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Western Solomon Islands Mission of Seventh Day Adventist Church v Nale [2001] SBHC 98; HC-CC 015 of 2000 (24 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 015 of 2000

WESTERN SOLOMON ISLANDS MISSION OF SEVENTH DAY ADVENTIST CHURCH

-v-

ANDREW NALE & ELIZER NALE

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

Date of Hearing: 21st January 2000
Date of Judgment: 24th January 2000

A. Nori for the Plaintiff
Defendants not present

JUDGMENT

(Kabui, J): This is an application by the Western Solomon Islands Mission of the Seventh Day Adventist Church (the Plaintiff) for an injunctive order against the First and Second Defendants (the Defendants) and costs. The injunctive order sought by the Plaintiff is to “restrain the Defendants, their relatives, family members, agents, servants and tribal members from entering into the water source in Vosema customary land and from interfering with or damaging the water supply system to the Plaintiff’s college until trial or further orders” This is an ex parte application seeking an interim injunction against the Defendants. The Defendants have not therefore been served with notice of this application and so have not been heard by the Court. As a matter of practice, ex parte applications for interim injunctions such as this are exceptions to the rule. The rule is that the other side must always be notified of the hearing of such applications. The exceptions to this rule are cases of great urgency, or where service of notice upon the other side proves to be difficult for some reason. (See Equitable Remedies Injunctions and Specific Performance by I.C.F. Spry, First Edition 1971 at 459 - 460 and Andrew Kofela v Elisha Sanga, Stanley Beka (as representing Sanga family) civil case No. 206/1999).

The Facts

Jones Adventist College (the College) is situated on Vella La Vella in the Western Province. The College was established in 1995 and owned by the Plaintiff. It is administered by the College Board. Its students are from the Western Province although some are from other parts of the country. The water supply to the College comes from a water source in the Vosema customary land. The water pipe also runs through this customary land. The permission for the college to use this water supply came from Chief Ian Ligo the head of the Zodo Kabolasi tribe and Chief Kanapala. The permission from Chief Ligo was in writing dated 11 October 1995 (See Exhibit “PL1” to Paul Lepese’s affidavit sworn on 20 January 2000). The permission from Chief Kanapala was verbal but was accepted by the Plaintiff. The effect of this permission was that the college was to use the water supply free of any charge. However, by an agreement dated 21 November 1995 between Chiefs Ligo and Kanapala and the Second Defendant, Elizer Nale, and Allan Paul representing the College, the sum of $5,000 was to be paid for the use of the water supply. It was to be a “one-off” payment for the use of the water supply. This sum however was never paid by Allan Paul because the Virasare tribe headed by Bosira and Chief Kanapala disputed the ownership of Vosema customary land by the Zodo Kabalasi tribe.

On 7 December 1999, the Defendants and members of their family caused damage to the water pipe carrying water to the College. They cut the pipe in seven places causing extensive damage to the pipe. The cost of repair was $1,000 to restore water supply to the college. Again, the Defendants and members of their family did the same on 13 January 2000. They cut the pipe in many places causing disruption to the supply of water to the College. They are now demanding the payment of $1,500 per month for the use of their water from their land.

The Dispute

The underlying cause of the Plaintiff’s problem is a customary land dispute between the Zodo Kabalasi tribe and the Virasare tribe. The Plaintiff is a third party whose water pipe in Vosema land has been damaged by the Defendants and members of their family. The Plaintiff has no title to the Vosema land. The use of water by the College and the presence of a water pipe in Vosema land are permitted initially by Chief Ligo and Chief Kanapala. This permission seemed to have been temporary only for an agreement to seal it permanently was suspended when the Viresare tribe questioned the ownership of Vosema land by the Zodo Kabolasi tribe. It would appear that Chief Kanapala had changed his mind after giving verbal consent in 1995. The agreement made on 21 November 1995 was never performed by Allan Paul because it was frustrated by the appearance of the Virasare tribe on the scene and thus complicating matters for the College.

Conclusion

I do not see how the Plaintiff could come to Court and ask for an injunction against the Defendants who are asserting their alleged right of ownership to Vosema land in this case. What are the rights of the Plaintiff that the Defendants have breached or are likely to breach and thus need the protection of the Court? The Plaintiff may well own the water pipe in Vosema land and may well be entitled to damages for any destruction of the pipe but that is all. If permission for the pipe to remain in Vosema land has been suspended or retracted, the Plaintiff may well be a trespasser on Vosema land. The fate of the agreement made on 21 November 1995 speaks for itself. It is also awaiting the resolution of the ultimate ownership of Vosema land. Mr. Nori has indicated in his submission that the Writ of Summons and the Statement of Claim filed by the Plaintiff on 21 January 2000 would be amended to include “negligence” as a further ground for damages against the Defendants. This may well be a triable issue together with allegations of trespass and breach of contract but the lack of standing by the Plaintiff in this matter should be sufficient to enable me to refuse this application. The Plaintiff is only a beneficiary of the water flowing from Vosema land. Whether or not the water supply is to be paid for would largely depend upon the willingness of the owners of Vosema land to permit their water to be used by the College on agreed terms. Perhaps the Zodo Kabolasi tribe who are supporting the College would be the ones seeking an injunction against the Defendants to prevent them from causing further damage to the Plaintiff’s pipe pending the determination of the ownership of Vosema land. The Plaintiff, as a third party, would obviously be a beneficiary of such as injunction if granted by the Court. The Plaintiff, in my view, cannot prevent the Defendants from asserting their alleged rights of ownership to Vosema land by seeking an injunction against them. As much as I sympathize with the Plaintiff and the students in this matter, I cannot prevent the Defendants from asserting their alleged right of ownership. The Defendants are in fact saying that the Plaintiff is a trespasser on their land. The water pipe is evidence of that trespass. I would refuse this application on this basis. Even if I am wrong in my view, I would still refuse this application on another ground. The Plaintiff has not shown that it would suffer irreparable damage if I refuse its request for an injunction. Mr. Nori has made reference to the fact that a number of students are stranded in Honiara as a direct result of the conduct of the Defendants. This is indeed serious in terms of the education of individual students. The door however is still open for the Plaintiff to negotiate a settlement of this matter. This is appropriately pointed out by the College Principal, Mr Lepese in paragraph 21 of his affidavit referred to above. There is no affidavit evidence by any representatives of the Plaintiff to show that negotiation has been attempted with the Defendants and failed. It is also unfortunate that the Plaintiff has come to Court for a hearing without notice being given to the Defendants. If this were the case, the Defendants would have had the opportunity to tell the Court of their position. There is a chance that the matter may well be settled out of Court pending the resolution of the ownership of Vosema land between the tribes in dispute over this land.

After all, the College serves them well but obviously they would like the water to be paid for by the Plaintiff. This, in my view, can be discussed with the members of the two disputing tribes. Time is of essence. The sooner it is done, the better for everyone concerned. As it is, I must refuse this application. This application is therefore refused. There will no order for costs.

F.O. Kabui
Judge