Tuita v Kutai [2005] SBHC 84; HCSI-CC 267 of 2005 (15 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 267 of 2005

DENNIS RAFERA TUITA AND JOHN DIOKO

-v-

NOVIN KUTAI, ROBERT BIFULA, DERRICK LEDIOMEA, ALICK BEN KOUKA (1^st Defendants) DR. GROG MAIMU, BEN KOUTO, ISAAC TOSIKA (2nd Defendants) PACIFIC METRO LIMITED (3^rd Defendant)

Injunctions - ex-parte application to prevent disbursement of moneys standing to the credit of a bank account - factual matters n which the plaintiff relies disclosing customary land disputation - appropriateness of the court as a proper forum for determination of rights claimed by the plaintiff.

Practice and procedure - ex-parte application for injunction - need to show a probable entitlement to relief in the plaintiffs’ cause of action - nature of the cause of action clearly one of custom - whether a claim for damages for trespass sufficient to afford the court a power to grant injunctive orders - House of Chief’s decision given post facto to acts complained of - appropriate course.

Custom law - timber rights over customary land- dispute over distribution of logs sold- plaintiff’s claim appearing to arise after logging carried out by the 3^rd defendant as agent of other defendants - whether High Court proper forum when House of Chiefs has made award differentiating land of the plaintiff’s post facto felling and logging.

The plaintiff’s claim an injunctive order to prevent moneys standing to the credit of a particular bank account being disbursed pending a claim for damages for trespass. The plaintiffs assert ownership to differentiated customary land delineated by a House of Chief’s hearing on the 1^st April 2005. The moneys appear to be moneys from the sale of logs previously felled and shipped from customary land the subject of a logging licence held by the 3^rd defendant. The 1^st and 2^nd defendants have customary interests in the various parcels logged under the licence to log which had validly issued, it would seem. There is no evidence of the House of Chief’s decision purporting to apportion rights to timber already felled on the land parcels, although there is evidence of logs remaining at a log pond.

Held; 1. The plaintiff has failed to show facts which give the plaintiff the probable entitlement to the relief sought since the plaintiff’s claim for damages for trespass post dates the differentiation of customary land

2. The appropriate forum where facts are in issue, facts going to the apportionment of the plaintiff’s rights to logs already felled is not the court but the House of Chiefs failing agreement for the question of usufructuary rights is one for the Chiefs.

3. The balance of convenience does not require this courts interference at this time when a serious question remains over the plaintiff’s cause of action.

4. The orders are refused.

Cases cited. Gandley Simbe v East Choiseul Area Council anors; unreported Court of Appeal 8 of 1997.

Stephen Veno anor v Oliver Jino anors; cc 152 of 2003

Date of Hearing: 15 July 2005.

Philip Tegavota for the Plaintiff

EX-PARTE SUMMONS FOR INJUNCTIVE ORDERS.

REASONS FOR DECISION

Brown PJ: This application seeks orders restraining the payment out of sum $566,090.00 apparently in an account at the Westpac Bank. It is not clear from the amended Summons, but that money may be held on account of the 1^st, 2^nd and 3^rd defendants for although the account number is detailed, the summons does not say who owns the account.

The nature of the application.

On reading the two affidavits sworn in support, it seems the plaintiffs claim an interest in logs felled from a parcel of land called Takibakwa Land which seems contiguous to, but may not form part of Lumabora Land over which the various defendants apparently had rights to log.

This latter named land was obviously the subject of a proper licence to log which commenced in early 2004.

In about March 2004, Tahibakwa land was entered and trees apparently felled and logs extracted although much timber it seems, remains in the bush. There is no material to show that the logging was done without the plaintiff’s knowledge, a material consideration when the plaintiff now seeks damages for trespass. That issue must be considered on the question of the plaintiff’s reasonable chances of success.

As a result of a dispute over the logging of timber on land claimed by the plaintiffs, the Arao House of Chiefs conducted hearings about boundaries of land in March 2005 and on the 1^st April 2005, the determination of the Chiefs was given. So until that determination the question about whether Tahibakwa was a parcel separate from Lumabora Land or not was but that and to that date the plaintiff could not be said to have recognised customary rights, of whatever nature, over a particular parcel of land known as Takebakwa, when such differentiation had not been recognised after a timber rights hearing which preceded the granting of a licence to log.

The plaintiffs say, in paragraph 13 of their 2^nd affidavit that:

"Our concern now is that there are logs at the log pond at the total volume of 2,107,243 cubic meters. They have been sitting at the log pond for more than 6 months and their quality and value are deteriorating. We would like to have these logs sold as soon as possible. The log list is annexed marked TL 8".

Facts relied upon by the plaintiff to plainly show a probability that the plaintiff is entitled to ex parte injunctive relief.

The log list, TL8, is dated 3^rd May 2005, and is an assessment tally compiled by John Dioko, one of the named plaintiffs.

The plaintiff’s claim damages for trespass and presumably an account for the value of the logs taken from the land, Takibakwa.

Clearly prior to 1^st April 2005, this year, there must be an argument about whether or not a trespass may be committed on land not then recognised as separate from that land over which a valid logging licence existed. For until the decision of the House of Chiefs the parcels of land were undifferentiated.

Factual questions for determination on claim.

Whilst the plaintiff says that the logs have been sitting at the pond for more than 6 months (on the face of the statement, before the time of differentiation of the land on the first of April 2005) it remains a factual question as to when the logs were felled and removed from Takibakwa land and whether or not a "trespass" has been committed.

This is clearly a proper matter for the House of Chiefs since those two questions relate directly to the Chief’s findings of differentiation of the land parcels. There is no doubt the logger, Pacific Metro Limited had no right to be heard in the Arao House of Chief’s hearing yet the plaintiff now comes to this court claiming damages from the logger as a result of the Chief’s determination. The above questions should not now be litigated before this court on principles such as "trespass" which are foreign in concept and which do not bear on customary usufructuary rights and obligations which may have arisen before or since the land differentiation, rights and obligations which are matters of fact in custom. Such "trespass" would appear to have been carried out by the agent of the customary landholders, who-ever they may be for the landholders have entered into a logging agreement it seems, presupposing the right to deal with the forest resources on the land. These proceedings in this court, then would appear to be yet another attempt to circumvent use of the proper forum, ( see Gandley Simbe’s case- CAC 8/97; unreported judgment of the court.) the House of Chiefs, for the customary owners could, at first blush, be expected to realign any profits and benefits upon further differentiation (post facto to logging) of customary land, in accordance with customary settlement procedures, (failing agreement to reapportion) so as to apportion the benefits accruing from the sale of the felled timber wherever sourced.

Again, the fact that the moneys paid to the account obviously relate to the sale of logs not belonging, admittedly to the plaintiff, is a material matter for my consideration. In any event, I cannot be sure that this money belongs to the various defendants, although that is not the basis for my decision in this case. It follows then that I am not satisfied the plaintiff has shown that the plaintiff would probably be successful on the material before me. In Stephen Veno anor v Oliver Jino anors; cc 152 of 2003, Palmer CJ refused applications for interlocutory injunctions involving customary land and timber rights for reasons with which I agree, so that again the Chief Justice was chary of using discretionary remedies when customary law leaves the applicant’s issue in doubt.

The delay in bringing these proceedings.

Since the 13^th May at least these plaintiffs have been aware of the quantum of their logs at the pond. Of course this quantum may be disputed by the defendants.

The plaintiffs have had, since the 1^st April 2005, an opportunity to negotiate the accounting necessary for a division, if you like, of the logs felled to be shipped, taking into such account the costs to the loggers and shippers.

The plaintiffs now come to this court, (not having given the defendants notice) seeking this court’s help in seizing money presumably belonging to these defendants, an act which must compel the defendant to respond after the event of such seizure.

It is inherently unfair to deal with moneys of a commercial enterprise in which the plaintiffs have a vested interest, in this fashion. Money, of itself, cannot amount to goods which if allowed to be disbursed, would "cause irreparable damage" to the plaintiff. The plaintiff’s claim to damages on a cause of action, properly pleaded, remains unaffected.

The plaintiffs obviously have not been able to advantageously sell their logs, or they would not be here.

The action has the indication of an attempt by the plaintiffs to gain a commercial advantage, over these defendants, in circumstances where the defendants have had no real opportunity to answer the plaintiff claim.

The balance of convenience.

The orders sought are discretionary. Whilst logs deteriorate, the plaintiff has clearly been guilty of laches in permitting the logs to remain in the pond without taking steps on their own behalf to sell or ship them. It does not now lie in the plaintiff’s mouth to complain, here, about these defendant landowners who are neighbours, I presume and that issue is most relevant when a court has to consider discretionary remedies. That absence of action to sell or ship may spring from a commercial decision or absence of decision, but it is not for this court to interfere in a commercial enterprise or negotiations which may be in progress for an agreement to ship. The defendants have not had an opportunity to be heard. If no negotiations are in progress or if negotiations have broken down, no relations exist of a contractual nature which can attract this court’s interference. But really the plaintiff can be seen to be relying on some supposed customary right, unbeknown to the 3^rd defendant and beyond the 3^rd defendants ability to influence.

The application must fail.

Order

I refuse to exercise my discretion in terms of the orders sought in the amended ex- parte summons.

If the summons is to proceed, service must be affected on all the defendants and the summons may then be re-listed on the giving of proper notice in accordance with the Rules, for further hearing.

THE COURT