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Before: Palmer J.
Civil Case No: 200 of 1999
Hearing: 25th June
1999
Ruling: 28th June
1999
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G. Suri for the Applicant/Second Defendant
A & H Lawyers for the
Respondent/Plaintiff
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PALMER J.:
This is an application by s by summons for the discharge of the interim orders
obtained ex parte by the Respondent on
17th June 1999 and
perfected on 18th June 1999, restraining the Applicant from inter
alia, carrying out any further logging or related activities on Pavuvu
Customary Land until trial or further orders of the court.
The Respondent had commenced
this action by Writ of Summons and Statement of Claim filed 4th June 1999.
In his Statement
of Claim the Respondent states he is a member of the
Keruval tribe which claims ownership rights over the Pavuvu Customary
Land (
see paragraph 1 of the Statement of Claim). He claims in essence the
procedure set out under the Forest Resources and Timber Utilisation Act
(Cap. 40) (hereinafter referred to as �The Forest Act�) in particular Part
III of the said Act, sections 10 - 12, had not been complied with by the
First Respondent and the Applicant, and that accordingly
the extension of
the Timber Licence No. TIM 2/33 to include the Pavuvu Customary Land was
null and void from the beginning.
He claims inter alia, declarations that
the extension made on or about 7th September 1998 was null and
void and that the operations of the Second Respondent on the said customary
land illegal.
BACKGROUND INFORMATION.
It is not in dispute the
Applicant had obtained a valid timber licence (TIM 2/3 fell and export
timb timber on alienated
land adjacent to Pavuvu Customary Land, identified as LR
338. In or about February of 1996, the Applicant initiated an application
for a timber licence (�extension�) over the adjoining Pavuvu Customary Land.
This was commenced under Part II of the Forest Act. A timber rights hearing
was conducted by the BAPA Area Council, which had jurisdiction over the said
area, pursuant to section 8 of the Forest Act. Under section 8(3)(b), the
BAPA Area Council was obliged to determine �whether the persons proposing
to grant the timber rights in question are the persons, and represent all
the persons,
lawfully entitled to grant such rights, and if not who such
persons are�. Three tribal groups contested the claims of timber rights;
the Keruval Tribe (Respondent�s tribe), the Kaiseleng tribe and
the Solovui
tribe. The fourth group is an off - shoot of the Keruval tribe, the Masi
Clan. In its determination, the
BAPA Area Council held the persons entitled
to grant timber rights were of the Keruval Tribe and the Masi Clan (see
Exhibit �B� attached to the affidavit of Stanley Sade sworn 4th June 1999).
Following the said determination, the Area Council issued a certificate
pursuant to section 9(2)(a) of the Forest Act
in the prescribed form setting
out its determination (see Exhibit �C� attached to the affidavit of
Stanley Sade sworn
4th June 9999). The
aggrieved parties in that public timber rights hearing, the Keruval tribe
and the Kaiseleng tribe have each lodged
separate appeals to the Central
Islands Customary Land Appeal Court pursuant to section 10 of the Forest Act
(see Exhibits �D� and �E� attached to the same affidavit of Stanley Sade
sworn 4th June 1999; also see Exhibit �AR1� attached
to the affidavit of
Augustine Rose sworn on 4th June 1999). It is not in dispute those
appeals are still pending before the Customary Land Appeal Court.
Sometime in March of 1999, the
Respondent got wind of the impending logging operations of the Applicant
over the Pavuvu
Customary Land. Despite remonstrating with the Applicants
about the validity and lawfulness of their actions, the Applicant
had simply
pressed on and commenced logging operations on the said customary land.
Unbeknown to the Respondent the Applicant
had somehow obtained a timber
licence to fell and extract timber over the said customary land. Details of
this have now
been disclosed in the affidavit of Ling Chung Kok, Director
and General Manager of the Applicant, filed 24th June 1999, at
paragraph 2.
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ARE THERE SERIOUS ISSUES TO BE
TRIED?
In determining this issue, the
claim of the Respondent/Plaintiff must be considered in some detail. In a
nutshell, the
claims of the Respondent come in two fronts. The first part
pertains to procedure; that the crucial provisions of the Forest
Act
(sections 5(2)(b) and 10 - 12) had been blatantly ignored and by - passed by
the Applicant and the Commissioner of
Forests, (hereinafter referred to as
�the Commissioner�) and that this amounted to a clear breach of those
provisions
whereby the extension of the Timber Licence granted by the
Commissioner dated 7 September 1998 was null and void from the beginning.
That this is a triable issue has not been contested in this hearing. Section
5(2)(b) makes clear inter alia, that no
licence shall be issued unless the
Commissioner is satisfied an approved agreement had been obtained from
persons lawfully
entitled to grant timber rights over the customary land. An
approved agreement in turn is governed by the provisions in Part
III of the
Forest Act. Section 10 and 11 of the Forest Act govern the approval of the
agreement in circumstances where
an appeal had been lodged to the Customary
Land Appeal Court. In particular paragraphs 11(b) and (c) provide that no
recommendation to the Provincial Government can be made until an appeal had
been finally disposed off and provided the order
of the court accords with
the contents of the certificate of determination issued by the Area Council.
The claim of the
Plaintiff and the affidavits filed in support of the
application for interim injunction allege in no uncertain terms that the
clear requirements of section 11(b) and (c) had not been complied with.
The affidavit material filed by
the Applicant in opposition to the issue and continuation of the interim
injunction do
not show at this point of time that the said requirements of
section 11(b) and (c) had also been complied with. It is interesting
to note
that whilst the affidavit of Ling Chung Kok referred to the issue of a
certificate of approval from the Central
Islands Province Premier; there has
been no mention of any recommendation having been issued from the
Commissioner pursuant
to section 11(b) and (c). The Central Islands Province
Premier would not have the power to issue a certificate of approval
unless a
recommendation had been issued from the Commissioner. I note this is merely
an interlocutory hearing but this
evidence would have been crucial to the
validity of the extension granted to the licence of the Applicant. I point
out
though that there appears to have been a concession in the letter issued
by the Premier of Central Islands Province accompanying
the certificate of
approval dated 4 September 1998 (Exhibit �LCK 3� attached to the affidavit
of Ling Chung Kok) that
the issue of the certificate was not only improper
but ultra vires. At paragraph 2 of the said letter the Premier wrote:
�Enclosed herewith FORM III,
Forest and Timbendment Act 1977, Certificatficate Approving Timber Rights
Agreement Negotiation
(Section 5F) to you. Please issue a licence
authorizing the felling of trees and removal of timber from the said
customary
land on condition that Maving Bros Timber Co. Ltd. shall hold the
royalty until the court case is over.�
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If what is written in the said
letter is, then the case presented by the Respondents/Plaintiff has has
extremely good
prospects of succeeding at the trial. In other words the
Respondent/Plaintiff has established even at this interlocutory stage
a
prima facie case that he will succeed at the final hearing, or a very
high probability of success.
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I am not satisfied it has been
establito my satisfaction on this particular issue the Respondent dent does
not have any
real prospect of succeeding in his action for a permanent
injunction at the trial. If the Respondent succeeds at the trial
in having
the extension declared invalid, he would have been entitled to the grant of
an injunction against the Applicant,
although that is not expressly pleaded
in the Statement of Claim.
The second part of the Claim of
the Respondent is dependent upon the outcome of ppeal to the Central
Islands Customary
Land Appeal Court. This indirectly is a claim in custom as
the rightful owner of the said customary land. By virtue of those
ownership
rights the Respondent claims ownership over the trees on Pavuvu Customary
Land. If the Respondent and others
who have also appealed fail in their
appeal, then and only then can the Commissioner make recommendation to the
Premier
of Central Islands Province for the issue of a certificate of
approval of the timber rights agreement. The Commissioner would
then be
entitled to issue a licence after the said certificate had been received.
SUFFICIENCY OF INTEREST.
The Applicant argues the
Respondent does not have sufficient ist to justify the issue of e of an
injunction. It relies
inter alia on the case of Gandly Simbe -v-
East Choiseul
Area Council and Others
Civil Case No. 33 of 1997
judgment delivered on 17th July 1997, in which it had been held
that the Plaintiff in that case did not have sufficient interest as a land
owner.
The Applicant argues the Respondent had lost in the Area Council and
his prospects of success before the Customary Land Appeal
Court do not look
good. Respectfully, even if his prospects of success on appeal do not look
good, the issue of ownership
remains a �live issue� at this point of time,
and until that appeal is finally disposed off, the Respondent is entitled to
bring this action and seek injunction to protect what he believes in as his
interest: in the said customary land. His
claim with respect is not a mere
assertion at this point of time but something which he seriously believes in
to the
extent he has taken all the necessary action within his power, to
stop the illegal operations of the Applicant on the said
land pending
determination of his claim.
The case of Gandly Sim>
(above) can be easily distinguished from the facts of this case. In
Gandly Simbe, no records of a pending appeal before the Customary
Land Appeal Court was noted. Further, no action had been taken by the
Plaintiff under the Local Court (Amendment) Act for purposes of commencing a
land dispute case over the land in dispute.
If the Plaintiff was serious, at
least a local court case could have been commenced as a land dispute. Hence
the conclusion
by the court that his claim amounted more or less to a mere
assertion. It was only in the High Court he had sought to raise
claims of
ownership in custom. In this case however, the claims of ownership had now
been duly raised on appeal to the
appropriate court which had jurisdiction
to deal with them; the Central Islands Customary Land Appeal Court. I am not
satisfied the Respondent can be described as a mere busybody or that his
claim in custom is frivolous or vexatious. The Respondent
has demonstrated
that he takes the matter seriously and done all within his power to dispute
the competing claims of
other tribal groupings in the said area. I ask what
would a person who claims an interest on the said land do in the
circumstances short of taking the law into his own hands? In my respectful
view, the very thing done by the Respondent to date.
I am satisfied he has
sufficient interest in all the circumstances to come to this court and seek
interim injunction
against the operations of the Applicant.
CIVIL CASE NUMBER 173 OF 1999
The problem with Case
Number 173 of 1999 was that it had been improperly commenced, hence the
d dismissal of the summons
and notice of motion filed. There was no
originating process. In his judgement in that case Stanley Sade v.
Commissioner of Forest and Maving Bros Timber Company Ltd, judgment
delivered on 21st May 1999, his Lordship Awich J. gave some directions to
learned Counsel for the Plaintiff
if he wished to proceed further in that
case. These are contained in page 4 of his judgment. I quote:
�In view of Mr. Hauirae�s
plea, I direct that if he intendproceed further, he may fily file a writ of
summons stating
the facts of the claim and reliefs sought. He then can bring
summons application for interlocutory injunction and the other
interlocutory
orders. He may even file the writ of summons and the application the same
time. In the circumstances, it
will be advisable to serve both the writ of
summons and the summons application on the defendants at least two days
before
the date of hearing the application. There is urgency in the intended
application, but may be the application is not so urgent
to warrant waiver
of the requirement to give two days notice.�
The Applicant argues the
Respondent had failed to comply with the directions of the Court in that
judgment and had also
failed to give notice of his application for interim
injunctions. Unfortunately, the comments of his Lordship can only be
confined to that particular case. They do not apply to a new case filed by
the Respondent and commenced anew as has been
done here. One would have
thought Counsel for the Plaintiff in that case would have filed writ of
summons with statement
of claim to save costs. Unfortunately that had not
been done. As to the question of notice of intended application for interim
injunction, again it must be viewed as mere obiter in the light of this new
case. Again one would have expected Counsel
to bear that in mind when making
this application. The fact however it had not been taken into account by
Counsel for
the Respondent in this application may have been unfortunate but
does not even warrant the outright dismissal of this interim
injunction. I
bear in mind also the fact that the Applicant in this case had not been
unduly prejudiced. This application
had been filed and heard within a week
of the imposition of the interim injunction.
SERVICE OF ORIGINATING
DOCUMENTS.
Counsel for the Applicant has
also raised obons to the way the writ of summons and statement of claim
aim
had not been
served on his client until just before the hearing of this
application. What transpired was that Counsel for the Respondent
assumed
that Counsel Tegavota acting for the Defendant in Civil Case No. 173 of 1999
was the same Counsel acting for
the Applicant in this Case and simply sought
to effect service on Mr Tegavota. The simple explanation for this conduct
has already been referred to in the judgment of Awich J. in which he
acknowledged that Counsel for the Plaintiff in that
case (Civil Case 173 of
1999) had humbly requested the court to take into account his personal
circumstances that it
was his first time to appear in court as a private
practitioner. I note Counsel in this case is in private practice with
another senior partner in his firm. It would be in the interest of his
client if he consults his partner to avoid any further
unnecessary fees
being incurred in the handling of this case. Again despite the irregularity
in the service of the originating
papers, I am not satisfied the Applicant
had been unduly prejudiced and that it warrants a discharge of the interim
orders
obtained on 17th June 1999.
ARE DAMAGES AN ADEQUATE REMEDY
Learned Counsel for the
Applicant submits that in view of elief sought, declarations,ions, royalty
and damages, that compensation
by way of damages would be more than
sufficient to compensate the Respondent for any losses that he might incur.
Mr.
Suri also submits the Applicant is more than able to compensate the
losses of the Plaintiff in damages. He also points out
royalty can be paid
into an interest bearing deposit account pending determination of the issues
raised in this case.
Unfortunately, this overlooks the underlying claim of
the Respondent as the owner of the said customary land and thereby the
trees
on the said land which is yet to be determined. In his pending appeal as
owner of the said customary land, if successful,
the Respondent would have
been entitled to an incidental order for a permanent injunction against the
Applicant in any
event. Also the Applicant overlooks the fact that as a
person claiming ownership rights and whose rights have yet to be finally
disposed of, the Respondent is entitled to protect his rights whether to
allow his trees to be logged and by whom, or
not. It should be borne in mind
the Respondent is not a party to the timber rights agreement entered into by
the Applicant.
It has alrbeen pointed out
many times by this court that trees once lost now take more than a ln a life time
to be restored
to their original state and that any damages caused may not
only affect the present generation but generations to come. As
long ago as
1982, (see the case of Nelson Meke v. Solmac Construction Company
Limited Civil Case Nos. 44 & 45) at page 6, Commissioner D.R.
Crome pointed out quite pertinently, that:
�In n can financial
compensation be considered recompense for desecration of such land, ind, in my
view, the very suggestion
only adds insult to injury.�
Contrary to the submission of
learned Counsel for the Applicant, I too am not satisin the
circumstances nces of this case,
should the Respondent win his case at the end of
the day, financial compensation would be sufficient to compensate the
Respondent for the desecration of his land.
WOULD THE DEFENDANT BE
ATELY COMPENSATED BY DAMAGES?
The simple answer to this
question must be answered in the affirmative. This has beferred to in
the affe affidavit of
Ling Chung Kok filed 24th June 1999 at
paragraphs 5 and 6. Its losses are quantifiable.
On the other hand, the
Applicant seeks to point out that the Respondent would not be in a financial
position to pay any
damages for losses incurred under its undertaking. In
the circumstances, he argues the interim injunction should be discharged.
This brings me to consider the
question whether an undertaking should be given in the cirances of this
case orse or not.
The purpose of an undertaking is to enable the court recompense
the Applicant for any losses incurred whilst temporarily enjoined
if at the
end of the day it should win its case. The Court normally requires that an
undertaking as to damages �ought
to be given on every interlocutory
injunction� (see Graham v. Campbell (1878) 7 Ch. D at p. 494;
Howard v. Press Printers Ltd. (1904), 91 L.T. 718; Queensland
Lithographic Process Co. v. Mckellar (1890) 4 Q. L. J. 21), but it
has also been held that in exceptional cases this may found to be
unnecessary or inappropriate. See the cases
of Attorney-General v.
Albany Hotel Co. [1896] UKLawRpCh 148; [1896] 2 Ch. 696 at p. 700; and Beecham Group Ltd.
v. Bristol Laboratories Pty. Ltd. [1968] HCA 1; (1968) 118 C. L. R. 618 at p. 623;
in which it was held that if a judge should in his discretion think fit to
dispense with such an undertaking he may do
so, but only under special
circumstances.
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In my respectful view, the
circumstances of a landowner in this case who dot have anything other
than what he claims
as rights of ownership over customary land would warrant
the exercise of the courts discretion to dispense with the requirement
for
an undertaking for damages. Indeed this had been previously considered and
done in a number of similar cases before
hand. I dispense with the
requirement for an undertaking in the circumstances of this case.
There has been some suggestion
made that the entry of the Applicant onto Pavuvu Customand had been
formallymally sanctioned
by the Premier of Central Islands Province for purposes
of construction of a road. Unfortunately, that has nothing to do with
the
issue of a timber licence. Secondly, that would have been a matter between
the Applicant and all disputing landowners
to agree upon perhaps with the
assistance of the Provincial Government. Unfortunately there is no evidence
to suggest
that the Applicant�s entry had been agreed to by all disputing
landowners. The issue of ownership is currently under dispute
and so no
decision can be and should be unilaterally taken in such matters.
PRESERVING THE STATUS QUO.
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Assuming all things are equal
so far, the next matter this court would to consider is the
de desirability of preserving
the status quo. In my respectful view, even
applying this consideration, the balance of convenience remains in favour of
the Respondent. Even if the Applicant should win his case at the end of the
day, the trees would still be there for him
to fell and export. On the other
hand, if the injunction is not extended and the Respondent should win his
case at the
end of the day, irreparable harm would have been caused and the
Respondent denied of his rights to the trees in their original
state and to
his rights to dispose of them in whatever way he chooses.
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CONCLUSION.
I am satisfied the balance of
convenience favours the continuation of the interim s imposed by this
cou court. What is
now paramount, is for the landowners to require that the
Central Islands Customary Land Appeal Court convene as soon as possible
to
finally dispose of the appeals of the parties under the Forest Act. On the
question of costs, it is my respectful
view that the appropriate order would
be for costs to be in the cause.
ORDERS OF THE COURT.
1. DISMISS SUMMONS OF THE
APPLICANT/SECOND DEFENDANT.
2. ORDER THAT THE INTERIM
INJUNCTIONS IMPOSED BY THIS COURT ON 17TH JUNE 1999 BE CONTINUED
UNTIL TRIAL.
3. COSTS IN THE CAUSE.
THE COURT
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