Tatalu v Lifuasi [1996] SBHC 32; HC-CC 146 of 1996 (19 June 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 146 of 1996

p align="center">ter">STEWARD TATALU & B. WANEFAEKWA

-v-

ELISON LIFUASI & ALBAN LEAGA

Before: Awich, ich, Judge

Hearing: 13 June 1996 - Judgment: 19 June 1996

Counsel: A G H Nori for the Plaintiff; T. Kama for t Defendants

INng>INTERLOCUTORY JUDGMENT

Sam Awich, Judge:

The Application:

This is judgment in the two applications before court, one, by the plaintiffs for interlocutory injunction, and the other, by the defendants for order striking out the writ of summons issued at the instance of the plaintiffs. The plaintiffs, Steward Tatalu and Banabas Wanefaekwa referred to hereinafter as First Plaintiff and Second Plaintiff, respectively, obtained ex parte order on 23 May 1996, restraining the defendants, Elison Lifuasi and Alban Leaga, by themselves or by agents, servants or representatives from going to or near Foodo land area, Malaita, described as the plaintiffs' property, and from approaching the plaintiffs, and their servants, agents and representatives or acting in a manner that was likely to result into violence. The ex parte order was to last for 21 days, until 13 June, when the inter partes hearing would take place. Plaintiffs were required to file further affidavits as to certain facts their counsel sought to state from the bar. That has been done.

The reaction of the defendants has been to file a memorandum of conditional appearance together with application to strike out the writ of summons dated 23.5.1996 and filed the same day at the instance of the plaintiffs. Their application was on the ground that the action that the plaintiffs commenced was an abuse of judicial process. In support of the application, affidavit of Elison Lifuasi, the First Defendant was filed. In it he admitted that the Second Plaintiff has co-ownership right in custom, in Takiibakwa, Fonure and Abuaero lands, which apparently include Foodo land, together with the defendants and members of their tribe. He asserted that the First Plaintiff had no right except to occupy a particular place, Lo'ofura, given to him or his line by the line of the defendants. He also stated that the Second Plaintiff had no authority to authorise the First Plaintiff to occupy any other area of the land.

Interlocutory Injunction; the Law:

The purpose of interlocutory injunction restraining activities of a defendant or of a plaintiff is to preserve state of things as at the time of application until final determination of the case. That is because the applicant, who may be the plaintiff or defendant is anxious to see that losses are not aggravated by continuing activity of the other party. The order is a discretionary order. As a first consideration, the court will have to satisfy itself that the case commenced has got reasonably sound basis in law, and has good prospect of success. The court then considers whether damages that may arise until determination of the case cannot be adequately compensated by monetary award. The case of John Wesley Talasasa v AG and Five Others CC No. 35 of 1995 illustrates. In that case His Lordship Muria CJ approved the Common Law principles as stated in American Cyanamd Co. v Ethicon Ltd [1975] UKHL 1; (1975) All ER 504. Usually as a precaution to secure the interest of the respondent, the court requires that the applicant furnish security for damages that may result to the respondent in the event that the applicant loses the case finally, after he will have obtained order for interlocutory injunction, with the result that damages were occasioned to the respondent. In Solomon Islands the Court has often waived the requirement for security for damages. The reason being that at this stage of development in Solomon Islands almost all the non business litigants do not have the money or means to secure the usually large damages in issue. Most of the time but, not always, it is the ordinary, customary land owner seeking to put on hold a large logging operation involving hundreds and sometimes a few million dollars. A case in point is; Rolland Masa & Others -v- Kololeana Development Company Limited and Others CC No. 361 of 1995.

Facts Alleged by Plaintiffs and Ruling:

The Plaintiffs make their application for order for interlocutory injunction on the facts that: Coconut fermentary of the First Plaintiff was burnt down by the defendants and or their servants, agents and relatives in January or April, 1996. That the First Plaintiff and his servants, have been and are still subjected to harassment and threat and live in fear. That the First Plaintiff has right in Foodo land in custom. The order of court that they seek is in essence to stop harassment and threat; in other words to ensure that the First Plaintiff goes about his business and life in peace. It is aimed at forestalling Criminal acts feared to come from the defendants. It is not the essence that activities of the defendants will change the state of things with resulting damages that will be difficult to compensate in money. Maintenance of peace and security of the person and property are matters in the jurisdiction of Criminal Court. It is open to anyone who feels threatened to make complaint in terms of Part Ill of the Criminal Procedure Code, in particular, sections 30 and 34 for the necessary relief. The court refuses the application for interlocutory injunction, that application is dismissed. It is ordered that the ex parte interim order granted on 23.5.1996 is discontinued forthwith. This decision does not in anyway authorise the defendants, their servants, relatives and agents to pull down structures or destroy plants of the plaintiffs or to confront them in unlawful manner. That would be taking the law into their own hands. If defendants believe that they have a judgment in their favour, they may obtain the necessary court warrant to be served on the plaintiffs, and of course they may commence proceedings for contempt of order of court. Moreover, the defendants, like anyone else in this country, has duty under the criminal law of this country. Violation, or threat or attempt to violate the Criminal Law is expected to be attended to by the police.

Application to Strike Out Writ of Summons:

I came to the conclusion that sufficient case has not been made for the court to make order striking out the writ of summons filed by the plaintiffs. In the first place it has not been challenged for irregularity. Striking out claim, and dismissing a case summarily is a drastic action by the court and can only be done in very clear cases where the claim is baseless; and does not disclose cause of action. In this case, the defendants admit that the Second Plaintiff, has got customary right in the land in question. He is suing jointly with the First Plaintiff said to have no right in the land. The link between the joint cases of the plaintiffs is not clear but, the defendants have not shown that sufficient particulars cannot be supplied by amendment or cannot be requested in the course of pleading. That point may well turn out to be a major cause of action. Again, it is not clear from the statement of claim that the First Plaintiff's claim is based solely on previous court cases, as stated in the affidavits filed on behalf of the defendants. It was stated from the bar that his claim does not arise from the rights of those who have lost their cases against tribal line of the defendants. That is not pleading but, could be included by amendment. The First Plaintiff states that he has claim in custom in his own right. The court must afford him opportunity to prove so or suffer dismissal of his case, with the consequence that lid may be condemned to pay the costs of the defendants. Whatever is left so general in statement of claim of the plaintiffs can be obtained from them by compelling them to supply particulars. The plaintiffs' case is not so hopeless so as to be described as abuse of process. The application to strike out the writ of summons dated 23.5.1996, filed the same day is dismissed.

Costs:

The plaintiffs have lost their application, and the defendants, their counter application.

Parties to bear their own costs of the two applications.

this 19th 19th day of June 1996 at Honiara.

SAM LUNGOLE AWICH
JUDGE
HIGH COURT OF SOLOMON ISLANDS