Dia v Kalena Timber Company Ltd [1994] SBHC 13; HC-CC 120 of 1994 (26 May 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 120 of 1994

FRANK DIA (as representative of Soloso Tribe)

-v-

KALENA TIMBER COMPANY LTD AND NATHAN KERA

High Court of Solomon Islands
(Muria CJ.)

Hearing: 9 May 1994
Judgement: 26 May 1994

A. Radclyffe for Plaintiff
F. Waleilia for First Defendant
T. Kama for Second Defendant

MURIA CJ: This is an inter partes hearing in which the plaintiff seeks a continuation of the ex parte injunction granted by this Court on 5 May 1994 and which was extended to today. The plaintiff continues to insist that the first defendant's operation on the land be restricted.

The second defendant, by his summons, seeks to have the Writ of Summons filed by the plaintiff in this case be struck out. In support of this application the second defendant relies on the affidavit he filed on 18th May 1994 and that of Solomon Hitu.

The first defendant objects to the continuation of the ex parte injunction. Counsel for the first defendant said that the decision of CLAC had cleared doubts about the land in question. As such it is said, injunctive remedy is inappropriate in this case.

As to the plaintiff's application, the point is a short one, that is, whether there is a justification in law for the Court to order the ex parte injunction to continue. This will necessarily involve the consideration of the benefit which the continuation of the order will confer on the plaintiff and the detriment which will be caused to the defendant. It is part and parcel of the balancing exercise in a case such as this where injunctive remedy is sought.

If at the end of that balancing exercise, the Court feels that the granting or the continuation of the ex parte injunction is not justified it should refuse it.

In this case, the plaintiff is a member of the Soloso Tribe from Roviana, New Georgia, Western Province. The first defendant is a company which has a logging licence over an area of land from Rorosi to Bahoro River. The second defendant is one of the representatives of the landowners who granted timber rights over the said area of land.

It must be noted that following the Roviana Area Council determination of the persons entitled to grant timber rights in the land between Rorosi and Bahoro River, the plaintiff appealed to CLAC. In its judgement given on 24 February 1993, the CLAC confirmed the decision of the Roviana Area Council as to those who are entitled to grant timber rights in Maepu Land. It must also be noted that no challenge was ever taken against that CLAC decision.

In its judgement on 24 February 1993 the CLAC referred to a decision of the CLAC given on 11 August 1983 over Maepu Land arising out of an appeal against the decision of the Local Court in CC25/80 given on 24 February 1981 and said that the CLAC on 11 August 1983 decided against Samuel Kuku and Samuel Ginua and that since the appellant (Frank Dia) was a relative of Samuel Kuku and Samuel Ginua, he had no right over Maepu Land.

In support of his claim for damages for trespass and/or conversion and injunction the plaintiff relied on that part of the Local Court's decision in CC25/80 which says:

"That the Soloso tribe owns the portion of land at Palae and Zakolo given to them by Maepu Butubutu and that Soloso tribe has irrevocable right occupation and use in Maepu Land"

It is true that the CLAC on 11 August 1983 upheld the Local Court's decision. However the CLAC clearly found that Kera (the second defendant) and his line were the owner of Maepu land except for those parts which Kuku's line had ownership and control over. In this regard the CLAC said -

"The Court finds that Kera's line settled in Maepu before Kuku's line and that Kera's line in custom have paramount rights over the whole of Maepu land save and except that Kuku's line have control and ownership over those places now settled by them which are not under the control of Kera's line."

That was an appeal against the Local Court's decision and the CLAC was clearly referring to the Local Court's decision in which Kuku and Ginua were adjudged to have ownership and control only of the portion of land at Palae and Zakolo which the Maepu Butubutu gave them.

The boundaries of the land had already been ascertained by the Local Court and confirmed by the CLAC. It is also clear from the Local Court's judgement that the portion of land at Palae and Zakolo are inside Maepu Land.

The plaintiff seeks to rely also on that part of the Local Court decision which says "that Soloso tribe has irrevocable right of occupation and use in Maepu Land." If the plaintiff is relying on that statement as giving it the right of ownership over Maepu Land, then it is inconsistent with the customary practice of owning title to customary land, because mere occupation and use of the land does not automatically confer ownership of the land. The Local Court clearly recognised that when it says:

"The Court must remind itself before deciding on the question of customary title of this land that unless there are customary transactions, during the course of the preceding generations of people of different tribes who occupy the land which give them right to own the land or portion of the land, the question of ownership would always rests with people who first peopled and occupy the land. This court must also remind itself that properties were only owned after people occupied, then plant or make them and do not put too much weight on them to decide ownership."

The plaintiff in this case will no doubt note that the courts had clearly distinguished the rights his tribe has in Maepu Land. His tribe has rights of ownership of the portion of land at Palae and Zakolo and only the right to occupy and use Maepu Land. Although the right to occupy and use was said by the Local Court to be irrevocable, it is clearly not a paramount right of ownership over the whole of Maepu Land.

I have dwelled into this aspect of the case as it is in this Court's view important when considering whether it is justified that the ex parte restraining order against the first defendant should be allowed to continue or not. It is also relevant when considering it against the claim of damages for trespass brought against the defendants.

Having considered those backgrounds of this case I do not see why the plaintiff should come to this Court and seek the Court's indulgence to grant him an opportunity to relitigate on issues that had already been decided for and against him by those authorities which had the power to do so. The Local Court and CLAC had already decided on the extent of the plaintiff's right over Maepu land, as I have already described earlier. Pursuant to the decisions of those Courts, the second defendant and others granted timber rights to the first defendant. It will make a mockery of the system of justice if this Court were to allow litigants to continue to endlessly pursue issues that had already been conclusively decided against them previously.

This Court is clearly of the view that in those circumstances it is difficult to see what benefit the order will confer on the plaintiff if it is allowed to continue. On the contrary, the order will be detrimental to the defendants if it is allowed to continue and may very well have an oppressive effect on the defendants.

In those circumstances there is no justification for the ex parte injunction issued on 5 May 1994 to continue and must be discharged.

I will however order that the First Defendant must lodge in this Court the undertaking that until after judgement in this action or further order it shall refrain whether by itself, it servants or agents or otherwise howsoever from entering on the plaintiff's land at Palae and Zakolo.

And further the undertaking that any logs already extracted from the plaintiff's land at Palae and Zakolo be exported and sold and the net proceeds thereof be paid into court within 7 days of the receipt of those proceeds.

Both undertakings to be lodged in this Court by 3.00 pm on 27 May 1994.

In view of the fact that the plaintiff clearly has rights of ownership over the said portion of land at Palae and Zakolo in Maepu Land, I decline to strike out the plaintiff's Writ of Summons as sought by the second defendant.

Costs in the cause.

(G.J.B. Muria)
CHIEF JUSTICE