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Totorea v Taiarata Integrated Forest Development Company Ltd [2000] SBHC 35; HC-CC 204 of 2000 (8 September 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 204 of 2000

JOE RODY TOTOREA, ROEROE & GEORGE AHUKENI

V

TAIARATA INTERGRATED FOREST DEVELOPMENT COMPANY LIMITED & BULECAN INTERGRATED WOOD INTERNATIONAL PTY LIMITED

High Court of Solomon Islands
(F.O. KABUI), J

Hearing: 6th September 2000
Ruling: 8th September 2000

Mrs M. Samuel for the Plaintiffs
A. Nori for the Defendants

RULING

(Kabui, J): The Plaintiffs are the representatives of the Po’otori Landowners of West Are Are on the Island of Malaita. They filed a Writ of Summons against the Defendants on 21^st August 2000. A Statement of Claim was also filed that same day. The Plaintiffs are claiming damages for trespass to their land, damages for the destruction of their tambu sites, injunction against the use of their land for a log pond and road access and finally, costs. The Plaintiffs’ Land is called Po’otori Land. They say Rao Rao, the portion under dispute is part of Po’otori Land and therefore is theirs also. A question of the correct customary boundary of Po’otori Land was obviously at stake for the Plaintiffs. The Defendants filed a Memorandum of Appearance on 25^th August 2000. The Plaintiffs apparently had also filed an Ex parte Summons on the same day they filed the Writ of Summons and the Statement of Claim. The Plaintiffs’ Ex parte application came before me on 31^st August 2000 at which time Mr. Nori, Counsel for the Defendant’s, also appeared. The orders sought by the Plaintiffs in their Ex parte Summons are in these terms –

1. That the First and Second Respondents be restrained from using the Log Pond which is situated within the Po’otori Land.
   
2. That any monetary benefits in relation to the said Log Pond be made payable to an interest bearing deposit account with any of the commercial banks in Honiara.
   
3. Any further orders that this court deems fit to make.
   
4. Costs.
   

Mr. Nori, Counsel for the Defendants, straightaway undertook to pay $1.50 per cubic metre of log into an interest bearing account to be opened in the joint names of parties’ Solicitors to be held therein until trial or further orders of the Court. Mr. Nori filed this written undertaking on 6^th September 2000. This was the fulfilment of order 2 sought in the Plaintiffs’ Ex parte Summons referred to above. Mrs Samuel, Counsel for the Plaintiffs, accepted this undertaking made by Mr. Nori, Counsel for the Defendants. I then adjourned the hearing in order for the Defendants to file an affidavit in reply in response to the content of Mr. Totorea’s affidavit filed on behalf of the Plaintiffs on 23^rd August 2000. At the inter partes hearing on 6^th September 2000, Mr. Nori, Counsel for the Defendants, maintained his position in that his undertaking would remain in force until trial or further orders of the Court. Again, Mrs Samuel, Counsel for the Plaintiffs, made no objection. This being the case, only the interim injunction point was argued before me by Counsel on both sides.

The Plaintiffs’ Case

Mrs Samuel, Counsel for the Plaintiffs, argued that the Plaintiffs were entitled to be granted an interim injunction on the ground that the Defendants were trespassing upon the Plaintiffs’ land. She pointed out that there was evidence to show that the Plaintiffs owned the land in dispute. She referred to a copy of the Arahanimane Council of Chiefs’ determination dated 31^st July 2000 in evidence as clearly being in favour of the Plaintiffs. She stressed the point that whilst Mr. Karaori’s affidavit filed on 4^th September 2000 on behalf of the Defendants denied the existence of tambu sites alleged by the Plaintiffs, the said Council of Chiefs did find as a fact that the Po’otori tribe did have tambu sites in Rao Rao being the part of Po’otori land under dispute. Mrs Samuel concluded that the Plaintiffs’ claim to ownership was not merely an assertion of rights but rights duly recognised and sanctioned by the said Council of Chiefs as evidenced by their determination dated 31^st July 2000. Mrs Samuel said that the Plaintiffs allegation of trespass against the Defendants was therefore correct and the Court should therefore intervene on behalf of the Plaintiffs by granting an interim injunction in their favour.

The Defendants’ Case

Mr. Nori, Counsel for the Defendants, argued that the resolution of customary land disputes was not a matter within the jurisdiction of the High Court and therefore such issues could not be treated as serious triable issues as if they were issues before the High Court. Mr. Nori referred me to Gandly Simbe v East Choiseul Area Council & Others (Civil Case No. 33 of 1997) as upheld on this point by the Court of Appeal in Civil Appeal No. 8 of 1997. Secondly, Mr. Nori argued that besides, there was no evidence that the Plaintiffs were in possession of a final decision vesting in them the ownership of the land in dispute, meaning that the Local Court could reverse the determination of the Chiefs and the Customary Land Appeal Court and even the High Court could still be invited by the aggrieved party to overrule the decision of the lower Court. Mr. Nori however said that should the Court rule against him on these points, then be would invite the Court to consider the judgment in John Wesley Talasasa v The Attorney General and Others (Civil Case No. 43/95) where the principles of granting an interim injunction were discussed and applied by Muria C. J. In finding where the balance of convenience lay, Mr. Nori urged upon me to consider the following facts disclosed in Mr. Totorea’s affidavit referred to above –

1. The tambu sites had already been destroyed. That is, there was no possibility of any further damage;
   
2. There was no continuing damage to the land;
   
3. The road had been constructed and tress cut down once and for all.
   

Mr. Nori concluded that this being the case, monetary compensation was the appropriate remedy and not an interim injunction order as requested by the Plaintiffs. Mr. Nori added that the Defendants were well placed to pay damages unlike the Plaintiffs who would not if the interim injunction was granted in their favour and then lost their case. Mr. Nori also pointed out that the chance of the Plaintiffs winning their case in the Local Court was premature to say as it was not a matter before the High Court. Mr. Nori therefore said that in view of his undertaking to pay $1.50 into an interest bearing deposit joint account as already mentioned and the Defendants’ ability to pay for damages, an injunctive order would not be appropriate in this case.

Consideration of the Plaintiffs’ Application and Conclusion

The purpose of an interim injunction is to ensure that the status quo between the disputing parties is maintained until further order of the Court or until the trial of the issues disclosed in the Statement of Claim. In other words, as stated in general at page 404 in Equitable Remedies Injunctions and Specific Performance by I.C.F. Spry, 1971,

“An interlocutory injunction is an injunction which is directed to ensure that particular defined acts do not take place pending the final determination by the court of the rights of the parties; and accordingly it issues in a form which requires that, in the absence of a subsequent order to the contrary, it continues up to but not beyond the final hearing of proceedings. The two matters with which the court is concerned in granting such an injunction are, 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, in other respects, most convenient and reasonable in all the circumstances.”

More specifically, the learned author at page 410 states

“The most usual, though by no means the only, basis for the grant of an interlocutory injunction is the need to protect the applicant by preserving the circumstances which are found to exist at the time of his application until the rights of the parties are able to be finally established by proper procedures. ...”

In practice, it means an application for an interim injunction normally arises from the main cause of action filed by the complaining party. That is to say, it arises from the Statement of Claim and the Writ of Summons filed in the Court of the relevant jurisdiction in which the cause of action has been commenced by a Writ of Summons. In this case, the Writ of Summons and Statement of Claim filed by the Plaintiffs do disclose a cause of action in trespass on customary land said to be owned in custom by the Plaintiffs. The Plaintiffs by coming to the High Court and asking it to grant an injunctive order against the Defendants are in fact asking the High Court to determine whether or not there is a triable issue disclosed by the affidavit evidence and the Statement of Claim filed in the High Court. In this case, the triable issue is obvious. The issue is clearly the ownership of the land under dispute. The land is customary land and the issue of ownership of customary is not for the High Court to determine as it is the preserve of the Chiefs, the Local Court and the Customary Land Appeal Court, whichever is the case. This is exactly what Mr. Nori’s argument is about in that the High Court had no jurisdiction to determine the ownership of customary land because the triable issue of ownership of customary is not for the High Court to determine. (See Gandly Simbe v East Choiseul Area Council and Others, Civil Appeal No. 8 of 1997). However, Mrs Samuel said otherwise. She said, as a matter fact, the Arahanimane Council of Chiefs had made a determination in favour of the Plaintiffs on 31^st July 2000 and as such there was no question of uncertainty over the ownership of the land under dispute. Mr. Nori however said that whilst he did not dispute that fact, the Chiefs’ determination was not final and so it would be premature to say that the Plaintiffs were the owners of the land under dispute. Mr. Nori did not elaborate on this point but I think what he meant was the fact that it is open for the parties to refer the dispute to the Local Court under section 12 of the Local Courts Act (Cap. 19) and henceforth by appeal to the Customary Land Appeal Court if necessary. Indeed, ownership in custom was a triable issue before the Chiefs in July 2000. In fact the dispute was over the customary boundary separating Po’otori Land from the other land. Still, it was a triable issue before the Chiefs in July, 2000. In my view, although the issue of ownership of customary land in terms of where the boundary was between Po’otori Land and the other land had been determined by the Chiefs, the issue was still open to challenge until the Local Court records Form 2 in accordance with section 14 of the Local Courts Act. The period within which this is to be done is 3 months under subsection 1 of section 14 above of the Local Courts Act. In terms of the date of the Chiefs’ determination being 31^st July 2000 that period of 3 months ends on 31^st October 2000. Section 14 of the Local Courts Act states –

“(1) Where, in any dispute referred to the chiefs, a decision wholly acceptable to both parties has been made by the chiefs, the chiefs or any of the parties to the dispute may, within three months from the date of the decision, cause a copy of the decision to be recorded by the local court.

(2) A copy of the decision referred to in subsection (1) shall be in such form as prescribed in Form II of the Schedule and shall contain the particulars prescribed in that form and signed by the parties and two or more of the chiefs who took part in making the decision.

(3) Any decision recorded by the local court pursuant to sub-section (1) shall be deemed to be a decision of the local court for the purpose of any law.”

Since the Plaintiffs filed their Writ of Summons on 21^st August 2000, it can be said that the Plaintiffs had come to Court too early in that the period of 3 months had not yet expired so that the Chiefs’ determination would become the decision of the Local Court and therefore being the final decision for all purposes. Failure to record the Chiefs determination in accordance with the provisions of section 14 above would make the position even more uncertain in that the dispute may well be referred to the Local Court for further hearing. In fact, Mr. Totorea in evidence produced a General Treasury Receipt No. B740077 for the payment of $60.00 Court fee on 4^th September 2000. I take this as the fee for the referral of the Chiefs determination to the Malaita Local Court for further hearing of the dispute. If this is the case which I believe to be so, then it is in itself evidence of the fact that the Chiefs’ determination is not final because Mr. Totorea on behalf of the Plaintiffs by his own conduct is pointing to that conclusion.

I think it is a better policy in this sort of cases that no party should come to the High Court for an interim injunction on the ground of trespass to customary land until that party has got a final decree of ownership between the disputing parties. This case must however not to be confused with logging cases like many previous cases in this jurisdiction where interim injunctions had been granted to prevent entry upon customary land by logging Companies where triable issues in the High Court were not issues affecting the ownership of customary land. In logging cases, the dispute is often over rights in the trees to be felled rather than the ownership of customary land and the granting of an interim injunction against the Defendant does have the effect of saving the trees as well as the land from further damage as both the threes and the land are inseparable as a matter of common sense. The cause of action in these cases is not trespass per se as in this case. In this regard, I must say that the Plaintiffs have come to this Court too early and also erroneously for an interim injunction. I say this because whilst the Plaintiffs have yet to comply with the 3 months period stipulated in section 14 of the Local Courts Act, they decided to come to Court rather early and also in doing so have paid the Court fee to have the dispute heard in the Local Court as well. Both acts of the Plaintiffs are self-defeating for the Plaintiffs in that both acts treat the Chiefs’ determination on 31^st July 2000 as being not the final decision regarding customary ownership of land under dispute. It is different if the Plaintiffs should come to this Court and say they want an interim injunction against the Defendants pending the final resolution of the dispute between themselves and the Defendants under the Local Courts Act. (See my judgment in John Osiramo v Mezach Aeounia, Civil Case No. 020/2000).

I therefore accept Mr. Nori’s argument that this Court has no jurisdiction to try an ownership issue in customary land although it has jurisdiction to assist the Chiefs, Local Courts and the Customary Appeal Courts in the exercise of their respective jurisdiction. (See Gandly Simbe v East Choiseul Area Council & Others Civil Appeal No. 8 of 1997 at 22 – 23 and John Osiramo v Mesach Aeounia above). This is not one such case. This being the case, I need not consider other arguments by Mr. Nori on the question of balance of convenience. In the result, I must dismiss the Plaintiffs application with cost. The Plaintiffs’ Application is therefore refused.

F.O. Kabui
Judge