Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Talasasa v Gasimata [1995] SBHC 31; HC-CC 308 of 1994 (23 May 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 308 of 1994

JOHN WESLEY TALASASA

-v-

DOAVA GASIMATA,
PETER PAULSEN, JOHN TUTA ZIO, MICAH LAMUPIO

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 26 April 1995
Judgment: 23 May 1995

John Wesley Talasasa Plaintiff
P. Lavery for all 4 Defendants

MURIA CJ: There are two applications before the Court, one is by the plaintiff who seeks an extension of the interim injunction granted against the defendants on 25 November 1994 and the other is by the defendants seeking to strike out the plaintiff's action on the ground that the plaintiff has no standing to bring the action as he is not a customary landowner or not a sole customary landowner of the land in question.

I consider each application in turn. But I feel it is convenient to deal with the defendants' application first.

The defendants' application

The defendants bring this application to strike out the plaintiff's claim on the ground that the plaintiff lacks standing to the case against them. In support of their application the defendants rely on the affidavit of Matson Doava Gasimata, the 1st Defendant.

The argument by Counsel for the defendants is, in a nut-shell, that the plaintiff has no land right in Kazukuru Left Hand Land (KLHL). As such counsel argues that if the plaintiff says that he has right of ownership in KLHL he must establish that he has such right by evidence.

As to the provisions court case referred to by the plaintiff in his affidavits filed in this matter, Counsel for the defendants suggests that those cases do not show that the plaintiff or his "tribe" (Talasasa Family) owns KLHL. Consequently it is suggested that the plaintiff has no cause of action in this matter.

This court had already decided in previous cases that the court's power to strike out pleadings and to stay or dismiss action on the ground that it discloses no reasonable cause of action is discretionary both under the High Court (Civil Procedure) Rules and the inherent jurisdiction of the Court: Christopher Columbas Abe -v- Ministry of Finance & Attorney General (1994) CC197/94 (No.1) and Talasasa -v- & Ors (1995) CC43/95 (Judgement given on 15 May 1995). I have re-iterated in those cases that the purposes o conferring such jurisdiction on the Court is to enable the Court to stop cases being launched which are obviously frivolous or vexatious or obviously cannot be sustained.

With the principles stated in the above mentioned previous cased, can it really be said that the plaintiff or his tribe or family, call it whatever, has no right of ownership in KLHL and that he or his late father Milton Talasasa should be regarded as mere spokesman in the previous cases on KLHL? Reliance had been placed by the defendants on the CLAC No. 1/84.

I agree with Counsel for the defendants that the judgement of the CLAC in CLAC No.1/84 case was well researched and thoroughly done.

It is also true to say that the CLAC had conscientiously gone into the history of the KLHL including the genealogies of the parties involved. However, I cannot accede to the suggestion that the previous cases including the CLAC No.1/84 do not show any right of ownership on the part of the plaintiff in respect of KLHL. The CLAC clearly recognised the plaintiff's rights in KLHL in that case, as can be seen from the judgement which states:

"Accordingly we determine those persons entitled to grant timber rights in the application area are the Land Guardian Jacob Zinghite in consultation and with the agreement of three chiefs, Rex Biku (for his father Edwin), Sinaru Mamupio and Peter Siga together with John Talasasa all on behalf of the Kazukuru people. All five signatures are required."

It would be totally unacceptable in custom in most part of Solomon Islands for a person to be said to have the right to grant timber rights in customary land without the need to show that he also has land owning rights in the land. As such when the CLAC determined that the plaintiff was one of the persons entitled to grant timber rights in land concerned surely they must have contemplated that the plaintiff did have rights in the land (KLHL) in order to be able to grant rights over the trees standing on the land.

I know there are decisions of this Court which contemplate the notion, based on the interpretation of the provisions of Part II A of the Forest Resources and Timber Utilisation Act (as amended), that one can grant timber rights without necessarily having ownership right to the land. One such decisions is the Allardyce Lumber Company Limited & Ors -v- Attorney General & Ors. (1988/89) SILR 78 where it was stated at p. 95:

It has been stated many times before that ownership of customary land and ownership of timber rights are not the same thin. Frequently the same people are involved because the ownership of the land will usually have included the rights to the timber on the land but many people who do not have ownership rights to the land have rights over the timber."

I can very well appreciate the basis for such comments by the Court in that case. The language used in section 5 c(4) of the Act would lend support to such an interpretation as that given by the Court in the above mentioned case. But it must surely be a matter of grave concern to any Solomon Islander with customary land owning rights to know that some other persons who have no land right in his land can still be able to grant rights over the trees growing on his land.

The plaintiff, in CLAC No.1/84, had been adjudged to be one of the persons lawfully entitled to grant timber rights. That must undoubtedly be so having land rights in the land concerned in accordance with custom.

In those circumstances I cannot accept the assertion by defendant counsel that the plaintiff or his "tribe" or family has no land rights in KLHL. His case for claiming injunction against the defendants may or may not be a strong one depending on the circumstances under which he brings his claim. But as I said in Christopher Columbas Abe -v- Minister of Finance & Attorney General (No.1) and Talasasa -v- Attorney General & Ors, the mere fact that the case is weak and not likely to succeed is no ground for striking out the action so long as a cause of action or some question raised is fit to be decided by a judge is disclosed.

In the present case the pleadings clearly disclose a cause of action an there is definitely a question raised here touching on the plaintiff's right in the KLHL which the Court must determine.

I therefore reject the defendants' argument that the plaintiff's case should be struck out on the ground that the plaintiff lacks standing to bring the action. The plaintiff has a cause of action and which gives him the locus standi to bring his case to this court.

The defendants' application is refused.

The Plaintiff's Application

I now consider the plaintiff's application for an a continuation of an ex parte interim injunction granted by this court on 25 November 1994. The basis for his application is that the defendants have continued to trespass onto his land in KLHL.

It is not disputed by the defendants that they have been occupying the land in question. However, they said, through their Counsel, that they have been living on the land for the last 12 years and that permission was given to them by late Jacob Zingihite. Further the defendants argued that for the last 12 years the plaintiff raised no objection to their occupation of the land.

I do not need to repeat what the plaintiff must show when seeking an interlocutory injunction from the Court. The principles applicable in such a case is set out in Nelson Meke -v- Solmac Construction Company Ltd (1982) CC 44 & 45 of 1982 following the American Cyanamid -v- Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504. Those cases have been applied in subsequent cased by this court, namely SIG -v- SIPEU (1991) CC No. 102/92, Beti & Ors -v- Allardyce -v- Attorney General & Ors (1995) CC 43/95).

On the materials before the Court and in the light of what I have already stated earlier on the defendants' application and applying the principles enunciated in the cases mentioned, i have no hesitation in finding that there is a serious issue to be tried in this case.

Next I have to consider where the balance of convenience lies bearing in mind the cases for both sides. It must be noted that the defendants claimed to have obtained permission from the late Jacob Zingihite who was one of those persons determined by the CLAC in CLAC No.1/84 to be entitled to grant timber rights made KLHL. It must also be noted that in a number of the cases conferring KLHL the plaintiff and the late Jacob Zingihite were on the same side as against the other parties in those case. The defendants, not surprisingly, are now relying on the permission which they claimed to have been given to them by the late Jacob Zingihite.

The plaintiff's claim in the main action is for junction and damages for trespass. The defendants now raise a defence to the plaintiff's claim. That must be decided at the hearing of the main action. In the meantime I feel that when balancing the need to protect the rights of the plaintiff as against those of the defendants, the balance lies in favour of preserving the 'status quo' of the positions of the parties until their competing rights have been determined.

I come to the conclusion that in order to preserver the 'status quo' in this case, a restraining order of a limited nature is essential. I accept that the defendants have been living in the area concerned for the last 12 years. It is for that reason that the nature of the restraining order which I will issue will be of a limited nature.

I bear in mind the need for an undertaking in this sort of application by the plaintiff. It is within the discretion of the Court to insist upon such an undertaking. In view of the limited nature of the order that I will issue, I exercise the court's discretion not to insist upon an undertaking by the plaintiff in this case.

The ex parte injunction order of 25 November 1994 having been lapsed, it is hereby ordered that the defendants, their servants or agents or wantoks while continuing to occupy the said area where they are presently residing be restrained from carrying out any further development including cutting of timbers for sale, extraction and sale of gravel and other further agricultural or commercial activities in the area until the determination of this action or further order from the court.

I order accordingly.

Costs in the cause.

(G.J.B. Muria)
CHIEF JUSTICE

NB: [Penal Notice added]