Usuli v Gagame [1995] SBHC 52; HC-CC 243 of 1995 (2 October 1995)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 243 of 1995

DONGA USULI AND JOHN SORI

-v-

TOATA GAGAME AND SIX OTHERS

High Court of Solomon Islands
(Awich, CHC.)

Hearing: 29 September 1995
Judgment: 2 October 1995

A. Nori for the Plaintiffs
C. Ashley for First, Second, Third, Fourth & Fifth Defendants
G. Suri for Sixth and Seventh Defendant

SAM AWICH, COMMISSIONER: Donga Usuli and John Sori who are first and second plaintiffs respectively filed a writ of summons on 22 September 1995 against seven defendants; Toata Gagame, Molea Gagame, Kaluae Gagame, Kale Gagame, Ka’abe Molea, Solomon Loea Kia and John Loea Kia, defendants 1 to 7. The plaintiff’s main claim is for the eviction of the seven defendants, their families and clans from a parcel of land, part of land known as Aenagono land. That parcel was described by Malaita Customary Land Appeal Court (MCLAc) on 6 October 1982 as Lesser Aenagono Land. Related claims are for damages for trespass, damages for conversion, accounting for proceeds of sale of gravel from the land and costs. On 31 September 1995 the Plaintiffs applied ex parte for interim injunction to restrain some stated activities on that land. I granted the application; but limited it to last for only 2 weeks. That was extended to 29th September 1995.

All the defendants opposed the claim; they have filed memoranda of appearance and have challenged the application for injunction, although in somewhat roundabout ways. Solomon Loea Kia and John Loea Kia the 6th and 7th defendants applied for disjoiner of them on the ground that no cause of action was disclosed in the writ and claim against them. The cause of action is a judgment of MCLAC dated 6 October 1982 between Donga Usuli and Gagame Tofasi, representatives of U’unu, the plaintiff’s clan and of Arukwai and Fafurua the clans of the First, Second, Third, Fourth and Fifth Defendants. The decision of that judgment, they say, does not bind them; the sixth and seventh defendants, because they don’t belong to Arukwai or Fafunua clans.

Counsel for the first to fifth defendants filed application stated to be under Order 27 rr 3 & 4, asking for the case to be dismissed on point of law or alternatively that the case be struck out as frivolous and vexatious. The point of law or question of law was not stated. From the submission of learned counsel Mr Ashley, I understood it to be that the judgment of MCLAC on 6 October 1982 must be read with judgment of the High Court in 1972. The inference there, counsel submitted, was that the clan of Gagame was the owner of Anokwalekwale and Tafuita which lands covered the area the subject matter of this case, referred to by Plaintiffs as Lesser Aenagono.

I refused the application of the sixth and seventh defendants under O17 rr 11 and 12, urging the court to find misjoinder and strike out the two defendants from the action. Rule 12 of Order 17 simply authorises application to strike out or add parties to be made before the actual trial, which is what learned counsel Mr Suri has done. The rule is not a guide to the reasons for doing so. Rule 11 excuses misjoinder if the court can deal with the matter in controversy in regard to the parties already before court. It also authorises the court to bring in other parties so that it can deal with the complete matter in controversy. It is really rule 4 of Order 17 which lays down the correct circumstances in which parties may be joined together in a case. It states,

“All persons may be joined as defendants against whom the right to any relief is alleged to exist whether jointly, severally or in the alternative.”

Note that the right to relief is only an alleged one. In this case the plaintiffs allege that the sixth and seventh defendants are either children or relatives of Gagame, and that they are on the land in question as well as the other five. The plaintiffs claim eviction. Yes, the basis of the plaintiffs claim is a judgment of MCLAC, and it may be true that the 6th and 7th defendants are not children or relatives nor belong to Gagame’s clans. That, however, is a matter for pleadings and evidence. The allegation has been made and further, that they are on the land. If they are there surely the main relief claimed, that of eviction does affect their right and they must be joined. By eviction, learned counsel Mr Nori is really seeking possession of the land for his clients. Moreover, it is a rule of practice that the Court has discretion, either on application or meru motu to order that a person be joined, whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon. In this matter the question of eviction cannot be effectually and completely determined and adjudicated upon without giving opportunity to the sixth and seventh defendants to be heard which opportunity is effected by joinder. The fifth and sixth defendants occupy the land, the subject of claim. For those reasons the application to strike out the sixth and seventh defendants failed. Costs to that extent is awarded to the plaintiffs against the sixth and seventh defendants.

The application of the first to fifth defendants asking that action be struck out on question of law because the decision of MCLA on 6 October 1982 and of the High Court in 1972 can only be interpreted in favour of the five defendants, cannot be decided on the affidavit evidence availed. The judgment of the High Court said to have been handed down in 1972 is not before the court so that the full judgment together with that of MCLAC are examined. A copy of a hand written note made by someone, not the court is not good enough. I can only say that if that was the position, one is left with the puzzling question, why MCLAC later in 1982 accepted a map which showed Anokwalekwale and Tafuita as being outside Aenagono and stated that Gagame had no right over Aenagono. The other aspect of the case which was brought out in the submission of learned Counsel Ashley for the five defendants is that there is now disagreement between the parties as to the boundaries of Lesser Aenogono generally as stated in the judgment of MCLAC on 6 October 1982. That boundary is challenged by the five defendants who contend that the boundary is as given by the High Court in 1972. These are issues which are far from being frivolous, further more, the defendants are now occupying land area which the plaintiffs contend was the area over which MCLAC decided on 6 October 1982 that the plaintiffs’ predecessor Usuli had right over and the defendants predecessor, Gagame did not save for crops already thereon. It may turn out that the plaintiffs are wrong, but their action cannot be described as vexatious at all. Accordingly I refuse the application to dismiss the claim on “point of law”, in any case I consider that application under O27 rr3 and 4 misconceived. I also refuse the application to strike out on the ground that the action is frivolous and vexatious. Costs to that extent is awarded against the five defendants in favour of the plaintiffs.

That brings me to the application of the plaintiffs for interlocutory injunction until the end of the case. It is clear from what I have said above that there have been alleged in the claim, serious issues for trial. Of course those issues must be about legal right, but I do not agree with learned Counsel Mr Suri that they must be legal right proven in court. A claim is an allegation, usually of facts, which allegation is proved by evidence so that certain legal rights flow in favour of the claimant who then asserts his right by praying the court to grant him certain orders against the defendant. That is what the plaintiffs here have done. They allege that by judgment of MCLAC on 6 October 1982 they are entitled to Lesser Aenagono, and that the defendants are not entitled, but right now the defendants are on that land. The plaintiffs accordingly seek among other reliefs, order for eviction of the defendants. They may fail to establish that alleged right, but at this stage they constitute serious issues which have real prospect of success on the evidence so far availed on affidavits. Their prospects are better at this stage than those of the five defendants who rely for their defence on alleged judgment of the High Court in 1972, which judgment or copy was not produced in support.

The main question now is whether the plaintiffs will suffer damages from now until conclusion of the case which money will not adequately compensate. There is no evidence that mere occupation by the defendants, of their homesteads are resulting in irreparable losses to the plaintiffs should they win the case. In any case the plaintiffs, according to their claims, would be happy with an order finally evicting the defendants. There also has been no evidence that continued use of established gardens will result in irreparable damages. The plaintiffs, in their application do not insist on prohibition to the use of established gardens. They seek to put a stop to establishing new gardens. I have looked at the maps presented so far. Gardens seemed to be spread far and about; establishing of new gardens may well complicate the issue of boundaries. That I consider is good ground to seek interlocutory injunction. The removal of gravel for use elsewhere certainly results in permanent loss and it does appear difficult to assess the money value of. I would say money will not be good compensation.

In the end, I am able to say that the plaintiffs have succeeded in establishing in this court that their claim discloses serious issues and that certain activities namely, establishing new houses, and new gardens end removal of gravel could either complicate the case or result into damages very difficult to compensate with money. I allow the application and grant injunction prohibiting all the Defendants until further order or end of the case from:

1. Building new houses, except for repairing existing houses
2. Establishing new gardens, but they may plant in the old gardens with the risk that if they plant long term plants, they might lose those new plants should they lose this case in the end.
3. Removing gravel/soil for sale elsewhere.
4. Costs of application relating to interlocutory application for injunction will be costs in the cause.
   

Dated at Honiara this 2nd day of October 1995

(Sam Awich)
COMMISSIONER OF HIGH COURT

Mr Nori: None of the defendants have filed defence.

Mr Asley & Suri prefer 14 days

Reply 14 days

14 days for inspections

Trial within 60 days

There may be matters to be referred to chiefs. I ask for direction at that stage..

Ashley: I agree with my learned friend Nori. Certain questions might be referred to chiefs.

Suri: I suggest 7 days after inspection there be direction application. I ask that court directs on the question to be referred to Customary Ct.

Court: It seems expedient to wait and formulate questions, if any, to be referred to Customary Court, at close of pleadings. Facts may arise which will require them to be included. On the other hand the usual directions may be ordered now so as to speed up the case in view of the fact that by injunction ordered, defendants are somewhat restrained in going about the activities of their livelihood to do with the land in question. The court directs that:

1. Defences be filed within 14 days from today's date.

2. Reply be within 14 days therefrom

3. Discovery from each party be completed within 14 days after reply

4. Inspections by each party be completed within 14 days after discovery

5. And Plaintiffs to apply for further direction within 14 days after inspection. Questions to be referred to Local Court, if any, at that stage, be presented during that application for direction. Should Plaintiffs fail to do so within 14 days any of the defendants may do so.
   

Dated at Honiara this 2nd day of October 1995.

(Sam Awich)
COMMISSIONER OF HIGH COURT