Hilli v Balesi [2001] SBHC 59; HC-CC 224 of 2001 (27 August 2001)

HIGH COURT OF SOLOMON ISLANDS

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Civil Case No. 224 of 2001

HAROLD HILLI>

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LETIPIKO BALESBALESI AND OTHERS

High Court Solomon Islands

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Before: Frank O. Kabui, J

Civil Case No: 224 of 2001

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Hearing: 24^th August 2001

Ruling: 27^th August 2001

class="Mso="MsoNormal" style="word-spacing: 1; margin-top: 1; margin-bottom: 1"> Mr. D. Hou for the Applicant

Defendant not in Court

(Kabui, J): I heard the Plaintiffs ex parte application on Friday 24^th August 2001 last week and granted the orders sought by the Plaintiff. I said that I would give my reasons today. I do so now.

By Notice of Motion filed on 15^th August 2001, the Plaintiaintiff sought the following Orders-

1. A Declaration that Licence No. A10102 issued to the 4^th Defendant is null and void insofarsofar as it purports to cover NONO customary Land and/or se Land, and, and the registered land described as parcel no. 143-008-.

class="MsoNormaNormal" style="word-spacing: 1; margin-top: 1; margin-bottom: 1"> 2. A Declaration that the Form IV logging agreement entered between the 1^st, 2^nd_, and 3^rd defendants on the one part and the 4^th defendant on the other part dated 10^th May 2001 is null and void in so far as it purports to cover Nono land and/or Ose land and the said registered land.

3. An injunction tion restraining the 4^th and 6^th defendants, their servants or agents or otherwise from further entering Nono land and/or Ose land and the said registered land and/or felling, extracting and removing timer from the said land.

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4. Further or other orders deem fit by the court.

<0"> And that the costs of this application be costs in the

cause.

Matter be adjourned to a date to be fixed by the Register.

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The Noti Notice ofce of Moti Motion is yet to be served upon the Defendants. Whilst the 4^th and 6^th Defendants could have been served in Honiara, the other Defendants could not have been because they are in the Western Province. This is all explained in the Certificate of Urgency filed on 16^th August 2001.

The Facts

The Plaintiff is a member of the Nono tribe in the Marovo Lagoon, New Georgia, in the Western Province. The boundary of Nono Customary Land begins at Mahini Point stretching to Mt Vinuvinu inland. The western boundary begins at the mouth of Noti river and follows that river to its head-waters. From this point, it connects through the valley running in the eastern direction and emerging at the sea through a small stream. This is Ose Land, owned by the Plaintiffs sub-tribe of the Nono tribe. Also, within Nono land, there is Parcel No. 143-008-1 owned by the Plaintiff as a fifth joint owner together with other members of his family. Logging machinery and equipment were landed on Nono land on 2^nd August 2001. The machinery and equipment were brought in by the 4^th Defendant, the holder of Licence No. A10102 issue on 2^nd July 2001 by the Government under the Forest and Timber Utilization Act (Cap. 40). They belong to the 6^th Defendant. They were brought in without the consent of the Plaintiff and other landowners. A log pond and a road are being constructed in defiance of the Plaintiffs rights and the rights of those whom he represents.

The Relief Sought

The Writ of Summons and the Statement of Claim were filed on 15^th sup> August 2001. The relief sought are declarations that the licence issued was null and void, Form IV, the logging agreement was null and void and that the 1^st, 2^nd and 3^rd Defendants were not the authorized trustees for Nono land. An injunction was therefore sought to restrain the 4^th and 6^th Defendants from further entering Nono land/ Ose land for the purpose of felling, extracting, removing timber etc from the said Land. Clearly, there are triable issues raised in the Plaintiff’s Writ of Summons and Statement of Claim. The granting of an injunction is discretionary. In this case, I had exercised my discretion in favour of the Plaintiff. The lack of an injunction for whatever reasons would have given a go ahead for the logging operation to proceed despite opposition from the Plaintiff and those whom he represents. Whether those in opposition are in the majority or otherwise is yet to emerge. The fact however is that there is opposition. If the trees were felled, removed and sold, would they be replaceable in terms of damages? Theoretically, damages may be paid but in reality, that option is often an illusion. I say this because experience has sown that in these sort of cases, the Licence holder is often the landowners themselves in a corporate from and the royalties at times do not reach all the landowners or those who opposed the operation from the start. For those who miss out, the damage caused is irreparable. I do not think in such cases damages would be a adequate remedy. In this case, the Plaintiff offered no undertaking that he would abide by any order for damages that if an injunction was granted and the Defendants won at the end of the day they would be adequately compensated for the loss suffered by them. Realistically, the Plaintiff would not have been in the position o make an undertaking because the Plaintiff and those whom he represents are just villagers having no financial base upon which they can trade-off for an injunction. It is in the interest of fairness that the status quo be maintained until the dispute between them is resolved. The balance of convenience clearly lies in favour of the Plaintiff. I granted the Orders sought on this basis. Paragraphs 1 and 2 of the orders sought were put aside for the inter partes hearing on a date to be fixed.

lass="Mso="MsoNormal" align="center" style="text-align: center; word-spacing: 1; margin-top: 1; margin-bottom: 1"> F. O. Kabui

Judge