Ghemu v Namusi [2016] SBHC 133; HCSI-CC 51 of 2016 (25 August 2016)

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BETWEEN: CHIEF ERICK K.GHEMU, MERIWHITE Claimant
CHOKO, NATHAN HETISI, LIU HIDE &
RAZAKANA NAMUSI
(Appointed Trustees and representatives of
Gevala Tribe, Vangunu Island, Western Province)

AND: RICKY NAMUSI, MOCKSON AARON and
PETER SUTE First
(Joint owners of PE in Parcel 143-011-26) Defendant

AND: PACIFIC CREST ENTERPRISE LIMITED Second
Defendant

Mr M. Pitakaka for the Claimant
Mr D. Marahare for the First and Second Defendants

Faukona PJ: This is an application for injunctive orders. Originally the application filed was to seek relief on ex-parte basis. That could not materialise for some reasons, hence, an inter-parte hearing.

2.	The cause of litigation in this case emerged from the transfer of PE title in Parcel Number 143-001-26 in the names of the first Defendants as joint owners. The land is now describe as BLOCK B and is situated on Vangunu Island, Marovo Lagoon. The fact that there is no dispute as to the ownership of the land and that both the Claimants and the first Defendants are from the same and one gevala tribe.

3.	The dispute, however, focuses on the fact that the Commissioner of Lands had transferred the PE title to the land in the names of the first Defendants who were not appointed as trustees mandated by the tribe. As a result of that grievance, the Claimants filed CC NO. 178 of 2014 in the High Court to rectify the register.

4.	The first Defendants deny such meeting by the tribe was conducted. If so, was without sufficient notice being issued and that the meeting proceedings were questionable.

5.	Preceded on from acquiring of the title, the first Defendants then executed a grant of profit on 16^th May 2014 which authorised the second Defendant to operate commercial logging on the land.

6.	I noted the parties and the issues in this case are similar to Civil Case No. 222 of 2014, except for the Attorney-General who is not a party in this case. In that case I have dismissed the application for injunctive orders but grant liberty for the Claimants to file fresh application upon 7 days notice. I wonder whether such notice was actually given paving the way for this application as a fresh one. I do not seem to site any notice on file. In any event I will deal with the application as it appears.

	Issue of locus standi:

7.	The issue of locus standi as a preliminary point is quite universal in Civil suits which involve parties representing others and the community, line or tribe or group requiring proof of their entitlement to represent - see Rule 3.42.

8.	Universally, that approach cannot be confined to entitlement in custom alone. English approach has been well documented in various numbers of case authorities, some of which had been adopted by our Courts. One of the cases is Arron KB Ltd V SMM Solomon Ltd & Others^[1]. In that case the Court made reference to sub-section (3) of Section 31 of English and Welsh Supreme Court Act which provides that no application may be made without leave of the High Court and that leave must not be granted unless the Court considers the applicant has a sufficient interest in the matter to which the application relates.

9.	The significant point here is the emphasis on sufficient interest of the applicant. In this case if the Court is satisfied that the Claimants have sufficient interest on the subject matter, that is land, and then they have standing to come to Court.

10.	I noted there is material evidence available to put in perspective that the Claimants and the first Defendants are of the same tribe. I do also noted without doubt; there is dispute over leadership and chieftaincy by both parties. Further still there is evidence that both parties held separate tribal meetings which members of the tribe attended. Subsequently, the purpose for conducting those meetings and selection and installation of the two Chiefs were to deny and demean each other, and to convince the Court that one group is superior and rightful persons (trustees) to have the land transferred in their names.

11.	The issue of leadership and chieftaincy are matters of custom which can be determined by the Chiefs forum. This Court lacks jurisdiction to entertain such issues. Notwithstanding that there was a meeting held on 5^th March 2014, by the group led by the Claimants. The first four named Claimants and another were appointed as trustees in preparation to acquire the transfer of title from the Commissioner of Lands.

12.	Quite apart from that, the fact that both parties are members of one tribe and own gevala customary land together of which PN 143-001-26 is part of it, simply conclude that both parties have sufficient interest to the land. Hence the Claimants have standing to come to Court to question the dealing the first Defendants had with the Commissioner of lands.

	Triable issues:

13.	Rule 7.11 clearly states that the Court may make an interlocutory order if it is satisfied that the applicant has serious question to be tried and that the balance of convenience favour the making of the order. Whilst I appreciate other tests often refer to in the famous case of Cyanamid V Ethicon Ltd^[2] which was applied in many cases in this country, one of such case is Majoria V Jino^[3]. The test as expounded cannot be segregated but the same are complimenting one another.

14.	In addition to that, Mr Marahare argues that even though there are triable issue and the present of the principle of presumption of regularity, two prevailing principles upon which the Court will consider whether to grant interlocutory orders or not. The two basic principles are (a) where the High Court is exercising its aiding jurisdiction of the lower Court and (b) where a party comes to Court confirming his right of ownership to customary land.

15.	In my opinion the two principles emphasize above are part and partial of the triable issues. It is an issue where a case is pending before a lower Court which has not been determined as yet. The same is applicable to the second principle. If a Claimant instituted a civil suit and the major issue is trespass then he stands to lose because there was no decision as evidence to proof ownership, hence no triable issue, his claim for trespass is vexatious and frivolous. That person cannot benefit out of any interlocutory orders.

16.	In this case there is one major issue that is Civil Case 178 of 2014 which was filed basically to question why the Commissioner of lands had transferred the PE title in PN: 143-001-26 in the names of the first Defendants. Were they the right persons authorized by the tribe? If not who are the right persons? And whether the process adopted was not tainted with fraud or mistake, if so, would the register be rectified?

17.	Apparently it is crystalline clear that was the very issue that is pending determination in CC 78 of 2014. Whilst that is still pending determination the Claimants come to Court seeking injunctive orders to restraint the Defendants to restraint logging operation until further orders of the Court. The line of action opted by the Claimants falls with principle (a) of Mr Marahare’s submissions. That this Court has the power to aid itself by imposing interim injunctions upon a logging company whilst the issue before itself is yet to be determination.
18.	There may be other issues in connection, but are minute in nature as I perceive. Undoubtedly I am satisfied there is a triable issue, and a major one as well, and is pending determination before this Court.

	Balance of Convenience:

19.	Having considered there is a triable issue and the fact that damages will not be an adequate remedy if the Claimants succeed at the end of the day, the balance of convenience therefore should favour granting of the injunctive reliefs to maintain the status quo. I have no doubt about the adequacy of damages; hence, it is not necessary to consider other tests.

20.	By the powers conferred upon this court the undertaking required by the Claimants, as village dwellers ought to be waived, on the ground that at the end of all arguments there is no doubt both parties are entitled to be benefited out of the logging operations. It is the question who receives the money.

21.	In all that I have narrated, I therefore grant injunctive reliefs as sought with costs.

	Orders:

	1.	Order restraining the first and second Defendants, their logging contractors, employees, invitees, servants from entering the Perpetual Estate in Parcel Number: 134-001-26 (“Property”) for the purpose including constructions and using of a log pond and access roads and carrying out logging until trial and or further order of the Court.

	2.	Orders that all export proceeds of logs felled extracted from the property to be paid into a joint Trust Account to be opened by the Solicitors of the Claimants and the First and Second Defendants.

	3.	Costs of this application is paid by the Defendants.




	The Court.

High Court of Solomon Islands

Ghemu v Namusi [2016] SBHC 133; HCSI-CC 51 of 2016 (25 August 2016)