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Laise v Kajapala [2023] SBHC 128; HCSI-CC 527 of 2023 (29 November 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Laise v Kajapala


Citation:


Date of decision:
29 November 2023


Parties:
Chief Russel Laise, Kubokale Sarapaito Tribe Association Trust Board (Incorporated) KSTATB (I) Incorporated v Jeffery Kajapala, shalom Limited, Attorney General


Date of hearing:
23 November 2023


Court file number(s):
527 of 2023


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Aulanga; Commissioner


On appeal from:


Order:
Consequently, the application to maintain the interim orders issued by the Court on 3rd November 2023 must be dismissed forthwith
Cost of this proceeding is to be paid by the Claimants on standard basis.


Representation:
Mr J Duddley for the First and Second Claimants
Ms S A Kilua for the First and Second Defendants
No Appearance for the Third Defendant


Catchwords:



Words and phrases:


Legislation cited:
Forest Resources and Timber Utilization Act [cap 40] S 10
Solomon Islands Courts (Civil Procedure) Rule 2007, r9.75 (a)-(c)


Cases cited:
American CYANMID V Ethicon [1975] UKHL 1; [1975] AC 396, Solomon Islands Resources Co. Ltd v Cotez [2020] SBHC 131

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 527 of 2023


BETWEEN


CHIEF RUSSEL LAISE
(Representing Timber Right Grantor of Kubokale Sarapaito Customary Land)
First Claimants


AND:


KUBOKALE SARAPAITO TRIBE ASSOCIATION TRUST BOARD (INCORPORATED) KSTATB (I) Incorporated
Second Claimant


AND:


JEFFERY KAJAPALA
First Defendant


AND:


SHALOM LIMITED
Second Defendant


AND:


ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Third Defendant


Date of Hearing: 23 November 2023
Date of Ruling: 29 November 2023


Mr J Duddley for the First and Second Claimants
Ms S A Kilua for the First and Second Defendants
No Appearance for the Third Defendant

RULING

  1. Two applications for me to consider. One for inter parte and the other, is to set aside the interim injunctive orders issued by the Court on 3rd November 2023. I think the issue arising from both applications is rather straightforward and that is, whether or not the interim orders should be maintained.
  2. Following the filing of Claim in Category A on 24th October 2023, the First and Second Claimants applied and successfully obtained interim injunctive orders against the First and Second Defendants in the following terms:
  3. The application resulting in the granting of the orders were considered on papers ex parte and were supported by the sworn statement of Lonsdale Lungana and certificate of urgency, all filed on 3 November 2023. The orders were issued primarily to maintain the status quo of the matter and to expediate or speed up the matter for trial.
  4. Upon service of the orders, the First and Second Defendants were concern with the actions of the First and Second Claimants and so they filed an application on 16th November 2023 to set aside the orders, if not, for variation. It is not clear the terms of the proposed variation of the orders sought by the Defendants. This set aside application was supported by these documents: a sworn statement of Jimmy Lekalalu, certificate of urgency and undertaking as to damages, all documents filed on 16th November 2023.
  5. The First Claimant is from Kubokale tribe while the First Defendant is from Kurikuri tribe, both from Vella La Vella in the Western Province. They both involved in logging operations with different contractors of their choice in their respective customary land in Vella La Vella in concession areas allotted to them following completion of the timber right process and appeals arising from it under section 10 of the Forest Resources and Timber Utilization Act [Cap 40].
  6. The Second Claimant is an entity established by the First Claimant. The Second Defendant is contracted by the First Defendant to do logging operations inside the concession areas accorded to the First Defendant in Vella La Vella. The Third Defendant is the Commissioner of Forest and is a party to this proceeding for any consequential reliefs.
  7. The land boundaries demarcating Kubokale and Kurikuri land has been clearly defined and demarcated in the Chiefs Memorandum of Agreement of 1993 (“1993 Chiefs MOA”) referred to “LL1” in Lonsdale Lungana’s Sworn Statement[1], supportive of the application for the interim injunctive orders. A map verifying this 1993 Chief’s demarcation showed 8 blocks of land. From the map, Block 2 was owned by the Claimants. The Claimants and the Defendants land was separated by Mumea River shown and clearly marked in yellow marker in a map exhibited “JL6”[2] by the Defendants. This boundary was also affirmed by a Customary Land Appeal Court Case No. 3 of 2016 of the Western Province (“WCLAC No. 3/2016”), stating that the land on the left side of the Mumea River was owned by the Defendants. This is the decision that authorises the Defendants to have the grant of timber right concession areas inside the demarcated area.
  8. The Defendants do not have any ownership or even logging rights to the land on the right side of the Mumea River. The concession areas under Felling License No. A.101942 of the Defendants are on the left side of this river while the concession areas of the Claimants under their Felling License No. 102012 are on the right side of this river. These concession areas aligned well with the 1993 Chiefs MOA demarcation and the decision of the WCLAC No. 3/2016.
  9. It is to be noted that the parties herein also have a pending Court of Appeal matter in SICOA CC No. 21 of 2023, arising from a High Court decision in High Court Civil Case No. 439 of 2020 regarding a dispute over two blocks of concession areas described as “Block 3 and 4” in the same Sarapaito land. The appealed High Court matter found in favour of the Defendants herein by a decision striking out the Claimants’ case.
  10. For this present proceeding, the alleged trespassed by the Defendants through the logging operation that resulted in the granting of the interlocutory orders was said to have occurred inside one of the blocks described as “Block 2”, a portion of concession area under the licence No. 102012 of the Claimants. That is the only block of land the subject matter to this proceeding.
  11. The Claimants urged the Court to maintain the interim orders until full trial based on the established legal principles in American Cyanamid v Ethicon[3]. The Claimants averred that they have satisfied those requirements by relying on the evidence in the two sworn statements of Lonsdale Lungana[4]. Photographs, maps and other explanatory notes of the alleged trespass were annexed as “LL2” in Lungana’s sworn statement[5], as the basis to have the orders persist or continue until trial.
  12. The Defendants did not dispute that Block 2 is under the concession area of the Claimants. They conceded that Block 2 was inside Kubokale land of the Claimants and therefore, they do not have any logging right to enter into that concession area. They further stated that they have these approved Harvesting Coupe Plans described in initials as “C-02, C-03, C-04, C-17, C-18 and C-19”, all situated along the left side of the Mumea River.
  13. Essentially, the Defendants’ main argument for setting aside the orders is that they did not trespass or illegally carry out logging operations inside Block 2. Block 2 has been a concession area of the Claimants because it was on the right side of Mumea River. They understood well their concession areas and their boundaries and the need not to encroach into the Claimants’ concession areas during their logging operation. The boundary demarcation between them has been defined by the Malean House of Chiefs 1993 MOA and more recently by the WCLAC No. 3/2016 that awarded ownership of the area situated on the left side of the Mumea River to the Defendants. Therefore, as said by the Defendants, that it is absurd for the Claimants to commence a proceeding seeking to challenge ownership over a portion of concession area that they (Defendants) have no interest or rights over and further, an area that was never been trespassed into by the Defendants. This, according to the Defendants, raises no serious issue for trial. The balance of convenience does not favour the granting of the orders and that there is no irreparable harm that cannot be adequately compensated by damage since both parties have involved in logging operations and that disputed area subject to this proceeding has been designated for logging operation as well. Viewed on these grounds, the interim orders should be discharged and or set aside.

Decision

  1. For this proceeding, I take cognisance that the purpose for granting the interim orders by the Court is to preserve the status quo of the matter and to expedite the matter for trial. I understand that it can be refused if it does not raise any serious or bonafide issue for trial.
  2. Now the Defendants have applied to set aside the orders on the grounds earlier alluded to while the Claimants preferred to have the orders continuing until the hearing of the substantive matter. The purpose of this hearing is whether or not to maintain the interim orders as echoed in a number of cases and one such is in Solomon Islands Resources Co. Ltd v Cotez[6].
  3. There is no dispute regarding the ownership of Block 2 but only the alleged trespass or illegal logging operations conducted by the Defendants inside that area. The Defendants had conceded that the disputed area was rightfully owned by the Claimants. Their main argument was that they did not trespass in that Block 2 and that all along, they had been confining their logging operations inside their own concession areas on the left side of the Mumea River.
  4. In light of these divergent views, the Court now considers these against the principles enunciated from the American Cyanamid v Ethicon[7]. They are; (a) there is a serious question to be tried; (b) damages would not be an adequate remedy; (c) the injunction must satisfy the balance of convenience; and (d) the applicant provides undertaking as to damages. It must be understood that the granting of the orders is discretionary on the Court and it must be done on a proper legal basis.
  5. It is important to note that the applicant must disclose sufficient materials for the Court to make a finding and grant the interlocutory orders sought for based on the principles of American Cyanamid case. Apart from the other factors alluded to above in the American Cyanamid, the serious issue that needs to be tried is one that has a prospect of success and not mere speculation.
  6. For this case, after carefully considering the materials and submissions by both parties, I will allow the application to set aside the interim orders. I do so on the following basis.
  7. Firstly, there is absolutely no dispute as to the ownership and logging rights of the disputed area or Block 2. As there was no dispute as to the Claimant’s ownership of Block 2, it was a foregone conclusion that the Claimants had the exclusive right of access and use of that land for its logging operations. Therefore, there was no real controversy as to the title of that land and the right of logging operations between the parties inside the Block 2. I do not have any evidence about any ownership dispute over this piece of land that is still pending before the lower courts so that I would hold that the ownership of this land is still in dispute and where necessary, this Court would aid the lower courts by way of issuing injunctive orders to enable them to carry out their statutory functions. The Claimants primary concern was to protect their proprietary rights over the trees inside their concession areas in terms of the physical and monetary loss of the tress reserved for the logging operations under its felling licence. Hence, an action for trespass would be an appropriate cause of action where damages would be an appropriate and adequate remedy, and injunction would be avail of by the Claimants if the wrongful acts persisted. The pleadings and the materials have not sufficiently disclosed these to ensure the survival and continuity of the orders. Premised on this finding, the Claimants do not disclose any serious or bonafide issue for trial. I will touch on the lack of pleadings to establish this cause of action later on.
  8. Secondly, the Claimants did not provide sufficient material evidence to show that the alleged logging operations had trespassed or encroached into the right side of the Mumea River or into Block 2. Take note that the land boundary as held by the 1993 Chiefs MOA and by the WCLAC No. 3/2016 between the Claimants and the Defendants is well demarcated or separated by the Mumea River. There were photographs taken exhibited in “LL2”[8] with alleged GPS findings made by person not from the Ministry of Forestry or Environment. However, there was no explanations on whether the trespass had occurred on the right side of the Mumea River. This omission leaves the Court with grave uncertainty. The Claimants need to be specific on this because it will justify the need to have the interim injunction subsisting awaiting trial to prevent further trespass and damage inside the disputed area. Again, there is no serious issue for trial raised by the Claimants to warrant the continuity of the orders.
  9. Thirdly, it appears that there was a pending Court of Appeal matter No. CAC 21 of 2023 and a High Court Case No. 346 of 2023 that involved the disputes of the logging operations between the same parties herein over certain blocks under the Felling Licence No. A101942 of the Defendants in the same greater Sarapaito land. The outcome of these two cases is still pending. It is my view that the circumstances of those cases are similar to this present case as it involves the current logging operations and could potentially have an impact to this present matter. The Claimants’ counsel submitted in Court that the Court of Appeal matter involves Block 3 and 4. It is unknown which block the subject of the High Court Case No. 346 of 2023. On the map in exhibit “LL1”[9] these two blocks (Block 3 and 4) are adjacent or next to the disputed area or Block 2. It is important to note that since the dispute involving the logging operations of the parties herein is still pending at the Court of Appeal, the pending decision of the Court of Appeal is intended for all purposes regarding the current dispute of the logging operations between the parties herein. Hence, by filing of this matter, it has the potential to duplicate the proceedings and issues (direct and anticipatory) arising from the current logging operations that are still pending determination before the Courts. This in itself is tantamount to an abuse of the Court’s process which is a ground for dismissal of the proceeding.
  10. Finally, it seems that there was an overlap of the concession areas of the two licenses (FL No. A.101942 of the Defendants and FL No. 102012 of the Claimants) in the disputed area, purportedly caused by the error of the Commissioner of Forest, being the Third Defendant. This was raised at page 4 of the Claimants’ written submission[10] where some of the concession areas of the Claimants were inside the concession area of the Defendants. The Claimants submitted that the Third Defendant needs to amend the two licenses concession areas to avoid the overlap. However, this was not sufficiently pleaded in the claim to ascertain the cause of action against the Third Defendant. As such, I do not see any reason why the First and Second Defendants should be restrained from the logging operations in concession areas legally accorded to them following the due timber right process under the Forest Resources and Timber Utilisation Act. If the error is on the Third Defendant then it will be unfair for the First and Second Defendants to be held responsible or be victimised for actions not attributed to them. Again, even if there was an error by the Third Defendant, unfortunately, the pleadings did not sufficiently disclose the cause of action against the Third Defendant to warrant the issuing and continuity of the orders.
  11. Based on those reasons, it is my view that the materials relied on by the Claimants did not disclose any serious or bonafide issue for trial. I am not satisfied that any irreparable harm that would not be adequately compensated by damage has been established. Further, I am not satisfied based on close perusal of the materials that the balance of convenience favoured the grant of the orders.
  12. Consequently, the application to maintain the interim orders issued by the Court on 3rd November 2023 must be dismissed forthwith. On the converse, the Defendants’ application to set aside those orders is granted and so the orders must be entirely set aside accordingly. In light of the reasons reached for the setting aside of the orders and having settled on the view in so far as it relates to the pleadings of this case against the Defendants and the potential duplicity of proceeding in the light of the pending Court of Appeal matter No. CAC 21 of 2023 which is intended for all purposes regarding the dispute of the current logging operations between the parties herein, it is my view, that this proceeding should be entirely dismissed by the Court’s own motion pursuant to Rule 9.75 (a) - (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
  13. Cost of this proceeding is to be paid by the Claimants on standard basis.

THE COURT
Commissioner Augustine Sylver Aulanga
Commissioner of the High Court of Solomon Islands

[1] Filed on 24/10/2023.
[2] Sworn statement of Jimmy Lekelalu filed on 16/11/2023.
[3] [1975] AC 396.
[4] Respectively filed on 24/10/2023 and 23/11/2023.
[5] Filed on 23/11/2023.
[6] [2020] SBHC 131.
[7] See fn 3 above.
[8] Further sworn statement of Lonsdale Lungana filed on 23/11/2023.
[9] Sworn Statement of Lonsdale Lungana filed on 24/10/2023.
[10] Filed on 23/11/2023.

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