Wate v Ngofanua [1999] SBHC 112; HCSI-CC 320 of 1999 (11 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Cases No. 320 of 1999

GEORGE WATE & GEORGE KAKAI & OTHERS

v

NGOFANUA & OTHERS

Before: Palmer J.

Hearing: 9th November 1999
Judgement: 11th November 1999

G. Suri for the Plaintiffs
A. Nori for the Defendants

PALMER J.:

Originally this was supposed to be an ex parte summons but was anticipated by the Defendants and so an inter parties hearing had been held. The Plaintiffs seek restraining orders as follows:

"1. That the six Defendants by themselves, whether jointly or severally, or by their servants, relatives or agents be restrained from cutting any coconut trees on Foumalefo land and any other parts of Uratao land for whatever purpose.

2. The six Defendants by themselves their servants, relatives or agents be restrained from erecting any residential or commercial buildings within any part of Uratao land including Foumalefo land.

3. That the six Defendants by themselves their servants relatives or agents be restrained from intimidating or threatening the Plaintiffs their relatives and any person from Sulufou Village or from stopping them from gardening or fetching water from the Uratao water source.

4. That until further or other orders of this Honourable Court the six Defendants by themselves, their servants, relatives, or agents be restrained from entering residing cultivating or developing the Uratao land or part thereof."

The Plaintiffs application for injunctive orders is based initially on what was stated in the case Patel and Others v. W. H. Smith (Eziot) Ltd and Another 1 WLR 853, in which it was held:

"that a landowner whose title was not disputed was prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate; that on an interlocutory application such an injunction should, in the absence of such exceptional circumstances, be granted unless the defendant satisfied the court that there was an arguable case that he had a right to do that which the plaintiff alleged to constitute a trespass; that only if the defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy;"

The Plaintiffs argue in support of their application for injunctive orders that title on the land in dispute (Uratao Land) had been determined in law as between the First and Second Plaintiffs and their Tribe, as against the tribe of Robert Taloifiu and his Tribe, in the Malaita Native Local Court Case No. 52 of 1968. The Plaintiffs argue one of the defendants to that case was Robert Taloifiu, brother of the First Defendant, Ngofanua in this case. Title of ownership as between the First Defendant and the First and Second Plaintiffs therefore had been established by law and that thereby the First Defendant is estopped from asserting any rights over the said land. The Second to Sixth Defendants all derive their rights from the First Defendant and accordingly are also bound by that same court decision. The Defendants however deny that Robert Taloifiu (now deceased) was ever a party to that native court case in 1968, though they concede he was a witness for the Defendant in that case. That does not make him a party.

The ground relied on by the Plaintiffs turn on the evidence of that local court decision itself, a copy is annexed to the affidavit of George Kakai (Jr.) filed on 30 September 1999 and marked Exhibit "GK1". I have taken time to consider the submissions of Counsels and come to the conclusion for purposes of this case, that the submission raised on issue estoppel at this point of time is an arguable or triable issue. The proper forum when all issues, facts and evidence can be raised for consideration is at trial. Parties should consider filing affidavits and where possible including those of the Court Justices, if any is still alive at this point of time. The original copy of the judgment of the said local court should also be obtained and produced.

That rules ut the application of the case sought to be relied on by learned Counsel Mr. Suri for injunctive orders, which premises its application in the case of a landowner whose title is not in dispute. In this case, the most I am prepared to find at this point of time in respect of the claim that the Native Local Court Case Number 52 of 1968 is binding on Robert Taloifiu in that it raises a serious issue. The appropriate case rather is that of American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] A.C. 396. The first criteria for consideration is whether there are serious issues. I have already indicated the submission on issue estoppel to be an arguable issue. I also find there is an arguable issue over claims of ownership over the said land. Affidavit evidence of Gabriel K. Suri and George Kakai (Jnr) both filed on 30 September 1999 show rights of possession over the said land going back as far as seven to eight generations. That would be consistent with rights of ownership.

The second criteria for consideration is whether damages would be an adequate remedy; that is whether the Plaintiff can be adequately compensated in damages for anything he may wrongfully stiffer between the date of the application and the trial. If the answer is yes, then the defendant should not be restrained, save in exceptional circumstances.

In the affidavit evidence filed to date, a number of serious breaches have been raised by the Plaintiffs. These include:

(i) the cutting down of the Third Plaintiffs productive coconut trees at Foumalefo within Uratao Land;

(ii) the construction of houses and the establishment of a new village within the Third Plaintiff's plantation at Foumalefo;

(iii) the destruction of gardens belonging to the tribal members of the First Plaintiffs' tribes;

(iv) the destruction of gardens belonging to other villages from Sulufou; and

(v) threats of damming the water source which the Plaintiffs and members of their tribe rely on for water.

In my respectful view, a remedy in damages alone would not be adequate to compensate the losses that would be incurred if the Defendants are allowed to continue with what is alleged in the affidavit evidence. The second part to this criterion is whether damages would be an adequate remedy for the losses the Defendants might incur if they were to succeed at trial. From the affidavit evidence adduced before this Court, I am satisfied damages would be an adequate remedy.

But even if there is doubt on the questions of adequacy of damages, the next criterion as to where the balance of convenience lies in my respectful view, points strongly in favour of interlocutory relief to be granted by way of injunctive orders. This will have the effect of protecting and preserving the rights of the parties at this point of time without having to make any final determinations as to their rights, a matter best left for trial. I note certain undertakings were given by the Defendants. I take these into account in making the following orders subject to the filing by the Plaintiffs of a written undertaking for damages.

1. The Defendants (all the six Defendants) by themselves, whether jointly or severally, or by their servants, relatives or agents be restrained from cutting any coconut trees on Foumalefo land and any other parts of Uratao land for whatsoever purpose.

2. The Defendants by themselves their servants, relatives or agents be restrained from erecting any new residential or commercial buildings within any part of Uratao land including Foumalefo land pending determination of this case.

3. The Defendants by themselves their servants relatives or agents be restrained from intimidating or threatening the Plaintiffs their relatives and any person from Sulufou Village or from stopping them from gardening or fetching water from the Uratao water source.

4. The Defendants, by themselves their servants relatives or agents are restrained from making any new gardens, cultivations or new developments within the Uratao Land pending determination of the issues before this Court.

Note the Defendants are not restrained for purposes of entering the said land to attend to any food gardens or cultivations which are in existence at the time of this order, including for purposes of maintaining and securing any building already completed. The parties have come to this Court to have their grievances addressed and therefore must show restraint and respect towards one another pending the outcome of this case.

5. Costs in the cause.

THE COURT