Walemola v Tafilana [2000] SBHC 37; HC-CC 418 of 1999 (13 October 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 418 of 1999

JOSEPH WALEMOLA & OTHERS

-V-

HENRY TAFILANA & OTHERS

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

Hearing: 21st September 2000
Judgment: 13th October 2000

Mr G Suri for the Plaintiffs/Applicants
Ms M Samuel for the First and Fourth Defendants/Respondents
The Second and Third Defendants/Respondents by themselves

JUDGMENT

(LUNGOLE-AWICH, J): This is judgment in the application dated 28.8.2000, of the plaintiffs asking for interlocutory injunction order against the defendants, and in the counter application dated 14.9.2000, of the first and fourth defendants asking for interlocutory injunction order against the plaintiffs. In the judgment I shall refer only to the first name cited for each party to represent all the people cited in each party and their clans. The fourth defendant, Eagle Brothers Sawmilling Limited, are presumably a corporate person, I shall refer to them simply as Eagle Brothers.

The Plaintiffs' Substantive Case

The plaintiffs, Joseph Walemola and others have come to the High Court with a claim that a block of land they describe as Feratala-Ore'ore belongs to them and the rest of their clan, not to the first defendants, Henry Tafilana and Others, and their clan. They have asked for a declaratory judgment to confirm their claim.

Walemola says that his clan's customary land right has been recognised in three cases: Silas -v- Buila Alokeni No. 2/73 at a Local Court, John Oliadina -v- Sale Bafu in 1982 at the Malaita Customary Land Appeal Court and Sale Bafu -v- John Oliadina No. 18 of 1982 at the High Court. Walemola further says that Tafilana and his clansmen have wrongfully sold the land to Frank Fosala, the second defendant, and to other persons. Furthermore that Tafilana and his clansmen, Fosala and his clansmen, Kenneth Buari and Festus Felo, the third defendants and their clansmen, have cut, removed and sold round logs from the land unlawfully, they had no right to the land and the trees. The account of events complained about by Walemola is that Tafilana invited Eagle Brothers who carried out the logging operation on the land and sold the timber, and that Eagle Brothers are now constructing a road through the land to the sea where it is intended to build a log pond from where timber logs will be shipped for export. Walemola's case for declaratory judgment is pending trial.

The Interlocutory Application of the Plaintiff

In the meantime Walemola has applied to Court for interlocutory order to issue restraining Tafilana and his clan, Fosala and his clan, Buari, Felo and Eagle Brothers, from felling and removing trees from the land and from continuing with the road construction work.

The Defendants' Case

Tafilana's case is the opposite of Walemola's. Tafilana says that the customary land at issue belongs to him and his clan, that his clan's right over the land has been recognised in a Local Court case in 1954.

Eagle Brothers' case is that they were on the land carrying out logging operation and building a road lawfully, they were invited by Tafilana who had "court papers", that confirmed the right of Tafilana over the land. Eagle Brothers say that when Walemola raised his clan's claim to the land in August 2000, Eagle Brothers suspended operations, and are not carrying out any operations now.

Buari and Felo contend that Ore'Ore part of the land at issue belongs to them not to Walemola.

The Interlocutory Application of the First and Fourth Defendants

Tafilana and Eagle Brothers have filed counter application for interlocutory injunction order to restrain Walemola from interfering with the operations of Tafilana and Eagle Brothers.

During the hearing of the applications, Walemola informed the Court that he would not press his application for interlocutory injunction order against Frank Fosala. There is no need therefore for me to outline Fosala's defence to Walemola's substantive case at this interlocutory stage because I shall not order interlocutory restraining order against Fosala on the application of Walemola. Fosala may pursue his case which he says is pending at the Local Court in the normal way and may attend the High Court for the hearing of the substantive part of this case if Walemola proceeds to trial.

Determination of the Interlocutory Application and the Counter Application

The first point to be decided is whether Walemola has established in this Court a strong enough claim for trial against Tafilana, Eagle Brothers, Buari and Felo so that Walemola may ask for interlocutory injunction. There are many case authorities in this jurisdiction on the point, following the ratio decidendi in, American Cyanamid -v- Ethicon Company Ltd [1975] 1 All ER also [1975] AC 139, a case decided in England. Two cases from this jurisdiction are: Mega Corporation -v- Nelson Kile and Zarihana Timbers -v- Nelson Kile SICOA No. 10 of 1997 and John Wesley Talasasa -v- Attorney General, Solomon Taiyo and Others HC-CC 43 of 1995. An applicant for interlocutory injunction order must establish by evidence, usually in affidavit form, a serious triable issue. His substantive case must have prospects for succeeding.

On the affidavit evidence presented at this stage, Walemola's claim merely appears as good as the case of Tafilana. Walemola relies on the judgment of the Local Court in case No. 2/73 and the appeal judgment of the Customary Land Appeal Court and the subsequent appeal judgment of the High Court. The difficulty in Walemola's case is that the Customary Land Appeal Court decided that the land was not just one Feratala-Ore'Ore land, there were two blocks of land, Walemola's clan had right over Feratala only and not over Ore'Ore. The High Court appeal judgment did not change the decision of the Customary Land Appeal Court. That means Walemola cannot stop Tafilana or indeed anyone else from entering the other portion, Ore'Ore. Tafilana cannot ask for injunction over the whole land including Ore'Ore or over Ore'Ore only, he can ask for injunction over Feratala only. The High Court judgment also did not change the decision of the Customary Land Appeal Court that Tafilana's clan might have customary land right over Ore'Ore or other clans might, the issue was yet to be determined. Perhaps that will be done by the Local Court in the case brought by Fosala or in another case.

It may be suggested that the Court could grant interlocutory injunction order in favour of Walemola in respect of Feratala. The difficulty in the suggestion is that Walemola says the whole land at issue is one so he wants injunction over the whole. The other difficulty is that the boundary between the two blocks has not been clearly pointed out for the purpose of the injunction application or the counter application so an injunction order over Feratala only or over Ore'Ore only will bring about much argument over the boundary and provide unwelcomed occasion for confrontation while the substantive case is pending.

Tafilana's case also has flaw. It is based on the 1954 District Commissioner's Court case in which Walemola's clan was not a party. The right of Tafilana's clan as stated in the 1954 case cannot defeat Walemola's claim. On the other hand the case may give Tafilana the belief that the reasons put forward in the 1954 case may be put forward again this time in a case against Walemola's clan so that rights between the two clans are decided. Moreover, as the appeal case between them ended by leaving out Ore'Ore land, Tafilana and Walemola might each consider that each has a good chance to succeed in a claim to Ore'Ore. For now this Court cannot say that Walemola or Tafilana has established a convincing case about Ore'Ore to entitle him, subject to discretion of the Court, to interlocutory injunction order over the whole or part of the land at issue.

Eagle Brothers' case depends on Tafilana's case. As Walemola has not established serious triable issue against Tafilana so as to secure interlocutory injunction order against Tafilana, by extension, Walemola has not established a case against Eagle Brothers for interlocutory injunction order against Eagle Brothers. Likewise Eagle Brothers have not established a counter case for interlocutory injunction order against Walemola.

The affidavit evidence against Buari is a bare assertion replied to by an equally bare denial. The burden is on Walemola to establish a serious issue against Buari so as to obtain interlocutory injunction order against Buari. There is nothing in the affidavit evidence to persuade me that Walemola has established a case for interlocutory injunction order against Buari.

The Application and Counter Application Dismissed

Walemola has failed in his application for interlocutory injunction order, and on the other hand, Tafilana and Eagle Brothers have also failed in their counter application for interlocutory injunction order to restrain Walemola from interfering with their logging operation and road building work. I dismiss the application of the plaintiffs and the counter application of the first and fourth defendants.

The Order Made

It has come out in evidence that there is need for this Court to preserve the land and trees on the land while the substantive case is pending. By authority of Order 53 rule 6 of the High Court (Civil Procedure) Rules, and independently of the application of the parties, the Court makes an order to preserve the land and trees thereon. It is ordered that all the parties are to leave things as they are now; they are not to engage in any commercial activities to do with the land, trees, road building and pond building, while this case is pending. If activities of usual traditional way of life have been going on on the land, those activities may continue, but without stretching them beyond what have been the practice for years.

Costs of this application are reserved.

Pronounced this Friday the 13^th day of October 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge