My decision on 25.8.1997
allowing the application of the plaintiffs and gra interlocutory
injuncnjunction was based on
the grounds that the plaintiffs had established a
serious triable issue of customary ownership, yet to be finally determined
in the Local Court, and if established, would entitle the plaintiffs to
claim in trespass at the High Court. Trespass
was therefore also a serious
tribal issue established for final determination, but at the High Court. I
decided so, notwithstanding
that the second defendants had succeeded in
establishing that they got themselves determined under s:8 of the Forest
Resources and Timber Utilisation Act, as the persons entitled to grant
timber rights and had the appeal of the plaintiffs to the Malaita Customary
Land Appeal
Court, the MCLAC, against the determination dismissed. The facts
which I regarded as strong enough in the plaintiffs’ case
to support
prospect of their success at the time was that the plaintiffs subsequent to
losing the timber rights appeal,
commenced land ownership case before Marodo
Council of Chiefs. The Council decided in favour of the plaintiffs. The
plaintiffs
also took the case to the
Local Court; they
said that the Local Court decided in their favour, the defendants did not
attend. The defendants, explained to
this Court that they did not recognise
the Marodo Council of Chiefs and that they did not attend the Local Court
because
that Local Court lacked jurisdiction, they would not submit to it. I
rejected the explanation. It must be mentioned here that
while determination
by an Area Council as to who is entitled to transfer timber rights may be an
indication as to where
customary ownership of the land lies, the
determination, even if confirmed by Customary Land Appeal Court, is not a
determination
of ownership rights in customary land - see Gandly Simbe
-v- East Choiseul Area Council, Eagon Resources Development Company Ltd and
Others, SICOA Civ. App. No. 8 of 1997, in which the Court of Appeal
approved the clear statement of my brother Palmer J on the point
in a High
Court case, Hyndai -v- Attorney General, HCCC No. 79 of 1993, and
also what Commissioner Crome said in Fugui -v- Solmac Construction
Company Ltd [1982] SILR 100.
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The Facts Now Obtaining
<
There has been some recent
devent to add to the material facts in this case. Parties are are now
agreed that the Local
Court has finally decided the question of ownership in
a way that favours the second defendants; it has decided that Siubongi
and
Lagwaeano are not one customary land as the plaintiffs had contended, rather
they are separate customary lands; the
plaintiffs own Siubongi, and the
second defendants own Lagwaeano. In its judgment exhibited during the
application, the
Local Court went as far as pointing out the boundary
between the two customary lands. The result now is that the defendants’
logging operation is on Lagwaeano and not Siubongi. The plaintiffs have
appealed to the Malaita Customary Land Appeal
Court, the MCLAC, the notice
of appeal and appeal points have been exhibited. I understand that the MCLAC
will sit to
hear the appeal on 30th of this month, September
1999. The second defendants have decided, without waiting for the MCLAC’s
determination of the
appeal, to apply to the High Court to have the orders
imposing interlocutory injunction and related orders discharged.
Jurisdiction of the High Court
to Grant Injunction In Customary Land Cases
Inow settled that the High
Court has original jurisdiction to decide the question of i of interlocutory
injunction order
restraining trespass, conversion and other wrongs on or
affecting customary land even though under s:254 of the Lands and Titles
Act, Cap. 133 of the Laws, only the Local Court has original
jurisdiction to decide the question of rights over customary land.
The
judgment of the Court of Appeal in Gandly Simbe -v- East Choiseul Area
Council, Eagon Resources Development Company Ltd and Others, is very
clear on the point. In the case the Court of Appeal upheld the judgment of
my brother Palmer. J, discharging interlocutory
injunction which had been
obtained ex parte. The Court cited an English case, Patel -v- W.H.
Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All ER 569 to illustrate
the Common Law rule that a landowner whose title is not disputed is prima
facie entitled to injunction restraining intruders onto his land. The
Court then went on to apply that rule of the Common Law to Gandly Simbe
case which was about a claim based on customary ownership of customary
land, except that the Court decided that the appellant's
claim of ownership
in the customary land was contingent and remote and not of the kind that
would readily call for injunction
to restrain trespass. I shall mention here
that in Gandly Simbe the Court of Appeal did not say that as a
general rule, for a claim in customary land to be sufficient to raise
triable issue the claim must be based on a decision of the Local Court in
favour of the applicant, the Court stated that
in the circumstances of the
Gandly Simbe case, it was justified to require a claim based on
decision of the Local Court. On page 26 of the judgment the Court stated:
“In these circumstances
Palmer J was plainly justified in conng that, without a favourabourable
determination in the Customary
Court, and in the absence of any indication
of a present intention on the part of the plaintiff to seek a determination
in that forum, there was, in the action instituted by the plaintiff in the
High Court, no serious question to be tried concerning
the validity of the
timber rights agreement to which he was not a party. The result might
conceivably have been different
had the plaintiff undertaken in appropriate
terms in the High Court to prosecute, in a court having jurisdiction in the
matter, his claim on behalf of the Dali Tribe to an interest in the Kolekana
1 land; but nothing of that kind was suggested
either at the hearing below
or on this appeal.”
Other recent Court of Appeal
cases acknowledging the jurisdiction of the High Court are: Allardyce
Lumber Company Ltd and Dovele Development Company Limited -v- Nelson Anjo,
SICOA,
Civ. App. No.8/96
and Mega Corporation Limited -v- Nelson Kilo, and Zarihana Timbers -v-
Nelson Kile, SICOA
Civ. App. No. 1/97.
In the former, the Court of Appeal dismissed appeal against the order of the
High Court granting interlocutory injunction,
the Court decided that there
were sufficient facts in the plaintiff's case to support serious triable
issue of rights
in customary land, so as to warrant the High Court ordering
interlocutory injunction restraining logging on Seqelele customary
land. The
plaintiff had sued in the High Court for trespass, and asked for damages and
final injunction, basing his claim
on rights in customary land. In the
latter case, the Court of Appeal allowed appeal against High Court order
refusing
to discharge interlocutory injunction. The facts which convinced
the Court of Appeal that interlocutory injunction order could
not continue
were that the second defendant had obtained timber rights determination in
its favour against which there
had been no appeal, and also had obtained the
decision of the Council of Chiefs about ownership in the customary land. The
Court of Appeal said that the facts were not such that warranted the order
to continue the interlocutory injunction order,
it was quashed, but not for
lack of jurisdiction of the High Court.
The Law about When to G
Interlocutory Injunction
The law about when courts in
Solomon Islands will grant interlocutojunction order has been stan stated in
many cases.
We have adopted the Common Law rules as stated in the English
case, American Cyanamid Company -v- Ethicon Ltd [1975] UKHL 1; [1975] CA 139; [1975]
2 WLR 316; [1975] 1 All ER 304. The starting consideration is whether the
plaintiff's case as disclosed in his affidavits, and despite
the replying
affidavits of the defendant, discloses serious triable issue with prospect
of success at the final determination;
the plaintiff is not required to
establish a prima facie case. The Court does not at this stage
critically evaluate the evidence, that is left until the hearing for final
determination.
In the case, the plaintiff filed action for breach of patent
and proceeded to apply for interlocutory injunction which the
judge at first
instance granted. The Court of Appeal reversed the decision on the ground
that the plaintiff had not established
prima facie case. On further
appeal, the House of Lords allowed the appeal; it stated that there was no
rule which required that the
evidence available at the interlocutory
application stage must be such that if the case went to trial on that
evidence
only, the plaintiff would be entitled to a permanent injunction,
that is, entitled to succeed. We have applied the rules in
the American
Cyanamid Company case in our Court of Appeal cases such as Allardyce
Lumber Company Ltd and Dovele Development Company Ltd -v- Nelson Anjo,
SICOA Civ. Appeal No-8 of 1996, Mega Corporation –v-Nelson Kile and
Zarihana Timbers -v- Nelson Kile, SICOA Civ. App. No. 1 of 1997 and of
course in many High Court cases, notably, John Wesley Talasasa -v-
Attorney General and Others - HCCC No.43/95, Forest and Another -v-
Mahlon Ali and Attorney General, HCCC No. 1 of 1994, Hitukera -v-
Hyundai Timber Company Ltd and Maepeza, HCCC 132/92 and Marlon Kuve
-v- Herrick Ragoso and Others, HCCC 232/99.
ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The rules about allowing or not,
application for interlocutory injunctiony in stages. If the Court iurt is
satisfied that
the applicant has established serious triable issue with
prospect of success, the Court proceeds to determine whether if injunction
is not ordered, the damage that the applicant will have suffered by the time
the case is finally determined, if determined
in favour of the applicant,
will not be adequately compensated for by award of money damages, or whether
the damage is
such that money is not at all the relief for it. If money will
not be adequate compensation, the Court may allow the application
and order
interlocutory injunction. If money will be adequate compensation, the Court
will decline to order interlocutory
injunction although the applicant will
have established serious triable issue. If the damage that the applicant
will
have suffered was such that money would not adequately compensate for,
and the Court is inclined to granting injunction, the
Court must consider
the converse as well, that is, if the respondent should win at the final
determination, whether the
damage he will have suffered if the injunction
had been imposed, will be such that money will not adequately compensate for
or money will not be a relief at all. The Court weighs the two probable
damages, balancing the disadvantages. It is really
balancing the two
inconveniences other than conveniences, but the adopted description of the
exercise is, “the balance of convenience”. If the result is doubtful,
the Court may even weigh the comparative strength of the parties’ cases. The
American Cyanamid Company case suggests that if the result of
comparison is doubtful, it is prudent to maintain the status quo
thereby preserving the interests in the case.
In this jurisdiction logging
cases on customary laesent difficult question. The trees cut down or to
be be cut down
for timber are trees that grow naturally, not planted; they
would have grown to maturity over several decades and sometimes
over a
century. If the applicants’ desire is to protect the trees or the
environment and not merely to contest the right
to carry out the logging
operation for profit for himself, and if interlocutory injunction is not
ordered, and should
the applicant win his case at final determination, the
trees are lost and cannot be replaced for generations or at all. There
is no
way that his loss can be compensated for. In my view, if there is some merit
in an applicants' claim to prevent
logging on customary land, his possible
permanent loss, arising from the particular local circumstances must be
given
due weight within the rules of the Common Law we have adopted. That is
the spirit of Schedule 3 to the Constitution made under
S:75, providing for
application of the principles of the Common Law and equity in Solomon
Islands, but taking into account
local circumstances and customs.
Determination of the Present
Application
p class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In the present application do
the facill sustain serious triable issue for determination? The
he
plaintiffs in their
statement of claim have claimed that they are the owners
of customary land they called Siubongi-Lagwaeano and that the defendants
had
and continued to trespass onto the land, they were logging on it. The
plaintiffs then asked for these reliefs:
“1. der declaring that
Lagwaeano is the same land as Siubongi customary land situated in d in Fataleka
Constituency, North
West Malaita,
Malaita Province.
lass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
2. An order declaring that the
plaintiffs are the tnd primary customary ownerswners of Lagwaeano or
Siubongi customary
lands.
4. Costand incidental to
this action.
5. Further or other orders as
ourt deems fit.”
Reliefs (1) and (2) are
misconceived, they are in the exclusive original jurisdiction of the Local
Court; and substantive
appeal lies to the Customary Land Appeal Court.
Appeal to the High Court is limited to questions of, “point of law other
than customary law,” or “failure to comply with written requirement
of procedural law” - see ss254 and 256 of the Lands and Titles Act. The
High Court may also decide at first instance, the question as to whether
the
land is customary land or not, and so it may also decide the question on
appeal from CLAC - see s:254(b) of the Lands
and Titles Act. The plaintiffs’
case in this Court is therefore only in trespass for which they claim
damages, permanent
injunction and costs.
The facts now prevailing and
upon which this Court is nowecide whether or not to cono continue or
discharge the interlocutory
injunction are: That the second defendants have
been determined as the persons who are entitled to grant timber rights. The
plaintiffs appealed to the MCLAC against the determination and lost their
appeal. Now the Local Court has decided that
Lagwaeano is separate from
Siubongi, the consequence is that the presence of the defendants and their
operation on Lagwaeano
land is now not unlawful. The plaintiffs have
appealed to the MCLAC on that question of ownership of Lagwaeano. They say
the prospect of them succeeding on appeal is good, this Court is to maintain
the interlocutory injunction on that ground.
My view is that when one has
lost a case of timber rights determination and has lost a case of customary
ownership in
the Local Court, one's case has been seriously weakened so that
one’s prospect of success has been very much diminished to
a mere hope, even
wishful hope for success. The facts in this case are similar to the facts in
the Mega Corporation -v- Nelson Kile case, except that in Mega
Corporation case, the case about ownership rights had only gone as far
as the Council of Chiefs, a tribunal whose decision is binding only
by
consent of parties. From a decision by Council of Chiefs, about ownership of
customary land, should the decision not
be accepted by any of the parties,
the case is referred to the Local Court whose decision becomes binding
unless altered
by Customary Land Appeal Court.
In the Mega Corporation case, the Court of Appeal was of the view
that the determination of timber rights in favour of the defendants against
which there had not been appeal, and the decision of the Council of Chiefs
about ownership in favour of the defendants, were
enough to render the
plaintiffs' case without serious triable issue. In this case there are even
stronger factors against
maintaining the injunction orders; there has been a
determination of timber rights in favour of the second defendants which
has
been confirmed on appeal and there has been a decision of the Local Court
about ownership in favour of the second
defendants; the decision of the
Local Court is binding unlike the decision of the Council of Chiefs in the
Mega Corporation case.
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
My decision is that the facts
now as altered cannot support the granting of interlocutory injunction order
and therefore
the order granted originally on 25.8.1997 and all subsequent
orders as varied or as they obtain to date cannot be continued,
they are
discharged forthwith. Money held in trust account will, however, not be
released until the determination of
the appeal at the MCLAC. Parties are
required to prosecute the appeal case now before the MCLAC with diligence.
Liberty
is granted to the plaintiff to reapply for interlocutory injunction
in the event that the appeal is delayed because of lack
of diligence on the
part of the second defendants. The defendants are given liberty to apply for
the release of the money
held, in the event that the appeal is delayed
because of lack of diligence on the part of the plaintiffs. The case is to
be listed within 14 days after the appeal hearing before the MCLAC, the
plaintiffs are to apply for the listing.
Jurisdiction to Discharge
Interlocutory Injunction Order or Interlocutoryent Order
p>
Learned Counsel Mr. Suri
submitted that once interlocutory order other than interim order has been
granted it cannot be
discharged except on appeal, and that consent order
cannot be discharged. Both submission’s are not correct. It is correct
that
appeal against interlocutory injunction order does not require leave, but
that does not mean that when the facts
upon which interlocutory order was
granted or consent was given and confirmed into court order, have changed,
the order
must, nonetheless, remain enforceable. Application may always be
made to the Court of first instance that granted the order,
to have the
order discharged.
<
Costs
The defes, the applicants,
have won in their application, but the order they asked for about bout costs is
that parties
bear their own costs, I order so.
Delivered this Thursday the 16th
day of September 1999
ass="MsoNormal" style="marg"margin-top: 1; margin-bottom: 1">
At the High Court,
Honiara.
Sam-Lungole Awich
Judge
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