Pou v Soro [1999] SBHC 131; HC-CC 359 of 1999 (12 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 359 of 1999

GEORGE POU

V

CHARLES SORO & ABRAHAM PISU

High Court of Solomon Islands
(KABUI, J)

Hearing: 11^th November, 1999
Judgment: 12^th November 1999

I. Kako for the Plaintiff
Defendants is not present

RULING

(F. O. Kabui, J): The Applicant in this ex parte application is George Pou. He is the Plainitff in the Writ of Summons filed on 29^th October 1999. He comes to this Court seeking the following Orders against the 1^st and 2^nd Defendants cited in the Writ of Summons –

1. That the 1^st and 2^nd Defendants or their Agents be restrained from further felling of trees and Bamboos on Pugu Land;
   
2. That the 1^st and 2^nd Defendants or their Agents be restrained from entering the said Pugu Land and do Sawmilling and other timber cutting related activities;
   
3. The proceeds from all logs fell and bamboos cut from Pugu Land be kept into an interest bearing account in the name of Solicitors for all parties;
   
4. Damages and Costs;
   
5. Any other Orders that the Court deems necessary.
   

The Facts

The Land in dispute is Pugu Land on Big Ngella in the Central Islands Province. The dispute is between George Pou the (Plaintiff) and Messrs Soro and Pisu the (Defendants). The dispute was dealt with by the Boli House of Chiefs. They gave their decision on 13^th November, 1998. The decision was in favour of Mr. Soro (the 1^st Defendant) and his party. The Plaintiff has now gone to the Ngella Local Court. The appeal fee of $50.00 has been paid by the Plaintiff and a date of hearing for the appeal is being awaited.

Effect of the Decision

Obviously, the Defendants being the owners of Pugu Land as found by the Boli House of Chiefs proceeded to harvest trees and bamboo on that land and sold tem for gain. They believe that they have the legal right to do this until the decision of the Boli House of Chief is reversed by the Ngella Local Court. That is yet to eventuate at a later date. In the mean time, the Defendants decided to reap the fruits of their litigation as determined by the Boli House of Chiefs. This is allowable under the principle of law established by the case of Anmot Lyle [1886] UKLawRpPro 31; (1886) 11 P. D. 114 at 116. As against this principle is another principle established by the case of Wilson v Church (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch. D. 454 at 458. That principle is that the Court ought to grant a stay of proceedings or Order appealed from, if it were established that the appeal, even if successful, would in the absence of a stay be pointless. Although technically, Form 1 (unacceptable settlement) is not an appeal, it is a written form by which the Local Court assumes jurisdiction to hear the dispute between the parties. In my view, the decision made by the Boli House of Chiefs may be stayed if it is obvious that the execution of the Chiefs’ decision may cause irreparable loss to the plaintiff. The power of the Court to grant a stay of the proceedings or order, as the case may be, is inherent in the Court. It is a matter for the discretion of the Court to either grant a stay or otherwise in each case.

Conclusion

However, the Plaintiff in this case has chosen to come to the Court by way of another route. He is asking the Court for injunction orders typical in interlocutory proceedings for trespass on customary land. This is a common route to the Court for the obtaining of injunctive orders in appropriate cases. Injunctive orders are remedies to be granted at the discretion of the Court. There are also principles to be applied in the exercise of the discretion. One of these principles is whether or not the affidavit evidence discloses a triable issue between the parties to the dispute. In this case, the triable issue is the ownership of Pugu Land. However, this issue was already decided by the Boli House of Chiefs on 13^th November, 1998 in favour of the Defendants. The Plaintiff does not accept the decision of the Boli House of Chiefs and has asked the Ngella Local Court to decide ownership of the Pugu Land. In the meantime, the decision of the Boli House of Chiefs stands until it is reversed by the Ngella Local Court. Section 13 of the Local Courts Act (Cap. 19) empowers the Local Court to substitute its decision for the decision of the Chiefs or may refer the dispute back to the Chiefs with directions. This shows that any decision made by the Chiefs is a valid decision until substituted by the decision of the Local Court. In this case, the Plaintiff lost his claim to Pugu Land in the Boli House of Chiefs. The Plaintiff’s appeal to the Ngella Local Court is a mere assertion of rights of ownership. (See Mega Corporation Limited v Nelson Kile and Zarihana Timbers v Nelson Kile (Civil Appeal No. 1 of 1997) and Nelson Lauringi, Reuben Kiara and Kalisto Letakoro v Lagwaeamo Sawmilling and Logging Ltd., Joseph Taega, Kunua, Sanile and Job Tuita (Civil Case No. 131 of 1999). The Defendants cannot therefore be restrained by the Court from harvesting the fruits of their land. Ownership of the land was already decided. The Defendants the current owners of Pugu Land. There is no triable issue here for the purpose of granting injunctive orders asked for by the Plaintiff. I do not therefore think this is a case where I can exercise my discretion and grant the orders sought by the Plaintiff. This application is therefore refused.

F. O. Kabui
Judge