[1987] LRC (Const) 517

IN THE HIGH COURT OF KIRIBATI

TEITINNANG

v

ARIONG AND OTHERS

High Court:
Maxwell, CJ.
16th October, 9th-15th November 1985, 7th April 1986

(1) Constitutional law - Fundamental rights - Breach of entrenched rights - Declaration - Whether individual can maintain action against another individual - Whether entrenched provisions confined to government action.

(2) Constitutional law - Fundamental rights - Entrenched provisions - Provision for rules of court- Whether action maintainable without rules of court - Whether declaration an appropriate remedy - Constitution of Kiribati, sections 17 and 88.

(3) Tort- Unlawful interference with rights - Denial of access to land - Children precluded from attending school - Alleged breach of agreement.

(4) Remedies - Injunction - Discretionary remedy - Whether damages adequate - Whether breach of agreement established.

In this action, which was transferred, by order of the former Chief Justice, from the Magistrate's Court to the High Court, the plaintiff claimed, inter alia, a declaration that the defendants, members of a village, had violated the plaintiff's right to freedom of movement guaranteed under section 14 of the Constitution of Kiribati, an injunction and damages. The basis of the claim was that the defendants had denied the plaintiff access to his land and his children access to the primary school in the village. The defendants counterclaimed that the plaintiff and others had broken an agreement concerning the making and selling of pandanus thatches for commercial purposes, as a result of which they "fined" the plaintiff and others, as well as imposing restrictions on them.

HELD: Declaration refused; injunction granted; counterclaim dismissed.

(1) The plaintiff was not entitled to the declaration sought. The duties imposed under the fundamental rights provisions of the Constitution were owed by the government to governed. No such duty was owed by an individual to another individual and so no individual could seek a declaration for a breach of duty under those provisions by another individual. (See p. 529 post.)

(2) No application could be made by the plaintiff for redress under section 17(2) of the Constitution because, as yet, no rules of court, as required by section 17(5), had been made. Furthermore, section 88(2) of the Constitution specifically ruled out an application for a declaration for contravention of the fundamental rights provisions. (See p.528 post.)
[Editors' Note: sections 17 and 88, so far as relevant, are set out at pp. 527 and 528 post.]

(3) By their actions the defendants had committed the tort of unlawful interference with the exercise of the plaintiff's legal rights, notwithstanding any alleged breach of an agreement or the rules of the villagers. (See p.530 post.)

Per curiam: A breach of any agreement or rules made by the oldmen of the village could be enforced only in the constituted courts of the land. The defendants s could not take the law into own hands s. (See ibid.)

(4) In the circumstances the plaintiff was entitled, at the discretion of the Court, to a perpetual injunction, as damages would not be an adequate remedy. Since the evidence did not establish any contractual relationship between the defendants and the plaintiff, the counterclaim would be dismissed. (See pp.530 and 531 post.)

Cases referred to in judgment:
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79, [1914-15] All ER Rep 739, HL
Lee v Showmen's Guild of Great Britain [1952] 2 QB 329, [1952] 1 All ER 1175, CA

Legislation referred to in judgment:
Constitution of Kiribati, Chapter II and sections 3-16, 8, 14(1), 17(1), (2) and (5), 88(1) and (2)

Action:
By order, dated 30th July 1985, of the former Chief Justice, the plaintiff's action for, inter alia, a declaration that his constitutional right to freedom of movement had been infringed by the defendants, an injunction and damages, was transferred from the Magistrate's Court to the High Court of Kiribati. The defendants counter-claimed for breach of agreement and the High Court ordered that the Attorney-General be joined in the suit. The facts are set out in the judgment.

M. Lodge for the plaintiff.
T. Teiwaki for the defendants.
W. Hazelton for the Attorney-General.

7th April 1986

MAXWELL, CJ.:
The plaintiff originally filed this action in the North Tarawa Magistrates Court on 4th July 1985 as case No NN7/ 85. Their Particulars of Claim read as follows:-

"1. We have to claim against Buota villagers by the way they obstructed our children from attending the Island Council Primary School situated at Buota village.

2. We are also not agree with what they have ordered the people; from the causeway to collect our nuts (coconut fruit) without our consent.

3. We are also not agree with what they ordered us not to seen on Buota areas though we have lands/houses and properties in Buota.

From these particulars we are to sue them to pay compensation to the amount stated below:

For the 1st total amount of $1000.00
For the 2nd total amount of £1000.00
For the 3rd total amount of £1000.00."

The wording of the claim seems to suggest that the action was a representative action. But the records did not disclose this.

The magistrates, after hearing the evidence of the parties, held that, as they are unable to reconcile the parties, the case should be transferred to the High Court for hearing. By an Order of transfer dated 30th July 1985, the former learned Chief Justice transferred the case to the High Court for hearing. On 16th October 1985, when the matter came before me, I made an order asking the plaintiff to file his statement of claim within one week and the defendants their statements of defence within two weeks. I ordered that the Attorney-General should be joined in the suit. I then fixed the trial for 8th November 1985.

On 17th October 1985, Mr. Lodge for the plaintiff filed a Statement of Claim, claiming the following reliefs:-

"1. A declaration that the decision by the defendants to expel the plaintiff from Buota village in or about May 1985, was unlawful and in breach of the plaintiff's right of freedom of movement guaranteed under section 14 of the Constitution of Kiribati.

2. A declaration that the defendants have no legally enforceable power to make an order or decision purporting to restrict or modify the right of the plaintiff under section 14 of the Constitution of Kiribati and to reside in any part of Kiribati.

3. An injunction to restrain the defendants by themselves their servants or agents or otherwise however from:-

(a) hindering or impeding the plaintiff in any way whatsoever from passing and repassing through Buota village.

(b) hindering or impeding the plaintiff's children from attending the primary school at Buota village.

(c) impeding or interfering. with the plaintiff's access to his living plot, land and babai pits within Buota village.

(d) hindering or impeding the plaintiff in any way whatsoever from using the bridge at Tanaea inlet for the purpose of crossing between Tanaea and Buota.

4. Damages.

5. Costs.

6. Such further or other relief as the court deems appropriate."

On 5th November 1985, Mr. Teiwaki on behalf of the defendants filed a statement of defence and counter-claim. He later filed an undated amended defence and counter-claim. On 8th November 1985 the court by a consent order approved the amended statement of defence and counter-claim. The amended statement of defence and counter-claim relevant to this decision read as follows:-

"Amended Defence and Counterclaim

3. The defendants deny paragraph 3 of the Statement of Claim.

4. The defendants deny paragraph 4 of the Statement of Claim where the word "fine" is used. The defendants aver that the word 'compensation' is proper in the circumstance.

5. The defendants deny paragraph 5 of the Statement of Claim in so far as the word "Compensation" is admitted to be the proper word.

6. The defendants deny paragraph 6 of the Statement of Claim.

7. The defendants deny paragraph 7 of the Statement of Claim

8. The defendants' actions referred to in paragraph 8 of the Statement of Claim are denied and for that reason paragraph 8 of the Statement of Claim is denied.

9. The defendants pray for the following -

(i) A declaration prayed for by the plaintiff in paragraph 8(1) of the Statement of Claim should be refused on the ground than the defendants never expel the plaintiff from Buota village.

(ii) A declaration prayed for by the plaintiff in paragraph 8(2) of c the Statement of Claim should not be granted on the ground that no such decision or order was ever made by the defendant.

(iii) An injunction prayed for in paragraph 8(3) of the Statement of. Claim should not be granted on the ground that such action; were never taken by the defendants as alleged.

10. The defendants deny that the plaintiff has suffered the alleged or any damage at all as alleged in paragraph 8(4) of the Statement of Claim."

Counterclaim

11. Paragraphs 1, 2, 3, 4 and 5 of the Statement of Defence are repeated.

12. By an oral agreement made in 1984 or 1985 between the defendants and the plaintiff, it was agreed that monies acquired from the making and selling of pandanus thatch collected from either Buota or Abatao village, or both either by the plaintiff or the defendants or both should be shared among the shareholder, of the two villages. The plaintiff and defendants are among the shareholders.

13. In consideration of that agreement the defendants forebear themselves from making and selling pandanus thatches collected either at Abatao village or Buota village or both for commercial purposes. Furthermore wherever pandanus thatches are required for commercial purposes every shareholder including the plaintiff are given a share in the making and selling of pandanus thatches.

14. On or about the 9th day of May, 1985 the plaintiff made and sell 150 bundles of pandanus thatch to the Housing Corporation at Bikenibeu for £3.50 per bundle making a total of $525.00 and kept the monies for himself and the other Abatao villagers in breach of the said agreement.

15. By reason of the matters aforesaid the defendants have suffered loss in the said sum of $525.00 and The Defendants Counterclaim.

1. $525.00
2. Costs."

On 12th November 1935, Mr. Lodge on behalf of the plaintiff filed a reply and Defence to Counter-Claim. These read as follows:

"Reply

1. The plaintiff joins issue with the defendants upon his amended defence save in so far as the same consists of admissions."

"Defence to Counter-Claim

2. The plaintiff denies that there was any oral agreement as alleged in paragraph 12 of the amended defence and counterclaim in the terms therein set out or at all.

3. Paragraph 13 of the amended defence and counter-claim is denied.

4. The plaintiff admits receiving and keeping the sum of $525 from the Kiribati Housing Corporation in or about May 1985 as the proceeds from the sale of thatch but denies that the money was kept in breach of the alleged or any other agreement.

5. The plaintiff denies the alleged or any loss in paragraph 15 of the amended defence and counter-claim."

At the trial, which began on 9th November 1985, the plaintiff testified on his own behalf and called three witnesses. Five witnesses testified on behalf of the defendants.

The facts of this case are quite simple. The plaintiff alleges that some time in 1985 he and other members of Abatao village made and sold 150 bundles of pandanus thatches to the Housing Corporation in Bikenibeu for the sum of £525. As a result of this transaction the oldmen of Buota village, imposed a fine upon him and all those who shared in the making of the thatches. The fine was 1 pig weighing 150 lbs and one bag of rice. They refused to pay the fine. The oldmen as a result decided to prohibit them from passing and repassing through Buota village and from sending their children to the primary school in Buota village. They also prohibited those of them who have houses and lands in Buota from using their lands or houses, and from using the public, bridge that joined Buota and Tanaea. All the restrictions have continued up to present day.

The plaintiff has now brought this action claiming the reliefs stated above, against the defendants representing the oldmen of Buota village.

The plaintiff in his evidence told the court that he lives in Abatao village. He has lived there for a very long time. His wife comes from Buota village. He has eight children. Four of his children are aged 15 years, 14 years, 12 years and 11 years, all of primary school age.

In May 1985 he and some members of Abatao village made and sold pandanus thatches to the Housing Corporation. The materials were obtained from their lands in Abatao and they were paid a total sum of $525 for the thatches they sold. This was shared among them according to the number of bundles produced by each individual. He received £35 as his share. After receiving the money the oldmen of Buota village imposed a fine of one bag of rice and one pig weighing 150 lbs on each house that took part and benefited from the sale. The second and third defendants were the Unimane who told him about the fine, when he attended the committee meeting at Buota Village.

No member of the village of Abatao paid the fine. As a result the oldmen of Buota village barred their children from attending the primary school in Buota village. When the children tried to attend school the people in Buota village sent them back. The children were ten in number. They stopped attending school during the second term of May 1985.

The parents asked for assistance from the School Commission at North Tarawa and the Council. The School Commission went to see the oldmen at Buota village and told them that the children should be allowed to go to school, but they refused. They refused them to pass and repass through Buota village. He has a house at Buota village and his married daughter lives in it. He is not allowed to visit her. He did not attempt to visit her for fear of something happening to him. He has not been to his babai pit in Buota village. He was not allowed to visit the maneaba or the store in Buota village. He is allowed, however, to go through Buota village by the main road. The oldmen and people in Buota village are the people who stopped him from visiting his house in Buota village.

They stopped them from using the bridge connecting Buota village and Tanaea. The bridge was constructed by the village people in Buota and Abatao three years ago. Each family takes turn to collect the toll fee and according to village meeting rules, the family that collects, pays $5 to the village purse and keeps the balance. He was one of the people who helped to build the bridge. He is still not allowed to use the bridge. People who did not benefit from the thatch sales are allowed to use the bridge. At high tide they use canoe to go to South Tarawa and at low tide walk through the main road to go to South Tarawa.

The first defendant is the warden, and the second defendant is one of the oldmen of Buota village. They came to Abatao to tell the villagers about the fine which they refused to pay. They gave them time within which to apologise for not paying the fine. They again refused to apologise. It was after this that the sanction was confirmed. He does not know of an agreement about 1984 or 1985 for the making and sale of thatches.

Under cross-examination he said that he has been living in Abatao village for nearly ten years. He left Buota village for Abatao village about 1979 or 1980. There was a committee meeting in Buota village in which' he was present. It was at this meeting that it was decided to fine the people of Abatao village. They were fined because they were making pandanus thatches. There is no rule against making pandanus thatch. He knows one Naaro Teraku. He recollects that he was fined one pig and one bag of rice by the villagers for selling thatch. His children were stopped from school on 21st May 1985. They tried to attend school but were sent back by the Headmaster, Eru, on the ground that there is a decision by the council to that effect. He went to see the President of the Council but he could do nothing.

Rautiam and Taie came to Abatao village and told them in August 1985 not to go to Buota village. They informed them of the decision made by the Council of Buota and added that the rule has been confirmed by feast. Lands owned by people of Buota village were not to be entered or trees on them made use of. The things mentioned were very hard to them.

PW2 (Itinraoi) told the court that he was one of those affected by the decision. On 19th November 1985, he went to Buota village, paid the fee for crossing the bridge but was sent back by Tabaua Katao. He went with Kaneneia and Tiebane - the daughter of the plaintiff. He has not tried to use the bridge again. Under cross-examination he said that Tabaua told them that they are not allowed to use the bridge. He helped to build the bridge which is owned by the people.

PW3 (Teibukai Kakiaman) told the court that he lived in Buota village for about a year or two. He left Buota village for Abatao village in September 1985 because he was caught drinking beer which was forbidden at Buota village. During his stay in Buota village he knew that there was a rule concerning the making of thatch. The rule is that if a person makes a thatch without the knowledge of oldmen and they later found out, a fine would be imposed on the person. The rule extends to Abatao village. The plaintiff was selected by the oldmen of Abatao village. The plaintiff was selected by the oldmen of Abatao village to represent them. In October 1985, when he tried to use the bridge he was not allowed. Since then he has not attempted to use the bridge again. Under cross-examination he said he was not there when the dispute started. He left Buota village because of the rule against drinking. The fine is one pig, one bag of rice, five babai plus $100. No one drove him from his house in Buota village.

PW4 (Tooma Boata) told the court that the plaintiff came to his office to inform him that his children are not allowed to go to school. The Secretary for Education sent him to see the education committee and the oldmen of Buota village, to explain to them the policy of compulsory education. He held a meeting with them and after explaining the policy to them, one Tabaua told him that he knew about the policy, but will not let the children come to school, and that if the ministry tried to force in the children, the school buildings and equipments will be destroyed. When he left he wrote a letter to the people of Abatao village. He tender the letter  and I marked it as Exhibit A.

That was the plaintiff's case.

DW1 (Kauriri Beia) told the court that he is an oldman of Buota village. On 15th March 1984, a meeting was held at Buota village to discuss an agreement for making of thatch. The people from Buota and Abatao villages were there. Those from Abatao were the plaintiff - Tekabu, Tereti, Rokoua, Itinraoi. The meeting decided that no one is allowed to do thatch on his own. The village people will give advice whether it should be done or not. The above named persons knew of the agreement.

On 9th May 1985, the above-named persons from Abatao village sold thatch at Bikenibeu. They sold 150 bundles of thatch and received $3.50 per bundle. They did not inform them about the sale. When they found out about the sale, they informed them that they have broken the agreement. The plaintiff was present at the meeting and he was informed too. The plaintiff told him that they are free to do what they want. He then told the plaintiff that a punishment will be imposed which is one bag of rice and one pig. The plaintiff did not pay the fine and they did nothing. They did not stop them from going on their land or their babai pits, or going to shop in Buota village. They did not stop the children from attending school in Buota village and it was not decided at the meeting that they should not use the bridge.

Under cross-examination he said he is speaking on behalf of the oldmen of Buota village. If the plaintiff refuses to pay the fine he will be left on his own and will not be included in the village life. They are excluded from Maneaba meetings. The punishment is their village rule. It is decided by all shareholders and if a shareholder errs he has no choice but to pay. Being a shareholder is voluntary. Where there are thatches to be produced these must be shared equally among shareholders. The agreement was between the oldmen of Buota village and the people of Abatao village who are; shareholders.

Tabaua, Rautiam and Taie went to Abatao village after the plaintiff failed to pay the fine. They were not sent to inform them of the punishment but to tell them not to enter on the land belonging to Buota people in Abatao village. They did not have a feast to celebrate the separation.

He was in the Maneaba when Tooma came. Accordingly to the agreement, if one is in breach, then the children are not allowed to attend school. They told Tooma about the agreement. They did not tell Tooma that they will burn down the school.

Under cross-examination by Mr. Hazelton for the Attorney-General, he said that they did not take the plaintiff and the others to court because the village people decided against that. The decision to impose the fine was made in 1984. They did not stop the children from attending school. The plaintiff helped to build the bridge. Decisions are made by all members of the village including the oldmen.

DW2 (Tabaua Katao), one of the oldmen of Buota village, said that be confirms the decision of the oldmen of the village. They were sent to Abatao village by the village people to tell them not to go on lands belonging to Buota people. He went with the village warden - Rautiam. The people they met were the plaintiff, Rokoua, Tereti, Takarebu, Tataio, Itinraoi, Tekabu, Betoka, a woman, Tarima, Tererei, Teuribo and Kaanaba.

They did not pay anything when we told them. On 10th November 1985, when Itinraoi wanted to use the bridge, he told him that he cannot use it, because they are separated from Buota people. The separation took place in May 1985, when they sold thatch and a fine of one pig and one bag of rice was imposed on them. Previous offenders were fined in about February or March 1985. One of them is Naaro. He paid his fine.

He was at the meeting held at the school maneaba, where it was decided that those in breach of the agreement should be left alone and their children stopped from attending school. There are no objections to the plaintiff going on his land in Buota village. They did not stop them from passing or repassing through Buota village.

The real complaint is that they sold thatch and kept the money. They did not take the plaintiff to court because he knows the outcome of breaking the agreement. He stopped Itinraoi because he was from Abatao village. They were fined one pig and one bag of rice and they refused to pay the fine. Under cross-examination by Mr. Hazelton he said that he did not go to Abatao village to tell them not to go on their land in Buota village. He did not tell them not to cut toddy on their lands in Buota village. The children were attending school in Buota village. He promised not to stop the children from attending school in Buota village.

DW3 (Rautiam Ariong) said he was a village warden. In August 1985, he was inspecting the villages. He and Taie, a special constable. They were sent to Abatao village to tell the villagers what was agreed and to warn them not to enter the lands of people of Buota. Nothing else. Tabaua went with them.

Under cross-examination on behalf of the plaintiff, he said he was sent by the people of Buota village. He was one of those who took this decision. He did not tell them not to use the bridge.

DW4 (Naaro Teraku) said he lives in Buota village, and is the secretary to the oldmen of the village since 1982. On 15th March 1984 there was a gathering where the making of thatch in the village was disussed. It was decided that all request for thatch will be shared among villagers. Any breach will be punished by a fine of one pig weighing 150 lbs and one bag of rice. If a wrong doer fails to pay the fine he will not be allowed to participate in village activities. Those who attended the meeting from Abatao village were Ribanti, Itinraoi, Tataio, Tereti, Rokoua and Takarebu. They all agreed to the agreement. He has the written minutes of the agreement.

During the meeting of 18th March 1984 he was the secretary. He wrote what was discussed. He has the records with him. He tendered it and it was marked Exhibit "B".

There were 57 shareholders and they share all benefits coming into the villages. There were two periods when thatch was collected. He was the one who was in breach of the agreement.

On 9th May 1985, the plaintiff sold 150 bundles of thatch at $3.50 per bundle. He was not given a bundle. Those who shared were, Itinraoi, Tereti, Tataio and Rokoua. They broke the agreement made by the oldmen of the village.

Under cross-examination on behalf of the plaintiff, he said that the meeting was attended by the oldmen and shareholders of the village. There is an obligation under the agreement. The lst defendant was present at the meeting. There were no objections. The people from Abatao village were not stopped from using their land in Buota village. They were still visiting their lands and plots.

DW5 (Eru Ieu) said he teaches at Ratu Primary School in Buota village. One of the villagers in Buota told him to inform him - the villagers, when any child from Abatao village attends school in Buota village. He never stopped the children from attending school.

Under cross-examination he said that he wrote a letter in June in reply to the Ministry's letter. He tendered the letter which was marked as Exhibit "C". He was not there when the person from the Ministry called. He did not attend the meeting.

That was the end of the defendants' case.

The defendants' counsel, addressing the court, submitted as follows:

(1) that the claim for injunction should be dismissed because the plaintiff could not substantiate his claim that he was not allowed to pass and repass through Buota village.

(2) that evidence show that the defendants never prevented the plaintiff from using his house plot or babai pits. The plaintiff was never physically evicted from Buota village. He left his plot in 1979 or 1980, therefore the declaration sought should be refused. He concedes that an injunction could be granted against DW2 because he acted on his own.

On the issue of the defendants' counter-claim, he submits that there is evidence of verbal agreement made on 18th May 1984 between the plaintiff and the defendants, and also that the plaintiff received $525 for the thatch sold, therefore they have proved their counter-claim on balance of probability.

Mr. Lodge for the plaintiff submits that the first prayer is for declaration, that defendants are in breach of section 14(1) of the Constitution and the court has power under section 17(2) to award a relief.

He contends that prayer 2 challenges the basis of the defendants' decision. He refers to Lee v Showmen's Guild [1952] 1 All ER 1175 at 1180, and submits that the plaintiff did not consent to the jurisdiction and that there was no contract between the plaintiff and defendants. On prayer 3, he submits that damages would be inadequate in this case. He further submits that the plaintiff has sufficient interest under the right granted under the Constitution. He contends that on the counter-claim, the plaintiff denies the existence of any contract. He submits that even if there is, no consideration has been proved to support the contract. He submits that the contract is void for illegality in view of the sanction, which is a breach of the Constitution.

Mr. Hazelton, on behalf of the Attorney-General, submits that if the sanction for breach of the agreement is a pig and a bag of rice, it is a penalty clause therefore unenforceable. He refers to Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79.

He submits that the sanction is a deprivation of property. He refers to section 8 of the Kiribati Constitution, and contends that the plaintiff is being forced to part with his property. He further submits that a membership of a village is not a matter of law and has no significance over land or right to use land.

He contends that section 17 of the Kiribati Constitution (hereinafter called "the Constitution") gives the plaintiff right to apply to the Court for redress, but submits that redress is covered by injunction and does not cover declaration. He then invited the court to make the interlocutory injunction which it had granted permanent.

The plaintiff's allegations against the defendants, as disclosed in his statement of claim, are,

(1) that the defendants imposed on him a fine of one pig and a bag of rice about April or May 1985,

(2) that when he refused to pay the fine, they expelled him from Buota village in or about May 1985,

(3)	(a) that they refused him to pass and repass through Buota village,

(b) that they refused his children access to the primary school in Buota village,

(c) that they refused him access to his land and babai pits in Buota village, and

(d) that they refused him access to the bridge connecting Buota village and Tanaea and South Tarawa.

He alleged also in paragraph 6 of his Statement of Claim, that the defendants' actions are unlawful and a violation of his fundamental rights, guaranteed by the Constitution; that the defendants intend, unless restrained by the Court from doing so, to continue the said actions. As a result he seeks a declaration and injunction as set out above.

Dealing first with the claim for declaration. The plaintiff's claims 1 and 2 raise fundamental constitutional issues of great importance. The issues in my view, are: can a declaration be claimed for breaches of sections 3 to 16 of the Constitution? Secondly, can a private individual maintain an action for a declaration against another private individual or individuals for a breach of the fundamental rights provision, that is, sections 3 to 16 of the Constitution?

Mr. Lodge for the plaintiff contends that the Court has power under section 17(2) of the Constitution to award a relief where a defendant is in breach of section 14(1) of the Constitution.

Mr. Teiwaki for the defendants presented no argument on the two points raised above. Mr. Hazelton, on behalf of the Attorney-General, submitted that section 17 of the Constitution gives the Court the right to give a redress. He further submits that redress is covered by injunction but not declaration.

None of the arguments or submissions by counsel touched on the fundamental issues. I shall return to the second issue later in this judgment. I shall here deal first with the provisions of section 17 of the Constitution as it relates to the claim for a declaration.

The relevant subsections of section 17 for the purposes of this decision are subsections (1), (2) and (5). These provide as follows:

"(1) Subject to the provision of subsection (5) of this section, if any person alleges that any of the provisions of section 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction-

(a) to hear and determine an application made by any person in pursuance of the preceding subsection;

(b) to determine any question arising in the case of any person which is referred to it in pursuance of the next following subsection and may make such orders issue such writs, and give such directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 inclusive of this constitution;

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means or redress for the contravention alleged are or have been available to the person concerned under other provisions of this Constitution or under any other law.

(5) Rules of Court making provision with respect to the practice and procedure of the High Court in relation to the jurisdiction conferred on it by or under this section (including rules with respect to times within when any application or reference shall or a may be made or brought) may be made by the person or authority for the time being having power to make rules of court with respect to the practice and procedure of that court generally."

There is no doubt that section 17(1) of the Constitution, subject to the provisions of subsection (5), gives a right to apply for a redress. It is my opinion that before such a right can be exercised, the Rules of Court under section 17(5), which make provisions with respect to the practice and procedure in matters relating to sections 3 to 16 of the Constitution, have to be observed, as required by section 17(l) of the Constitution. Regrettably no Rules of Court governing how an application for redress for breaches of sections 3 to 16 of the Constitution should be made, have been made, as required by section 17(5) of the Constitution. I am, therefore of the opinion that, until such rules have been promulgated, no application for redress for breaches of section 3 to 16 of the Constitution can be entertained by the court, under the powers conferred upon it by section 17(2) of the Constitution.

The next question is, does redress envisage or encompass the relief of declaration? I am of the opinion that redress mentioned in section 17(1) of the Constitution does not encompass the relief of declaration. I uphold Mr: Hazelton's submission that redress does not cover a declaration and hold that the claim for a declaration cannot lie for a breach of any of the provisions in sections 3 to 16 of the Constitution.

This view is supported by subsections (1) and (2) of section 88 of the Constitution. These subsections provide as follows:

"88. (1) Subject to the provisions of this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section.

(2) The High Court shall have jurisdiction, in any application made by any person under the preceding subsection or in any other proceeding lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly." (Italics added.)

Section 88(1), as the italicised portion shows, excludes any application to the High Court for a declaration for any contravention of the matters contained in Chapter II of the Constitution. Chapter II deals with the protection of fundamental rights and freedoms of the individual as contained in section 3 to 16 of the Constitution.

Section 88(2), as the italicised portion shows, takes away the High Court's jurisdiction to determine whether sections 3 to 16 of the Constitution has been contravened and to make a declaration. Therefore an action for declaration cannot, as I said earlier, lie.

Dealing now with the question, can a private individual maintain an action for declaration against another private individual or individuals for breach of the fundamental rights provisions of the Constitution? The rights and duties of individuals, and between individuals, are regulated by private laws. The Constitution, on the other hand, is an instrument of government. It contains rules about the government of the country. It is my view, therefore, that the duties imposed by the constitution under the fundamental rights provisions are owed by the government of the day, to the governed. I am of the opinion that an individual or a group of individuals, as in this case, cannot owe a duty under the fundamental rights provisions to another individual so as to give rise to an action against the individual or group of individuals. Since no duty can be owed by an individual or group of individuals to another individual under the fundamental rights provisions of the Constitution, no action for a declaration that there has been a breach of duty under that provision can lie or be maintained in the case before me, and I so hold.

In view of the above reasons, the plaintiff's claims for a declaration under heads 1 and 2 of his claim are dismissed.

I now turn to consider the plaintiff's claim for an injunction. The plaintiff's allegations which form the basis of his claim for an injunction were set out earlier in this judgment. The evidence in support of his allegations came from him and his witnesses. The fact that a fine of 1 pig and a bag of rice was imposed upon him is not in dispute, therefore I find this fact proved.

On the second allegation, that after he refused to pay the fine, he was expelled from Buota village in May 1985, this allegation, in my view, has not been substantiated by the plaintiff, because of his admission both in his evidence in-chief and under cross-examination. The plaintiff in his evidence said that he lives in Abatao village and has lived there for a very long time. Under cross-examination he said he moved to Abatao village either in 1979 or 1980. By this admission, I find as a fact that he was not living in Buota village in May 1985. If the plaintiff was not living in Buota village in May 1985, he could not be expelled from Buota village as he alleged. I uphold Mr. Teiwaki's submission that the plaintiff was not expelled from Buota village in May 1985.1 hold that he was not expelled by the defendants from Buota village.

The plaintiff also alleged that he was refused the right to pass and repass through Buota village. This allegation is also not borne out by his own evidence. In his evidence in chief, he said that he was allowed to go by the main road through Buota village. Under cross-examination he said he was allowed to walk from the main road to the church. I therefore hold that he was not prevented from passing and repassing through Buota village as he alleged.

As regards the rest of his allegations, I find as facts on the evidence before me -

(1) that the plaintiff's children were refused access to the primary school in Buota village;

(2) that the plaintiff was refused access to his land and babai pits;

(3) that the plaintiff was refused access to the bridge connecting Buota village and Tanaea.

The defendants, by preventing the plaintiff's children from attending the primary school in Buota village and by denying the plaintiff access to his land and babai pits, and access to the bridge linking Buota village and Tanaea, have committed an actionable wrong, that is, the Tort of unlawful interference with the exercise of his legal rights. As a citizen who pays taxes and owns land in Buota, and also pays land tax, he is entitled in law to send his children to the State primary school in Buota village and to have access to his lands and babai pit. Although these facts were not given in evidence at the trial, I am entitled to take judicial notice of the fact that adults who own land pay land taxes as well as other taxes to their local councils. The plaintiff is also entitled by law to have access to the bridge which he contributed his labour to build.

Neither the defendants nor the oldmen of the village have any legal right to prevent the plaintiff and his family from enjoying their legal rights in the community. This is so notwithstanding the fact that they may be in breach of an agreement entered into or in breach of rules made by the villagers. Any breach of any agreement or rules made by the oldmen can only be enforced in the constituted courts of the land. The defendants or the oldmen of the village cannot take the law into their own hands to enforce their rules.

In this circumstance the plaintiff is entitled to redress against the defendants for preventing him from exercising his legal rights.

The plaintiff is claiming an injunction against the defendants, in the terms contained in items 3a to 3d on his claim. Mr. Teiwaki for the defendant submits that the claim should be dismissed because the plaintiff has not proved his case on the balance of probabilities. He drew the court's attention to the evidence of the plaintiff, where he said he left Buota village in 1979 or 1980. Counsel's submission, in my view, is untenable. Although I found that the plaintiff's allegation that he was expelled has not been proved, because he left before the decision to expel him was taken that finding does not mean that there was no threat to expel him. The failure of the plaintiff to prove that one allegation against the defendants is, in my view, not fatal to his whole case. I am satisfied, on the evidence before me, that he has proved on the balance of probabilities that the defendants did interfere with the exercise of his legal rights.

The remedy of an injunction is a discretionary remedy. The Court in exercise of its discretion invariably take into consideration certain equitable principles, for example, whether damages could be an adequate remedy. Where damages will be an adequate remedy, the court will be loath to grant an injunction. Mr. Lodge submits that in this case that damages will not be adequate. Mr. Hazelton for the Attorney-General submits that, since the Court has, during the course of this case, granted an interlocutory injunction against the defendants, that the court should make the order permanent.

I uphold both counsels' submissions and hold that, in the circumstances of this case, damages will not be an adequate remedy. The interim injunction granted on 12th December is hereby discharged. I hereby substitute in its place a permanent injunction in the terms prayed for by the plaintiff in paragraphs 3(a), 3(b), 3(c) and 3(d) of his claim.

It is hereby ordered and decreed that the defendants, their servants, or agents, or the oldmen of the village the defendants claim to represent, be restrained from the date of this judgment from:-

(i) hindering or impeding the plaintiff in any way whatsoever from passing and repassing through Buota village,

(ii) hindering or impeding the plaintiff's children from attending the primary school at Buota village,

(iii) impeding or interfering with the plaintiff's access to his living plot, land, and babai pits within Buota village,

(iv) hindering or impeding the plaintiff in any way whatsoever from using the bridge at Tanaea inlet for the purposes of crossing between Tanaea to Buota village.

I now turn to consider the counter-claim filed by the defendants. The defendants in their counter-claim allege that by an oral agreement between the defendants and the plaintiff, it was agreed that monies acquired from the making and selling of pandanus thatch, collected from either Buota or Abatao village or both either by the Plaintiff or the defendants or both, should be shared amongst the shareholders of the two villages.

As a result of the thatch the plaintiff and some members of Abatao village made and sold, the defendants now counter-claim from the plaintiff the sum of $525.00, being the sum the defendants alleged that he received.

The defendants in order to succeed in their counter-claim must establish the following:-

(a) an agreement between themselves and the plaintiff;

(b) the terms of the agreement; and

(c) a breach of the agreement.

Now the evidence adduced by the defendants clearly indicates that a decision was taken by the oldmen of the two villages. DW4, the Secretary to the oldmen of Buota village, said that on 15th March 1984 there was a decision about the making of thatch in the village. DWI said that they decided this. PW3 said that there was a rule made by the oldmen of the village about thatch making. DW1 under cross-examination said that the agreement was by oldmen of Buota and people of Abatao. DW3 under cross-examination said that it is part of the agreement between the two villages. DW4 further said there was a gathering and those who attended were the plaintiff and five others from Abatao village. They all agreed to the agreement.

The inference which I draw, and find as a fact, is that there was a decision made by the oldmen of the two villages as how thatch for sale should be made. The decision was not an agreement. The decision was between the oldmen of Buota village on one hand and the oldmen of Abatao village on the other hand. I find as a fact that there was no agreement between the plaintiff and the defendants. I uphold Mr. Lodge's submission that there was no contractual relationship between the plaintiff and the defendants.

Since the defendants have not established any contractual relationship between them and the plaintiff, the base on which their counter-claim rests no longer exists. Their counter-claim is therefore dismissed.

The judgment of the court in this action is as follows:-

(1) The declarations sought by the plaintiffs are all refused.

(2) There shall be a perpetual injunction in favour of the plaintiff in the terms prayed.

(3) I make no award for damages as claimed by the plaintiff. Damages is not an adequate remedy.

(4) The counter-claim of the defendants is dismissed.

(5) The defendants are to pay the costs of this action, which I assess at $75.00.