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High Court of Solomon Islands |
IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction
BETWEEN:
GEORGE NESSA PITU, OBADIAH GADI
Applicant/Claimant
AND
HOLDEN FOTAMANA
(Representing themselves and their Mereluhu tribe
of Hograno district, Santa Isabel)
AND:
MAS SOLO INVESTMENT LIMITED
1st Defendant
ELLIOT HAVILEGU
2ndDefendant
(Representing himself and the Posamogo Moni clan
Of Mablosi, Isabel Province)
ATTORNEY GENERAL
(Representing the Commissioner of Forests)
3rd Defendant
Date of Hearing: 7 September 2016
Date of Judgment: 27 September 2016
Mr. M Pitakaka for claimants
Mr. J Sullivan QC & Mr. R Kingmele for 1st defendant
Mr. P. Tegavota for 2nd defendant
Application to discharge injunctive Order granted on the 31 August whereby the 1st and 2nd defendants are restraining from logging in Gonogono customary land, demarcated Block B, in Hograno, Santa Isabel Province.
Reasons for Decision
Brown J:
The interim order was made after service of the application but in the face of objection by Mr. Kingmele for the 1st defendant, who sought time to take instructions. He also pointed to the absence of a claim by the Mereluhu claimants, but on balance relying on what may be called the 1st CLAC decision relied upon by the claimants, given at Buala on 22 to 25 July 2013, when Elliot Havilegu’s appeal against findings of the Isabel Provincial Executive refusing logging, was dismissed, I made interim orders effective until 7 September. On that day, the application for injunction was further heard, the respective defendants having had opportunity to response to the claim. For as well as the interim order and permanent orders sought, the claimant’s seek damages for trespass and conversion of the timber alleged to have been felled.
On the 7 September, Mr. Sullivan QC with Mr. Kingmele appeared for the 1st defendant. Mr. Tegavota appeared for the 2nd defendant. At that further hearing, Mr. Pitakaka counsel for the claimants, again relied upon the statement of George Nesa, [one
of the claimants] filed on the 2 August. He had been served with the sworn statements of Elliot Havilegu of the 6 September 2016
on the 2nd defendants behalf, and another of the 7 September on the 1st defendants behalf. They go to address the deponents involvement with two appeals under Section 10-[1] of the Forest Resource and
Timber Utilization Act, from the Provincial Executive’s act in failing to allow the 1st defendant’s application to log and other issues which may become matters for decision at trial.
But the claimants say, these statements do not take the evidence any further to afford the defendants reason to have the interim orders
discharged before trial.
Mr. Pitakaka says the balance of convenience is still with the claimants, for the 1st Isabel CLAC decision given on the 25 July 2013, effectively brought to an end the timber rights process in respect of the application to log Gonogono Customary land as it affects these claimants, by Mas Solo Investment Ltd. For earlier the Provincial Executive had recommended to the Commissioner of Forest the application by Mas Solo Investment Ltd be rejected on two grounds:-
“(i) The map displayed covered customary lands also claimed by Mereluhu Moni, Sei, and Taoathaba tribes- thus the Executive cannot decide who was the rightful person to grant timber rights over Gonogono customary lands;
(ii) There was no updates/ feedbacks from the parties to this hearing that the 2006 Local Court decision has been appealed against to the CLAC.”
There were appeals from the Executives decision.
The claimant annexed, as “GN 7” to George Nasa’s statement, a copy of the decision of the Isabel Customary Land
Appeal Court given on the 25 July 2013.
“For the reasons that will be provided in the written judgments, we now make the following orders.
In civil Case no 1 of 2012, between Elliot Havilegu as the Appellant and Isabel Provincial Executive as the Respondent, we order that
all appeal grounds are here with dismissed.”
There-upon the claimants say, the CLAC is functus officio in relation to the appeal by Elliot Havilegu and may not presume to entertain his further appeal in November. It is not readily apparent what the appeal grounds addressed when considering the Provincial Executives decision in the absence of the CLAC reasons of the 25 July 2013. Again it is not wholly clear if the parties in the second appeal to the CLAC heard in November may be presumed to have been represented in that first appeal.
Consequently, whether the CLAC was precluded from further dealing with the Provincial Executives decision is moot. The 1st defendant argued strongly in favour of liberal powers in the CLAC to deal separately with the appeals, and while that is accepted, the confusing issue of representation at both hearings and the reasons of the CLAC in the first instance, rather requires this courts determination on the question of whether the CLAC was precluded from reconsideration of the Executives decision after the 25 July 2013. This may be seen as the 1st issue.
In November 2012, the Isabel CLAC again heard an appeal by Mas Solo Limited (represented by Eliot Havilegu and Barnabas Heta Leo) seeking the grant of timber rights on blocks A & B of Gonogono land to the appellant and apparently allowed the appeal and further directed that the respondents, Fr. Frank Bollen and Rackson Aumana “their agent and servants and family members.... not insult, disturb harass and prevent the applicants from further developing their land as Blocks A & B on Gonogono land”. In that hearing Rackson Aumana represented the claimants.
There is conflict in the 1st CLAC decision dismissing the appeal by the Posamogo Moni clan [the 2nd defendant clan], although the basis of the dismissal was not in evidence, and the 2nd CLAC decision [Elliot Havilegu, this time representing Mas Solo] which it is impliedly claimed, gave timber rights to Mas Solo, effectively ignoring the Executives earlier recommendation to the Commissioner of Forests to refuse such application. Nor does the 2nd decision seek to name those able to grant timber rights.
I should say the apparent presumption by the Isabel CLAC to be able to give timber rights rather takes no account of the Forest Resource
Timber Utilization Act Ss. 8(3] & [4) which requires an agreement in terms of S.8 (3) to be forwarded to the Commissioner of
Forests. Again this apparent conflict reflects a serious issue to be tried, and rather weights the balance in favour of the claimants
if the license issued without a Form 3 (Certificate Approving Timber Rights Agreement Negotiation – Section 12).
Mr. Sullivan QC spoke to his written out-line of argument for Mas Solo, relying on the claim and the three sworn statements, those
of George Nesa for the claimants and the 1st and 2nd statements of Elliot Havilegu for the 1st and 2nd defendants. His first argument went to standing for “a mere assertion of ownership is insufficient” [1]. The claimant’s have no clear determination by an appropriate authority on which they may rely for ownership.
For according to George Nesa, the Mereluhu tribe went to the Central Hograno House of Chiefs for the determination of its Mereluhu
Customary land ownership with-in block “B” of Gonogano land. The Chief’s decision was made on the 8 November 2015
recorded:-
“This is a compromised decision where all the disputing parties at least have a portion of the disputed area.
Munica tribe – Tulegu, Sigo, Sapa, Barasako, Foafora within area
Taugaba – Koesebi to Hahefnoto up to Popoku down to koesebi
Mereluhu – Kololako to Koesebi up to Popoto to Jacro down to Kololaho boundary from Egho to Kololaho (Claimed by Tauguba
and Mereluhu) is now Gonogono land and is in the upper court decision.”
While the decision, obviously an English translation for it reverts to tok ples from time to time and perhaps leaves something to be desired in its factual reasoning, as my brother judge Keniapisia J implied[2], may not find favour with jurists, it does give rise to an unaccepted settlement in terms of the Local Courts Act. An aggrieved party, the Mereluhu tribe of these claimants, has appealed to the Local Court as evidenced by a Notice of Hearing issued
by the Court. It would seem the Court has not yet heard the Appeal. I am not willing in the face of the introductory passage of the
Chief’s decision, to find as a fact these claimant are without rights to portion of Gonogono for there is no apparent issue
with the fact of their occupation. That fact supports a claim to customary ownership. When I have regard to Rockson Aumana’s
[for the Mereluhu] recorded evidence in the Isabel CLAC on the 7 November 2013 (exhibit “EH 7”) (60) where he said;-
“Question by the Clerk
Q. Why did you say that the applicant should not have timber rights?
A. Because there are number of claim and tribes that own the same portion of land and while not spokesperson (Holden Fotamanu) Rockson Aumana spoke as a representative.
I am satisfied Mereluhu objection to log was partly instrumental in causing the Executive to recommend refusal of the application.
For the recommendation to refuse the application would seem to reflect the fact those named opponents at the Executives hearing were
claiming as customary owners whom the Executive was not prepared nor able to validate yet the Executive was able to recommend refusal
in the obvious face of opposition to the application . [Section 8 [3][a] of the FR & TU Act]. The apparent fact of the refusal
to recommend the application to log is the issue, rather than the ownership question for as I say, there is no evidence to suggest
this claimant is a tribe or clan actually not in possession of at least part of the land and if so may have rights of customary ownership.
This inchoate claim has been taken from the Chiefs hearing [where joint rights were recognized] on appeal to the Local Court and
awaits a hearing. If there was to be a land rights hearing in terms of Section 8, it should await the decision of the Local Court
to establish those claiming as customary owners. For the Act appears to be written with conditional expectation that landowners will
support the application otherwise the Executive is faced with landowners not willing to negotiate the disposal of timber rights and
need not consider the matters in the remainder of the section.
Whilst Mr. Sullivan QC’s argument has appeal, I accept the Executives refusal to recommend Mas Solo’s application to log as rather going to the issue of unwillingness of certain landowners to negotiate for the disposal of timber rights for it would be ironical for loggers to overcome objection to log by suggesting “mere assertions of ownership” by those living on the land were baseless and thus unable to justify stop orders in the circumstances here.
They have been acknowledged by the Provincial Executive as having a right to be heard in that enquiry to justify recommendation to refuse the application. For the first issue for consideration by the Executive is whether the landowners are willing to negotiate for the disposal of their timber rights to the applicant. In this case, the Executive declined to entertain the other questions for the reasons given. To suggest the applicant, Mas Solo should not be subject to a stop order when the basis for its license to log, the Executives Certificate of Customary Ownership cannot be presumed on the evidence so far, and no Form 3 is in evidence, is a question going to the balance of convenience. The absence of the Local Courts decision on appeal concerning ownership of the subject land must on balance, when the very right to log is in issue in the apparent absence of the Executives Certificate under Section 12 of the Act, for these reasons, favour the claimants.
There are at least 2 serious issues to be tried. The second, the apparent conflicted power of the CLAC to recommend to the Commissioner
of Forests, logging, certainly can be seen to go to the validity of the logging license if it was based even at the lowest, on paragraph
28 of the statement of case:-
“28. The Third defendant knows or ought to have known that Appeal no. 2 was tainted by fraud and or was irregular but issued License no. A 101174 to the First defendant.”
Mr. Sullivan’s submission concerning the separate hearings by the CLAC went to the lawfulness of that approach. I agree where
different parties’ appeals, as was the case here, come before that Court, the CLAC may deal with them separately but on the
evidence there is an issue going to Elliot Havilegu’s representative capacity. In his earlier statement of the 6 September
2016 he says that he filed two appeals (EH5) the first dated the 6 February, 2012 against the Provincial executive and the second
(EH6) dated 19 February 2012 against John Kingsley and the claimant (Holden Fotamana). “EH5” (p. 45, 46 of the statement) is a letter (undated) to the Clerk, Customary Appeal Court in which he says.
“I wish to appeal against the decision of Isabel Provincial Executive on Timber rights hearing at Mablosi village on 20/01/2012
on Gonogono land. My appeal is only base on portion B which I am the applicant during the timber right hearing”.
He then set out his appeal points.
“EH 6” is dated 12/02/2012 and is in formal form, entitling the document:
“In the Isabel Customary land Appeal Court and in the matter of the Timber Right Appeal” it named claimants/applicant
as
Respondents
Appeal Points
At paragraph 9 of his first statement, he says he lost the first appeal heard on the 7 November 2013 and annexed EH 7, which was the record of the proceedings and panel discussion on the case in November but which also included therein a record of decision (unsigned) dated 25 July 2013 dismissing Elliot Havilagu’s appeal against the Provincial Executive. So while relying on the minutes of the 2nd CLAC meeting, annexure EH 7, he used the CLAC decision of the 25 July 2013 as reason for stating he had lost the first decision. That is a nonsense.
In fact the minutes of the 2nd CLAC record, at the concluding paragraph:- “President: I now see the issues and now that there is a split. It is shameful for us to split in our decision. It undermines our status as a court. I will now agree that we should grant timber rights” (p.64).
There was no attempt to record the matters required of the Provincial Executive if the CLAC was presuming to sit on appeal from those
findings for no findings had been made.
At paragraph 10 of his second statement, Elliot Havilagu says his second appeal against John Kingsely and the claimant was heard on
the 12 November 2013 and he won it (EH8). Now the annexure, EH 8 records the decision of the court sitting at Buala on the 7 November
between Mas Solo Limited (represented by Eliot Havilegu and Barnaba’s Heta Leo) and Frank Bollen and Rockson Aumana (respondents),
the concluding paragraph of which I have already reproduced. The decision is dated 12 November 2013 [and formed part of EH 7], but
clearly refers to the sitting on the 7 November 2013.
In an attempt to clarify any doubt about his representative capacity, the second statement of Elliot Havilegu, prepared by Messrs Sol – Law, solicitors for Mas Solo [the 1st defendant] said, at paragraph 5: - “I refer to Exhibit EH6 to my statement filed on 6 September 2016 (the second Appeal) I recall that the document exhibited as EH 6 was prepared by the second Defendant and I signed the document on behalf of the second defendant. Although I signed EH 6 that was the Second defendant’s appeal against the IPG Determination”
So he is saying he represented the Posamogo Moni clan of Mablosi. But the court copy of the statement at paragraph 5 has the word “second” whereever it appears, struck out by pen and the word “first” written above it. No initials are adjacent to the alterations. EH 6 was the more formal notice of appeal and may have been prepared by Messrs Sol-Law, acting on instructions from Mas Solo, [ for they represent them in these proceedings] for this second statement by Elliot Havilegu was so prepared, but when a pen is used to alter the document filed in and read by the court, it is difficult to place much weight on the deponents evidence about his representational capacity at particular times.
In this circumstance without explanation and having regard to the questionable assertion that the findings of the 2nd CLAC [EH 7] show Mas Solo as having won the appeal, for instance, coupled with the second statement filed on the 7 September, I am further satisfied there are serious issues to be tried. The balance of convenience is with the claimants while the doubt about the efficacy of the logging license remains unresolved.
I initially dispensed with the requirement for an undertaking as to damages.
The 1st defendant’s argument.
Rule 7.38, while dealing with the courts power to grant an interlocutory order, goes on to say: “The usual undertaking as to damages must be given by the relevant party unless the court otherwise orders”.
The 1st defendant argues the wording is mandatory (by the use of “must”) yet apparently concedes discretion in the court to dispense with the need in special circumstances. Mr. Sullivan QC was adamant
that impecuniosity, which I mentioned originally, cannot be a special circumstance. Rather, he said, the question was one for consideration
“on the balance of convenience”. Having raised the issue it is necessary to approach the question of the undertaking from a historical perspective, since it has
followed previous rules of court based on adopted law. The reference to “the usual undertaking as to damages” makes that plain. It consequently is a separate consideration to what Mr. Sullivan QC urges as a balance of convenience question for the reason that the question goes to anticipated loss to the defendants arising from the result of stopping the defendants
from doing something.
That is the issue the court should address on the question. Where there is a paucity of evidence to make a judgment on that, and it is difficult to envisage loss in the circumstance of the case, the court may dispense with the need when asked.
Damages envisaged to follow an injunction affecting a defendant should not be seen as a condition precedent incumbent upon the claimant with need on the claimant to proffer evidence, before allowing the claim. But where the evidence does show the loss or likelihood of loss to the defendant through being stopped in his business or being unable to implement work where delay will financially disadvantage him, then on the issue of an undertaking, where there is evidence, the court is obligated to follow the precedents requiring such an undertaking unless they have been distinguished. It may be somewhat confusing to speak of the impecuniosity of the claimant as not a special circumstance justifying the waiver of the need for an undertaking. Mr. Sullivan QC was adamant on this point, and hence called for the undertaking.
But the fact of a claimants’ impecuniosity rather goes to the consideration of whether to deny the claim for an interlocutory injunction on the ground that any undertaking as to damages would be of limited value to the defendant in his circumstances [of threatened continuing loss, for instance], because of the impecuniosity pleaded. The court, by reason of the claimant’s alleged impecuniosity, should not view that as an impediment affecting the claimant’s right to a trial of the issues of the case when justice demands, or to refuse the interlocutory order.[3] It is somewhat ironical that the defendants seek an undertaking from claimants who state they have no monetary resources.
To deny the claim for an interlocutory order on the grounds of impecuniosity of these claimants, would misstate the underlying law. It can be seen to afford the defendants advantage, by allowing logging, when an award of money for damages to a finally successful claimant may not compensate for the environment damage and loss of trees suffered in the meantime. This is a balance of convenience question, which favours the claimant.
Of course, the issues of an undertaking relates to the question of damages which might arise at the conclusion of the proceedings, both from a claimants point of view and from a defendants. For were a defendant to suffer no damage, as a consequence of an injunction pending trial, then no undertaking may be considered by the court as necessary, but where a defendant has embarked on a costly course of action, and is stopped during the process, then damages may be envisaged and the court may call for an undertaking in such circumstance.
There is then, an initial need to look to the damage which may be suffered by a defendant, such as the 1st defendant perhaps, rather than the clearly envisaged wish to carry out logging as soon as possible when looking to the claim for an undertaking.
No Form 4 agreement is in evidence for the Commissioner of Forests has not filed material in these proceedings to date validating
acts incumbent upon him under the Forest Resource and Timber Utilisation Act.
A valid Form 4 agreement [Section 12] is a necessary precondition to a logging license. The claimants seek to restrain logging. Environment
damage may be presumed to detrimentally affect the land in dispute, were logging to continue to take place since the claimants have
not been shown to favour logging in any event.
For if the defendants were to succeed at trial, their costs of these proceedings would follow the event, and they would be free to carry on logging. The growing trees are not a wasting resource.
I am consequently not satisfied that damages to the defendant will clearly follow through delay to logging to an extent to justify varying my earlier order. It may be a question of varying the manner in which any existing proceeds of sale are distributed but the question may be addressed on another day. Mr. Sullivan QC did not address this aspect.
A permanent injunction is also sought. Where these claimants have a seriously arguable case, the absence of argument about any pleaded material loss to the defendants pending trial, justifies my discretion to continue the interim injunction. For the claim has been shown to be seriously arguable in the usually understood phraseology and should proceed to trial.
The need for an undertaking is one for the judge’s discretion, and for those reasons, I dispense with the need at this time.
ORDERS
__________________
BROWN J
[1] Simbe V East Choiseul Areas Council (1999) SBCA 9(18).
[2] Kingsley V Mas Solo Enterprise Ltd – (2016) SBAC 97 at 17
[3] Allen V Jambo Holding Ltd (1980) WLR 1252
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