Iwane v Dai Island Sawmilling Ltd [1999] SBHC 118; HC-CC 372 of 1995 (10 December 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 372 of 1995

JOHN MANUI IWANE

class="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

DAI ISLAND SAWMILL LIMITED AND

VINCENT SAMO WATENIVA AND CLEMENT DIAU

class="Mso="MsoNormal" style="line-height: 15.0pt; margin-right: 187.2pt; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Before: PALMER J.

CIVIL CASE NUMBER 372 OF 1995

HEARING: 9TH DECEMB99

1"> JUDGEMENT: 10TH DECEMBER 1999

A. NORI FOR THE PLAINTIFF

T. KAMA FOR THE DEFENDANTS

This case was commencmmence by Writ of Summons filed on 11 December 1995. In his Statement of Claim, the Plaintiff, John Manui Iwane, sought orders inter alia, to have a permanent injunction imposed against the Defendants and an account to be taken of the financial operations of the First Defendant on Ndai Island with the view to possible claims for damages for trespass and conversion. The Plaintiff's claim is based on ownership in custom over Ndai Island. On or about 27 December 1995, interim orders were imposed restraining the First Defendant (Ndai Island Sawmilling Company - hereinafter referred to as ‘Ndai Sawmilling’), from any further logging operations on the said island and from disposing of the proceeds of sale of logs exported from that island. These have subsequently been converted to interlocutory orders on or about 4^th March 1996 (see interlocutory judgement in this case delivered on 4^th March 1996). Subsequently various orders have been made, including deductions from the proceeds restrained, for various expenses incurred in the felling, removal and export of said logs. The recent order made (see judgement of this Court dated 25^th June 1998), had ordered 10% of the FOB proceeds of sale of all logs removed from Ndai Island to continue to be subject to restraining orders of this Court pending trial.

It is not in dispute the parties to this case are aware what the serious issues for dination are before thre this Court; that of ownership in custom over Ndai Island. The parties to that extent had taken their battle lines to the Chiefs, the Local Court and the Customary Land Appeal Court. The latest decision of Malaita Customary Land Appeal Court dated 1^st October 1999, in CLAC Case Number 1 of 1998, dismissed appeal of Appellants (Vincent Samo and Clement Diau) and upheld decision of the Local Court; that Respondent and his tribe were rightful owners in custom over Ndai Island. It is in respect of that decision Plaintiff now seeks to apply to have the proceeds restrained in this action released and in the alternative, his costs be paid from the trust funds. The reason relied on is that, issue of ownership in custom had now been determined and therefore Plaintiff is the rightful person entitled to be paid all the trust funds currently restrained in this action.

Unfortunately this submission is misconceived. The battle lines regarding issue of ownership have yet to be finally concluded. There is an appeal looming in respect of the decision of the Malaita Customary Land Appeal Court delivered on 1^st October 1999 in CLAC Case No. 1 of 1998 (a draft copy is annexed to the affidavit of Vincent Samo Wateniau filed 8 December 1999 and marked “VSW 1”). Whilst it is correct to say an appeal shall not operate as a stay of execution or of proceedings, under said judgement (see Order 60A Rule 7 of The High Court (Civil Procedure) Rules, 1964, to seek release of funds in this action (on the basis issue of ownership in custom had been finally determined as between the customary landowners), the proper course of action for Plaintiff to take would be to apply for leave to set down a motion for judgment under Order 42 Rule 4 of the said High Court Rules. The Court would then be in a position to consider whether the issue of ownership as between the parties in this case had been finally determined and thereby judgment can be entered in favour of the Plaintiff, which would entail payment of trust funds in favour of the Plaintiff as consequential orders. For that reason alone this application should be dismissed. But even if I am to consider the merits of the application itself, it would not be appropriate for this Court to release funds until the issue of ownership had been finally concluded. I would decline thereby to exercise discretion of this Court in favour of that application. I note there is also no guarantee or security offered by Plaintiff that may secure said trust funds in the event the decision is reversed, if said funds are released to the Plaintiff. The trust funds are currently held in an interest bearing deposit account as ordered by this Court on 4^th March 1996, and so no one is being prejudiced at all. Whoever will win his case at the end of the legal battles between the parties will not only receive principal but interest as well paid into those trust funds.

The same reasoning appli the question of payment of costs. As correctly submitted by Mr. Kama, any clai claims for costs should be placed before the Malaita Customary Land Appeal Court for its assessment and approval, and pursued in that court. That court has jurisdiction to enforce its orders unless the matter is subject to appeal, or for some reason in law that is not possible to be done. Application can then be made to this Court. The application with respect is also misconceived and must be dismissed with costs.

ORDERS OF THE COURT:

<

<

THE COURT