Gandley Simbe v Vaikesa [2005] SBHC 79; HCSI-CC 312 & 313 of 2005 (8 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case NOS. 312 and 313 of 2005.

GANDLY SIMBE AND DERALD GALO

-v-

ROBERT VAIKESA, LEDLY LUKISI,
JOHN KOKORO AND HARRISON BENJAMIN.

AND

PEDROS PANEGA

-v-

ROBERT VAIKESA, JOHN KOKORO AND AMON KAMARO

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 5^th July 2005.
Date of Ruling: 8^th July 2005.

P. Tegavota for the Applicants.

RULING

Kabui, J. Gandly Simbe and Derald Galo are the Applicants in Civil Case No. 312 of 2005. They filed an action against the Defendants on 29^th June 2005, seeking declaration orders and a permanent injunction. Pedros Panega is the Applicant in Civil Case No. 313 of 2005. Similarly, he filed an action against the Defendants on 29^th June 2005, seeking the same injunctive order being sought in Civil Case No. 312 of 2005 above. The facts and the issues are similar in each case. In Civil Case No. 312 of 2005, the Applicants are members of the Dali tribe on Choiseul Island in the Choiseul Province. On 16^th February 1999, the Chiefs determined that members of the Dali tribe were the owners of Oloko land being from Loanga river to Kozo stream. On 29^th September 1999, the Chiefs determined that members of the Dali tribe were the owners of land between Kozo stream to Lalaguti stream. The Defendants had lost in these two Chiefs’ determinations. These determinations have not been set aside and have remained valid. On 18^th May 2005, the 2^nd Defendants informed the Applicants of the Babatana House of Chiefs’ hearing to be conducted on 12^th July 2005 into the ownership of land stretching from Kozo stream to Lalaguti stream described as Vure land by the 2^nd Defendants. A notice of hearing was accordingly issued on 18^th May 2005 and addressed to Gandly Simbe and Nathaniel Mela to effect the hearing. In Civil Case No. 313 of 2005, the Applicant is Pedros Panega, being a member of the Pupurukana tribe on Choiseul Island in the Choiseul Province. The Chiefs, on 10^th May 2004, determined that the members of the Pupurukana tribe were the owners of Siruka land. That determination by the Chiefs has not been set aside either like in the Civil Case No. 312 of 2005. On 18^th May 2005, Pedros Panega was told to attend a Chiefs’ hearing on 13^th July 2005 into the ownership of land between Kozo stream and Nobe river. The notice of hearing was likewise issued on 18^th May 2005 to Pedros Panega to effect that hearing. The issue that is common in both these cases is whether or not the Babatana House of Chiefs’ can legitimately review the previous Chiefs determinations over the ownership of the same land and between the same parties. That is the main issue to be decided by the High Court in the actions brought by the respective Applicants. However, before that issue is determined, the Applicants have come to the Court for interim orders to prevent the Babatana House of Chiefs from proceeding with the scheduled hearing of the same disputes until the main issue has been dealt with by the High Court. The applications in Civil Case No. 312 and Civil Case No. 313 of 2005 above are therefore exparte applications for interlocutory injunctions to, as it were, maintain the status quo.

Can the interlocutory injunctions be granted by the Court?

The answer is that it is a matter for the discretion of the Court depending on the facts. The classical case on this issue of granting interlocutory injunction is American Cyanamid Co. v. Ethicon Ltd. [1975] UKHL 1; [1975] 1 All E.R. 504 cited in Nelson Meke v. Solmac Construction Company Limited, Civil Case No. 45 of 1982. As stated by Lord Diplock at pages 508-510-

“... The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The violation of the plaintiff’s legal right is the basis for the action taken by the plaintiff to recover damages otherwise there can be no basis for the need for an interlocutory injunction to maintain the status quo until the action is determined by the Court. The actions in Civil Case No. 312 and in Civil Case No.313 of 2005 are against the Babatana House of Chiefs whose jurisdiction to hear the same disputes in each case is being questioned by each set of Plaintiffs. The opposing parties in each case are also cited because the Defendants are also to be prevented from referring the same disputes to the Babatana House of Chiefs. Preventing the Defendants from referring the disputes to the Babatana House of Chiefs by granting the injunction asked for is really stopping the Babatana House of Chiefs in the interim period from hearing the disputes. That step alone is enough to ensure that the Babatana House of Chiefs does not hear the disputes in the meantime. There is no need to restrain the Babatana House of Chiefs in the same way unless being a measure of over caution in case the Babatana House of Chiefs does proceed to hear the disputes on the basis of the notice of hearing already issued to the Plaintiffs as Defendants in each case.

The basis for requesting interlocutory injunctions.

The basis for seeking the interlocutory injunctions is that the Babatana House of Chiefs does not have the power to review the determinations made in 1999 in the case of Civil Case No. 312 of 2005 and the determination made in 2004 in the case of Civil Case No. 313 of 2005. This is not a case of calling in the High Court to aid the Local Court or the Chiefs’ forum under the principle in Gandly Simbe in Appeal No. 8 of 1997. Rather, this is asking the High Court to make the interlocutory orders to prevent further irreparable damages being done to the Plaintiffs in each case pending its determination of the power of the Babatana House of Chiefs being questioned in Civil Case No. 312 and Civil Case No. 313 of 2005. The questioning or challenging the jurisdiction of the Babatana House of Chiefs is not a cause of action to claim damages against the Defendants. Such action as in each Civil Case No. 312 and Civil Case No. 313 above is a remedy to be found in the prerogative writs such as certiorari or prohibition. As pointed out by Denning, MR in O’Reilly v. Mackman [1982] 3 WLR 615, there are two fields of law being, private law, on the one hand and public law, on the other hand. Private law regulates the affairs between subjects themselves whilst public law regulates affairs between subjects and public authorities. Complaining against the power of the Babatana House of Chiefs which can be regarded as a public authority under section 12 of the Local Courts Act (Cap. 14) is a matter being raised by the Applicants against a public authority. It is not an affair between private persons so as to attract interim relief such as interlocutory injunctions. There appears to be no role to be played by interlocutory injunctions in any proceedings involving any prerogative writs for the steps to be followed are fixed in the rules of practice. There is the tendency by some practitioners to put up a cause of action with a friable issue and then seek interim orders and once an interim order is granted the trial of the cause of action never takes place. The interim order is used as a sword to discourage any further action with the result that the interim order rather becomes a permanent injunction. This is rather unfair especially where the practitioner has filled in the urgency form and the matter is heard ex parte. The other side is never heard once the matter never comes back to court. Like in these two cases, an interlocutory or permanent injunction never lies against a tribunal or quasi judicial body as a remedy against errors of jurisdiction. A triable issue has to have a proper basis in law for it to have merit for interlocutory injunction to issue otherwise the purpose and the spirit of interlocutory injunctions are lost. Lack of jurisdiction or excess of it is not a triable issue between two parties because the point of focus is not a claim for damages but an error in jurisdiction. The applications for restraining orders in Civil Case No. 312 and Civil Case No. 313 of 2005 are misconceived and therefore must be dismissed. The applications are therefore dismissed. I order accordingly.

F.O.Kabui, J.