Nano v Lupa Development Company Ltd [1997] SBHC 32; HC-CC 021 of 1997 (16 June 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 21 of 1997

p align="center" ter" style="margin-top: 1; margin-bottom: 1">SIMEON NANO

v

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LUPA DEVELOPMENT COMPANY LIMITED AND
SILVANIA PRODUCTS (SI) LIMITED

Before: LUNGOLE-AWICH, J

style="margin-tgin-top: 1;in-bottom: 1">Hearing: 30 May 1997 - Judgment: 16 16 June 1997

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Coun>Counsel: M Samuel for the plaintiff

F Waleilia for the 1^st defendant;

T Kama for the 2^nd defendant

JUDGMENT

LUNGOLE-AWICH, J:

The Case. The plaintiff Simeon Nano sued in a representative capacity, representing Kongu Ngaloso tribe. He claimed trespass and injunction against the first and second defendants. His claim is based on customary ownership of land known as Kongu Ngaloso land. He asserted that his customary ownership has been demonstrated by two events: 1. That during a timber right hearing and determination under section 5 of the Forests and Timber Utilisation Act, he objected to grant of timber right over Kongu Ngaloso and the council declined to grant the right to the first defendant. 2. That his tribe Kongu Ngaloso and Lupa, the tribe that owns the first defendant company had a case over the land and the customary Land Appeal Court decided in favour of his tribe. A copy of the judgment is now exhibit No. SN12. With the writ of summons commencing the action, the plaintiff filed ex parte application seeking interim injunction to restrain the defendants from constructing access road through Kongu Ngaloso. The second defendant was a contractor invited by the first defendant, to construct road and fell trees. By the time of the application, the work had stopped, but machinery was still on the land. The plaintiff feared resumption of work.

Interlocutory Application

On 5.5.1997 the ex parte application was called up in court. Learned counsel, Mr. Waleilia appeared and asked for leave to be heard for the first defendant. Learned counsel Mrs. Samuel for the plaintiff, was reported ill. I granted leave to Mr. Waleilia to be heard and adjourned the application to a date to be obtained from the Office Manager of the Court. The hearing was to be inter partes. On 30.5.1997, learned counsel Mr. Kama appeared for the second defendant; the other two counsel were in attendance.

Determination of the Application - Prospect

There is certainly real dispute to be resolved in this case, even if the point of dispute is a limited one. The members of the first defendant do not deny that the plaintiff has customary right over the whole large land known as Kongu Ngaloso; they only contend that Guave piece of land within Kongu Ngaloso now belongs to the first defendant's members. It became theirs by customary gift, lukutu, and that has been upheld by the judgment of the Customary Land Appeal Court dated 8.5.1995. They also contend that there are other land areas around Guave which were included in the gift. The real issue in my view is that of identity on the ground of Guave and the other areas mentioned in the Customary Land Appeal Court judgment. The strength of the plaintiff's case cannot be under-estimated. It is something which the local court will finally have to determine. It involves identification of the customary boundary, and that may well turn out in favour of the plaintiff. There is sufficient evidence to establish prospect of success.

Determination of the Application - Compensatability

The next question is the nature of the damage that may result if the status quo is not maintained. The defendants contended that they have now moved machinery to a distant third land over which no dispute exists. They said that the matter could be a subject of undertaking and not injunction. What the defendants have done is commendable. It must, however, be remembered that the members of the first defendant company contend that Guave, Gusala, Botuana, Choku Meka, Sosore, Punala and Imulu and the land mass contiguous to them, all belong to Lupa tribe, the tribe of the members. Should the urge for profit making mount, they may re-enter what they believe is their land with the result that trees will be felled and removed. Land boundary may still be pending determination. In the event that the boundary determination favours the plaintiff, he may be adequately compensated for the proceeds of the trees removed and sold. The problem will be the adequacy of compensating for the absence of the trees on the land. Sometimes landowners do not want to forgo trees and undergrowth in exchange for money. There is need to maintain the status quo pending determination of boundary. The question of security for damages was not raised so it may be something which might have been considered inconsequential in this case. I accordingly consider it unnecessary.

The Interlocutory Order - Injunction

The application of the plaintiff succeeds. The court exercises discretion and orders injunction restraining the defendants from constructing road or conducting what is commonly referred to as logging in the land area described as Guave, Gusala, Botuana, Guhimu, Choku Meka, Punala, Sosore, Imusu and the land mass contiguous to them. The injunction is to last until the boundary in dispute has been determined or until further order of this court. Costs of this application is awarded against both defendants, in favour of the plaintiff.

Delivered this 16th day of June 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge