Arashianua Land Trust v Pa'asi [2007] SBCA 14; CA-CAC 22 of 2006 (15 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Civil Appeal No 22 of 2006 (On Appeal from High Court Civil Case No 479 of 2006)
DATE OF HEARING:	11th October 2007
DATE OF JUDGMENT:	15th October 2007
THE COURT:	Lord Slynn of Hadley P. Ward JA Goldsbrough J
PARTIES:	Arashianua Land Trust & Ors (Appellants) -v- Pa’asi & Ors (Respondents)
ADVOCATES: Appellant: Respondent:	Mr Andrew Nori Mr James Apainai
ALLOWED/DISMISSED:	Dismissed
PAGES:	1 – 4

JUDGMENT OF THE COURT

In October of 2004 the plaintiffs in this action, seven people who claim to be representing Hanuaraua Tribe brought proceedings against inter alios a group of other landowners who trade under the name Oceania Land Trust.

The claim was for an order, amongst other things, that a timber rights hearing which had been held in July 2003 to determine the persons entitled to grant timber rights within the concession area was itself invalid. Following that hearing in July, on the 12th December 2003, a timber licence was granted by the Commissioner of Forests to the Land Trust. The plaintiffs say that that too was invalid. In addition there was a timber rights agreement in which the first defendant, the head chief of the Hanuaraua Tribe, had permitted to grant timber rights to the Trust.

The validity of those matters were challenged and the plaintiffs claimed a number of declarations against the defendants, relating to these matters, and a permanent injunction.

The statement of claim was followed by a summons on the 4th November 2004 when the plaintiffs asked for a number of interlocutory orders to be made. The matter came eventually before the learned judge, Justice Mwanesalua, and on 30 June 2006 he made an order in the terms of paragraphs 2, 3 and 4 of the summons asking for interlocutory relief. He restrained the second and third defendants from entering and remaining on Hanuaraua customary land or constructing any roads within it and he restrained the second and third defendants by themselves, their servants and agents from felling, extracting and removing any trees, logs or timber from the customary land until the trial of the action or further order of the Court.

On 23 August 2006 he ordered:

2. That the remaining logs on Hanuarua land be hauled and sold and the proceeds thereof together with the proceeds of all logs sold from other lands forming part of the Hanuarua land be paid into a joint trust account to be opened in the names of the solicitors for the plaintiff and the solicitors for the first, second and third defendant and to remain there until tried or further order of the Court.

3. That any agreement for the use of the Hanuarua land as access roads for transporting logs on lands owned by other tribes be discussed between the plaintiffs on behalf of the Hanuarua Tribe and the members of the other tribes."

Mr Nori, on their behalf today, has made submissions saying that those orders by the learned judge should not have been made and he has relied on a number of grounds. It is not necessary to go into all the detail, more is set-out of the judgment of the learned judge to which reference can be made.

Mr Nori’s grounds can be summarised as follows:

In the first place that although the plaintiffs, as landowners can bring proceedings to challenge these matters, they have no right to do so in the name of the whole tribe or to obtain orders which affect the whole tribe unless they can establish that they were authorised to represent the tribe. They have not established that.

Secondly, he says that there is an issue as to whether these various stages, the timber rights hearing, the agreement and the licence were valid or not. He also says the effect of the learned judge’s order is that the right to negotiate access roads to the land was given to these seven people instead of being reserved to the tribe as a whole, since all members of the tribe are affected by whatever agreement might be made. And he says, again in this context, that it has not been shown that the plaintiffs had authority to represent the tribe as a whole.

Mr Apainai, on behalf of the Land Trust, has said that in fact the claim which they made in the writ (as to the validity of the various steps taken referred to at the beginning of this judgment) was fully justified and that the order giving instructions and power to negotiate the access road was an order properly made by the learned judge.

Now it is quite plain that in this case there are some very serious issues to be tried. Perhaps the preliminary one is whether this Court has jurisdiction at all or whether these matters or some of them fall to be dealt with only by the chiefs and by customary law. There are serious issues as to the authority of the plaintiffs to bring these proceedings and there are certainly in particular questions as to who should be entitled to negotiate for the access roads.

Those are the overriding questions but there are many other questions of detail.

In his judgment of 30 June 2006 the learned judge said this, "There are serious questions of law in issue which this Court has jurisdiction to determine. I find there are serious issues to be tried. The plaintiff’s action is not previous or vexatious. There is a real prospect that the plaintiffs will succeed in their claim for permanent injunction at the trial. The plaintiffs do not support logging on Hanuarua customary land. They are interested in producing sawn timber for sale and they have licence to operate a mill." He said, "The balance of convenience which is always an important element in any decision as to the grant of an interlocutory injunction lies in favour of the plaintiffs. The plaintiffs are simple village people. They wanted to preserve the trees on the Hanuarua customary land so that they can mill them in a sustainable manner." Then the judge said something that is very important in considering whether we should do anything about the orders he made. "There is need to maintain the status quo in this matter. The status quo is to prevent all parties from dealing with the customary land in any manner until the substantive action is tried and determined." Those are matter which the Court of Appeal should take seriously into account.

It is our view what is important in this case is that the parties should get on with the action. It has been around now for three years, the first summons for interlocutory relief was issued three years ago and we understand that no defence has yet been filed. It is therefore very important that the parties should comply with the procedural rules in the next stages of this case and that the matter should come before the High Court as soon as possible.

We therefore refuse the application to set aside the injunctions granted by the learned judge and we refer the matter back to the trial judge for him to deal with any problems which arise in procedure and then to get on with the hearing of this case when these matters, which raise serious questions both of fact and law, can be gone into.

The application today is therefore dismissed.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal