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Omex Ltd v Tangisi [2011] SBHC 93; HCSI-CC 365 of 2011 (15 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J)

Civil Case No.365 of 2011.

BETWEEN:

OMEX LIMITED
1st Claimant

AND:

LARENSIO TANGISI, ANISETO
2nd Claimant

KEKEPUALA, SELESTINO TSODO,
LAWRENCE PONGO, PETER NAUGUA,
USEBIO SAGELI, LAWRENSIO KARA,
JOSEPH PEA AND FANCIS LOVANA.

AND:

MOSES KWANAHABUSI
1st Defendant

AND:

SEVERINO BONU
2nd Defendant

Date of Hearing:13th September 2011.
Date of Decision: 15th September 2011.

Mr D. Tigulu for the Claimants
No one for the Defendants

DECISION ON APPLICATION FOR INJUNCTIVE RELIEF.

Faukona, J: This is an ex-parte application for temporary injunctive orders. The orders sought are:

1. An interlocutory injunction restraining the first and second Defendants by themselves, members of their tribes, family members, their servants or agents from;

(a). Demanding compensation, harassing, threating, assaulting or molesting the first Claimant's employees, servants and agents;

(b). Interfering, disturbing or crating any road blocks or any activities that may disturb the logging operation by the first Claimant within Satona customary land concession under Felling Licence No. A10720;

2. That the Commissioner of Police, Provincial Police Commander Guadalcanal and all Officer under their command be empowered to arrest any person breaching these orders;

3. That the first and second Defendants to pay the first and Second Claimant's cost of this ex-parte application; and

4. Such further orders as this Court deems fit to make.

2. This matter comes to Court requiring an urgent ex-parte hearing on the basis that the Defendants have created road block which virtually halted the first Defendant's logging operation on Satona customary land concession. Besides that, threat, harassment, demanding compensation, interfering and disturbing the 1st Claimant's employees and agents tantamount to huge financial loss.

3. The second reason for this application is because the Defendants are located in a remote part of West Guadalcanal and will take time to effect personal service on them.

4. The third reason is that the High Court is currently on vacation until 23rd September 2011. To wait until the Courts listing after the vacation will result in more loss and damages to the Claimants.

5. There are three sworn statements in support of this application. And they are sworn statement by Francis Moah, Lawrence Pongo and Selestino Tsodo which were filed on 13th September 2011.

6. The first Claimant is a logging Company operating within Satona customary land concession under a valid Felling Licence No. A-10720. The Second Claimants are the grantors of timber rights over Satona customary land concession area, and through the normal timber rights processes invited the first Claimant to carry out logging on the said customary land.

7. The first Claimant after execution of the standard logging agreement was issued with a felling licence and started logging operation in a about May 2010. In October 2010 felling, skidding and hauling of logs commenced.

8. Four weeks ago the Defendants interfered by creating and maintaining road blocks in block 3 within satona concession, thereby disrupting operation into blocks 1,3,4,5,6 and 7.

9. Attempt negotiation with the Defendants failed. However, they demanded a chiefs hearing which eventually held a 24th August 2011. After the Chiefs hearing a custom reconciliation was conducted. Despite those attempts the Defendants continued with road blocks, preventing access into the interior parts of Satona concession.

10. There is also evidence that as a result of the Defendant's actions the logging operation continue to suffer loss and damages to the 1st Claimant. Not only that but resulted in delay in log shipment with serious financial implications.

11. At one stage Police Officers were sent to the Defendants to negotiate peaceful resolution, but there was no positive outcome. One of the outcomes was the issuant of a search warrant "Exh.ST4" attach to Tsodo's sworn statement.

12. I have perused the Chiefs determination, "Exhibit ST-3" attached to Tsodo's sworn statement filed on 13th September 2011. The chief's record does not reveal with clarity whether the case it heard was a claim of ownership of land, if so what land. Or is it a trespass to land, if so, what land. The record shows evidence of two persons with one small paragraph each of what perhaps regarded as statements. As such it would be difficult to rely on to substantiate a cause of action in the nature of damages and financial loss. At the end thereof the chiefs rule that the Defendants to remove the blockages.

13. What transpired at the chiefs hearing change the course of direction when Mr Moise stated that he did not dispute the land but expressed his view of being dissatisfied with the terms and conditions of the logging company. What terms and conditions he meant cannot be deduced at this stage. In fact it was not clear, perhaps evidence from inter parte hearing will canvas this point more vividly.

14. Meantime the issue is whether the Claimant has an arguable case in order to ask the Court for an injunctive relief. The evidence is clear. The first Claimant has in possession of a valid felling licence issued by the Commissioner of Forest. The second Claimants are the grantors. If the Defendants wish to challenge the grant, they should show that they have better rights than the current grantors. And any challenge should commence immediately after the second Claimants were identified as persons lawfully entitled to grant timber rights, and should appeal against such determination. It would be difficult to wait until the logging operation started and then resort to taking the law into their own hands. It would appear they have agreed to such logging operation from the start and then change mind when they disagree with the terms and conditions; what are the terms and condition is not clear.

15. It therefore boils down to the fundament arguable case of damages and financial loss of the logging operation because of the interference by way of road blockage by the Defendants. Should the level of interference continue, it is contemplating that further loss and damages will incur which the Defendants who are rural dwellers would not be able to redress, and can have serious financial implications.

16. On the balance of convenience reference is made to the case of Basil Maepuhi, Ezekiel Hilly, Michael Belama v (1). Marovo Development Company Limited (2) New world Limited[1], where Justice Goldsbrough said on paragraph 14;

"The balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not adequate remedy. It is where there is doubt as to the adequacy that the balance of convenience arises".

17. In this case there is no doubt there are serious issues to be tried, that is financial loss and damages caused by the actions of the Defendants. Mr Tigulu affirms to pursue the issues to finalisation, and has prepared to serve documents upon the Defendants for inter parte hearing. This implicates how serious the Claimants are to advance their claim forward and have the issues tried in Court.

18. In the light of the circumstances, I consider appropriate to grant the interlocutory relief as sought on temporary basis, and are as follows;

(1) An interlocutory injunction restraining the first and second Defendants by themselves, members of their tribes, family members, their servants or agents from:

(a) Demanding compensation, harassing, threatening, assaulting or molesting the first Claimant's employees, servants and agents;

(b) Interfering, disturbing or creating any road blocks or any activities that may disturb the logging operation by the first Claimant within Satona concession area under Felling Licence No. A10720:

(2) That the commissioner of Police, Provincial Police Commander Guadalcanal and all Officers under their command be empowered to arrest any person breaching these orders;

(3) That the first and second Defendants to pay to the first and second Claimant costs of this ex-parte application.

(4) That all documents of this case be served upon the Defendants for inter parte hearing.

(5) That the case be adjourned for 29th September 2011 for mention.

The Court.

^[1]Unreported, CC 294 of 2008 (28 October 2010).