Pelobule v Vagolo [1997] SBHC 42; HC-CC 293 of 1995 (29 July 1997)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 293 of 1995

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UNDIKOLO PELOBULE

v

KUKU'U VAGOLO, BILUSBILUSU VAGOLO, CATHERLAENA KITU
AND SILVANIA PRODUCTS (SI) LTD

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Before: Lungole-Awich, J

Hearing: 4 June 1996 - Judgment: 29 July 1997

Counsel: A Nori for Plaintiff - A Radclyffe for the Defendants

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JUDGMENT

LUNGOLE-AWICH, J:

Introduction: The plaintiff, Mr. Undikolo Pelobule obtained interim injunction by ex parte application on 14.5.1997. Inter partes hearing was ordered for 4 June 1997. The order restrained Kuku'u Vagolo, Bilusu Vagolo and Catherlaena Kitu from operating a bank account into which sums of money being royalty for harvesting of timber on Vangunu Island in Western Province had been paid, and further restrained them from receiving further payment of royalty from the fourth defendant, Silvania Products (SI) Limited. The fourth defendant was, likewise, restrained from paying further money to the first three and enjoined to pay to the solicitor for the plaintiff, any sum due. The basis for the interim injunction was the suit of the plaintiff against the four defendants. The plaintiff, by originating summons, alleged that the first three defendants were registered owners of land parcel No.143-001-3 on Vangunu Island. They held the interest in the land in trust for the people of Dokoso and Maroana tribe, in terms of section 195 of the Lands and Titles Act. The plaintiff further alleged that he was one of the beneficiaries for whom the land is held; he had learnt that the first three defendants had entered agreement with the fourth defendant to harvest timber, and that the fourth defendant had paid money, but the three defendants had not distributed the money to the beneficiaries, including the plaintiff. The plaintiff, therefore, claimed that the three defendants be ordered to render account of the money received, and be restrained from operating bank account at NBSI in which money being royalty had been paid. Further that future royalty payment be made into court or to the plaintiff's solicitor, in trust. The claim against the fourth defendant is to restrain it, from paying any further money to the first three defendants. Although the claim did not specifically ask for distribution of money to beneficiaries, it is implicit that fair distribution is what is intended in the end.

Consent Order on the Case File

After hearing the application inter partes on 4.6.1997 and I was to prepare judgment for delivering on 7.6.1997, a draft undated consent order appeared on the case file. It was date-stamped as having been filed on 22.5.1997, a date earlier than the date of the inter partes hearing on 4.6.1997. I do not remember having seen it on the file before and during the infer parses hearing. Most likely parties would have referred to it in their submission if it was already on the case file by the date of the inter parses hearing. Although the draft consent order was signed only by learned counsel Mr. Radclyffe for the first three defendants, it was largely in favour of the plaintiff. The difficulty that arose because of its presence on the case file and because it showed on its face that it was filed before the trial, is that it introduced a side issue into the case? I had to ask myself the question whether it was then unnecessary to prepare judgment, I was to regard the matter as settled by consent. I even considered calling the parties back to court to present further submissions or to state their positions in view of the presence of the draft consent order on the case file. In the end I decided that I would prepare judgment and if parties want to abandon the judgment and instead submit the draft consent order, for approval and signing by the court, they may do so.

Injunction, Determined

To succeed in application for interlocutory injunction, the applicant must show to court that his claim raises real triable issue with real prospect for success. The approach to the determination of the question of prospect for success is not complete appraisal of the evidence as is done in the final determination of the substantive case. Balancing of the strength of the plaintiff's and defendant's cases is done; see the Court of Appeal case of Allardyce Lumber Company Limited and Dovele Development Company Limited -v- Nelson Anjo Civil Appeal No. 8 of 1996, and the High Court case of John Wesley Talasasa -v- Attorney General and Others, Civil Case No. 35 of 1995.

In this case the first three defendants admitted that they have received royalty money from the fourth, in connection with the harvesting of timber on Vangunu; they did not disclose the sum. They also admitted having received $49,764.94 which they say was loan. Their capacity as trustees is also admitted. The only issue is that they say that the defendant is not a beneficiary because he does not belong to Dokoso and Maroana line. Mr. Radclyffe, submitted that it was not strong enough a case that is based on the plaintiff's words alone that he belonged to the Dokoso and Maroana line.

The issue of belonging to a tribe or line, as it is described in the case, is a subject to be determined by the relevant Local Court. That does not stop this court, from determining whether or not substantive issue has been raised before it for interlocutory injunction. It must be remembered that such a determination is not the final determination of the issue, but only to assess the soundness or otherwise, of the claim and so the prospects for success. From the material before me, I cannot easily dismiss the word of the plaintiff that he is a tribesman of Dokoso and Maroana. Affidavit filed in favour of the defendants stated that the plaintiff has been persuading members of Dokoso and Maroana line not to accept payment. That to me suggests that he believes he is one of them, and that there is something wrong with the payment. He has stated descent as the basis for his claim that he belongs to Dokoso and Maroana. Descent is usually an important consideration by local courts in the question of right in customary land. There appears to me to be real issue here to be determined by the relevant Local Court. A feature of the case which suggests that the three defendants were less than frank has also been material in assessing the prospect for the plaintiff succeeding. The three defendants avoided to disclose the sum received so far. Their reason that it is because the plaintiff is not entitled to know is a very poor one. The matter is now before court, is the court also not to know the sum?

The case presented by the plaintiff raises serious enough issues with prospect for success. He obviously will be considering taking the issue of his belonging to Dokoso and Maroana to the Local Court to enable him to prove conclusively to this court that he belongs to Dokoso and Maroana line. On the other hand, the three defendants, if they believe that the plaintiff does not belong to Dokoso and Maroana line, will be in a hurry to take the issue to the Local Court to quickly dispose of the plaintiff's claim.

It appears to me that comparatively greater loss would result to the plaintiff rather than to the four defendants. Most of the loss would appear to be uncompensatable because the first three defendants are unlikely to have the money. Their own affidavit evidence suggests that they may be quick to spend money; they say that they now have only $59.74 on their bank account. On the other hand, if injunction is ordered the injuncted money will be in an interest earning bank account and will be given, with the interest, to the first three defendants should they win the substantive case. The obligation of the fourth defendant to pay royalty does not change whoever wins the case; the fourth defendant is a nominal defendant. The balance of convenience, that is, of uncompensatable loss, will be greater on the plaintiff than on the defendants. The plaintiff, in addition to proving prospects for success, has proved the need for court to maintain the status quo while the substantive case goes through trial. He has proved the need for interlocutory injunction; see the often cited case of American Cyanamid Company -v- Ethicon Limited [1975] UKHL 1; (1975) AC 396.

The question of security for damages was not seriously canvassed. In the circumstances of this case the court waives the requirement for security. No likely loss has been suggested by the three defendants and there is none that will result to the fourth defendant; its logging operation is not to be restrained.

The plaintiff's application for interlocutory injunction succeeds. The terms of the interim injunction ordered on 14.5.1997 are to continue with three alterations, namely:

1. that any payment due from the fourth defendant in connection with its operation on land parcel No.143-0013, the subject land on Vangunu, shall be paid into a joint trust account in the names of the solicitors for the plaintiff and for the defendant; the account is to be an interest bearing one.

2. that order at 3 in the interim order is cancelled.

3. that the interlocutory injunction is to remain until final determination of the case or until further order of this court.

Costs of the inter partes hearing is also reserved.

Dated this 29th day of July 1997

At the High Court, Honiara

Sam Lungole-Awich,
Judge