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Sunrise Investment Ltd v Tohidi [2024] SBCA 17; SICOA-CAC 40 of 2022 (18 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. On 6th December 2022, the High Court (Keniapisia J) signed and perfected Interlocutory Orders in Civil Case No. 692 of 2020 which orders are the subject of this appeal. Leave to appeal against the said Orders was granted on 3^rd May 2023.

Background

2. By way of a brief background, it is sufficient to note that the dispute between the appellants and the respondents started in 2020 following the appellants’ action of illegally felling tubi trees from the respondents’ land in Korona Customary Land (KCL). As a result of the appellants’ illegal action, the respondents brought the High Court Civil Case No. 374 of 2020 against the appellants, claiming:
   • Damages against the appellants for unlawfully felling and conversion of tubi (xanthostemon) trees from their land.
3. The respondents are customary land owning group of Korona Customary Land (KCL). The first appellant is a registered company in Solomon Islands and holder of the Felling Licence No. A101741 on Korona Customary Land. The first appellant, however, does not have any valid permit to fell and export tubi trees. The second appellant in this appeal is the Director of the first appellant.
4. In December 2020, the appellants were found guilty by the Magistrates Court for illegally harvesting the tubi trees (which are restricted species) without licence, exporting or attempting to export restricted species without permit, and possession of illegally obtained restricted species. Consequent upon the Magistrates Court proceedings, the Minister responsible for Environment issued at various dates, three Orders in relation to the tubi logs: Confiscation Order on 9 October 2020, pursuant to section 13 of the Wildlife Protection and Management Act 1998 (WPM Act), Sale Order Conditions, pursuant to sections 13 and 32 of the WPM Act, and Order for Sale, directed at the Comptroller of Customs to facilitate the export of the tubi logs by the appellants.
5. Following the issuance of the executive Orders by the Minister, the respondents filed a judicial review claim in High Court Civil Case No 692 of 2020 seeking declaratory orders against the Orders made by the Minister in relation to the tubi logs and a permanent injunction restraining the appellants from dealing with the tubi logs. In the meantime, the respondents sought interlocutory orders to protect their interest in the tubi logs. His Lordship Keniapisia J, granted the Interlocutory Orders which are set out below at paragraph 7 and which are now the subject of the appeal. It is crystal clear that the focal subject in all these cases, HCC 374 of 2020, HCC 692 of 2020, CAC 33 of 2020 (30/9/2021), CAC 08 of 2021 (12/8/2022) and now CAC 40 of 2022 is the fate of the tubi logs which the appellants illegally extracted from the respondents’ land.
6. There is no dispute that the tubi logs, the subject of the dispute in this case, were extracted from the respondents’ land. There is, equally, no dispute that the tubi logs were illegally extracted from the respondents’ land. There is also no dispute that the tubi logs were forfeited by the Government of Solomon Islands. There is no dispute that the appellants were found guilty and convicted of illegally felling and harvesting tubi trees from the respondents ’land, Korona Customary Land. It is also an accepted fact that the respondents are not complicit in the illegal acts of the appellants of extracting tubi trees from KCL.

The Orders of the High Court (Keniapisia J)

7. The Orders made by his Lordship, Keniapisia J, the subject of this appeal is as follows:
   • “UPON HEARING the Submission from the parties through their respective solicitors, AND HAVING CONSIDERED the Further Further Further Amended Interlocutory Application for Interim orders filed on 2nd December 2022 with supporting Sworn Statement of John Mark Doedoeke filed on 29/11/2022, Humphrey Talu filed on 12/12/22, the Application of the 1^st named Claimant filed 1/12/22, sworn statement of Tohidi and having read the sworn statement of Moveni Reaves – commissioner of Forests, Richard Kong the third Respondent, NOTHING (sic) that Mr Kong has left the country in defiance of 3/12/22 interim orders, the Court orders of December 3, 2022 are hereby varied in the following terms:
   1. The amount of USD 653,554.67 Or equivalent of SBD5, 215,366.266, being for the letter of Credit dated 10th November 2022, commercial Invoice SIL-22-LO1 dated 15th November 2022 for the first shipment 5,307.525 cubic of Tubi logs exported and disbursed by the Respondents be fully reimbursed and paid into Court by Tuesday 13th December 2022.
   2. The full proceeds of the second shipment whatever amount in Solomon dollars it will be, will also be paid into court when the buyer remit the proceeds for the second shipment to the second Defendant.
   3. The Pan Oceanic Bank Account no 021501000255 of the second and third Respondents is frozen except for inward transaction and for compliance with this court order only. No outward transaction (withdrawals) is allowed to be made from the account.
   4. Pan Oceanic Bank is to disclose the bank account statements and balances of the above Account to the Court or alternatively to lawyers for the claimants.
   5. For limit purpose of enabling compliance and enforcement of this order, the Pan Oceanic Bank is hereby joint as a party.
   6. The passports of the Directors of the second Respondents and third Respondent, being Richard Kong SING NGEA be surrendered to the Court upon arising of the Court, hereafter which will be on Monday 5th December 2022 10:00am.
   7. Counsel Teddy to file and serve submissions to other parties by 8th December 2022 on his application, making clear where orders sought are already addressed by this order. Other parties to file and serve written submission by, 12th December 2022.
   8. Counsel Mr Marahare to file sworn statement by December 8, 2022, as he promised to do explaining the reason on his part on the departure of the third respondent on 3rd December 2022 after court has ordered surrender of passport and after Counsel has spoken to Mr Kong on 3/12/2022.
   9. All machines and equipment listed as annexure WT-5 to the sworn statement of Tohidi filed 1/12/2022 are hereby restrained, and not to be disposed or sold until the return of the third Respondent. Said machines and equipment shall not be removed from Isabel.
   10. Matter is further listed for mention on 13th December 2022, at 9:30 am for compliance monitoring, and possible contempt.
   11. The above orders will be until further orders of the Court, and a Penal Notice is attached to this order.

Signed, Sealed and Perfected on this 6^th day of December 2022.”

Grounds of Appeal

8. Against the learned Judge’s Order, the appellants appeal, citing 5 grounds in support. Those grounds are:
   1. The leaned judge erred in law when his Lordship proceeded to hear the applications filed on behalf of the Respondents in Civil Case No 692 of 2020 noting that the Respondents lacked the standing to bring these or related applications before the High Court in light of the ruling delivered by the Court of Appeal in Sunrise Investment Ltd v Tohidi & Ors in Civil Appeal 08 of 2021 on 12 August 2022.
   2. The learned judge erred in law when his Lordship proceeded to hear the applications filed on behalf of the Respondents in Civil Case No. 692 of 2020, noting that his Lordship lacked the requisite jurisdiction in law to entertain such applications in light of the ruling delivered by the Court of Appeal in Sunrise Investment Ltd v Tohidi & Ors in Civil Appeal 08 of 2021 on 12 August 2022.
   3. The learned judge does not have the jurisdiction to entertain any such applications brought before the court on the basis of the principle of res judicata, when considering the prevailing circumstances of the matter, and in light of the ruling delivered by the Court of Appeal in Sunrise Investment Ltd v Tohidi & Ors in Civil Appeal 08 of 2021 on 12 August 2022.
   4. The learned judge does not have the jurisdiction to entertain any such applications brought before the court on the basis of the principle of issue estoppel, when considering the prevailing circumstances of the matter, and in light of the ruling delivered by the Court of Appeal in Sunrise Investment Ltd v Tohidi & Ors in Civil Appeal 08 of 2021 on 12 August 2022.
   5. The learned judge has erred in law when his Lordship has failed to apply appropriately according to law the test as laid down in the case American Cyanamid Company v Ethicon Ltd.
9. Conveniently, the grounds of appeal can be grouped together as: Ground 1 – challenging the standing of the respondents to bring the applications in Civil Case No.692 of 2020. Ground 2, 3, and 4 – challenging the jurisdictions of the Court; Ground 5 – challenging the Court’s application of the test in the American Cyanamid case. We will consider each of these grounds in turn.

Standing of the respondents

10. The appellants ’argument under this ground of appeal is that the respondents lacked standing to bring these proceedings and other applications in relation to the tubi trees, which the appellants said, belong to the crown. In support of this ground, the appellant relied on the decision of this Court in Sunrise Investment Ltd v Tohidi & Ors [2022] Civil Appeal No 08 of 2021, judgment delivered on 12 August 2022. It must be remembered, though, that Civil Appeal No. 08 of 2021 is concerned with the validity or the legality of the Executive Orders issued by the Minister of Environment. This Court upheld the validity or the legality of the Minister’s Orders.
11. As we understand it, the appellants’ case is that the respondents, have no locus standi or no standing to claim any rights over the tubi logs since they are deemed to be Government property following the forfeiture Order made by the Minister pursuant to sections 13 of the Wildlife Protection and Management Act, 1998 as amended. As such, it is said, the respondents do not have standing to apply to the Court to bring proceedings in relation to the tubi trees. This turns on the proper construction of the provisions of the law pursuant to which the forfeiture Order was made, as well as on what this Court stated in Civil Appeal No. 08 of 2021. The appellants’ argument, basically, is that following the Confiscation Order by the Minister, as a matter of law, the tubi logs became property of the Government and the respondents no longer possess any legal or proprietary interest in the tubi logs.
12. The respondents’ contention, on the other hand, is that they are the owners of the land in KCL and tubi trees on KCL. They are not a party to the unlawful activities of the appellants resulting in the confiscation of the tubi logs. As such the respondents contend that their rights and interest in the confiscated tubi logs cannot be taken away from them in the manner suggested by the appellants, and consequently they have standing to bring the applications before the High Court to protect their rights and interest in the said tubi logs.
13. There are two intertwined issues which require us to consider in order to determine whether the appellants can succeed in preventing the respondent from standing before the High Court and this Court to seek justice in respect of their rights and interest in the tubi logs which were unlawfully logged by the appellants and now forfeited to the Government. The two issues are: What is the nature of the matter or dispute that the respondents wish to bring before the Courts and secondly, whether such matter is sufficient to endow the respondents with legal standing to invoke the jurisdiction of the Court. Before we venture into those issues, we wish to briefly refer to the provisions of the law upon which the Minister exercised his power to confiscate the tubi logs.
14. The Confiscation Order issued by the Minister of Environment on 9 October 2020 was done pursuant to section 13 of the WPM Act which provides as follows:
    • “13. Any item or object used in the commission of an offence under section 11 or 12 shall be forfeited to the Government and the proceeds from the sale of such item or object shall be deemed to be property of the Government.”
15. In addition to the Ministers’ Order, the Magistrates Court also ordered forfeiture of the tubi logs pursuant to section 34(1) of the Forests Resources and Timber Utilisation Act (FRTU Act). Subsection (2) of section 34 authorises that the forfeiture order to be in addition to any other penalty for such offences. Section 34(1) and (2) are in the following terms:
    • “34 – (1) When any person is convicted of a forest offence, all forest produce in respect of which such offence has been committed and all tools, machinery, equipment, boats, conveyances and livestock used in the commission of such offence, shall be liable to be forfeited by order of the court recording the conviction.
    • (2) Such forfeiture may be in addition to any other penalty prescribed for such offence.’’
16. It is not rocket science to appreciate the nexus between the above provisions of the WPM Act and FRTU Act, the Forfeiture or Confiscation Order and the offenders. Section 13 of the WPM Act and section 34 of the FRTU Act and the Minister’s Orders are directed at the offenders such as the appellants. On the other hand, the respondents who own the land and the tubi trees on it, are aggrieved by the illegal extraction of their tubi trees in the first place by the appellants and now further aggrieved by the impact of the Orders made by the Minister because of the unlawful acts of the appellants. Being aggrieved by the orders of the Minister and the impacts of such orders, the respondents brought HCC 692 of 2020 and two interlocutory applications before the High Court. Whether they succeed in making good their claims over their rights and interest in the tubi logs at the end of the day, is not an issue for this Court in this appeal. Those matters are for trial. For now, we are satisfied that the respondents, being aggrieved by the ministerial orders which they claim affect their rights and interest in the tubi logs, have standing to bring the applications complained of in this case.
17. The subject matter in this saga between the appellants and the respondents is to do with the tubi logs which were illegally extracted from the respondents’ land and, KCL by the appellants. There is no dispute to that fact and it is conclusive. It is also not in dispute that the respondents are not complicit in the appellants’ illegal extraction of the tubi trees from KCL.
18. In both Sunrise Investment Ltd v Tahidi [2021] SBCA 18; SICOA-CAC 33 OF 2020 (30 September 2021) and Sunrise Investment & Another v Wilson Tohidi & Others, Civil Appeal No.8 of 2021 (12 August 2022) involving the same parties and concerning the same subject matter, this Court recognised the respondents’ rights interest in the tubi trees which were illegally logged by the appellants. In the former case this Court affirmed the primary judge’s restraining order against the appellant to preserve the status quo pending trial of the respondents ’claim against the appellants for trespass and illegally extracting tubi trees from their land, KCL. The restraining Orders served to restrain the appellants from carrying out logging in the whole of Korona Land and requiring the appellants to reimburse the respondents of the proceeds of the exported tubi logs. This Court stated
    • “The illegal logging of Tubi trees has been admitted by the appellant. That is a strong ground for the judge to perfect the interim restraining orders. See Siota v Galego Resources Ltd [2016] SBMC 5. The Judge said, there was not change in the circumstances since granting of the interim orders on 25 August 2020, and based on the material before him, if the case was tried on those same materials, the respondents had a strong claim against the appellant and had a good chance of success. Thus there is a serious issue for trial which required preservation of the status quo”.
19. This Court was clear in its mind that the nature of the dispute between the appellants and respondents has been, and still is, over the respondent’ claim of their rights and interest in the tubi logs illegally extracted by the appellants from their land. The circumstances of the case have not changed and the respondents have a strong case against the appellants and a good chance of success.
20. In the latter appeal case, in Civil Appeal N0. 8 of 2021, this Court had never disentitled the respondents of their claims in the tubi logs which are now in the possession of the Government by virtue of the Confiscation Order made by the Minister for Environment. This Court recognised the distinction between the subject matter of the appeal namely, the validity of the executive orders made by the Minister of Environment, and respondents’ claims against the appellants that are still ending before the court and it did so on more than one instance. In paragraph 35 of the Judgment in Civil Appeal No.8 of 2021, this Court stated;
    • “35. It is important to keep in mind that the claim of the Respondents in CC 374 of 2020 is for, inter alia, damages for unlawful conversion of tubi trees and costs.”
21. Again in paragraphs 38 and 39 of the judgment, the Court further added:
    • “38. In any event, whatever the outcome of the export of the tubi logs, any claim for damages for inter alia the unlawful conversion of the tubi trees and related costs, will need to be assessed by the court. If this includes assessments for environmental damage caused and the value of the trees/logs felled, (which may or may not equate to the value of the logs exported and the proceeds obtained) including any other related costs claimed by the Respondents at the end of the day, that is an assessment that should be kept separate from the issue of the validity and lawfulness of the executive orders of the Minister of Environment, Director of Environment and the Commissioner of Forests.”
    • 39. Ground 3 therefore can be answered in the affirmative that the judge erred in law in asserting that the effect of the three Ministerial Orders was to take way the subject matter of the dispute and consequently had interfered with are prejudicial to the dispute, when it did not. They are separate and distinct to each other.”
22. To bring home the stark point that this court had not, by its judgment in Civil Appeal No.8 of 2021, disentitled the respondents of its rights and interest in the confiscated tubi logs, reiterated in paragraph 73 of its judgment:
    • “73 As pointed out in this judgment, the substantive issues raised in the claim in the High Court and now the subject of this appeal relate to claims for damages for illegal felling and harvesting of tubi logs and conversion against the first and second Appellants. That is a separate and distinct claim against the Appellants when contrasted to the executive orders issued by the Minister of Environment as authorised by law.”
23. We note that in their submissions the appellants simply made the bold assertion that the respondents lacked the standing to bring the applications before the High Court, “in the light of the ruling delivered by the Court of Appeal in Sunrise investment Ltd v Tohidi and Ors in Civil Appeal 08 of 2021” and rely on what were said in paragraphs 34, 36 and 37 of the judgment to support their argument. We have read the passages cited by Counsel for the appellants and in our view those paragraphs relied on by the appellants do not even come close to showing that the respondents’ standing in pursuing their claims over their rights and interest in the tubi logs have been thwarted.
24. We note that, and it is not without significance, that the appellants when referring to paragraph 37 of the judgment that the first sentence in that passage was omitted. In our view, the appellants’ omission of the first sentence of that passage was deliberate so as to avoid the rationale of the Court’s reasoning between paragraphs 36 and 37 of the judgment. Paragraph 36 refers to the issue of the ownership of the tubi trees which is vested with the landowners but they are subject to the protection by law so that the landowners themselves cannot extract them without a valid permit. That is, however, a separate matter which paragraph 37 begins with by saying, “This point needs to be kept separate and distinct from their claims for damages and costs.” Again, emphasising that the respondents claims over the tubi logs are very much still alive in so far as this court is concerned.
25. The case of Australian Conservation Foundation v The commonwealth [1900] 146 CLR 493 referred to by Counsel for the appellants very much supports the respondents’ position in the present case. The passage cited is from the judgment of Aickin J who stated:
    • “In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourable. What is required is that the plaintiff’s interest should be one related to the relief claimed in the statement of claim. Here the primary relief is a declaration that whatever decision was made was unlawful and invalid”.
26. This court has not divested the respondents of their claims and interest in the tubi logs as suggested by the appellants. As such their standing to bring their claims under CC 692 of 2020 seeking relief by way of declarations, as well as making the applications complained of by the appellants, remains intact. The respondents’ position would have been different if they were complicit in the appellants’ illegal activities in the extraction of the tubi trees.
27. We must point out to Counsel for the appellants that to say that this Court has disentitled the respondents of their rights and interest in their tubi logs by its decision in Civil Appeal No. 8 of 2021 and thereby rendering the respondents lacking in standing to bring the applications complained of by the appellants, is a misconception of the decision of this Court. To follow the appellants’ argument to its logical conclusion would mean that the respondents’ claims which are lawfully brought before the High Court in CC 374 of 2020 and further sought to be preserved in CC 692 of 2020 would be rendered for naught simply due to the illegal acts of the appellants and through no fault on the part of the respondents. That would not be justice and the judgment of this Court in Civil Appeal No. 8 of 2021 has never intended to have such a result.

Res judicata and issue estoppel.

28. The issues regarding the respondents’ rights and interest as against the appellants in the tubi logs, has not yet been decided, either by the High Court or this Court. In this regard, the principles of res judicata and issue estoppel do not arise. They are inapplicable in this present appeal and so there is no basis for this Court to consider them in this appeal. What this Court stated in Civil Appeal No. 8 of 2021, is that as a result of the illegal acts of the appellants, the Minister has power to order confiscation of the tubi logs. The Minister made the Order and consequently, the tubi logs vest in the possession of the Government.
29. The Minister’s Order effectively removes the rights (if any) of the culprits (the appellants) from the tubi logs and vested them in the Government. On the other hand, the substantive claims of the respondents as to their rights and interest in the tubi logs are yet to be determine by the High Court which also still retains the jurisdiction to hear and determine the applications in CC 692 of 2020. The submission by the appellants that the High Court lacks the jurisdiction to hear and determine the respondents’ applications is misconceived,

American Cyanamid Test.

30. The appellants complained under this ground that the learned judge has erred in law by failing to appropriately apply the test in the American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 when he granted the injunctive orders on 5/12/23. They said that “there is no serious issues to be tried” in this case because HCC 692 of 2020 is a judicial review case and is separate from the issue as to the ownership of the tubi trees. We see this as an argument in semantics and it smacks of “the austerity of tabulated legalism” which the Courts have, on many occasions, frown upon. See Speaker v Philip [1991] SBCA 1; CA-CAC 5 of 1990 (30 August 1991); Ong Ah Chuan v Public Prosecutor [1981] AC 648; Minister of Home Affairs v Fisher [1979] 3 ALL ER 26; Attorney General (Fiji) v Director of Public Prosecutions [1983] 2 AC 672.
31. We do not wish to enter into the controversy, at this stage, over the issue of the respondents’ claims as to their rights and interest in the tubi logs which are in the possession of the Government by virtue of the Order of Confiscation made by the Minister of Environment. That is a substantive issue for the High Court to deal with at the trial. For the moment and for the purpose of this appeal, the issue is simply whether the learned judge was entitled to issues the interlocutory injunctive orders that he made and whether he properly applied the test as expounded in the American Cyanamid v Ethicon case.
32. Bearing in mind that the purpose of the interlocutory injunction is to preserve the subject matter of the dispute and to maintain the status quo pending the determination of the rights of the parties in the dispute the learned judge in this case, did exactly that, through the injunctive orders that he made on 5 December 2023. That, in our view, is the proper application of the test in the American Cyanamid case and the learned judge had done so in the exercise of his discretion. We see no error in that.
33. We wish to add that although principles set out in the American Cyanamid case have been applied in many jurisdictions, they are not universal in their applications and that the only universal principle applicable in cases of applications for injunctive relief is that the Court’s discretionary power to grant injunction is exercised when it is just and convenient to do so as pointed out by Kerr LJ in Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523. As we have already stated, we do not find any error on the part of the primary judge in exercising the Court’s discretion to grant the interlocutory injunction and freezing order in this case.
34. The appeal is without merit and must be dismissed with costs to be taxed, if not agreed.

Muria P
Palmer CJ
Gavara-Nanu JA