undertaking as to damages.

31.3 Claimant’s preferred contractor, nor third defendant’s preferred contractor is allowed to carry out logging activities on Vakabo Land till trial or further orders.

31.4 Claimant has standing to prosecute this claim.

31.5 Grant leave and extend time for claimant to file this judicial review claim out of time.

31.6 The claim filed on 2/11/2015 is hereby declared effectual.

31.7 Omex - claimant’s tribe’s partner investor is made second claimant.

31.8 Claimant to amend the claim and serve the amended claim on all defendants.

31.9 All consequential amendments to pleadings shall be concluded.

31.10 Parties to prepare for Chapter 15 conference to be called after pleadings and ss are filed.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Rule 1.16 of the Solomon Islands Courts Civil Procedure Rules 2007.

^[2] Rule 15.3.8.

^[3] John Leeghomo –v- James Rizu & Ors – CC 315/2014.
^[4] American Cyanamid Company –v- Ethican (1975) ALL ER 396 UK.

^[5] Alamu –v- Ziru (1996) SBHC 83, HCSI – CC 103 of 1996 (26^th April 1996).
^[6] CTP International (Solomon Islands ) Company Ltd –v- Ghiro (2014) SBHC 66; HCSI – cc 33 of 2014 (10^th June 2014).
^[7] (2015) SBHC 130, HCSI-CC 433 of 2013 (1^st October 2014), at paragraph 26 & 27.