Paia v Golden Springs International (SI) Company Ltd [1997] SBHC 105; HCSI-CC 149 of 1997 (23 July 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 149 of 1997

WARREN PAIA

-v-

GOLDEN SPRINGS INTERNATIONAL (SI) COMPANY LIMITED & NORTH NEW GEORGIA TIMBER CORPORATION

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 149 of 1997

Hearing: 17 July 1997
Interlocutory Judgment: 23 July 1997

A. G. H. Nori for Plaintiff
J. Sullivan for Defendants

INTERLOCUTORY JUDGMENT

MURIA CJ: The plaintiff commenced an action in this case by issuing a Writ against the first and second defendants claiming, inter alia permanent injunctions against them restraining them, their employees, agents or contractors from entering onto his tribe’s land commonly known as Kazukuru Right Hand Land (KRHL) for the purposes of felling and removing trees therefrom. The plaintiff now brings this application seeking an interlocutory injunction against the first and second defendants to restrain them from doing the same.

(Kazukuru Right Hand Land & Kazukuru Left Hand Land)

The history of these two lands is a matter well known to this court. However rather than repeating that history I think it is necessary only for our purpose in this application to briefly deal with the judicial decisions which have settled it beyond any doubt where these lands are and who own them. The Kazukuru Right Hand Land belongs to the descendants of Voramali and the Kazukuru Left Hand Land belongs to the descendants of Qulamali. The two landowning tribes of these two lands have their origin respectively from these two sisters, Voramali and Qulamali. See the cases of W. Paia and O. Bisili -v- I. Talasasa, CLAC No. 6 of the 1979; Paia -v- Talasasa, [1980-1981] SILR 93 and Beti, Bisili and Paia -v- Allardyce Lumber Company Limited & Ors, Civ. App. No.5 of 1992 (CA). The plaintiff in this present case is a representative of the tribe which owns the Kazukuru Right Hand Land and John Wesley Talasasa who is the chairman of the Board of Directors of the second defendant in this case is a member of the tribe which owns the Kazukuru Left Hand Land.

The boundaries of the two lands had also been considered in the cases mentioned and it is now firmly established that the dividing line or boundary is that which commences from Lodukoma and runs through Hoedeo Valley and Northward to Baeroko. The land to the east of that boundary is the Kazukuru Right Hand Land and the land to the west of that boundary is the Kazukuru Left Hand Land. To make it a abundantly plain to any claimant, developer, investor or any other interested person, the judicial decisions covering this area of land called Kazukuru Land had firmly settled, inter alia, the following: the Kazukuru Land is divided into two, the Right Hand portion belongs to the descendants of Voramali and the Left Hand portion belongs to the descendants of Qulamali; the dividing boundary runs from Lodukowa up through the Hoedeo Valley and Hence northward to Baeroko; to the east of that boundary is the Kazukuru Right Hand Land and to the west is the Kazukuru Left Hand Land; the Kazukuru Right Hand Land is approximately 10 miles long and 1½ miles wide and it is roughly rectangular in shape extending eastward to the northern end at Enoghae and to southern end eastward at Piraka, that is to say, the furthest eastern boundary of the Kazukuru Land to the Right Hand side is that running from Piraka to Enoghae on the North New Georgia side; and that both the Right and Left Hand portions of the Kazukuru are customary lands. I find the aforesaid matters firmly settled by the various cases referred to. Having thus found it is necessary to consider the position of Lot 1 of LR 731.

Lot 1, LR 731

On the map exhibited to Caesar Paulo’s affidavit, Lot 1 of LR 731 is shown to be inside Kusaghe Land and said to cover an area of 21,187 hectares. It is argued by the defendants that Lot 1 of LR 731 extends down past Enoghae and all the way to Baeroko. It was further suggested in Mr. Talasasa’s affidavit that the area logged, inside Lot 1 of LR 731, is within the reserved area of Koroga Land.

The plaintiff argued that Lot 1 of LR 731 does not cover the whole of the area shown and bounded by the lines on the map. Further Lot 1 of LR 731 does not extend down to Enoghae and Baeroko which areas are inside Kazukuru Right Hand Land. The plaintiff also argued that the area covered and shown on the map as Lot 1 of LR 731 cannot be 21,187 hectares but rather covers an area far in excess of 21,187 hectares.

If the defendants’ contention is correct, it will certainly mean that Lot 1 of LR 731 covers a vast area of land in that part of New Georgia and extends into the inland. Whatever the real position is of Lot 1 of LR 731, it cannot in my view be properly ascertained simply by resorting to lines shown on the exhibited map. (“CTP 3”). Thus the argument by Mr. Nori makes more sense in this regard, that is, a ground survey to ascertain the land area covered by Lot 1 of LR 731 is necessary since the defendants rely on the area covered by Lot 1 of LR 731 to enter into the area of land claimed by the plaintiff as part of his tribe’s Kazukuru Right Hand Land.

Issues

When one considers the position of the plaintiffs land as determined and confirmed by the courts as against Lot 1 of LR 731 in which the defendants say they are entitled to enter and carry out their logging operations, there is clearly an issue raised for consideration by the court. That issue must be, as far as the plaintiffs is concerned, whether Lot 1 of LR 731 extends beyond the area of land between Enoghae to Baeroko, the area which is part of Kazukuru Right Hand Land as had already been judicially determined. This issue is important to be resolved in view of the boundaries of Kazukuru Right Hand Land as shown on the map (“L3”) exhibited to Veruon Lila’s affidavit.

Mr. Sullivan’s contention that the defendants are entitled to rely on the boundary of Lot 1 of LR 731 as marked on a certified copy of the map of the area is to ignore the judicially decided boundaries of Kazukuru Right Hand Land. Thus it is essential to both sides of the dispute that the issue I posed earlier is resolved.

The other issue raised by Mr. Sullivan is that the plaintiff has no locus standi to bring this action as the legal owner of the trees in the area covered by the first defendant’s logging licence is the North New Georgia Timber Corporation (NNGTC). Again that argument begs a number of other issues as well, such as: is the Kazukuru Right Hand Land covered by the licence relied upon by the defendant? If it is, has the plaintiff been a party to any agreement which brings Kazukuru Right Hand Land into the ambit of the licence relied upon by the defendants? Assuming only that the plaintiff is represented in the NNGTC can it be said that the plaintiff cannot assert his right to the trees growing on Kazukuru Right Hand Land even if Kazukuri Right Hand Land is outside the area covered by the defendant’s logging licence? I do not think so. He may have other lands within the area covered by the licence in which case the defendants’ argument may have some merit. But where the land is shown to be outside the area covered by the licence, no amount of membership or representation in an organisation can transfer the right to the trees growing on that land away from the owners of those trees to such a body. Again, no amount of lines down on a map showing an area of land can supersede an area of land or boundaries judicially determined by the courts. But how shall we know if the land in question, Kazukuru Right Hand Land, is covered by the licence relied on by the defendants unless the extent of the area covered by Lot 1 of LR 731 which is the area covered by the defendant’s licence is ascertained? Thus a survey as suggested by Counsel for the Plaintiff is essential.

As to the locus standi of the plaintiff, I am satisfied that in the present case, the plaintiff must surely be one of the persons affected by the actions of the defendants and must be allowed to raise his concern before this court. I am satisfied that he has shown the basis for doing so. His locus before this court is alive.

The Criteria for grant or refusal of Interlocutory Injunction

The issues raised are real and are serious enough to warrant the court’s consideration so that on the question whether there is a serious issue to be tried, there can be no doubt that there are serious issues to be tried in this case. In Solomon Islands the authorities in this area of the law is settled. See Allardyce Lumber Company Limited & Onor -v- Nelson Anjo, Civ. App. 8 of 1996 (CA) and cases cited therein.

Having found there is a serious issue to be tried, the next question to be considered is whether the balance of convenience lies in favour of granting or refusing the inter-interlocutory injunction. There are three aspects to this question. Firstly if the plaintiff succeeds at the trial will damages be an adequate remedy for the loss sustained between the application and trial? If so, no interlocutory injunction should normally be granted. Secondly if the plaintiff fails, will the defendants be adequately compensated under an undertaking by the plaintiff? If so, then there would be no reason to refuse an interlocutory injunction. Thirdly, if doubt remains, the court must consider all other matters relevant to the balance of convenience including the desirability of preserving the “status quo” of the parties. Should there still be an even balance of the position of the parties, the court would be required to consider the relative strength of each party’s case.

There is no doubt the defendants have the means to compensate the plaintiff if he succeeds. The first defendant is a multi-national company and the second defendant is a corporation with substantial means. The question however is not so much that the defendants have the means to pay but rather whether the plaintiff and his tribe would be adequately compensated. This does not involve monetary consideration only to the plaintiff and his tribe. It means more than simply dollars and cents, particularly if they are not a party to the Agreement which drew the loggers onto their land. In such a situation the landowners may well feel that they had been despised, and trodden down in their own land. What is more, their land had been desecrated. The injury as such is not only to their trees but also to their land and their feeling as a people with dignity on their own land. What amount of money will adequately compensate that. I stand to be corrected but I think, none.

The point was succinctly put in Meke -v- Solmac, Civ. Cases Nos. 44 & 45 of 1982 (HC) by this court:

“In no way can financial compensation be considered recompense for desecration of such land; in my view, the very suggestion only adds insult to injury”.

The question whether damages is an adequate remedy to the plaintiff in this case must be answered in the negative.

It is further argued by Mr. Sullivan that on the affidavit evidence before the court, the plaintiff’s prospect of succeeding at the trial is minimal: With respect I do not think this is so. If I need to consider the prospect of the plaintiff’s success at the trial in this application, the evidence exhibited to the affidavits filed in support of the plaintiff’s case are indeed adequate. Whether the plaintiff actually succeed is another matter. I would prefer, however, at this stage to restrict the court’s consideration of the question as to whether or not the plaintiff action is frivalous or vexatious. In other words that there is a serious issue to be tried. In my opinion to dwell into the question of the real prospect of plaintiff succeeding at the trial at this stage in context of the exercise of a discretionary power of the court to grant an interlocutory injunction may lead to confusion as to the object to be achieved by this form of temporary relief. See the comments by Lord Diplock in the American Cyanamid [1975] UKHL 1; (1975) A.C. 396, at p.407.

In the light of that conclusion, I do not need to consider the other aspects of the test to be applied. But assuming all things being equal, there is in my view the strong desirability of preserving the “status quo” in this case. This is a “counsel of prudence” as Lord Diplock puts in the American Cyanamid.

As to the question of undertaking of damages by the plaintiff I can dispose of this issue very briefly. The affidavit evidence is that the plaintiff and his tribe had not been consulted about the logging on their land. They have not invited the defendants to come onto their land and remove their trees and to desecrate their land. As such I do not see why they should be obliged to give any undertaking. The case of Mega Corporation -v- Kile Civ. App. No. 1 of 1997 recognises that there are instances in which it may not be appropriate to require an undertaking. This is one of such instances.

In the light of all that I have said, the balance of convenience must lie in favour of the plaintiff and the court will exercise its discretion and grant the interlocutory injunction sought by the plaintiff in paragraph 2 of the Notice of Motion. All other orders sought in the Notice of Motion are consequential to the order sought in paragraph 2. I therefore grant all those other orders sought in paragraphs 3 to 7 except that as to paragraph 6, the first defendant shall pay all proceeds received into a joint Trustee Account in the name of the solicitors and parties. There will be a penal clause attached to the orders herein granted.

In addition I also order that a ground survey of Lot 1 of LR 731 be conducted by the Government surveyor in the presence of both parties or their representatives within one month from the date of this order and the report of that survey be sent to this court within 21 days thereafter

As to costs, I feel the appropriate order here is to order costs in the cause.

Liberty to apply.

Order accordingly.

(GJB Muria)
CHIEF JUSTICE