Kioto v Watts [1996] SBHC 22; HC-CC 111 of 1996 (3 May 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 111 of 1996

align="center">ter">BILLY BOY KIOTO

-v-

PRESLEY WATTS AND ANOTHER

="3">Before: Awich (Commissioner)

Hearing: 2 May 1996 - Ruling: 3 May 1996

Counsel: A. Nori for the Plaintiff; P. Watt Watts for the Defendant

INTERLOCUTORY JUDGMENT

Sam Awich (Commissioner):

The plaintiff, Mr. Billy Boy Kioto has issued writ of summons suing Presley Watts and Silas Milikada first and second defendants respectively. He seeks injunction restraining the defendants and or their servants or agents from entering, extracting and removing logs or timber from Bulo Islands. He bases his claim on assertion that he has customary land rights over Bulo; and that the defendants do not have licence to carry out logging or timber operation on Bulo.

From the affidavits filed and submissions made, it is clear that the plaintiff does not claim that he has rights over Bulo, to the exclusion of the defendants. It would appear that he will seek to establish his customary rights and in the meantime he would like, through court injunction, the operation of the defendants to be put on hold so that he is not left out in the event that he succeeds to establish his customary right over Bulo.

The defendants deny that the plaintiff has ownership right in custom or at all over Bulo. They have filed records to show that determination of rights meeting was held and that the plaintiff's right did not come up as an issue. Plaintiff, they say, sent a representative. The question as to whether the plaintiff has customary right over Bulo is, I agree with learned counsel Mr. Nori, a serious issue, and is not without prospect of success. Defendants said in court that plaintiff is a relative though they contend that the relationship is far too removed to confer any customary land right. I think that is an issue to be determined later, but a serious issue, it is.

The question which persists is whether when injunction is imposed stopping defendants' operation, there is any prospect of them recovering the huge sums invested in the event that the plaintiff loses his case in the end. The plaintiff does not offer undertaking as to damages, and I assume that was because he was not in a position to do so. Nevertheless he has established a good enough case for interlocutory injunction. As to whether he will succeed in that case is too early to say and may well depend on whether the local court will find that he has customary right in Bulo Land.

Even if I were not to find that the plaintiff has established a good enough case, I would still rule that injunction be imposed but only in respect of Bulo alone, not to include Peava and Biche Lands, because it appears that the actual licence to log on Bulo has not yet been issued notwithstanding what appears to be good prospect to obtain the licence.

The court allows the application and grants the following orders:

1. Injunction is imposed restraining the defendants and or their servants or agents from carrying on logging operations on Bulo only, not including Peava and Biche. The injunction is to last until the actual licence, which I understand is about to issue, has issued or further order of the court.
2. The defendants may sell the logs already felled, through the normal requirements of relevant authorities.
3. Proceeds of sale be deposited in court or in joint account of solicitors which a/c shall be interest bearing.
4. Defendants may pay out of the proceeds, for expenses that have been incurred or may be incurred in connection with the harvesting and the sale of the felled timber. The expenses listed and attached to the affidavit of Silas Milikada be served on plaintiff forthwith if not yet served, in any case, not later than Monday 6.5.96. Plaintiff is entitled to raise objection within 14 days, failing that the defendants may proceed to pay the expenses.
5. Parties are at liberty to apply to court on the question of determining payable expenses, in the event that parties do not agree.
6. The list of timber extracted has been annexed to affidavit of Milikada, there is no need to make any order in that regard.
7. Costs be reserved.
8. Case be called up in this court 30 days from today ie. on 2.6.96 so that plaintiff reports progress of his case before Chiefs or Local Court.

Dated at Honiara this 3rd day of May 1996

ter">SAM AWICH
COMMISSIONER OF HIGH COURT