Maena v Basikana Sawmilling Ltd [1994] SBHC 51; HCSI-CC 61 of 1994 (11 March 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.61 of 1994

MICAH MAENA

-v-

BASIKANA SAWMILLING LIMITED

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 61 of 1994

Hearing: 2nd March 1994
Ruling: 11th March 1994

A. Radclyffe for Defendant
J. Remobatu for the Plaintiff

PALMER J: Under a writ of summons filed on the 24th of February 1994 and a statement of claim also annexed thereto, the Plaintiff claims that he is a member of the Afoa tribe, which tribe he claim is one of the customary landowners of Basikana Island, the subject of this injunction.

On the same date (24/2/94), an ex parte application was filed seeking an interim injunction against the 1st Defendants logging operation on Basikana Island. In support of that application an affidavit of Micah Maena was filed also on the same date.

At paragraph 1 of that affidavit, he says that .the application was made for and on behalf of the Afoa tribe. At paragraph 2 he says that to the best of his knowledge, the Afoa tribe owns Afoa land which also includes Basikana Island. At paragraph 3, he says that there has never been any court cases against his tribe over ownership of Basikana Island.

By order dated the 2nd of March 1994, the Court issued an interim injunction against the 1^st Defendant.

The first Defendant now applies by way of a summons filed on the 10/3/94 to have that interim injunction discharged. In support of that application, the affidavit of Patrick Talo Boe was filed also on the same date.

At paragraph 4 of the affidavit, Patrick Talo Boe denies that the Plaintiff is a member of the Afoa tribe, and or, that the Afoa tribe or the Ulubiu tribe have any rights over Basikana Island.

In his submissions in support of the summons, Mr Radclyffe submits that the plaintiff had failed to give sufficient reasons for his claim of ownership over Basikana Island. He submits that it is dangerous for the court to accept the word of one man as it could open the floodgates to any Tom Dick and Harry to raise objections and halt all operations without sufficient justification.

Mr Remobatu on the other hand submits that the question of ownership had not yet been settled as concerning the Afoa tribe, and other landowning tribes.

The question for the court to consider in such application is whether there is a serious issue to be tried. (See American Cyanamide Co -v-Ethican Ltd [1975] UKHL 1; [1975] A.C. 396, Nelson Meke -v- Solmac Construction Company Ltd and Others (1982) Civil Cases No. 44 and 45 of 1982. H.C, and Beti and Others -v-Allardyce Lumbar Company Ltd and Others C.C 45 of 1992 H.C.).

Is the question of ownership over Basikana Island a serious issue?

I do not think both learned Counsels will dispute that that is a serious issue.

It needs to be noted however that that issue is not one for this court to eventually make a determination on as Basikana Island is customary land. Any questions or disputes as to ownership therefore will have to be sorted out in custom under the Local Court Amendment Act of 1985, and before the Local Courts and the Customary Land Appeal Courts.

On one hand therefore, although the question of customary ownership over Basikana Island is a serious issue, the appropriate place to have it sorted out is with the Chiefs and the Local Courts and the Customary Land Appeal Court.

There is no evidence to show that the Plaintiff has commenced an action with the Chiefs. The only submission made to that effect is that the Plaintiff is considering taking such action.

To a certain extent I accept the submission of Mr. Radclyffe that by granting an interim injunction without any corresponding action under the Local Courts Amendment Act of 1985, would open the floodgates to any Tom, Dick and Harry to halt all logging operations, on a simple claim of ownership over a piece of land, by virtue of his membership of a tribe, without sufficient evidence to show that his claim or allegation is genuine. There is no guarantee that the plaintiff will institute any action under the Local Courts Amendment Act. The continuation of the injunction therefore in the absence of such actions may work injustice if the plaintiff either does not commence proceedings at all or delays in commencing proceedings under the Local Court Amendment Act, 1985.

It would be a different matter if an action had been commenced under the Local Court Amendment Act of 1985. That would support the Plaintiff's action that his claim for an interlocutory injunction should be seriously considered by this Court.

This case should be distinguished from other cases in that no corresponding action had been commenced under the Local Court Amendment Act.

In other cases also, usually the Applicant is a person of standing, say a chief, or a representative of the chief. In this case, the Plaintiff described himself as a church elder and claimed in paragraph 1 of his affidavit, filed on the 24th of February 1994, to appear for and on behalf of the Afoa tribe.

In contrast, in the affidavit of Patrick Talo Boe, filed on the 10th of March 1994 at paragraph 1, he alleges that the Plaintiff is not a member of the Afoa. Rather, he asserts, the Plaintiff is a member of the Ulubiu tribe, but that neither the Afoa tribe nor the Ulubiu tribe have any rights over Basikana Island.

The concern raised by Mr Radclyffe that it is possible that the Plaintiff’s claim is frivolous and vexatious, to a certain extent is justifiable, when contrasted with the agreement which the First Defendant had entered into with about six tribes and a logging licence.

In the absence of any pending Chief's hearing or local courts hearing on the question of ownership, it is my view that it would not be appropriate at this point of time to allow the interim injunction to continue.

It is one thing to assert that no court case has been taken against the Plaintiff, which with respect is taking more of a backseat and passive approach, than taking a more positive and active approach, and commencing actions under the Local Court Amendment Act of 1985. Then, perhaps, the application will have more substance to it than just a mere assertion and claim of right, which anyone can do.

The interim injunction granted on the 2nd of March is accordingly discharged.

Costs to be in the cause.

(A.R. Palmer)
JUDGE