Lauringi v Lagwaeano Sawmilling and Logging Ltd [1997] SBHC 61; HC-CC 131 of 1997 (28 August 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 131 of 1997

NELSON LAURINGI, RUBEN KIARA AND KALISTO LETAKORO

-v-

LAGWAEANO SAWMILLING AND LOGGING LIMITED AND OTHERS

In the High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Hearing: 22nd August 1997
Judgment: 28th August 1997

G Suri for the Plaintiffs
A Nori for the Defendants

JUDGMENT

(LUNGOLE-AWICH, J): Mr Nelson Lauringi and two others cited as plaintiffs representing their tribes or line, have brought action against Joseph Taega and two others also representing their tribes or line. The plaintiffs averred trespass by the defendants onto land in which the plaintiffs are the rightful holders of customary right; the incident of customary right is commonly referred to as customary ownership. The act of trespass averred is that the defendants are cutting down trees and removing them for sale, their other activities thereon incidental to the operation and of course their presence and of those they have authorised to carry on the activity of logging. The plaintiffs have applied ex parte for interim orders to restrain the defendants from entering the land and carrying on logging, and that the defendants may sell the logs already harvested but are to pay the whole proceeds without deductions, into interest bearing trust account held jointly by solicitors for the plaintiffs and defendants.

Learned counsel Mr. Nori was present at the hearing of the ex parte application; he was given leave and was heard in opposition to the plaintiffs’ application; so the hearing was converted to inter partes for interlocutory injunction. The facts upon which the defendants opposed the application are these; that the defendants duly obtained timber right over the land, Lagwaeano/Siubongi after the required area council hearing. The plaintiffs refused to attend the meeting, but challenged the hearing on appeal. The determination of the timber rights was upheld. The defendants’ case goes further that they had earlier been parties in a case between them and Japhet Ramoni, a person not of the tribe of the plaintiffs, the case ended on appeal before the Customary Land Appeal Court. They won the appeal so they say they are the people who own the customary rights over the land. If the story ended there the plaintiffs’ case would be impossible. The story goes further and there are facts of some strength as well for the plaintiffs’ case.

The plaintiffs availed by affidavits the averment that the timber rights hearing was convened too late in the day, they waited for long and sent to wait in the nearby village. They challenged the determination of timber right in favour of the defendants, and although they lost, they took the case for right to the land itself to Council of Chiefs; the council decided in favour of the plaintiffs, that they and their line own the primary right over Siubongi land which is the same as Lagwaeno Land. The defendants refused to accept the council’s decision and so the plaintiffs took the case to the Malaita Local Court which has decided in favour of the plaintiffs. The defendants have refused to submit to the jurisdiction of the Local Court and now continue its logging operation.

The defendants have challenged the jurisdiction of Marodo Council of Chiefs, saying that they did not meet the definition of Chiefs in the area where the land is situate. It would appear they declined audience before the Malaita Local Court; the reason is not clear from the record.

From the above facts there is no doubt that both parties have taken lawful steps to assert their rights over the land. The plaintiffs’ case cannot be dismissed as baseless at this stage because the Marodo Council of Chiefs are said to lack jurisdiction. They certainly believed that the council had jurisdiction and thereafter have gone to the Local Court. Whether Marodo Council of Chiefs lack jurisdiction is one of the issues to be determined on proper evidence and full submissions on the law at trial. In my view both parties have strong case to put forward. In the case of the plaintiffs, their case is strong enough to enable the court to consider its discretion to grant interlocutory injunction. Their case at this stage has prospects for success. Interlocutory injunction will be ordered if there is found to be need to preserve the subject matter of the suit, that is, to maintain the status quo and if the plaintiffs, the application provide security for damages or the court decides to dispense with the requirement that the plaintiff, the applicant provide security for damages.

I think whatever damage may have occurred (should that be proved), further damage should be stopped and the status quo maintained. Further logging will increase the amount of evidence required in assessment of damages should the case end in favour of the plaintiffs. The question of the best price might also arise. Moreover, lost of mature trees may not be adequately compensated for. I have considered order for security for damages and I have arrived at the conclusion that in the circumstances of this case insisting on security for damages only defeats the need for injunction which has been proved to be urgently necessary. It also appears that any undertaking the plaintiffs as to damages will be worthless because they do not have the means to fulfil it. There may be measures that may minimise losses to the defendant in the event that it wins the case. I have borne that in mind in making the orders that follow. The court allows the application of the plaintiff, but on the following terms:

1. The defendants, by their servants, employees, agent or anyone on their behalf are prohibited from entering Lagwaeno/Siubongi Land and carrying on the business commonly referred to as logging until further orders or until final determination of the case.
   
2. The defendants are authorised to sell logs already harvested, upon advising the plaintiffs of the purchase price. If there be disagreement about the price, it is up to the plaintiffs to apply to court for the determination of the disagreement. The defendants may proceed to sell the logs if no application is filed within 7 days of the day they will have notified the plaintiffs of the price.
   
3. The defendants will be entitled to retain sums for reasonable costs of operation; a list of the expenses shall be delivered to solicitor for the plaintiff who may object t any item thereon, within 7 days. In the event of the parties being unable to agree on any item of expenditure, application may be made to court.
   
4. The balance after deducting costs of operation shall be deposited, as to 50%, in interest bearing trust account of solicitor for the plaintiffs and the other 50%, into interest bearing trust account of solicitor for the defendants. This order does not absolve a part from claim by one party that the other is not in the end entitled to keep the 50% deposited with its solicitor.
   
5. Costs of the application is reserved.
   
6. Parties are at liberty to apply to court for variation of this order.
   
7. It is for the plaintiffs, if they wish to advance their case, to either take the issue of customary land right to a local tribunal or local court not objectionable to the defendants or to simply proceed with pleadings and ask for listing for trial if it is their position that the decision of the Local Court is already in their favour.
   

Dated this 25th day of August 1997
At the High Court.
Honiara

Sam Lungole-Awich
Judge