Majoria v Jino [2009] SBCA 4; CA-CAC 16 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Faukona J)
Court File Number:	Civil Appeal No 16 of 2008 (On Appeal from High Court Civil Case No 255 of 2005)
Date of Hearing:	20 March 2009
Date of Judgment:	26 March 2009
The Court:	Goldsbrough P Williams JA Hansen JA
Parties:	Majoria Appellant -v- Jino & Clerk to Western CLAC Respondents
Advocates: Appellants: Respondent:	J. Apaniai M. Bird S. Woods
Key Words:
Ex-tempore / reserved:	Reserved
Allowed / Dismissed:	Allowed
Pages:	1 - 5

This appeal is against the decision of the High Court in Civil Case 255 made on 16 May 2008 refusing relief as sought. Whilst there had been, since 2005, an amendment in the relief sought reflecting time elapsed and changed events, the claim remained substantially the same. It is for injunctive relief over an area of land said to be known as Havahava Land.

The orders sought are:-

That effective from the date hereof, the First Defendant, his servants, agents, relatives and logging contractor are restrained from entering, remaining in and/or carrying out any logging activities of whatever nature within disputed area, namely, the area between Nama river and Punutu river including the area known as Havahava land (the "Disputed Area") as shown in Ex. "HM9" of the affidavit sworn by Havea Majoria and filed herein on 13th May 2005 until trial or further order of the court;

That notwithstanding Order 1, the First Defendant shall haul all logs now felled as at the date hereof to its log pond and sell such logs; Provided that the First Defendant, his agents and servants shall pay the proceeds thereof (less 25% export duty) into a joint trust account to be opened in the names of the Claimant and the First Defendant or their solicitors within seven days from the date of export of the logs.

That, except as provided for in Order 2 above, no deduction whatsoever shall be made from the proceeds payable into the trust account under Order 2 without the approval of the Claimant.

That the First Defendant, his servants, agents, relatives and logging contractor remove all their machines from Rodo land, including the Disputed Area, within seven days after the date of the sale of logs pursuant to Order 2 above.

That the 1st Defendant, his servants, agents and contractors, within 14 days from the date hereof file and serve on the solicitors for the Claimant a sworn statement providing an account of all marketable trees felled on the said Rodo land, including the so-called Havahava land, from August 2006 to the date hereof providing details of:-

[a] species, quantity and price of the logs already exported to the date hereof; and,

[b] species, quantity and price of the logs felled by not yet exported as at the date hereof.

That a penal notice be attached to paragraphs 1, 2, 3, 4 and 5 above.

Costs in the cause.

Civil Appeal 36 of 2005 was an appeal to this Court brought in these same civil proceedings 255 of 2005. In the decision of this court on that appeal, delivered on 1 November 2007, both the relevant chronology of events concerning Havahava Land and the relevant legislation are set out. For that reason, we do not propose to repeat either.

The decision in 36 of 2005, wherein an appeal against a dismissal of the action was upheld, sets out the interrelation between determinations made under the Forest Resources and Timber Utilisation Act [Cap 40] and determinations as to the ownership of customary land before the chiefs, the Local Court under the Local Courts Act [Cap 19] and the Customary Land Appeal Court under the Land and Titles Act [Cap 133]. The decision of the Court of Appeal importantly reverses the decision made earlier in the High Court setting out a different interrelation.

Before the delivery of judgment in 36 of 2005, by virtue of an order made in the High Court, the Western Customary Land Appeal Court (referred to as WCLAC) had in fact heard and determined for a second time the matter which eventually the Court of Appeal said in its judgment should be referred back. Other than this event, nothing had changed in the matter which we need to refer to here.

In the instant appeal it is conceded that there remains as between the parties a dispute as to the existence, ownership and boundaries of Havahava land. This is the triable issue that the judge at first instance identified and acknowledged.

Given that there exists a serious issue to be tried as between the parties, consideration need to be given as to whether injunctive relief is appropriate to maintain the status quo whilst the issue is determined. The test to be applied in those circumstances was set out in American Cyanamid Co v Ethicon[1]. We note that the appellant in submissions refers only to the existence of a triable issue being necessary for injunctive relief and for this reason we repeat that the test as set out in American Cyanamid must be satisfied before injunctive relief is ordered. This is conveniently summarized in Halsbury 4th Edition Reissue at 863 " generally granted only when the applicant has established a serious issue to be tried, damages will not be an adequate remedy, the balance of convenience lies in favour of granting the injunction in that it will do more good than harm and the applicant is and will be able to compensate the respondent for any loss which the order may cause him in the event that it is later adjudged that the injunction should not have been granted." We would add to that the circumstances where an order for damages would likely not be met.

In dismissing the action, the learned judge determined that injunctive relief was not indicated in this case. He gave full and carefully set out reasons for that decision. In his reasons the judge considered that as the WCLAC had reheard the matter sent back to it by this court on 1 November 2007, albeit on 23 December 2006, that there existed no longer any reason to maintain the status quo. In effect, he determined that there was no further possibility of litigation that may affect any persons’ interest in this land.

Whilst there is force in the argument that the WCLAC had already reheard the matter as the Court of Appeal considered necessary, the WCLAC had not reheard the matter ‘in accordance with’ the judgment of the Court of Appeal delivered 1 November 2007. This has particular significance given that in the 1 November 2007 judgment this court clearly overruled the interpretation of the High court on the relationship to be considered as between the two scheme outlined in paragraph 3 above.

If only for that reason, we consider that this appeal should succeed. The WCLAC must consider the matter raised before them and referred back to them by this court in the light of the judgment.

Given that we find this ground of appeal to be made out, we do not consider it necessary to made determinations on the remaining grounds of appeal as set out in the notice. We would simply comment that we are not entirely convinced of the necessity referred to the by learned judge of all parties to a dispute appearing before the chiefs. Whilst this is undoubtedly the best way for the chiefs to embark on the process of identifying custom owners of land, there must remain open a route whereby chiefs can make some determination or other without all parties appearing before them in a situation where the chiefs have exhausted all means of securing the absent parties’ attendance.

We note that there also exists a reference to the Marovo Local Court seeking a further determination. Whilst we make no further comment on that, we make reference to it simply to demonstrate that there remain unresolved issues.

The 1st respondent to this appeal points to the existence of a valid timber licence issued in their favour over Havahava land, in contrast to the licence issued in favour of the appellant over Rodo Land. In submissions it was said that as no appeal against the issue of the Havahava licence was made by the appellants, the 1st respondent is now entitled to the benefit of that licence.

It appears to this court from the judgment of 1 November 2007 that this issue has already been put forward in submissions and has been rejected. For the same reasons we do not accept that submission.

The 2nd respondent to this appeal does not oppose the orders sought by the appellant. We consider that the test set out above is met in these circumstances, note that an undertaking as to damages has been provided and accordingly injunctive relief is indicated.

In the event this appeal is allowed and the orders sought in the amended summons are granted in favour of the appellant save that as regards paragraph 1 of the amended claim the order is made "until further order". Costs of this appeal are to be paid by the 1st respondent to the appellant to be agreed or taxed.

Goldsbrough JA
Acting President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal

After the foregoing reasons were handed down an interested third party drew to the attention of the court that the order directing the matter be reheard in the WCLAC (paragraph 2 of final order in 36 of 2006 in the Court of Appeal) had been dissolved by consent in the Court of Appeal on 16 June 08. That was done because the impugned 2nd decision of the WCLAC was to be reviewed by certiorari. Those matters were not drawn to the attention of this court notwithstanding both counsel before us had been party to the consent order. When the matter was relisted to bring those matters to the attention of the parties it was agreed that the orders set out in the published reasons should not be perfected until the conclusion of the proceedings for certiorari or other order of this court.

Goldsbrough JA
Acting President of the Court of Appeal

---

^[1] [1975] All E. R 396 UK H of L