Sagevaka v Maure [2001] SBHC 79; HC-CC 274 of 2001 (6 November 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No 274 of 2001

WILSON SAGEVAKA

(Representing The Sinagi Clan)

AND

BULACAN INTEGRATED WOOD INDUSTRIES
(SI) COMPANY LIMITED

v

DAVID E

(Representing the Makara/Rorongo Clan

Before: Frank O. Kabui, J

Civil Case Number 274 of 2001

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 1^st November 2001

Ruling: 6^th November 2001

Mr. P. Tegavota for the Plaintiffs

Mr. J. Hauirae for the Defendants

RULING

(Kabui, J): The 1^st and 2^nd Plaintiff (the Plaintiffs) filed a Writ of Summons and a Statement of Claims on 5^th October 2001, claiming declarations, injunction and costs against the Defendant. On 12^th October 2001, the Plaintiffs filed a Summons seeking the following -

1. That an interim injunction be issued to restrain the &nbbsp; defendant himself his servants, agents, persons authorized by the defendant and any ms of ra/Rorongo Tribe ribe from from interinterfering with the Plaintiffs’ logging operation in East Barora Ite by any means whatsoever and including all or any of the following acts:

(a) < Closing of logging roads;

(b)  p; P Pting the felling and ebsp;extraction of lospan>

(c) span> < Preventing the shipment of l/span

&nbs> > clap class="MsoNormal" style="margin-top: 1; margin-bottom: 1"> (d) n>&nbs> &nbbsp; pan> Threatening the Plaintiffs and their employees from carrying out their work within thin the concession.

(e) nbsp; and the doing of any act whatsoever which will affect the Plaintiffs' ng opon in Barora Ite either directly or indirectly.

un further orders from from the Court.

2. That the defendant be ordered to pay the costs of this application.

langGB" style="font-sont-size: ize: 12.0p12.0pt; letter-spacing: 0pt"> /p>

3. That the Court to grant such other or further order as it sees fit.

This Summons was set down for hearing on Thursday 1st November 2001 at 2:at 2:30 pm. The Defendant, in the meantime, also filed a Notice of Motion on 25th October 2001, claim the following orders -

1.

(a) it discloses no cause of action and/or is frivolous and vexatioxatious; and

(b) the claim is an abuse of process

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> These two applications were heard together as a matter of convenience. But first the backgrackground facts.

The Facts

In a decision made by sabel Local Court on 29^th May 2001, the 1^stup>st Plaintiff was awarded the East Barora Ite, which runs from Vedekeo to Venao Bay across the Barora Island to the north to Burubeana including the Island of Nidero. The Defendant was awarded the West Barora Ite which runs from Sele to Rerekaharo to Matavagi including the adjacent islands. Both the Plaintiff and the Defendant appealed against that decision of the Ysabel Local Court. The Plaintiff's appeal was dated 27^th July 2001 and the Defendant's appeal was dated 27^th August 2001. Both these appeals are yet to be heard by the Ysabel Customary Land Appeal Court. In the meantime, the Plaintiff entered into a Timber Rights Agreement with the 2nd Plaintiff to harvest trees of commercial value on the East Barora Ite. The Timber Rights Agreement was signed on 31^st January 2001. The Licence was granted to the 2^nd Plaintiff on 12^th July 2001. The Licence No. is A10011. Because of the Plaintiff's appeal and the Defendant's cross - appeal, the Plaintiff wants an injunction against the Defendant to restrain him, his servants, agents etc from interfering in any way with the 2^nd Plaintiff's logging operation on the East Barora Ite.

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Are there triable issues in this case?

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> There are two undisputed facts in this case. The first fact is that the Plaintiffntiff is the owner on behalf of his tribe of the East Barora Ite. Likewise, the second fact is that the Defendant is the owner on behalf of his tribe of the West Barora Ite. These are not triable issues because they are simply facts. It is also the legal position in custom decided by the Ysabel Local Court. Based upon these facts, I do not think the Validity of the Timber Rights Agreement and the 2^nd Plaintiffs Licence can be challenged in so far as they cover the East Barora Ite correctly. The 2^nd Plaintiff is entitled to operate in the East Barora Ite under its Timber Rights Agreement and its Licence. In theory, the 2^nd Plaintiff can enter upon the land owned by the 1^st Plaintiff. I say this because the Defendant in his cross - appeal claims ownership of the East Barora Ite including the whole Island. He has already expressed his displeasure at the landing of machinery by the 2^nd Plaintiff on the East Barora Ite. Returning to the question of triable issues for the purpose of granting interim injunctions, I say there are no triable issues disclosed by the evidence before the Court. I do not think I can grant interim the injunction requested by the Plaintiff. There may however be a case for a quia timet injunction to prevent the Defendant causing damage or hardship to the Plaintiffs by his conduct or that of his servants and agents etc (see Eastern Development Enterprises Limited v Stanley Zae and Others Civil Case No. 350/1999). The terms of the injunctive order sought by the Plaintiffs seem to wear the colours of a quia timet injunction. Even if this application were for a quia timet injunctions, I would not grant it also because there is no evidence to support it. The only piece of evidence of any value is the letter of 6^th October 2001 written by the Defendant’s Solicitor to inform the Plaintiffs of their unwise conduct of landing machinery on East Barora Ite despite both appeals pending before the Ysabel Customary Land Appeal Court. The Plaintiffs were asked to remove the machinery or else legal proceedings might be taken against them. This is not a threat of physical harm or. damage to the Plaintiffs or their machinery. The Plaintiff’s application is refused with costs. It is needless to say that I need not now rule upon the Defendant’s Notice of Motion. The Defendant’s Notice of Motion was unnecessary because the points raised in it would be covered in Counsel's oral submissions, which was done in this case.

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> F. O. Kabui

Judge