Aqorau v Talasasa [1994] SBHC 16; HC-CC 090 of 1994 (22 June 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 90 of 1994

MERLE AQORAU

-V-

TERRY TALASASA AND OLLIE TALASASA

High Court of Solomon Islands

(Muria, CJ.)

Hearing: 3 June 1994
Judgement: 22 June 1994

MB Samuel for Plaintiff
A. Radclyffe for Defendants

MURIA, CJ: On 3 June 1994, I refused the application for interim injunction and also refused to strike out the Writ of Summons in this case and I said I would give my reasons later. That I do so now.

The plaintiff commenced an action against the defendants by way of Writ of Summons claiming damages for trespass and injunction to permanently restrain the defendants from entering upon Sisiata Land.

The plaintiff now seeks an interim injunction against the defendants. The purpose of the interim injunction is to restrain the defendants from entering upon Sisiata Land and to desist them from constructing a building on the land.

In support of the application counsel for the plaintiff relied on the affidavit filed by the plaintiff on 18 March 1994.

Mr. Radclyffe opposed the application and submitted that the land is a customary land and the question of ownership will be in dispute. Counsel argued also that the materials before the Court is not sufficient to justify the Court making the order sought by the plaintiff.

Mr. Radclyffe also asked the whole action be struck out. Counsel argued that the proceedings issued by the plaintiff is asking this Court to decide on the ownership in custom of the land in question. This, he said, is not the function of this Court.

Interim injunction is a discretionary remedy. Its object is to preserve the status quo pending the determination of the rights of the parties to the action.

In an application for an interim injunction, the substantive issue raised in the main action is not dealt with. However, the applicant must show that there is a violation of the legal rights to which he appears to be entitled. That must be shown on the material before the Court. To merely claim a legal right is not sufficient for the grant of an interim injunction.

The plaintiff in this case claims to be one of the owners of Sisiata Land. Apart from that assertion there is no evidence on the material before the Court at the hearing of this application supporting that assertion. This hearing does not concern the consideration at this stage of the substantive question of ownership of the land in question but rather a consideration of a legal right which the plaintiff appears to be entitled to on the material furnished to the Court.

In Beti and Ors -v- Allardyce and ors CC45/92 (Judgement given on 22/5/92) this Court granted an interim injunction against the first defendant. In that case the plaintiffs were representatives of the Voramali Tribe which is a customary landowning tribe in Kazukuru Right Hand Land. That the plaintiffs' tribe had landowning rights in KRHL had already been decided by the Courts. Thus although the third defendants challenged the plaintiff's rights in KRHL, there were materials before the Court which showed that the plaintiffs had some legal rights to which they appeared to be entitled.

In Hitukera -v- Hyundai Timber Company Limited and Another CC132/92 (Judgement given on 24/8/92) this Court also granted in interim injunction against the first defendant. The plaintiff complained of trespass onto his land. Apart from the question of ownership of Buro Land in the Malasova area, the plaintiff owned coconut plantations, gardens and other properties at Malasova. The first defendant, despite complaints from the plaintiff, went through the plaintiff's area clearing the land and cutting down the plaintiff's coconut plantations as well as destroying the plaintiff's food gardens and crops. The first defendant entered the plaintiff's village with a bulldozer destroying the plaintiff's properties as well as causing terror to the plaintiff and his family. The rights of the plaintiff to his properties and the protection of himself and his family had not been disputed on the materials before the Court and as such a violation of those rights must clearly be prohibited by an interim restraining order.

In the present application for interim injunction, the plaintiff simply asserted to be one of the customary landowners of Sisiata Land. The defendants, obviously are relying on an earlier land case, namely Native Land Appeal Case no. 9 of 1971 as giving them the right to be on the land in question and to do what they did, that is, to clear the land and build a house.

Whatever the merit of the plaintiff's claim is, it does not appear on the material before the Court at this hearing, that she has anymore right to the area of land complained of than the defendants. I have seen the case (Native Land Appeal Case no. 9 of 1971) referred to by the plaintiff and in my view it cannot assist her in this application by saying that the defendants had falsely relied on that case. There is nothing in the present application which can persuade the Court to grant the order sought by the applicant/plaintiff.

In those circumstances the application for interim injunction must be refused.

I do not feel that at this stage, I need to consider the defendants' application to have the Claim in the Writ of Summons struck out. Suffice to say at this stage that I do not think that it is appropriate that the Court should order the plaintiff's Claim in the Writ of Summon be struck out.

I therefore refuse the application to strike out the Claim in the Writ of Summons.

Costs in the cause.

G.J.B Muria
CHIEF JUSTICE