Kile v Mega Corporation Ltd [1996] SBHC 72; HC-CC 229 of 1996 (16 December 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 229 of 1996

NELSON KILE
(representing his Baehai Tribe)

-v-

MEGA CORPORATION LIMITED
AND ZARIHANA TIMBERS
AND ANTHONY ENE, HUBERT SALE, PETER HOU,
MATA KURIAVA, SOLOMON KARI AND WYCLIFFE ENE

BefMuria, ria, CJ

Hearing: 16 December 1996 - Judgement: 16 December 1996

Counsel: A Nori for the plaintiff; T Kama for the first Defendant; A Radclyffe for the second and third defendants

INTERLOCUTORY JUDGEMENT

MURIA, CJ:

The plaintiff comes to this court seeking interim injunction against the defendants, restraining them, their agents servants assignees or contractors from felling, removing and selling timbers from the disputed land. In addition the plaintiff also seeks an order to have the first defendant produced within 14 days a report on its operation in the disputed land

By way of background information the plaintiff by his writ claims that his tribe the Baehai Tribe, owns the land in question, namely Sareai Land. He maintains that the third defendants do not have timber rights in Sareai Land. Therefore, he says, they could not have granted timber rights to the second defendant who in turn could not have lawfully entered with a subcontract with the first defendant. The merits of those claims will be determined at the hearing of the main action. I simply refer to them so as to appreciate what the plaintiff is claiming in this matter.

The plaintiff's original application for restraining order against the first and second defendants was filed on 14th August 1996. On 21st August 1996 a Consent Order was made by this court, by which order, the first was allowed to continue its operations. That consent order had been discharged on 7th November 1996 by the court.

The plaintiff now comes back to the court again seeking to restrain all the defendants from carrying out their operations on the land in question. The ground relied upon by the plaintiff is that there is still dispute over the ownership of the land in question and the Local Court to which the dispute had been referred is yet to deal with that issue.

Naturally the defendants have objected to the plaintiff's application. They argued that the plaintiff's position has not changed since the consent order was made. The plaintiff, argued counsel for the defendants, has not shown that he is entitled to the land so as to entitle him to the order he now seeks. This, submitted counsel, is because the Chiefs had already determined that he and his line are not the owners of the land in question. Equally it is argued that the plaintiff had never succeeded in the timber rights hearings.

I must firstly observe that Mr Justice Awich, when discharging the Consent Order, pointed out that the plaintiff could still pursue an application for injunction but that it would have to be based on the strength of his case. This I believe is what the plaintiff now does. Of course, it would be difficult to fully assess the strength of one's case until the matter has been tested in court. But for the purpose of an application for interlocutory injunction, the strength of the applicant's case for such interlocutory order can be ascertained from the affidavit evidence placed before the court.

The plaintiff comes back to this court because he wants the ownership of the land in question to be determined by the Local Court before further activities can be undertaken on the land in question. In this regard, he now challenges the rights of the third defendants to grant timber rights in the said land. On this basis there is no doubt that, as between the plaintiff and the third defendants, the question of ownership of the land is indeed a live issue and one which cannot be ignored It certainly has a considerable impact on the operations of the first and second defendants.

I can appreciate the defendant's concern in this case and their reasons for opposing the plaintiff's application. I do hope however that they also realise that the legality of their operations is also challenged by the plaintiff in the main action. It is therefore not only in the interest of the plaintiff but also of the defendants that the ownership of the land is resolved at this stage.

It must be made plain that a definitive determination of ownership of a customary is vital in any development undertaken or proposed to be undertaken on a customary land. I appreciate that some financial loss and other expenses are incurred as a consequence in the process of settling the ownership issue. But determination of customary rights or ownership of a land cannot be overridden for economic reasons as pointed out in Beti and Others -v- Allardyce and Others (CA) Civil Appeal Case No.5 of 1992.

There are clearly in my view triable issues in this case and they will be determined at the trial. In the meantime I feel, upon a balancing exercise, that to allow the defendants to continue with felling, removing and selling timbers from the disputed land while the ownership of the land is yet to be finally determined would not be the best thing to do.

I must therefore grant the orders sought in the summons.

This order does not affects logs that have already been felled which logs must be removed to the log yard and sold and the proceeds, less the reasonable expenses incurred by the first and second defendants to be agreed between the solicitors for the plaintiff and defendants, be paid to the Interest Bearing Deposits Account in the joint names of the solicitors for all the parties.

Costs in the cause.

ORDER:

Interim injunction granted.

ter">GJB MURIA
CHIEF JUSTICE