Halu v JP Enterprises Ltd [2003] SBHC 123; HC-CC 163 of 2003 (21 August 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 163 of 2003

DERRICK HALU, SAM KEVU, ELVINA DONGA, OSUPITU TINGO AND WAYNE HOOPER HALU (Representing the LIO Tribe of New Georgia)

–V-

JP ENTERPRISE LIMITED, WESTERN PROVINCIAL GOVERNMENT, LETIPIKO BALESI (Representing the NONO Tribe) AND SIMON CHACHABULE, NESON HAROPANA, ELMA CHACHABULE, JOHN PAI RARAVA, RIGLY BARORA AND LIVINGSTONE SIMBE (Alleged Trustees of LIO Tribe)

HIGH COURT OF SOLOMON ISLANDS
Muria, CJ

Date of Hearing: 12^th August 2003
Date of Judgment: 21^st August 2003

G. Suri for the Plaintiffs
P. Tegavota for 1^st Defendant, 2^nd Defendant and 4^th Defendants

Muria, CJ: This is an application by the first, third and fourth defendants to set aside the ex parte injunction made by this Court on 18^th July 2003 whereby the defendants were granted the following orders:

1. Until further orders, the First Defendant, Third Defendant and the Fourth defendants, by themselves, their officers, servants, agents and invitees be restrained from continuing felling or harvesting trees for sale or otherwise within the LIO land on New Georgia in Western Province.
   
2. The First Defendant do remove its logging equipment, machineries and personnel, servants or invitees from the said LIO land within fourteen (14) days from the date of this order.
   
3. Until further orders, the full FOB value of all logs harvested, extracted or exported from LIO land be restrained and paid into an interest bearing account in the name of the Solicitors for the parties herein.
   
4. The First, Third and Fourth Defendants do provide full account of all logs felled and harvested from LIO land since commencement of logging operations, including volume, specie and their respective values.
   
5. The Fourth Defendants do provide full account of all royalties received and held or distributed by them or each of them.
   

Mr. Tegavota of Counsel for the three defendants argued that there was no basis for the ex parte order to continue. Counsel advanced a number of grounds to support his clients’ application. However, before I deal with those grounds, it would be helpful to set out briefly the background to this case.

Brief background

The first defendant, JP Enterprises Ltd, obtained a logging license No. A10102 on 2^nd July 2001 covering Lio, Nono and Podokana customary land. On 26^th July 2001, the company’s logging plan was approved and operation commenced in or about 2^nd August 2001 on Nono land. Later the company extended its operation to Lio and Podokana lands. It should be mentioned that the company’s operation on Nono land was the subject of Civil Case No. 245 of 2002. The ex parte order now sought to be set aside is over Lio land.

In the ex parte hearing on 18^th July 2003, the plaintiff’s contention was that the logging license covered Nono land only and that it was only the third defendant who included Lio land to be part of Nono land. Due to the third defendant’s action, Lio land was covered by the 1^st defendant’s logging license without complying without the proper procedure under the forestry law.

A number of points were raised in the course of Mr. Tegavota’s argument I feel I need only consider three of them.

1. Locus Standi

The defendants’ argument here was that the plaintiffs do not have locus standi to come to this Court at this stage. The real disputes are about customary land rights and interest. These are matters which ought to be sorted out by the appropriate authorities, namely the Chiefs and Local Courts before proceedings can be brought to this Court. I feel that there is merit in this argument. Arising from the issues raised by the plaintiffs are the questions of whether Nelson Haropana and Simon Chachabule should represent their tribes and whether they have authority to sign the agreement with the first defendant; whether the fourth defendants breached custom by allowing Blocks 4 and 5 to Podokana tribe; and whether royalties were properly distributed to those entitled in custom. These issues are central to the plaintiffs claim in this case. In the absence of the proper determination of those issues, this Court would not be able to hear the plaintiffs, as they would be seeking to be heard on matters which this Court is precluded by law from dealing with them.

In response, Mr Suri of Counsel for the plaintiffs argued that the Court’s power in this regard should be used in aid of the 1 Local Court to determine matters of custom as laid down in Simbe’s case^[1]. The Court of Appeal, in Simbe’s case, held that the High Court’s power to grant injunction can be used in appropriate cases to aid the work of the Local Court to deal with matters of custom. The issue in Simbe’s case relates to the exclusiveness of the Local Court’s jurisdiction, thereby ousting the High Court’s power to deal with matters of custom. The Court of Appeal in effect said that High Court can exercise its powers by granting injunctive relief so as to assist the Local Court in dealing with matters of custom. It must also be noted the parties came before the High Court having already established their locus to stand before that Court. This is different to the position in this case where the plaintiffs are yet to establish their right to come before this Court to be heard on the issues affecting their customary rights. Until that is done, this Court would lack jurisdiction to hear them and I so hold.

2. Triable issue

Mr Suri agreed that there are number of serious issues which the Chiefs need to determine in this case. Counsel, however, argued that the serious issue that this Court ought to consider in this application was that of the legality of the logging license. It is true that this is a serious issue for the Court to consider. However, like in all of these cases involving logging on customary land, the propriety of the logging license cannot be entirely separated from issues of ownership of customary land. As those involved in the process of administering the law on forest and timber know, sensitive issues of custom do very much affect the procedure of obtaining a logging license on customary land in this country. Thus where the issue of ownership or other rights in custom over customary land is in dispute touching on the propriety of the logging license, a party cannot simply isolate the issues of custom and come to this on the sole issue of the legality of the license. His standing in such case covers both issues. That should also be the position in this case.

3. Delay

Mr Tegavota raised the question of delay in this case. While delay is a matter which the Court may take into account in a case such as this, especially in allowing an ex parte restraining order to continue, I feel it is not fatal to the proceedings now before the Court. I say this with some reluctance because in appropriate cases it can be an important factor in the exercise of the Court’s discretion. In Solomon Islands where cases involving issues over customary land are raised, there are so many factors which affect the progress of resolving such issues. These factors include time, distances, scatteredness of islands and people, literacy, transportation, customary linkage among tribal members and families. These and other factors do affect the way in which people conduct their claims over customary land. I do not feel that the delay is that serious in this case.

Conclusion

However, as I have found that the plaintiffs have not demonstrated their locus standi to enable them to come to this Court at this stage to pursue their rights over Lio customary land, it would not be just and proper to allow the ex parte injunction granted on 18^th July 2003 to continue. It is hereby discharged.

The costs of this application must be paid to the 1^st, 3^rd and 4^th defendants.

Order accordingly.

Sir John B Muria
CHIEF JUSTICE

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^[1] Gandley Simbe –v- East Choiseul Area Council & Others (Court of Appeal) 21/10/1998, App. No. 8/1997