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Kelekau v Pou [2015] SBHC 108; HCSI-CC 357 of 2015 (16 December 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTIONS

Civil Case No. 357 of 2015

BETWEEN:

JOHN KELEKAU AND WALTER ALU
First Claimant
(Representing their family members who are members of the Hogokiki Tribe who had purchased Tasogu customary land)

AND:

BASIL TARAI, ANDREW LALAOMA PIKU & JOHN
MARK PIKU
Second Claimant
(Representing the members of the Kakau (Bole Magutu) Tribe who purchased the customary lands of Takaio, Valepelo and Tutupi Vatupota)

AND:

GEORGE POU SENIOR, GEORGE POU JUNIOR &
JAMES SUSU
(Trustees over the Pugu customary Land)
First Defendant

AND:

HYBRID RESOURCES LIMITED
Second Defendant

AND:

EVERWIND COMPANY LIMITED
Third Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Fourth Defendant

Date of Hearing: 4th December 2015
Date of Ruling: 16th December 2015

Mr. D. Marahare for the 1st and 2nd Claimants/Applicants
Mr. C. Fakari'i for the 1st; 2nd and 3rd Defendants/Respondents
No appearance for the 4th Defendant

KENIAPISIA, PJ:

RULING ON URGENT APPLICATION FOR INTERLOCUTORY ORDERS

1. The Court convened today (4/12/15) to hear an urgent application for interlocutory injunction, filed by the first and second claimants ("claimants/applicants"). The said application was filed on 24/11/2015, with a supporting sworn statement ("ss") by Mr. John Mark Piku, filed two days later on 26/11/2015. Other supporting court documents already filed are also relied on.

2. Parties through their respective Counsels made submissions, on the urgent application for interlocutory injunction filed by the applicants, after I ruled today (4/12/15) that the subsequent/fresh application by the claimants is not an abuse of court process. In my ruling today, I had canvassed in full the further written submissions by counsel Fakari'I for the 1st, 2nd and 3rd defendants on abuse of court process. I repeat and reaffirm the same herein, to say that the subsequent application for interlocutory orders is not abuse of court process.

3. This is the second inter parties hearing on a fresh application for interlocutory orders, filed by the applicants. This is a subsequent application after the first application was heard inter parties and dismissed by Faukona J, on the 6/10/2015.

4. The fresh application filed 24/11/15, by the applicants seek similar if not the exact interim orders as in the one filed 27/7/2015, heard inter parte and dismissed by Faukona J, on 6/10/15. The fresh application seeks a total of twelve (12) interim reliefs/orders. The applicants seek the following orders:-

(1) An order for abridgement of time pursuant to Rule 26.6 of the Court Rules 2007.

(2) An interim order restraining the First to Third defendants, by themselves, their agents and/or servants from conducting further felling operations in the areas on which the Third defendant is currently conducting operations pending further orders of the court.

(3) Notwithstanding order 2 hereof, the Second and Third defendants, shall be permitted to remain on the disputed area for purposes of skidding, hauling and transporting of round logs felled within the disputed areas down to the log pond. For the avoidance of doubt, the Second and Third defendants shall have no more than 14 days from the date of this order in which to complete hauling and exportation of the felled round logs sourced from the disputed areas.

(4) Where the Second and Third defendants require additional time in which to complete all hauling and exportation of round logs, the Applicants through counsel shall be served with a written request for permission to extend time to complete hauling and exportation of the felled round logs. The First and Second Applicants shall not withhold any such consent and approval unnecessarily.

(5) Upon satisfaction of orders (3) and (4) hereof, an order directing the First to Third defendants, by themselves, their agents and/or servants to remove forthwith all their machine, equipment and structures from the areas of dispute pending further orders of the court.

(6) An order directing the First to Third defendants to account for the proceeds relating to any shipment and exportation of round logs that have taken place in accordance with orders (3) and (4) hereof and disclose all relevant documentations relating to the export within 7 days from the date of the export.

(7) An order directing the First to Third defendants to account for the proceeds relating to any previous shipments and exportation of round logs that have been sourced from the disputed areas and disclose all relevant documentations relating to any of those exports within 7 days from the date of the export.

(8) The First to Third defendants, by themselves, their agents and/or servants are directed to pay the proceeds of the export of the round logs outlined in orders (6) and (7) hereof into a joint solicitors trust account opened with any of the commercial banks in Honiara.

(9) An order dispensing with the requirement for the First and Second Applicants to file an undertaking as to damages pursuant to Rule 7.38 of the Solomon Court Rules 2007.

(10) Penal notice be attached to the breach or orders 1 to 8 hereof.

(11) Costs of and incidental to this Application.

(12) Any other order that the Court deems fit to make.

5. The purpose of granting 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.[1]

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 the principles which I comfortably refer to as the fundamental legal requirements for the grant of interlocutory injunction: the applicant must show that there are/is serious issues to be tried; that damages will not be an adequate remedy; that the balance of convenience favours the granting of interim orders and that the 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 or Serious issue?

8. Serious issue can be deduced from documents filed thus far in the proceeding. Documents filed and relied upon in the fresh application are: Category A claim (filed 27/7/15); Sworn Statement (ss) of Andrew Lalaoma Piku and John Kalekau (filed 27/7/15); fresh application (filed 24/11/15) and ss by John Mark Piku (filed 26/11/15) plus Certificate of Urgency and Undertaking as to damages (both filed 26/11/15). For the 1st, 2nd and 3rd defendants, they have filed a defence (filed 3/09/15); ss by George Pou Junior (filed 3/08/15) and ss by George Pou Junior (filed 1/12/15).

9. From materials now before the court, the applicants claim ownership of the following customary lands on Big Ngella, Central Province: Tosogu (1st applicants) and Takaio, Valepelo and Tutupi/Vatepota (2nd applicants). Logging activities by the 1st, 2nd and 3rd defendants are said to be validly occurring under felling license A.101171 on the concession land called Pugu customary land, also on Big Ngella. Two other concession lands under the said license are: Binu and Bolilau.[3] The said license is owned by the 2nd defendant. The 3rd defendant is the contractor. The 1st defendants are the trustees of Pugu concession land.

10. The applicants/claimants alleged that the 1st, 2nd and 3rd defendants ("defendants") trespassed onto their customary lands (mentioned above) in the course of the defendants logging operation on Pugu concession land; which share common boundary with the lands the applicants assert ownership over. This is the core issue to be determined at trial because the defendants deny tress pass and say that they confine their logging operations within Pugu land. Defendants further say that the claimants are inflating the boundary of their lands into Pugu land boundary. Defendants even said that the lands claimants assert ownership over are part of Pugu land[4]. I am satisfied these are among issues to be determined at trial (issues on ownership, tress pass and conversion of mercantile trees).

Damages an adequate remedy?

11. It is clear that the applicants do not want logging on their lands (Tosogu, Takaio, Valepelo and Tutupi/Vatepota). These mentioned lands are not covered in the felling license used by the defendants. There is no logging agreement and the applicants deny inviting the defendants to do logging on their lands.[5]

12. When I say on their lands, I note also that the applicants have standing to come to court over the lands they assert ownership over. Their standing is rooted in the chiefs' decisions that they have now disclosed in their fresh application. This being the major defect in their first application for interlocutory orders. The said chiefs' decisions are in Exhibits JMP 1, JMP 2 and JMP 10 of the fresh evidence in John Mark Piku ss filed 26/11/2015. No felling license and no felling agreement meant that any logging on these lands are likely to be illegal and hence may be tantamount to tress pass. In these situations, my view is that damages are not an adequate remedy. And that interlocutory injunction should be granted. Cases decided in this Court have repeatedly maintain 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 interlocutory injunction. I do consider that there will be an irreparable harm caused to the environment and therefore injunction is justified. The harm caused by logging[6] is not too remotely unknown in this jurisdiction, where logging has been the main stay of the economy since independence. But whether such harm is inflicted by the defendants on the claimants is an issue left for trial. The court does not have evidence that the defendants/respondents are in a position to compensate[7] the applicants, if injunction is refused and things turned the applicants favour at trial. On the other hand, should the defendants win at the end, they can always resume logging. They have nothing to lose by granting interlocutory orders in the interim, except protracted: investment and returns on investment.

Adequacy of the undertaking and ability of the applicant to pay:

13. The applicants have made an undertaking as to damages. The purpose was to have standing to get entitlement to be heard on their application for interlocutory order[8]. Unfortunately I do not think the applicants have the ability to honour their undertaking. Therefore I must consider other factors in determining whether or not to grant the orders sought in the application. Such factors include the balance of convenience: status quo and the strength of the parties' case.

14. On status quo, the conduct complained of is logging activities on the applicants' lands (as they assert). The applicants oppose logging operation on their lands. This is the status quo that must be maintained pending trial. On the strength of the parties case, I am satisfied on the materials before me that, if the evidence[9] remain as it is to the end of trial, there is a higher chance for the applicants to succeed on their claim for tress pass and conversion. Evidence by the defendants on Tagoso, Takaio, Valepelo, Tutupi and Vatupota is confusing. On the one hand, they say these lands are outside of Pugu customary land. On the other, they say these lands are part of Pugu land[10]. Certainly, the confusion at this stage will be made clear at trial.

Waiver from undertaking as to damages:

15. Before I make conclusions, I need to consider submissions for waiver on the undertaking as to damages made by the applicants. The applicants submit that they should be excused from the burden that cometh with that undertaking. They should be exempted because their case warrants an exception; in that they are village people without economic means and do not have the financial ability to meet an undertaking. The undertaking they made was purposely to get entitlement from the court for hearing of their interlocutory application. This court has in appropriate cases granted a waiver from undertakings as to damages to village people who found them fronting up against the might of multi-national logging companies (what I would call David and Goliath encounter). In such cases, the plaintiffs/claimants would be represented by public solicitors' office, because they do not have the means to afford a private lawyer. I heard submissions parallel with common knowledge that the applicants cannot access the services of the public solicitor's office (PSO), because that office is fully committed. Counsel Marahare further submitted from the bar table that he had to lower his fees to accommodate his struggling village clients (applicants). Logging which gave rise, to this dispute, took place on tribal land covered under License A. 101171 on Pugu, Big Ngella, when trespass was alleged to have taken place. On the basis of this, I am satisfied that the applicants are village people who are attempting to protect their environment and trees from the might of logging companies. And there is no doubt that they match up the David and Goliath encounter – which would entitle them to be excused from making an undertaking as to damages. I excuse them accordingly from the requirement to make an undertaking under Rule 7.38. I make this exemption from undertaking under the same Rule, as an exception on the basis of Sa'oghatoga case[11].

Conclusions on Reliefs sought:

16. In view of the aforementioned, I grant reliefs 2; 3; 4; 5; 6; 7; 8; 9 and 10 as prayed for. To avoid any doubt, the defendants must not carry out logging on the disputed lands or on lands which the applicants assert ownership over. The defendants can stay clear and operate inside the boundaries of their licensed lands: Pugu, Binu and Bolilau. Logs exported from the disputed lands at the time of cessation of logging and removal of machineries must be accounted for as well as proceeds paid into a joint trust account. Costs are in the cause. These orders remain until further orders of the Court. Counsel Fakari'i made submissions on the impracticality of the Court granting the above orders. I will nevertheless grant the injunctive orders to prevent the defendants coming back to the disputed lands pending trial. Any impracticality of payment of funds is a matter for parties, especially the applicants to pursue and address in due course, through appropriate cause of action.

THE COURT

-----------------------------
JOHN A. KENIAPISIA
PUISNE JUDGE

^[1] Fellows –v- Fisher (1976) QB 122, cited with approval in John Leeghomo –v- James Ziru & Others – cc 315/2013; unreported judgment by Apaniai PJ 14/10/13.
^[2] American Cyanamid Co-v- Ethicon (1975) All E.R 396 UK.
^[3] See Exhibit JK 10 of ss by Mr. John Kalekau filed 27/7/15.
^[4] See paragraph 12 of ss by George Pou Junior filed 3/8/15. See also Defense filed by 1^st, 2^nd and 3^rd defendants on 3/9/15, at paragraphs 5, 6 and 8 of statement of case.
^[5] See paragraph 9 of statement of case of claim filed 27/7/15.
^[6] In the claim at paragraph 11 of the statement case – the harm is broadly particularised to include conversion of trees, destruction of natural resources, environment pollution and land degradation. The forestry survey report also revealed significant environmental impacts – Exhibit JK 2 of ss by John Kalekau filed 27/7/15.
^[7] Defendants have not made an undertaking as to damages.
^[8] Written submissions by Counsel Marahare at paragraph 15.
^[9] The evidence I make reference to are in Exhibits JMP 1, JMP 2 and JMP 10 of ss by John Piku filed 26/11/15 (chiefs decision and survey on ownership, boundary and logging tress pass) and Exhibit JK 2 of ss by John Kalekau filed 27/7/15 (forestry survey report on tress pass). See also Exhibit JK 11 (show cause letter from Commissioner of Forests to defendants after tress pass survey report).
^[10] See paragraphs 9 and 12 of ss by George Pou Junior filed on 3/08/15.
^[11] Saoghatoga –v- Mugaba Atoll Resources Company (2015); SBCA 4; SICAO-CAC 2 of 2015 at paragraph 30.