Gatavolomo v Pagobele [2006] SBHC 113; HCSI-CC 56 of 2005 (10 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 56 of 2005

BEN TANAKESA GATAVOLOMO,
KIKO PITAKAJI
(First Plaintiffs)

AND

ORION LIMITED
(Second Plaintiff)

-v-

SIMON PAGOBELE
(First Defendant

AND

NASON SISIOLO
(Second Defendant)

(Mwanesalua, J.)

Hearing: 23rd June 2005
Ruling: 10th March 2006

W. Rano for the Applicants/Defendants
P. Tegavota for the Respondents/Plaintiffs

RULING

Mwanesalua, J: This is an application by the Defendants by Notice of Motion filed on 6th June 2005, to set aside the ex parte injunction order of this court of 4th February 2005, restraining the First and Second Defendants, their servants, agents, supporters and persons authorized by the Defendants from, inter alia, carrying out any work on Tungu Land for landing of machineries and logging equipment, construction of log pond site and camp site, and other logging activities.

Facts

The Second Plaintiff lodged its application in 2002, to the Commissioner of Forest Resources for approval to negotiate the acquisition of timber rights over Tungu Land on Choiseul Island. On December 2002, seven members of the Choiseul Provincial Executive determined that Ben Gatavolomo, Nason Sisiolo, Kiko Pitakaji, Timothy Tutua, Shadrack Sikavare, David Dorovoqa, William Bosevolomo, Danley Pitaboe, Meshack Ponisipa, Mathew Vosoe, Mathew Mulokana, John Kurebose, Bellis Qorajopa, Gordon Qasadere, Remond Qoloni and Banasi Gatavolomo as the persons lawfully able and entitled to grant timber rights over Tungu Land. Ben Gatavolomo and Nason Sisiolo are chiefs while the other persons are called trustees.

On 9th March 2003, these persons, a part from Nason Sisiolo, signed the Timber Rights Agreement with the Second Plaintiff. Another person by the name of Davis Vurusu also signed this Agreement. On 17th April 2003, the Choiseul Provincial Executive approved the Timber Rights Agreement and authorized the Commissioner to issue a Felling Licence to the Second Plaintiff. On 30th April 2003, the Commissioner issued Felling Licence No. A10248 to the Second Plaintiff over Tungu Land. This Licence will remain valid until 30th April 2008.

On 23rd September 2003, the First Defendant referred a dispute between himself and Ben Gatavolomo (First Plaintiff) to the Ririo House of Chiefs. This dispute concerns the objection by the First Defendant over the right of the Chiefs and trustees determined by the Choiseul Provincial Executive as the persons lawfully able and entitled to grant timber rights over Tungu Land. Ben Gatavolomo (First Plaintiff) was in attendance at the Chiefs’ hearing, but walked away before the Chiefs reached their decision. The Chiefs decided

(1) that the First Defendant is a member of the Degerekolo Clan which owns Tungu Land;

(2) that only members of the Degerekolo clan have the right to be trustees of Tungu Land and not members of different tribes; and,

(3) that the First Defendant had the right in custom to lodge objection against the trustees.

On 24th November 2004, a survey team sent by the Second Plaintiff began survey work on Tungu Land, in particular, the landing site, the log pond site and the Camp site at the sea side. The supporters of the Defendants arrived at the scene and told the survey team to stop their survey work immediately. The survey work was aborted for fear of physical clashes between the supporters of the Plaintiffs and the supporters of the Defendants.

On 4th February 2005, the Plaintiffs obtained an ex parte order against the Defendants. The Defendants have come to court via their Notice of Motion to set aside the order obtained against them by the Plaintiffs from this court on 4th February 2005.

The Ririo House of Chiefs decided on 23rd September 2003, that Tungu Land is owned by the Degerekolo clan. The First Defendant is a member of this clan, and as such, is owner of Tungu Land. The First Plaintiff did not disclose the decision of the Ririo House of chiefs on Tungu Land to this court when he and the Second Plaintiff made their application for the ex parte injunction on 4th February 2005. As applicants, they have a duty to make a full and fair disclosure of all the material facts of this case to the court. (See Brink’s-Mat Ltd-v-El Combe and Others [1988] 3 ALL ER 188). The duty to disclose material facts extends to disclosure of facts which might even lead to the court refusing interim relief on ex parte application (see Themex Ltd-v-Schot Industrial Glass Ltd (1980) referred to in Joseph Douglas and Joyce Alamu-v-Ronald Ziru-HC – Civil Case No. 148 of 1996).

My view is that the non disclosure of the decision of the Ririo House of chiefs by the Plaintiffs is of sufficient materiality to justify the immediate discharge of the ex parte order of this court of 4th February 2005. Accordingly the ex parte order of this court of 4th February 2005 is discharged.

Francis Mwanesalua
Puisne Judge