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Kula Oil Palm Ltd v Tieba [2021] PGNC 611; N9559 (16 August 2021)


N9559

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS No. 405 OF 2020


KULA OIL PALM LIMITED
Plaintiff


AND
BRIAN TIEBA TANIA TIEBA AND AMOS TIEBA
First Defendant


AND
POPONDETTA INSTITUTE OF HIGHER EDUCATION
Second Defendant


Popondetta: Kandakasi DCJ,
2020: 13th, 16th August


CLIMATE CHANGE – greenhouse gas emissions – contributing factors - only point of focus, discussion and action required – mitigation and adaptation – impact of human activity oil palm industry – nature of - taking judicial notice of – deforestation – 20% contribution globally to greenhouse gas emissions - Roundtable Sustainable Palm Oil (RSPO) – buffer zone within plantation for flora and fauna – priceless and irreplaceable asset – need to protect - courts or the judiciaries duties – readily grant orders enforcing the global resolve for climate change mitigation and adaptation on prima facie case of adverse human activity – onus on defendant to establish to the court’s satisfaction its alleged activity not producing any greenhouse emissions or any produced is within acceptable limits - application aimed at preserving and preventing further destruction of large scale commercial plantations buffer zones for native flora and fauna – action by squatter and or trespasser – damage to local flora and fauna and environmental damage and harm irreparable - injunction granted.


INJUNCTION – principles governing – evidence establishing all factors being met – climate change mitigation and adaptation – courts or the judiciary’s duty – ready grant of injunctive orders to enforce climate change measures or mitigation and adaptation – onus on defendant to prove no greenhouse gas emissions or emissions within acceptable levels – courts duty includes power to order remedial action – defiance by defendants of
repeat requests to stop their activities - defendants making claims without evidence – claims found against defendants – interim injunction with costs granted against the defendants.


Facts


The plaintiff Kula Oil Palm Limited (KOPL) is a participant in the palm oil industry and a member of the Roundtable on Sustainable Palm Oil (RSPO). It has a large palm oil plantation in the Oro Province under a State Lease restricted for agricultural purpose only (the Land). Within the Land, KOPL had buffer zones for native flora and fauna, as climate change mitigation and adaptation requirements to be meet by members of the RSPO. As a member of the RSPO it is required to maintain such buffer zones within its plantation and get certified each year upon independent inspection. The defendants trespassed into the Land and in particular, the buffer zone, cleared part of the buffer zone, chopped down and milled trees and built houses and other structures including a college despite KOPL’s repeated protests, demands and or requests for the defendants to stop doing so. The defendants claim the Land was customary land, they bought the land from its customary owners and entered the Land with the customary owners’ consent and approval, subsequently affirmed by a preventive order from a village court. They thus claim they are entitled to be on the land and carry out their activities.


Held:


  1. The grant of an injunctive relief is an equitable remedy, which is a discretionary matter for the Court that can be granted upon the court being satisfied that there is a serious question to be determined or an arguable case is presented in the substantive proceedings, the balance of convenience favours a grant or continuity of such a relief to maintain the status quo, damages will not be an adequate remedy and an undertaken is given for any damages that may be occasioned by such a relief.
  2. Notwithstanding KOPL’s title and its conditions as to the use of the Land, there was a dispute on the ownership of the Land which presents a serious question to be determined or a stronger arguable case in favour of KOPL.
  3. Given the risks of climate change and greenhouse effect, the courts and judiciaries domestically and globally have a duty to readily grant such orders and reliefs as a necessary for enforcement and ensuring of compliance of the twin climate change related response of mitigation and adaptation for the protection of the domestic and global environment and to either prevent or slow the down the effect of climate change.
  4. KOPL’s buffer zone was a critical asset as an appropriate climate change related mitigation and adaptation program that must be maintained and protected by all. Damages already done to the buffer zone and further clearance, chopping down, and milling of trees, building houses and other structures come with the risk of more human activity in the buffer zone that presents irreparable harm and damage to the buffer zone, the environment, emission of greenhouse gas and irreparable harm and damage to KOPL’s domestic and international standing as palm oil industry participant and member of the RSPO.
  5. The likely irreparable damages and the need to enforce climate change related mitigation and adaptation programs or efforts warranted a grant of injunction to maintain the current status quo and thereby prevent further harm and damages.
  6. The undertaking filed in support by KOPL was in both the correct form and was from the party who has the means to meet any claim for damages that might arise as a result of the injunction.
  7. For these reasons, the application for interim injunctive orders was granted.

Cases Cited:


Joshua Kalinoe v. Paul Paraka; Hon Bire Kimisopa v Paul Paraka (2014) SC1366
Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation) (2002) N2309
Chief Collector of Taxes v. Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853
Behrouz Boochani v. The State (2017) SC1566
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Morua & Ors v. China Harbour Engineering Co (PNG) Ltd & Ors (2020) N8188


Counsel:


Mr. N. Asimba, for the Plaintiff

Mr. B. Tieba, for the Defendants


16th August, 2021


  1. KANDAKASI DCJ: This case represents one of a few cases that have come to the Court if not the only case thus far that specifically concerns protection of the environment in the light of the serious climate change related problems facing our world today. It is an action by a large-scale agricultural company seeking orders for the preservation of one of its important buffer zones for the conservation and preservation of native flora and fauna within its large commercial agricultural State Lease (buffer zone). The Lease is described as Portion 928, Milinch of Sangara, Fourmil of Buna in the Oro Province of Papua New Guinea and registered in the Register of State Leases, Volume 23, Folio 5570 (Land).
  2. Pending a hearing and determination of the substantive matter, the plaintiff, Kuala Oil Palm Limited (KOPL) is seeking by notice of motion interim restraining orders against the defendants from continuing their alleged encroachments and destructions to its buffer zone within an estate within the Land known as Mitsero Estate (Mistero Estate). The defendants represented and through Mr. Brian Tieba claim:

Preliminary Issue – Application for Adjournment


  1. The motion by KOPL first came before the Court on Monday 09th August 2021. For all the defendants, Brian Tieba appeared and applied for an adjournment for the defendants to seek and secure the services of a lawyer. I declined the application because firstly, the motion was filed and served on the defendants more than 6 months ago. Hence, the defendants had ample opportunity to seek and secure the services of a lawyer in time for the hearing on 09th August 2021 or during this circuit. The defendants provided no evidence of what if any steps or how they were prevent from taking the appropriate steps to seek and secure a lawyer when they had much time on their hands. Secondly, circuits to Popondetta are irregular and comes on, occasionally. Given that, most parties with their matters on the list have appeared well prepared and were able to get their matters dealt with. This was the case whether a lawyer represented those parties or not. Thirdly, the application by the defendants did not meet any of the principles governing applications for adjournments as represented by the Supreme Court decision in Joshua Kalinoe v. Paul Paraka; Hon Bire Kimisopa v Paul Paraka (2014) SC1366 at [12] and [13]. This was despite the defendants having sufficient time since they were served with the proceedings and a copy of the notice of motion. Finally, the given that climate change related issues are real and require immediate and prompt action, an adjournment would delay an immediate intervention by appropriate Court orders if any of KOPL’s claims have merit.
  2. In the circumstances, I adjourned the proceedings to Friday 13th August 2021 to enable the defendants to prepare either with or without a lawyer and come prepared to proceed with a hearing of the notice of motion. When the matter returned for hearing Mr. Tieba chose to represent the defendants. The motion was thus heard with a decision on it reserved to be delivered today.

Relevant facts and background


  1. The evidence disclosing the relevant facts is the affidavit by a Mr. Simi Sakalia. From that affidavit, the defendants are alleged to have unlawfully encroached on the Land at Mitsero Estate and have established their home and an educational institution, which is the third defendant, carrying on business in that name and style. These has occurred without any prior approval being sought and given to them by KOPL. Instead, KOPL objected or protested and requested the defendants to vacate the Land. The actions of the defendants run directly against an expressed term and or condition of the State Lease which states: “The Lease shall be used bona fide for Agricultural purposes only.” Additionally, the defendants’ actions compromise and interferes with KOPL’s obligation as a member of the Roundtable on Sustainable Palm Oil (RSPO). This is an obligation that requires KOPL to create and maintain buffer zones on Mitsero Estate and other parts of the Land as part of its ongoing commitment as a RSPO member.
  2. During the hearing, Mr Tieba admitted to entering the Land in March of 2020. Neither him, nor any of the other defendants filed any affidavit evidence forming the factual basis in response to those produced by KOPL. According to the only evidence before the Court, it is clear that, on 18th and 23rd March 2020, the Plaintiff wrote to the Defendants requesting them to refrain from building and causing more destruction and damage to the buffer zone and vacate Mitsero Estate.
  3. Instead of vacating the Estate, the defendants on 18th November 2020, obtained a Preventive Order from a Village Court restraining KOPL from breaching the peace and good order of their establishment on the Land. They also argued that they are the lawful owners of the Land on which KOPL’s buffer zones are located. Equipped with that Village Court order and their claims of ownership, the defendants chose to ignore the requests of KOPL and or failed to adhere to the requests. That attracted further follow ups and repeated requests for vacation and restraint against further destruction and activity on the Land by two further letters dated 10th and 30th December 2020. The defendants continue to refuse to comply with the notice and requests.
  4. As a last resort, KOPL has now come to Court seeking the reliefs it is seeking. Evidence in support is in the Affidavit in Support deposed to by Mr. Simi Sakalia. According to that affidavit, KOPL is the registered leaseholder of the Land, known as the Mitsero Estate, the land now subject of these legal proceedings. The defendants have entered the Land claiming ownership over the KOPL’s buffer zone and encroached on the same by clearing, building permanent buildings and residing on the Land. They are also establishing and carrying on commercial activities, contrary to the terms and conditions of the State Lease and the KOPL’s environmental policies. Photographic and other evidence discloses that the defendants have and continue to cause substantial environmental destruction to the KOPL’s buffer zone. This is happening despite the 4 separate requests and demands for them to quit and vacate the Land and not to cause any further harm to the KOPL’s buffer zone.
  5. KOPL has given an undertaking as to damages to pay damages, if any, that may be suffered by the defendants, or anyone affected by the interim restraining orders it is asking for. Also, KOPL points out that the balance of convenience favours the grant of the interim restraining orders as it will restrain the defendants from causing further environmental damages. KOPL’s evidence further shows that, it is a RSPO member and is obliged by virtue of its affiliation and membership of the RSPO to observe and comply with strict environmental guidelines by implementing safe farming practices to prevent harm to the environment. Further, KOPL points out that the defendants’ wanton and reckless conduct and activities pose severe commercial ramifications to its commercial and international reputation as a leading palm oil producer, which no monetary compensation will adequately remedy quite apart from the risk of the defendants failing to satisfactorily and full meet any damages that might be claim by KOPL.

Issues for determination


  1. The main issue for this Court to determine is whether KOPL has established a case for a grant of the interim restraining orders it is seeking pending a determination of the substantive proceedings. To determine that issue, it will be necessary to consider each of the requirements that an applicant for interim restraining orders must meet to get such a relief from the Court.
  2. The principles governing a grant or not of interim restraining orders is well settled in our jurisdiction. In Golobadana No 35 Ltd v. Bank of South Pacific Limited (formerly Papua New Guinea Banking Corporation) (2002) N2309, I considered most of the decisions on point as at the time of the decision and summed up the principles in the following terms:

“A reading of this authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted.”


(Underlining supplied)


  1. The Supreme Court decisions in Chief Collector of Taxes v. Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853, Behrouz Boochani v. The State (2017) SC1566 and many more have endorsed and applied this summation of the principles. In its decision in the Chief Collector of Taxes v. Bougainville Copper Ltd (supra) the Supreme Court added:

“In addition to the above [summation of the principles], there is ample authority in our jurisdiction that, before the Court could grant an interim injunctive relief, the applicant must provide an undertaking as to damages.”


Applying the law to the present case


(a) Arguable Case
  1. Applying these principles of law to the case at hand, I accept learned counsel for KOPL’s submission that, there is prima facie evidence that, there is a dispute as to the ownership of the portions of land on which the buffer zone is located. KOPL says it owns the Land on which the buffer zone is located as it falls within its State Lease. In support of its assertions, the KOPL produced the title of the State Lease,[1] which has a special condition that it be used only for agricultural purposes. Also, in the absence of any evidence to the contrary, there is prima facie evidence that, the defendants are living on and occupying land over which KOPL has title over and carrying on activity that is contrary to the special condition of the State Lease. The defendants on the other hand, say they are the lawful owners of the land on which the buffer zone lies. They say they bought this portion of land from the customary landowners of the land. They also argue that the land is a customary land. Yet as already noted, they have produced no evidence supporting their claims. The production of the evidence of title over the subject Land presents a strong case in favour of KOPL and not just an arguable or prima facie case at this stage of the proceeding.
  2. At this stage, I also accept KOPL’s submission that its claim has a real possibility of succeeding because it has a State Lease over the Land with its use restricted by the special condition to agricultural purposes only. The defendants have not presented any evidence of any competing title or evidence that correctly challenges KOPL’s title over the Land. Additionally, the defendants are not the original or descendants of the original customary landowners prior to the creation of the State Lease of the Land. They claim they acquired the land from the customary landowners despite the existing State Lease. On the evidence presently before the Court, at best I find the defendants are illegal trespassers encroaching and illegally occupying parts of KOPL’s Land and are carrying on activities that are contrary to the special conditions in the State Lease. Repeated calls for the defendants to vacate the land and or refrain from destroying the buffer zone and hence the environment has fallen on deaf ears. Only an injunction in the terms sought by KOPL will force the defendants to vacate the land and cease their illegal entry, occupation, and destruction of KOPL’s Land. If they have a legitimate legal and proper claim and ownership of the Land, they were obliged but they failed to adduce evidence disclosing that.

(b) Damages inadequate remedy


  1. This leads to the next requirement an applicant for interim injunctive orders need to meet. An applicant needs to demonstrate to the satisfaction of the Court that damages will be an inadequate remedy for any harm or damage that may be occasioned unless injuncted as requested. It is settled law that if an order for damages will adequately compensate an applicant who is seeking a restraining order, no interim injunctive orders can be granted. Here KOPL submits that, it is a RSPO member. With that comes the responsibility to comply with strict environmental guidelines by implementing safe farming practices to prevent further harm to the environment. This I note is a response or remedial action or step taken by the oil palm industry. The buffer zones were created to at least preserve some flora and fauna in the Land.
  2. To appreciate the value and importance of the buffer zone and the need for it to be maintained it is necessary to go into an understanding of the nature of large commercial oil palm plantations. It is well known, and I take judicial notice that, oil palm as an industry requires deforestation of vast areas of rainforest and other land areas. This has led and leads to the gradual loss of flora and fauna. With that also goes the biodiversity which each rainforests possesses. In some countries like Indonesia and Malaysia, animal wildlife has been most affected. Some animals have been able to relocate and have increasingly encountered humans as they have started to roam around the surrounding villages in search for food.[2] Others have not been able to adapt and relocate elsewhere and have died. This has led to their populations decreasing significantly causing in turn adverse effects on the symbiotic relationships flora and fauna have with their habitat. Also, deforestation for oil palm or other large scale commercial farming and logging adversely affects biodiversity resulting in low level of species compared to undisturbed forests.[3] Further, large scale commercial oil palm plantations also affect the quality of soil in the ground.[4] The removal of any existing flora to make way for new plants causes the soil surrounding it to erode away.[5] As with other large commercial farming, oil palm trees results in the use of large amounts of fertilisers and pesticides for rapid growth and the health of each tree.[6] Younger palm oil trees absorb more valuable nutrients from the soil which degrades the quality of the soil.[7] As the nutrients are absorbed by the young trees, there is a depletion in nutrients and consequently, there is a lower level of remaining nutrients for other trees.[8] Oil palm plantations that are geographically located close to rivers in tropical countries like Indonesia and Malaysia have exacerbated impacts on surrounding local communities. This is due to the increased use of fertilisers and pesticides which has led to higher amounts of both being washed away by the frequent rain into rivers (runoff process).[9] This is an issue because rivers are central to the daily lives of local villagers.[10] They use water from the river for personal consumption and also use the river as a source of food, which makes them vulnerable to the residue from fertilisers and pesticides.[11] The untreated water that the local villagers are exposed to can potentially cause detrimental health effects, including diseases such as cholera, E. coli and lead poisoning.[12]
  3. Given the above kinds of risks, the buffer zones kept by KOPL on its Land including the one at its Mitsero Estate, the subject of this proceeding, are necessary at the minimum, a must to have and is therefore a priceless asset not only for KOPL but the environment and all other people, plants, and animals that are dependent on it. Once the natural environment is disturbed and more so destroyed that can also lead to a destruction of the usefulness of the land itself. As the Supreme Court at the highest in our jurisdiction pertinently observed at [38] in Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605:

“When the original state of the land is changed with its natural habitat and vegetation and other natural properties lost, it becomes totally useless ... Depending on the size of the land and the nature and extend of the damage done, the landowner will no longer be able to hunt, gather, garden or otherwise use his land in the same way before. These cannot be re-established easily within a short space of time or at less costs and in any case, if possible, not back to its original position. This is why we say damages for such land is immeasurable and might be continuous for many generations to come for the landowners.

(Underlining mine)


  1. In my view, presently apart from the covid-19 pandemic, there is another global issue, which if not properly addressed and mitigated against, could turn out to be the next pandemic. The issue in question, is the issue of climate change and its associate problems. According to the United Nations official website:

“Climate Change is the defining issue of our time and we are at a defining moment. From shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale. Without drastic action today, adapting to these impacts in the future will be more difficult and costly.”[13]


  1. In 2013, the World Bank’s report headed “Turn Down the Heat: Climate Extremes, Regional Impacts and Case for Resilience”[14] highlighted a serious risk. The risk is the world could potentially be 4ºC warmer by the end of the century if the world fails to act on global warming and climate change. That means devastation in many regions, but more pronounced for the Pacific Island Countries (PICs) along with other small island countries who are on the front line of climate change and natural hazards.
  2. As of August 2017, 10 countries globally have been forecast to sink due to climate change and rising sea levels. On that list are 6 PICs, namely Tonga, Palau, Nauru, Kiribati, Federated States of Micronesia, and Tuvalu.[15] This is no good news for PNG or other countries which are not on the sinking list but are seeing some of their smaller islands like Carteret that are on the verges of sinking and or are not able to sustain live. The same goes for the rest of the world. If we went by low laying cities and by population globally, the risk is even higher and expends to 20 more countries. They are representative of every continent except Australia. The top seven slots, and 12 overalls, come from Asia. Five European Union members make it to the list, as do the United States, Brazil, and Nigeria. Countries like China and the Netherlands head the list with Italy and Ireland at the bottom end and some of the big names like United States and the United Kingdom, France, Germany and densely populated countries like India, Indonesia and the Philippines make it to the list as well. This represents a possible 300 to 650 million people who are presently living on coastal or low laying land areas facing the risk of being submerged or exposed to chronic flooding by 2100, under current emission trends.[16]
  3. In its publication referred to earlier, the World Bank says the Pacific Island Countries vulnerability is exacerbated by poor socioeconomic development planning. It then forecasts that climate change will worsen the magnitude of natural disasters like, cyclones, droughts, and flooding in the PICs
  4. All the known science around us is pointing us to only one conclusion, namely, global warming and climate change is real and is not a science fiction or theory anymore. The focus has shifted to what adaption and mitigation efforts, must we urgently take not only for the sinking countries and cities, but the whole world or our global village.
  5. Global warming is attributable to greenhouse gas emissions. Greenhouse gas is a gas that absorbs and emits radiant energy within the thermal infrared range, causing the greenhouse effect.[17] The primary greenhouse gases in the Earth’s atmosphere are water vapor (H2O), carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), and ozone (O3). Without greenhouse gases, the average temperature of Earth’s surface would be about −18 °C (0 °F),[18] rather than the present average of 15 °C (59 °F).
  6. There is no debate that, human activities since the beginning of the Industrial Revolution (around 1750) have increased the atmospheric concentration of carbon dioxide by almost 50%, from 280 ppm in 1750 to 419 ppm in 2021.[19] The last time the atmospheric concentration of carbon dioxide was this high was over 3 million years ago.[20] This increase has occurred despite the absorption of more than half of the emissions by various natural carbon sinks in the carbon cycle.[21] According to the United Nations’ Intergovernmental Panel on Climate Change (IPCC), at current greenhouse gas emission rates, the globe’s temperature could increase by 2 °C (3.6 °F), which is the upper limit to avoid “dangerous” levels by 2050.[22] Deforestation contributes about 20% of the total greenhouse gas.[23]
  7. Early last year in Morua & Ors v. China Harbour Engineering Co (PNG) Ltd & Ors. (2020) N8188, I considered the global efforts addressing the issue of climate change and its associate problems and what all that means for PNG and answered the question this way:

“What does these mean for the case at hand? In my view, it means anyone could come to National or the Supreme Court in PNG, even the Courts on their own motion or acting suo moto. Section s. 57 (1) of the Constitution lays the necessary foundation for them to do so provided, they can connect that to an imminent, likely or reasonably probable breach of a right. Of all rights, the right to life is important and is central in my view to all other rights. Any human activity that is taking place or likely to take place that as an adverse impact on the environment no doubt, gives rise to the risk of environmental damage which could give rise to a possible breach of the fundamental right of, right to life which is dependent on a safe and clean environment. If the activities are large scale and serious, they could single handedly cause serious environmental harm and damage. If they are smaller, a repeat of such activities over time or combined with other adverse human activity already occurring can have an adverse impact on the environment. Unless governments properly and sufficiently, legislate, control, monitor and evaluate consistently all human activity and take appropriate actions against offenders, the risk of adversely affecting the environment and hence the right to life is there. Hence, any person concerned with his or her own or that of others’ rights, has the right and opportunity to come to Court under s. 57 (1) of the Constitution. This provision already grants them the necessary standing to bring appropriate claims for enforcement or protection of human rights.”


(Underlining supplied)


  1. In my view, the courts or judiciary as critical thinkers, decision makers and enforcers of the law in these times of climate change and adverse effects on our share global village, have a much more critical and higher role to play and duty to discharge. That lies in the encouragement and enforcement of the globally accepted twin measures of climate change mitigation and adaptation against adverse human activity at their respective domestic fronts for greater global good. The courts can start with a ready grant of restrictive injunctions where there is prima facie case of human activity such as deforestation in all its forms, discharge of pollutants into river systems and so on that adversely impacts against the environment and order remedial action to either reduce or eliminate such adverse activities. Once a prima facie case is made out, the onus would then be on the party responsible for the action or inaction to demonstrate to the satisfaction of the court that, their activities is contributing no greenhouse gas emissions, or the emissions are at acceptable levels.
  2. Turning then to the defendants’ actions in the present case, I note they are against deliberate measures taken to mitigate against greenhouse gas emissions by KOPL’s large palm oil farming. The destruction they have caused is substantial. They have not produced any evidence of having complied with the relevant and applicable laws of the land, such as the Forestry Act 1991, the Lands Act 1996, the Environment Act 2000, and such other legislation before entering, chopping down of trees and milling them and other forms of clearing the buffer zone, building houses and a learning institution. Allowing the defendants to continue with their destructive action will cause more harm and damage not only to the buffer zone but will also contribute to the country’s total greenhouse emissions. This alone calls for an injunctive order right away to mitigate against and prevent all of that from continuing. The damages already caused are irreparable and are permanent. I also note, KOPL’s commercial and international reputation as a leading palm oil producer stands to be seriously affected. These damages or harm are beyond any monetary compensation. Putting a monetary value on the destruction already caused and any that may be caused by the defendants to the flora and fauna within the buffer zone will be difficult. In these circumstances, I find damages would not be an adequate remedy.

(c) Undertaking as to damages

  1. Turning to the next consideration, I note KOPL has filed an undertaking as to damages. The undertaking that has been filed for KOPL meets all the requirements for a valid undertaking for an interim injunction. Amongst others, it has the common seal of the company, signed by one of its directors and witnessed by its company secretary. I also note that, KOPL is a large corporate citizen who will have no difficulty in delivering on that undertaking if such becomes necessary.
  2. The next factor to consider is whether, the balance of convenience favours a grant of the interim restraining orders sought. The discussions and findings under irreparable damages apply under this consideration. Additionally, there is prima facie evidence that, KOPL is the leaseholder and the registered owner of Mitsero Estate or the Land. Also, there is prima facie evidence that, the defendants have encroached onto KOPL’s Land under repeated protests, demands or requests for them to stop their encroaching, trespassing, clearing, chopping down trees and milling them, building homes and other structures. These activities are continuing and have opened the floodgate to the risk of more people entering the land and further destroying the buffer zone and thereby cause more harm and damage and increase production of greenhouse emission locally with a global effect also. In these circumstances, I find the balance of convenience favours a grant of the application for an interim restraining order, to protect the buffer zone, the environment, prevent further production of any greenhouse gas producing activities in the buffer zone and generally in the country and globally. Also, KOPL’s risk as a member of RSPO stands to be adversely affected unless further destruction of the buffer zone is restraint.
  3. Finally, I repeat my earlier finding that, the defendants’ claims are unsubstantiated by any evidence. Accordingly, I find those claims are:
  4. In the end, I find KOPL has made out a case in equity for a grant of its application for interim restraining orders per it’s notice of motion filed on 22nd March 2021. Accordingly, in the exercise of the discretion vested in this court, I make the following orders:

__________________________________________________________________
Mr. N. Asiba: Lawyer for the Plaintiff
Mr. Brian Tieba: In person for himself and all Defendants

[1] See paragraphs 4 to 15 and Annexure “A” of Mr. Sakalia’s Affidavit in Support.
[2] "Palm oil and biodiversity". IUCN. 2018-06-26, cited in https://en.wikipedia.org/wiki/Social_and_environmental_impact_of_palm_oil.
[3] Fitzherbert, Emily B.; Struebig, Matthew J.; Morel, Alexandra; Danielsen, Finn; Brühl, Carsten A.; Donald, Paul F.; Phalan, Ben (2008-10-01). "How will oil palm expansion affect biodiversity?". Trends in Ecology & Evolution. 23 (10): 538–545. doi:10.1016/j.tree.2008.06.012. ISSN 0169-5347. PMID 18775582.
[4] Khatun, Rahima; Reza, Mohammad Imam Hasan; Moniruzzaman, M.; Yaakob, Zahira (2017-09-01). "Sustainable oil palm industry: The possibilities". Renewable and Sustainable Energy Reviews. 76: 608–619. doi:10.1016/j.rser.2017.03.077. ISSN 1364-0321.
[5] Hartemink, Alfred E. "Soil Erosion: Perennial Crop Plantations". ISRIC–World Soil Information, Wageningen, the Netherlands.
[6] Moser, Stefan; Mußhoff, Oliver (2016). "Ex-ante Evaluation of Policy Measures: Effects of Reward and Punishment for Fertiliser Reduction in Palm Oil Production". Journal of Agricultural Economics. 67 (1): 84–104. doi:10.1111/1477-9552.12114. hdl:10.1111/1477-9552.12114. ISSN 1477-9552.
[7] Nkongho, Raymond N.; Feintrenie, Laurène; Levang, Patrice (2014-03-01). "Strengths and weaknesses of the smallholder oil palm sector in Cameroon". OCL. 21 (2): D208. doi:10.1051/ocl/2013043. ISSN 2257-6614.
[8] P. H. C. Ng, H. H. Gan and K.J. Goh, Soil Nutrient Change in Ultisols Under Oil Palm in Johor, Malaysia https://jopeh.com.my/index.php/jopecommon/article/view/39
[9] Rulli, Maria Cristina; Casirati, Stefano; Dell’Angelo, Jampel; Davis, Kyle Frankel; Passera, Corrado; D’Odorico, Paolo (2019-05-01). "Interdependencies and telecoupling of oil palm expansion at the expense of Indonesian rainforest". Renewable and Sustainable Energy Reviews. 105: 499–512. doi:10.1016/j.rser.2018.12.050. hdl:11311/1084107. ISSN 1364-0321.
[10] Tømte, Aksel. "The human cost of palm oil development". The Conversation. Retrieved 2020-03-16.
[11] Dayang Norwana, A. a. B.; Kanjappan, R.; Chin, M.; Schoneveld, G. C.; Potter, L.; Andriani, R. (2011). "The local impacts of oil palm expansion in Malaysia; An assessment based on a case study in Sabah State". Working Paper. Retrieved 2020-03-16.
[12] Walter, A; Wagai, Samuel; Arama, Peter; Ogur, Joseph (2011). "Antibacterial activity of Moringa oleifera and Moringa stenopetala methanol and n-hexane seed extracts on bacteria implicated in water borne diseases". African Journal of Microbiology Research. S2CID 53500935 and "Heavy Metals in Fertilizers - EH: Minnesota Department of Health". www.health.state.mn.us. Retrieved 2020-03-17.

[13]Found at: https://www.un.org/en/global-issues/climate-change
[14] Found at:https://www.worldbank.org/en/topic/climatechange/publication/turn-down-the-heat-climate-extremes-regional-impacts-resilience.
[15] Pariona, Ameber. “10 Countries That Could Disappear With Global Warming.” WorldAtlas, Aug. 1, 2017, available https://www.worldatlas.com/articles/10-countries-that-could-disappear-with-global-warming.html: The 10 countries are Bangladesh, Comoros (East Coast of Africa), Tonga, Seychelles (Caribbean West Indian Ocean), Palau, Nauru, Kiribati, Federated States of Micronesia, Tuvalu (all in the Pacific Ocean) and Maldives.
[16] Sourced from “20 Countries Most at Risk From Sea Level Rise” appearing at https://weather.com/science/environment/news/20-countries-most-risk-sea-level-rise-20140924
[17] "IPCC AR4 SYR Appendix Glossary" (PDF). Archived from the original (PDF) on 17 November 2018. Retrieved 14 December 2008, footnoted in Wikipedia at https://en.wikipedia.org/wiki/Greenhouse_gas. The rest of the information from cited Wikipedia that page.
[18] "NASA GISS: Science Briefs: Greenhouse Gases: Refining the Role of Carbon Dioxide". www.giss.nasa.gov. Archived from the original on 12 January 2005.
[19] Calma, Justine (7 June 2021). "CO2 levels are at an all-time high — again". The Verge.
[20] "Climate Change: Atmospheric Carbon Dioxide | NOAA Climate.gov". www.climate.gov. Retrieved 2 March 2020.
[21] "Frequently asked global change questions". Carbon Dioxide Information Analysis Center.
ESRL Web Team (14 January 2008). "Trends in carbon dioxide". Esrl.noaa.gov. Retrieved 11 September 2011.
[22] "Global Greenhouse Gas Emissions Data". U.S. Environmental Protection Agency. 12 January 2016.
[23] Gregory P. Asner “Measuring Carbon Emissions from Tropical Deforestation: An Overview” at www.edf.org/sites/default/files/10333_Measuring_Carbon_Emissions_from_Tropical_Deforestation--An_Overview.pdf

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