<
HIGH COURT OF SOLOMON IMON ISLANDS
CIVIL CASE NO: 056 OF 1999
ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
ISABEL TIMBER COMPANY LIMITED
class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
-v-
EASTERN DEVELOPMENT ENTERPRISES LIMS LIMITED
HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CIVIL CASE NO: 056 OF 1999
HEARING: 9TH JUNE 1999
RULING: 10TH JUNE 1999
P. TEGAVOTA FOR THE APPLICANT/ PLAINTIFF
G. SURI FOR THE RESPONDENT/ DEFENDANT
PALMER J. INTRODUCTION.span lang="EN-GB" style="foe="font-size: 12.0pt; font-family: Times New Roman">
This is an application for interlocutory injunction
by Notice of Motion
filed on 17th February 1999. The Applicant relies on the affidavit of Teo
Siak Kui filed 17th February
1999 and affidavit of Sir Dudley Tuti filed
22nd March 1999. In its Statement of Claim the Applicant states it held a
valid timber rights licence, TIM 2/32 over that area of land situate on
Isabel Island known as L.R 673 ("the Concession
area"). At paragraph 6 of
the said affidavit of Teo Siak Kui, a copy of the said timber rights licence
is attached
marked "TSK4". At paragraphs 2 and 3 of the said affidavit, Mr
Kui referred to the timber rights agreement entered
into with the trustees
of L.R 673. A copy of that timber rights agreement is attached to the said
affidavit marked "TSK1".
Exhibit "TSK3" is a copy of a map of the Concession
area.
At paragraph 7 of his affidavit, Teo Siak Kui deposes the Respondent had
moved into the said area with its logging equipment
and machinery and
commenced logging operations. The Applicant alleges its rights derived from
the licence have been breached
and continue to be breached to the point if
no injunction is imposed, at the end of the day should it win its case, its
rights will have been completely destroyed.
SERIOUS ISSUES.
There is no doubt in my mind there are serious issues for trial before this
court. The Defendant also claims competing
rights to enter, fell and extract
logs from the same concession area.
PURPOSE OF AN INTERLOCUTORY INJUNCTION.
The aim of an interlocutory injunction is to ensure that particular acts do
not take place pending the determination
by the court of the rights of the
parties. There are two matters which the court takes into account when it
considers
granting an injunction. First, the maintenance of a position which
will most easily enable justice to be done when its final
order is made, and
secondly, an interim regulation of the acts of the parties which is most
convenient and reasonable
in all the circumstances. In many instances it has
been found to be most just and appropriate to preserve the position which
was found to exist at the time of making of the application, this is
commonly referred to as the status quo. But this
is not always the case.
Sometimes it may be necessary to order that an earlier position be restored
or that parties arrange
their affairs in some other way which is more in
accordance with the requirements of justice.
<
ES AN ADEQUATE REMEDY.
Bearing these matters in mind I now turn to the principles this Court should
consider when addressing the question of
whether an injunction should be
granted or not. The first of these in the context of this case is whether
damages will
be an adequate remedy. Put another way, is it just, in all the
circumstances that a plaintiff should be confined to his remedy
in damages?
(See Evans Marshall & Co. Ltd v. Bertola S.A [1973] 1 W.L.R. 349 at
page 379H). There are two limbs to this question as put in American
Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396. First, the court has to
consider whether if the plaintiff were to succeed at trial in establishing
his right to a permanent
injunction, he would be adequately compensated by
an award of damages for the loss he would have sustained as a result of the
defendant's continuing to do what was sought to be enjoined between the time
of the application and the time of trial.
If damages is not an adequate
remedy and the defendant not in a financial position to pay, no
interlocutory injunction
should be granted, however strong the plaintiff's
claim appeared to be at that stage.
The second limb is if damages would not be an adequate remedy for the
p plaintiff should he win his case, the court
should consider if the defendant
were to win his case at the end of the day, whether he would be adequately
compensated
under the plaintiff's undertaking as to damages for the loss
that would be sustained by being prevented from doing so between
the time of
the application and the time of trial. If damages in the measure recoverable
would be an adequate remedy
and the plaintiff would be in a financial
position to pay them, there would be no reason to refuse an interlocutory
injunction.
THE FIRST LIMB.
Would the Applicant be adequately compensated by an award of damages for his
loss? With respect, I find I have to answer
this in the negative. The reason
lies in the rights vested in the licence which the Applicant claims to be
entitled to.
It is as succinctly put by Mr Tegavota in his submissions to
court that the Applicant seeks to protect its right to fell, harvest
and
export the said logs and make a profit out of it. An award of damages would
not adequately compensate the Applicant
for the losses arising from its
rights as vested in the licence, to fell, extract and export the logs as it
desires.
THE SECOND LIMB.
This relates to the question whether damages under the Applicant's
undertaking for the loss sustained by the Respondent
as a result of being
restrained from carrying out its planned activities would be sufficient. In
my respectful view,
this can be answered in the affirmative. Not only would
damages be adequate, but the Defendant's rights to fell, extract and
export
would still have remained intact and simply re-continued.
DELAY.
Has there been delay? - Vigilantibus non dormientibus jura subvenient
- a plaintiff should not sleep on his rights. The operations by the
Defendant were recommenced in or about November 1998.
This application was
commenced by Writ of Summons on 17th February 1999, some three months later.
The licence of the
Defendant however had been issued way back on 13th July
1995. The Applicant was aware of the existence of the Respondent's
licence
well before November of 1998. If it was concerned about the validity of its
licence why had it not taken action
earlier.
Whilst I appreciate there has been some delay, it is my respectful view that
delay should more properly be considered
with respect to the re-commencement
of operations in November of 1998. It should be noted that the operations of
the
Respondent had been held up due to challenges by Landowners of the
validity of the Respondent's licence in contrast to the
Applicant's licence.
That would accordingly have accounted for the reasons why no action was
taken by the Applicant.
Now that litigation had been discontinued as a
result it seems, of some landowners who had previously been opposed to the
operations of the Respondent changing sides, the Applicant was entitled to
commence action against the Respondent. Respectfully,
I am not satisfied the
delay here can be described as inordinate or inexcusable.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Also in balancing the rights of the Appliagainst that of the
R Respondent, and the losses and prejudice which may be
occasioned if an
injunction is imposed, I am not satisfied the delay factor is sufficient to
make me change my mind about
the appropriateness and justification of an
injunction order at this point of time.
ACQUNCE.
The same reasons given above equally apply here and especially in balancing
the scales of justice in this case. Whilst
the Applicant may have to a
certain extent sat on his rights I am not satisfied that disentitles it from
the imposition
of an injunction in the circumstances of this case. The
balance of justice taking everything into account favours the imposition
of
an injunction even at this point of time.
ORDERS OF THE COURT.
1. &nbssp; nbsp; ON THE PIAINTILF F A WRITTWRITTEN UNDERTAKING FOR DAMAGES, THE
DEFENDANT, ITS SERVANTS, AGENTS AND
OR CONTRACTORS ARE TO BE RESTRAINED
FORTHWITH FROM CARRYING OUT ANY FURTHER LOGGING AND RELATED ACTIVITIES UNTIL
TRIAL
OR FURTHER ORDER, EXCEPT AS FOLLOWS:
pan lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman">
(a) &nsp; & p; Top; To remove ande and export
all logs felled to date of this order;
(b) Pay 10% of th FOBe aluthof those log proceeds into an interest
bearing deposit account in the names of the
Solicitors for thties;n>
p class="Mss="MsoNormal" style="text-indent: -34.9pt; margin-left: 105.8pt; margin-top: 1; margin-bottom: 1">
(c) &nbp; &nnbsp; The Defendants shal shall be entitled to remain in the said concession
area for the purpose of maintaining
their machinery, equipment, buildings,
roads, log ponds, camp site ny otroper thingshings in t in the sahe said
concession
area;
2. &nnbsp;;&nspp; Tsp; THE DEFE DEFENDANT SHALL PROVIDE WITHIN THIRTY DAYS A STATEMENT OF ALL
LOG SPECIES, VOLUME,
QUANTITY, NUOF SHTS ANUE OF ALL LOGS
REMOVED FROM THE SAID CONCESSION AREA TO DATE OF T OF THIS OHIS ORDER.RDER.
3. COSTS IN THE
CAUSE.
THE COURT
[About the School of Law]
| [Courses Offered] | [Course Materials] | [Staff]
[Pacific Law Materials] | [Journal of South Pacific Law]
[Emalus Campus Library] | [Recommended Internet Links]
[Latest Additions] | [Search the Site]
� University of the South Pac1998-2002
If you have anve any comments, suggestions or
difficulties with using this web site please email
Robynne Blake,
Internet Project Manager, The School
of Law, The University of the South Pacific or fax: (678) 27785
Last Update:
Thursday, January 24, 2002 11:06
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1999/64.html
