Sira v Maemae [2006] SBHC 3; HCSI-CC 615 of 2005 (10 February 2006)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 615-05

FANETA SIRA

V.

WILSON LEDI MAEMAE, MAHLON KIDI, OLIFO’OA RAGA AND ENELE RAMO; AND LINUS ITEA AND JOHN ITEA

Date of Hearing: 3 February 2006
Date of Ruling: 10 February 2006

A. Hou for the Applicant (ex parte)

Palmer CJ.: This is an ex parte application for interim orders to restrain the first and second Defendants (“the Defendants”), their servants and agents form entering Ongo land to carry out logging, teak planting and rice farming until further orders of this court.

The Plaintiff’s claim derives from his membership of the Ongo tribe which he says is the owner of Ongo land. He claims the Defendants have trespassed into Ongo land without their permission, consent or knowledge.

Apart from their claim of ownership in custom over Ongo land, there is nothing put before me to suggest that the Defendants have any rights to enter the said disputed land other than competing rights of ownership in custom over the same area of land. In an ex parte application the Plaintiff has duty to disclose all relevant facts within his knowledge to enable the court reach a just and fair decision in the circumstances and any acts of non-disclosure will result in any orders obtained having to be discharged.

In the circumstances of this case, the facts do show that the Plaintiff does have rights in custom recognised by law which appear to have been breached and has come to court to protect by way of an interim order.

The affidavit material relied on in support of his application shows that he has taken steps to move the process through the land dispute resolution processes. As soon as he became aware of the intentions of the Defendants in January 2005 he reported a land dispute in February 2005 to the Chiefs in his area; the East Fataleka Council of Chiefs. In March 2005 his lawyer wrote to the General Manager of Elite Enterprises Ltd to stop any plans to carry out logging activities and they complied. The first Defendant however turned to planting teak trees on the disputed land instead. On 3^rd March 2005 the Plaintiff through his lawyer wrote informing them of the pending chief’s hearing and to attend. Four attempts have been made it seems but to no avail. On 6 October 2005 the Plaintiff reported the matter to the Malaita Local Court. It is yet to be listed. In the first week of December 2005, he learned that the first Defendants intended to pursue logging activity on the disputed land again through a different contractor. On or about 23^rd December 2005, he filed Writ and Statement of Claim and sought an application ex parte for interim orders which was eventually listed and heard on 3^rd February 2006.

I am satisfied the Plaintiff has demonstrated that there are triable issues pending determination before the Local Court. This court has jurisdiction to aid the processes in the lower courts by issuing interim orders to prevent further breaches on the disputed land. Land in Solomon Islands is a very important commodity. Any damage or further damage will be irreparable especially where commercial logging is allowed to commence pending determination of disputes over competing rights of ownership. That must however be balanced with any damages which the Defendants may suffer as a result of any restraining orders which this court may grant. In the exercise of its balancing exercise it is a requirement that the Plaintiff must lodge an undertaking for damages in the event the Defendant wins their case at the end of the day. In certain instances, the court does not require an undertaking for damages especially where the other party is financially well off and the bargaining power is clearly unequal. In this instance however the parties are landowners. Whilst I am satisfied on one hand the scales tip in favour of the issue of interim restraining orders I am not prepared to do so in the absence of an undertaking for damages. Subject therefore to the filing of an undertaking for damages the following orders may issue:

1. The First and Second Defendants, their servants and agents to be restrained from entering Ongo land to carry out logging, teak planting and rice farming until further orders of this court.
   
2. An inter partes hearing to be fixed for hearing within 21 days.
   
3. Costs in the cause.
   

The Court.