Kingsley v MAS Solo Enterprise Ltd [2016] SBHC 97; HCSI-CC 174 of 2016 (30 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 174 of 2016

BETWEEN:
JOHN KINGSLEY
Claimant
(Representing himself and the Taugaba Tribe)

AND:
MAS SOLO ENTERPRISE LIMITED
First Defendant

AND:
ELLIOT HAVILEGU
Second Defendant
(Representing himself and the Posamogo Monica Clan of Mablosi, Isabel Province)

AND:
ATTORNEY-GENERAL
Third Defendant
(Representing the Commissioner of Forests)

Date of Hearing: 13^th May 2016.
Date of Ruling: 30^th June 2016.

Ms. Willy Alice for the Claimant.
Mr. P. Tegavota for the First Defendant.
Mr. R.W. Kingmele for the Second Defendant.
No appearance for the Third Defendant.

KENIAPISIA; PJ:

RULING AFTER INTER-PARTES HEARING

1. This is an inter – partes hearing on an application for interim injunction. The said application filed 22/04/2016, with supporting documents, sought, ex – parte hearing. I, however, insisted on inter – partes’ hearing. In my view it was not urgent.
   
2. First and second defendants had begun logging operations in the Hograno area of Santa Isabel in December, 2015 and January 2016. Both defendants do so under Felling Licence owned by the first defendant – Licence A101174. The said licence was issued in February 2015, after a Form 4 standard logging agreement (“SLA”) was executed between first and second defendants in December, 2014. The SLA says that the land in question is Gonogano land, Block B. The beneficiary tribe is Posamogo Monica clan, represented by trustee Mr. Elliot Havilegu (second defendant). I have a problem with the said SLA. Stamp duty was not paid on the SLA^[1]. This becomes an issue for trial.
   
3. Claimant avers that the landing of machines and logging operations took him by surprise. He says, the last thing he knew about the first defendant’s timber rights application, was, the Isabel Provincial Executive (IPE) had rejected the application in 2012. Rejection was based on the claimant’s objection. The timber rights determination minutes, seemed to confirm this.
   
4. Claimant allege fraud against the first, second and third defendants in relation to the issuing of Felling Licence A101174. And therefore the filing of this claim and the urgent application for interim injunction.
   
5. The purpose of granting interim injunction is to maintain the status quo, pending trial of the main issues in dispute between parties to a proceeding. Status quo means, the position prevailing before the conduct complained of.
   
6. The principles of law that apply when determining whether or not to grant injunctive relief are well established in a number of cases in this Court, based on the well-known English case of American Cyanamid^[2].
   
7. I summarise quickly and remind myself of the principles of law on the grant of interlocutory injunction: serious issues to be tried; that damages are not an adequate remedy; that the balance of convenience favours the granting of interim orders and that the applicant had 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 Serious Issues?

8. Serious issues are to be deduced from the pleadings and the sworn statements (ss) relied on by parties. On perusal of the materials before me, there are indeed serious issues to be tried. The most significant one is the allegation of fraud in relation to second defendant’s use of Civil Case No. 2/2007 – Isabel Customary Lands Appeal Court (“ICLAC, 2007”) to obtain Felling Licence A101174. Claimant alleged that ICLAC, 2007 (dated 8/8/2013) was his tribe’s decision. And that the second defendant had used that decision in a deceitful way to obtain Felling Licence A101174, in a concerted effort with first defendant. It took me a great deal of time to understand the nature of the allegation, because, the materials and counsel’s submissions did not elaborate on this, to show me clearly, what counsel meant by saying the ICLAC, 2007, was the claimant’s tribe’s decision.
   
9. After a lengthy observation, I realise that the ICLAC, 2007 had quashed the 2006 Local Court decision in favour of the claimant. This was the 2006 decision which was pending appeal in the ICLAC by 2012, at time of first defendant’s timber rights hearing, forming the basis for the first defendant’s timber rights hearing rejection by IPE. Other fundamental determinations of the ICLAC, 2007, were: it upheld the Central Hograno chief’s decision of 28/10/1988 (“CH 1988”) and the Maringe High Lands chiefs’ decision of 5/11/1996 (“MHL 1996”).
   
10. Under the MHL 1996, claimant’s tribe and second defendant’s tribe were each awarded portions of land. Claimant’s tribe was awarded the “extended part of land as from Mablosi upstream to Koiremu”, which was described by the chiefs as “...belongs to both Posamogo and Nakmirufunei in which case the Nakmirufunei tribe holds the primary rights of ownership”. The second defendant’s tribe (Posamogo) was awarded ownership over that part from “Engha to Mablosi”.
    
11. By implication, claimant is saying that when second defendant concerted with the first defendant to acquire concession lands under Felling Licence A101174 on Block B, Gonogana land; the concession lands included the claimant’s portion of land covered in the MHL 1996. Was this the case? Is this why claimant is saying Taugaba land is the same land as Block B, Gonogano Land? Is this true/so? These remain issues for trial. These issues aside, the first and second defendants’ timber rights acquisition process appear to be in order; except the SLA.
    

Damages are not an Adequate Remedy?

12. It is clear, claimant and his tribe oppose logging. Claimant made objection at the first defendant’s timber rights hearing in 2012. IPE then rejected the first defendant’s application for timber rights. First and Second defendants (“defendants”) attempts to get the claimant’s tribe on board in 2015 also failed. The claim for fraud appears to have some merit, as discussed in paragraphs 10 and 11 above. If it turns out at trial, that the concession lands under Felling Licence A101174 included the claimant’s tribal lands under the MHL 1996, then the Licence is likely to be illegal. In the case where the SLA is already without a “stamp duty”, the license is likely to be illegal as well, because the license must sit on a valid SLA. In these situations, it is my considered view that damages is not an adequate remedy. Cases decided in this Court have repeatedly maintained that damages is not an adequate remedy for destruction caused to the land and environment – irreparable harm is a factor to consider in granting or not granting injunction. Regarding the claimant’s portion of land under the MHL 1996, I consider there will be irreparable harm caused to the land and its environment. Hence damages will not be an adequate remedy. Interim injunction is therefore justified.
    

Adequacy of Undertaking, Ability of Applicant to pay and does the balance of convenience favour granting of Interim Orders?

13. The applicant has made an undertaking as to damages. My experience is that, without an undertaking, the Court cannot entertain the inter-locutory application. It is almost like a pre-requisite to hearing an inter-locutory application. Unfortunately, I do not think, the applicant has the ability to honour his undertaking. Claimant is employed in Honiara. But to me, claimant is only an individual person. How can he pay compensation to a logging company? Losses caused in logging operations run in thousands, if not millions of dollars. My view is that, claimant cannot honour the undertaking. And so, I must consider other factors in determining whether or not to grant inter-locutory orders. Such other factors include the balance of conveniences: status quo and strength of parties’ case.
    
14. On status quo, the conduct complained of is logging on portions of lands claimant’s tribe assert ownership of, as per the MHL 1996. This is the portion of land claimant want to preserve from logging.
    
15. On strength of parties’ case, I am satisfied that the claimant has a strong case, in regards to allegations of fraud. I repeat and reaffirm paragraphs 10 and 11 above.
    
16. It follows therefore that balance of convenience favours granting of interim injunction over the claimant’s tribe’s portion of lands as per the MHL 1996. The other portions of lands under the same decision that belong to the second defendant’s tribe are exempted. Chiefs and Forestry Division together with parties must do a joint land survey to ascertain the portions of lands in the concession lands under Felling Licence A101174.
    

Other Considerations

17. Before I make the orders, I wish to note for the record that, I did not rely on certain chiefs decisions used by both parties. Firstly, the Central Hograno House of Chiefs’ decision dated 15/12/2015. The decision is being appealed by second defendant. The said decision is not entirely clear to me. It does not appear to be a chief’s hearing between claimant’s tribe and second defendant’s tribe, in regards to Gonogano land, Block B or Taugaba land. I read the decision more than three times, and it appears that it is a communal meeting minutes rather than a chief’s hearing decision.
    
18. Secondly, the CH 1988. I have not seen the full text of the decision. Hence I will not place reliance on that decision.
    
19. The only decisions I placed reliance upon in evidence are the MHL 1996 and the Timber Rights determination minutes. And of course, the most relevant decision is the ICLAC, 2007, which gave “breath of life” into the MHL 1996, which the claimant rely on. Second defendant’s submissions on Res Judicata can be best dealt with in a separate application.
    
20. In all that I say above, the Orders of the Court are:
    
    • 20.1 Defendants, their servants, contractors, agents, invitees and employees are restraint from conducting all logging activities on the land described as the “extended part of land as from Mablosi stream to Koiremu”, as per the MHL 1996.
      
    • 20.2 Defendants may confine their logging activities on the land described as from “Engha to Mablosi”, in the MHL 1996.
      
    • 20.3 Chiefs, Forestry Division and parties to carry out a joint ground survey to determine if the portion of land mentioned in Order 20.1 is located inside the concession lands covered under felling licence A101174.
      
    • 20.4 Defendants shall not intimidate/harass the claimant’s tribe and its people inside the portion of land described in Order 20.1.
      
    • 20.5 Defendants to account to the claimant in respect of volume of logs exported from Block B, Gonogano land, and to pay proceeds into a joint trust account in the names of the solicitors.
      
    • 20.6 Parties meet their own costs.
      

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See Exhibit MMI of sworn statement by Matai filed 12/5/16 for SLA copy.
^[2] American Cyanamid Company –v- Ethicon (1975) All ER 396 UK.