Vaekesa v Simbe [2008] SBHC 109; HCSI-CC 85 of 2008 (30 May 2008)

HIGH COURT OF SOLOMON ISLANDS

ROBERT VAEKESA
(Representing the Vataroe Tribe of Choiseul Province)

V

GANDLY SIMBE
(Representing the Dali Tribe of Choiseul Province)
(1st Defendant)

GOLDEN SPRINGS INTERNATIONAL (SI) COMPANY LIMITED
(2ND Defendant)

ATTORNEY-GENERAL
(Representing the Commissioner of Forests)
(3rd Defendant)

AND

CHOISEUL PROVINCIAL EXECUTIVE
(4th Defendant)

Faukona, PJ.

Civil Case No. 85 of 2008

Date of Hearing: 14th May 2008
Date of Ruling: 30th May 2008

Francis Waleanisia for the Claimant
Philip Tegavota for the 1st and 2nd Defendants
John Muria (Junior) for the 3rd and 4th Defendants

RULING

APPLICATION FOR INTERIM INJUNCTIVE ORDERS AND THE APPLICATION TO STRIKE OUT THIS ACTION

Faukona, PJ:

1. On 27th March 2008, the Claimant filed an original application for injunctive orders. On 16th April 2008, the 1st Defendant filed on application to strike out that cause of action. On 23rd May, 2008, the Claimant filed an amended application. The Claimant seeks relief for the following injunctive orders:-

1. Injunction restraining the First and Second Defendants, their agents or any person acting under their instructions or authority from entering and or conducting felling of trees of economic value, clearing of bushes either for felling, road construction, campsite construction work or any other activities directly related to logging except activities related to bringing logs already felled to the camp site until further orders of the court.

2. Order directing the First and Second Defendants to pay 12.5% for royalty proceeds for all logs of economic value from Oloko land already felled and to be exported into court pending further orders of this court.

3. Any other orders the court deem necessary

4. Costs in the cause.

2. On the other hand the 1st and the 2nd Defendants apply for an order to strike out this action on the following grounds:

1. It discloses no reasonable cause of action against the 1st and 2nd Defendants; or

2. This proceedings is an abuse of the process of the court, or

3. The Claimant lacks standing to challenge the various timber rights agreement and the logging licence acquired by the 2nd Defendant over land areas from Nombe river to Kozo stream, as the customary ownership over the land from Kozo stream to Loanga river and in particular Ologho land vests on the Dali tribe by virtue of the Senga Chiefs Council determined dated 19th February 1999 and the land from Longa river to Nombe stream vests on the Pupurukana tribe awarded by the Ririo Chiefs Council determined on 17th May 2004.

4. Costs incidental to these proceedings be paid by the Claimant and.

5. Such other or further orders as the court sees fit.

3. During the course of the submissions both Counsels elaborate by making reference to case law and a number of affidavits in support of their clients applications. For convenient sake, it is more relevant to deal with the two applications at one time.

4. Claims to Ologho/Oloko Customary Land

The Claimant and his tribe Vataroe claim customary ownership of Ologho/Oloko customary land on Choiseul Island in Choiseul Province. Its boundary runs from Nombe river mouth, up stream to Guabangara then westward to Tatava stream, then down stream until it connects with Oaka river before proceeding to Urukolo. From there it runs upstream to the Guabangara and then northward to the head of Kozo river. Then it runs eastward along the coastline returning to the point of commencement at Nombe river. That boundary is concisely stated in the Claimants sworn statement filed on 27th March 2008. Looking from the direction of the sea in a simple description the boundary is from Nombe river to Kozo, river. The Claimant also reveal that Vataroe tribe had given some lands in custom to other tribes and clans from Oloko land.

5. That claim of ownership was affirmed by the decision of Avaso House of Chiefs in 1972 and again by the North and South Avaso Chiefs in 1984 including settlement of Oloko land boundaries. Re-confirmation of the ownership claim was made in 1992 by Lauru Land Conference, a Provincial initiative, and again determination by Area Council in 1992 affirming Claimant's tribe to grant Timber Rights in Oloko land to Eagon Resources Limited in respect of an application for logging licence.

6. On the other hand the 1st Defendant and tribe, the Dali tribe, claim ownership of Oloko customary land (same land) with a boundary from Loanga river to Lalaguti stream. The land was awarded to the 1st Defendant and tribe by the Senga Council of Chiefs in two separate hearings. The first on 19th February 1999 the Chiefs awarded the Dali tribe customary ownership of land from Loanga river to Kozo steam. Then on 30th September 1999 the same Chiefs Council awarded the Dali tribe ownership of the land from Kozo stream to Lalaguti river. The two Chiefs determination was tested in Court and the Solomon Islands Court of Appeal in Civil Case No. 15 of 2004 ruled that the two findings of the Chiefs are proper and within their powers under Section 12 of the Local Court Act.

7. From the two customary claims of ownership to the land, it is therefore crystalline, that the area of land that is actually under dispute is from Loanga river to Kozo river/stream. The land from Nombe river to Loanga river is not claim by the 1st Defendant and tribe, and from Kozo stream to Laloguti river is not claim by the Claimant and his tribe.

8. The Timber Rights Application

The Form 1 application submitted by the Golden Springs International (SI) Company Limited, on paragraph 5 (Exhibit RV1 to the Claimant's statement) filed on 9th April 2008, define Siruka and Oloko Customary Lands, as lands it intended to negotiate to acquire grant of Timber Rights. The Siruka land boundary is from Nombe river to Loanga river and Oloko land boundaries are from Loanga river to Kozo stream. At its determination the Choiseul Provincial Executive (CPE) on 9th August 2001 identified Dali tribe represented by the 1st Defendant, Chief Malaloka, Dilenty Itavoga, Peter Navala, Nelson Sogati and Watson Dikolo as persons lawfully and entitled to grant Timber Rights on Oloko land (Exhibit. RV10 to Claimant's Statement) filed on 9th April 2008. And the Pupurukana tribe was identified as lawfully entitled to grant timber rights in Siruka land.

9. It would appear that the current logging activities is intended to be undertaken in the land the first Chiefs Council hearing had awarded to the 1st Defendant and tribe.

10. Against the CPE determination five separate appeals were lodged with the Western Customary Land Appeal Court (WCLAC) including an appeal by Mr. Lukisi representing the Claimant's tribe. (Exhibit PT8 and Exhibit PV11). Subsequently those appeals were, withdrawn and discontinued and a consented judgment endorsed and entered by the WCLAC.

11. Following those withdrawals, discontinuation and consented judgment, the Principal Magistrate, Western, per his letters dated 17th April 2003, 2nd July 2003, and 20th October 2003, advised the Commissioner of Forest that there was no appeal pending before the WCLAC (Exhibit RV13, RV14 and RV17). It was after the letters confirming no appeal was pending that the Commissioner of Forest issued a felling licence No. A10115 to Golden Springs International (SI) Company Limited to carry out logging activities on the lands between Kozo stream to Pota stream and extend to Ologholata land between Pota stream to Loanga river after completion of its timber rights agreement.

12. Upon viewing of the Standard Logging Agreement (Exhibit. OL38) signed and executed by Golden Springs International (SI) Co. Limited and the 1st Defendant and other five trustees, on page 2 prescribe the land upon which the logging activities will commensurate, and the land is Ologholata customary land. According to the map attached to Form 1 (Exhibit PV1) Ologholata customary land is a portion of land coloured green and bounded by Loanga river to Pota stream. Indeed that portion of land falls within the disputed area. Not only that but the customary lands from Pota stream to Kozo stream are also within the disputed area.

13. Triable Issues

The law requires that the Claimant must demonstrate or raise that there are triable issues. Triable issues are live or existing issues or serious issues which the parties are yet to resolve in Court. And the processes to invoke the power of the court to decide on the issues have already being filed. The rationale for granting interim injunctive order is to maintain the status quo until the issues are finally decided by the Court.

14. In this case Mr. Waleanisia for the Claimant raised a number of triable issues:-

1. Whether the Claimant shows that there is a triable case in customary ownership over Oloko land and whether the issue of right of ownership and right to grant timber rights are issues still pending by way of appeal to the appropriate courts.

2. The issues whether the appeals to WCLAC, withdrawals and settlement agreements are properly constituted in law and bound other groups that did not sign.

3. Whether there are appeals pending, and if so, whether Choiseul Provincial Executive was correct in proceeding with the Timber Rights hearing on 31st July and 1st August 2001 and made its determination in favour of the First Defendant.

15. Mr. Tegavota conceded that the serious issue to be tried is the ownership of the customary land from Nombe stream to Kozo stream.

16. Issues 2 and 3 are substantive issues which call into question the WCLAC process and CPE process. Meantime I do not seem to know whether summons have been filed to question those processes in an appropriate forum. However, I noted that Civil Case No. 421 of 2005 is still pending in the High Court and perhaps the issue related to WCLAC process will be raised. It's a real issue that is.

17. In issue one the claims of customary ownership of the same land by two different tribes is identified as customary triable issue. It is a dispute over a customary land from Nombe stream to Kozo stream which has to be sorted out by appropriate forum. This court has no jurisdiction to entertain customary claim issues. As parties would agree there has been a referral to the Choiseul Local Court to determine the issue; meanwhile that case is still pending.

18. In Veno and Young v. Olive Jino & Others[1] His Lordship Palmer CJ said;

..."In so far as customary issues enumerated in this judgment are beyond the jurisdiction of this court, that the proper forum for dealing with such matters is before the Chiefs and the Local Courts, this court nevertheless has power to grant relief by way of injunctions as an aid to the exercise by a Local Court or Customary Lands Appeal Court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of the ownership issues in the Local Court or the Customary Land Appeal Court"...

19. What His Lordship was saying is that where a customary issue is pending in a Local Court or Customary Land Appeal Court, this court has the power to grant interim injunctions to enable the Local Court or the Customary Land Appeal Court conduct their sitting and determine the customary issues pending before them.

20. Mr Waleanisia for the Claimant submitted that Mr. Derald Galo's appeal to WCLAC against the application by Eagon Resources Limited in 1992 is still pending. Further submitted that Mr. Benjamin's referral case on 7th March 1999, to Choiseul Local Court against first Senga Council of Chiefs determination is till pending; in regards to land from Loanga river to Laloguti river. He also submitted that Mr. Lindley Lukisi's appeal together with appeals lodged by four other tribes are still pending in WCLAC.

21. Mr. Tegavota for the 1st Defendant silent about the appeal case in 1992 but said the referral case to Local Court in 1999 by Mr. Benjamin was not in compliance with Sections 12(2) and (3) of the Local Court Act. And also submitted that the appeals by four tribes and Mr. Lukisi had already been withdrawn.

22. I will touch briefly on the appal cases to WCLAC and the referral case to Choiseul Local Court later. For time being one cannot deny that Mr. Harrison acted immediately after Senga Council of Chiefs' determination by referring the case to the Choiseul Local Court and that case is still pending. I find the serious customary issue can well presented to the Local Court to determine the customary ownership of Ologho land. It is a triable issue which is yet to be tested in the Local Court forum. Where such issues are pending in the Local Court it forms good basis for application for injunctive orders. Therefore it discloses a good cause of action.

23. The Issue of Locus Standi

From the submissions it is conceded that the dispute between Dali tribe and Vataroe tribe is not new. In fact they have started to litigate concerning the same land since 1977. Both parties have gone through a number of timber rights hearing, Chiefs hearing, High Court cases and Court of Appeal.

24. Mr. Tegavota refers to the famous Simbe case[2] which establish certain principles. Among others, two are significant to this case.

1. That the High Court can only exercise its power to assist resolution on those disputes by the Chiefs and the Local Court.

2. That the principle of locus standi must be established through the appropriate forum before the court can exercise its discretion whether to grant interim injunction or not.

25. Mr. Waleanisia submitted by referring to the case of Taluomea v. Lolo Ngalulu Development Corporation where the High Court accepted a determination by the North Malaita Area Council as being sufficient ground to satisfy the mere assertion test. In that case the Court rule the determination (Area Council determination) does give 2nd and 3rd Plaintiffs the right to come to Court to challenge the Timber Rights agreement entered into by the 2nd Defendant and the licence issued in their favour.

26. In this case it is clear that in the initial stages of litigation the Choiseul Area Council had determined the Claimants tribe as rightful tribe to grant timber rights over Oloko land in 1992. Besides that, the Claimants tribe made a referral case through Benjamin Harrison against 1st Senga Chiefs determination in March 1999, to the Choiseul Local Court.

27. In furtherance Mr. Waleanisia also refer to earlier Chiefs decisions in 1972, 1984, and claim of ownership of properties on the land.

28. I am satisfied, because of the continues involvement of Claimant's tribe challenging the right of ownership of Ologho land with the 1st Defendant and tribe, and have gone through quite a number of Court cases, and a Local Court case is still pending, and the fact that his tribe was identified at one stage to grant Timber Rights; those interest in the least are capable of being protected by law. In my view those interest demonstrated by the Claimant and tribe gives him right to come to Court to challenge the Timber Right agreement and the licence issued in favour of the 1st Defendant by applying for injunctive orders. Therefore I rule that the Claimant in this case has locus standi to come to this court and seek the orders.

29. Pending Appeals to WCLAC

Appeals to Customary Land Appeal Court against Provincial Executive decision is provided for under S. 10(1) of the Forest Resources and Timber Utilisation Act, Cap. 40, (FRTUA).

30. For information of parties the law in regards to issues to be considered by CLAC on appeal from timber rights hearing has now been changed. Previously, for instance in the case of Shakespeare Gaoloboe and Others v. Jackson Galo[3], and many others, that the appeal before the Customary Land Appeal Court should not be about ownership of land but about identification of persons lawfully entitled to grant Timber Rights. That has now been shifted from. In the case of Gandly Simbe and Nathaniel Mela v. Harrison Benjamin, Peter Madada and Eagon Resources Development Company (SI) Limited[4], Kabui J. stated for that in customary law, the one who owns the land owns the trees that stand on that customary land. That has always been the understanding by the customary landowners in Solomon Islands. That thought has been departed from ever since. But now the courts begin to reinforce it. In the case of Havea Majoria v. Oliver Bikimoro[5], the Court of Appeal stated:-

..."The crucial point is where a decision is made by CLAC as to customary ownership of land as a necessary preliminary to determining the disposal of timber rights, that decision is binding on the parties and S. 10 of the Forest Resources and Timber Utilisation Act applies to it"....

31. What the Court of Appeal is saying is that where the CLAC in determining who is lawfully entitle to dispose of timber rights, it has to consider evidence related to customary ownership of the land as a necessary preliminary. Once CLAC has made it decisions, both parties cannot relitigate the same land before the Chiefs or the Local Court. The CLAC decision is binding on the parties.

32. In this case there are two appeals to WCLAC advanced by the Claimant as still pending.

1. An appeal by Derald Galotoba of Dali tribe to WCLAC per his letter dated 17th December 1992, against the Area Council determination which identified Vataroe tribe as lawfully entitled to grant Timber Rights to Eagon Company. The Claimant said that appeal is yet to be heard by the WCLAC. The 1st Defendant by his affidavit sworn on 30th April 2008 stated that the 1992 Timber Rights Hearing was quashed by the High Court Ruling in W. Katovai and Mark Qurusu's court case. Unfortunately this court is not provided with a copy of that case.

Even if the Timber Rights hearing was not quashed the ownership of Oloko land had been vested on Dali tribe after the two Chiefs hearing and determination. The question whether Mr. Galobata persue his appeal or not, will not change his position. The grant of Timber Rights had been overtaken by ownership rights in the land. (See Simbe and Mela v. Harrison Benjamin, Peter Madada and Eagon Resources Development Company (SI) Limited)[6]. Therefore Mr. Galobata has the better right than the right awarded by the Area Council.

2. The second set of appeal is from Lindly Lukisi, E. Galonaki, Alosi Jonah, Victor Philip and Joini Tutua (Exhibit RV 11 attach to Claimant's sworn statement) filed on 23rd March 2008. Also per individual statements sworn by each appellant and attached to the amended application filed on 13th May, 2008. The appeals were individual ones on behalf of their tribes and clans. And it was against CPE determination identifying Dali tribe represented by the 1st Defendant and others as lawfully entitled to grant Timber Rights in Oloko land from Loanga river to Kozo stream.

33. There is no dispute the appeals were lodged to WCLAC in accordance with S. 10(1) of FRTUA. The contested part is the withdrawal of those appeals. Mr. Lukisi withdrew his appeal by his letter of 8th September 2003 (Exhibit RV 16 to Claimant's sworn statement) filed on 27th March 2003, also (Exhibit OL50 to 1st Defendant's sworn statement) filed on 30th April 2008. Mr Alosi Jonah withdrew his appeal by his letter dated 430th June 2003 (Exhibit OL49) and Mr. Victor Philip withdrew his appeal per his letter of 16th September 2003 (Exhibit OL51). Nothing by any document filed by the parties indicated Mr. Galonaki and Mr. Tutua (per his sworn statement filed on 9.5.08) had withdrawn their appeals. No explanation is given to that effect. However I noted that the appeals by Mr. Alosi & Mr Galonaki are in respect of the same land from Kozo stream to Mulobo stream. Perhaps by their consensus Mr. Alosi had withdrawn their appeals. In any event Mr. Galonaki has to sign a withdrawal. Meantime there is nothing.

34. Also noted, there are four Settlement Agreements. One was between Dali tribe, Soboto Clan and Vataroe tribe (Exhibit. OL14) dated 21st February 2003. The other one was between Dali tribe and Soboto Clan (Exhibit OL18) and was signed on 21st May 2003.

35. The third one was between Pupurukana tribe and Leokana clan (Exhibit OL 29) and signed on 13th October 2003. The fourth one was supposed to be between Dali tribe and Vataroe tribe (Exhibit RV 15) but was not signed by the Vataroe tribe and was without a date (Exhibit. RV12, Exhibit EZ 2 and Exhibit OL 22).

36. Also noted is one consent judgment between Mr. Alosi and the 1st Defendant and party which was signed on 17th May 2003 (Exhibit E 22 and Exhibit RV 12).

37. After all that processes Mr. Luksi, on 10th October 2003, wrote a letter (Exhibit RV 16) to the Clerk of WCLAC intended to revoke his letter of withdrawal dated 8th September 2003. This was supported by the Claimant's letter on the same date (Exhibit RV 16). Not only for Mr. Lukisi and the Claimant but others too do not quite happy with the process. Mr. Philip expressed his disappointment by his sworn statement filed on 30th April 2008. Likewise is Mr. Zama representing Soboto Clan expressed his disappointment in his sworn statement filed on 9th May 2008.

38. On the other hand Mr. Lukisi and the Claimants revoking letters as above, now (Exhibit OL 56 and Exhibit OL 55) attached to 1st Defendant's sworn statement marked cancelled, settled on 10/10/03. I do not seem to understand what actually was going on.

39. However, it is significant to note that any withdrawal and discontinuation of an appeal after being endorsed by the WCLAC the case ceased on the date thereof, no revocation, no reinstatement whatsoever. From the documents file the only appeal which is not being withdrawn is that of Mr. Tutua and Mr. Galonaki who has not sign any withdrawal letter, consent judgment or even settlement agreement, unless his appeal is in corporate with Mr. Alosi's appeal, because both seem to claim the same land, or that his appeal has been dealt with any other way of which this court has not been awarded of.

40. Despite all those razzmatazz I also noted that there is a Timber Rights Agreement between Golden Springs and Soboto Clan executed on 12th May 2003 (Exhibit OL16). Also a letter of undertaking by Pupurakana tribe and Leokana Clan dated 20th November 2003 (Exhibit OL31). These two tribes who actually involve in those agreements are already in the logging operation stage.

41. I wish now to refer to the Court of Appeal case of Veno and Young v. Oliver Jino and Others[7], where their Lordships stated,

..."In this case, the proceedings in the CLAC were brought to an and by the approval given to the consent judgment to which the parties had agreed. As has been noted above, it was a term of the judgment that the appeal should be discontinued. It followed that no appeal was, to use the language of S.10 (2), entertained by the CLAC. The approval of the CLAC, therefore, was not a decision or order within S.10(2) – that is, on an appeal entertain by it – but only a decision or order to the effect that the appeal would not be entertained by it, in accordance with the consent judgment. It follows that the consent order, though binding on the parties to if in accordance with its terms, is not protected by S.10(2)..."

It should be observed that the terms of S. 10(1) grant jurisdiction to the CLAC to "hear and determine" appeals. Where an appeal is brought to an end by agreement, it is self-evident that the CLAC has not determined the appeal: it has been determined by the parties. That is not to say that the CLAC has no power to dispose of an appeal by approving such an agreement. However, it seems doubtful, to say the least, that the protection given by S.10 (2) applies to decisions or orders of the CLAC that are the result of agreement between the parties rather than determination of the CLAC on the merits.

42. Those two paragraphs quoted above are so clear about the significance of the consent judgment. It is not necessary for me to decide on this issue as it require proper summons with specific facts plead to that effect.

43. Referral Land Cases to Local Court:

Section 12(1) of the Local Court Act says that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that:-

(a) the parties to the dispute had referred the dispute to the Chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

44. In a simple term any customary land dispute has to go before the Chiefs first. Any party aggrieved by the decision of the Chiefs, should refer the dispute to the Local Court S.12 (2) Local Court Act. Party referring the dispute must produce a Local Court Certificate prescribed in Form 1 and signed by two or more Chiefs. Beside that, the referral party must also lodge a written statement setting out the extent to which the decision of the Chiefs is not acceptable, and the reasons for not accepting the decision S. 12(3) (a) and (b) of the Local Court Act.

45. The production of Form 1 certificate does not commence proceedings but simply facilitate proof that jurisdictional facts required by the powers under S.12(1)(a) and (c) have occurred. That certificate provide mode of proving those facts that the dispute has been heard by the Chiefs.

46. There mere lodgement of Form 1 does not refer any dispute to the Local Court, either – form or in substance (See Veno and Young v. Oliver Jino and Others[8]) above.

47. The lodgement of Form 1 or referral of a dispute to the Local Court can only be made by an aggrieved party. (See Veno and Young v. Oliver Jino and Others above; and also Muna v. Holland Billy and Another[9],] and not the party the Chiefs decision in favour of.

48. The Claimant in this case rely on Chiefs decision in 1972, 1984 and 1992 by Lauru Land Conference, as among others, to substantiate his interest which has been well established before the early court case in 1997. It must be understood that S. 12(1) Local Court Act; which empower the Chiefs to determine customary land dispute come into effect in 1985. Before 1985 the Chiefs has no power at all, for two specific reasons; one if a party aggrieved by the Chiefs determination where could he refer the case to, which court, there is no law provided for it. Secondly that the Chiefs decision is not binding on the parties. In other words it is not a valid decision. No law empower them to do so.

49. What powers then has the Lauru Land Conference. Is that organization come under the term chiefs as in the Local Court Act. What law has empowered Lauru Land Conference to determine customary land dispute. Should a party disagree with its decision which Court should he refer the dispute to? Reasonable as it may seem, the Lauru Land Conference has no power to make valid decision that may bind the parties in regards to customary land. It may make inquiries and make recommendations but they merely geared towards the rights one asserts.

50. The Claimant also stated that the Dali Tribe beside Harris Benjamin referred a dispute to Choiseul Local Court despite the Chiefs decision in their favour. The law has made it clear that only an aggrieved party is entitled to refer a case to the Local Court, unless the Dali Tribe is aggrieved by the Senga Council of Chiefs determination; in which case that referral is still pending in the Local Court as well.

51. The other referral was made by Harrison Benjamin who later was given back his court fee by the Office Boy of Magistrates Court, Gizo, with the words to the effect, that Dali tribe had already paid the fee, is an error. The aggrieved party is Vataroe tribe and Mr. Benjamin has acted swiftly on behalf of his tribe by referring the land dispute to the Local Court. The Local Court should accept Mr Benjamin's court fee and have the case on foot ready to be heard.

52. Previously the Local Court accepts the Form 1 Certificate and a Court fee to commence proceedings in the Local Court. Now S. 12(3)(a) and (b) has to be complied with after the Veno case in 2004. There must be written statement setting out the extent which the decision of the Chiefs is not accepted, and the reason for not accepting the decision.

53. Noted is (Exhibit RV24) a receipt for the sum of fifty dollars paid by the Claimant on 25th October 2007. It is a government receipt. In fact there are two receipts for fifty dollars each. One is in respect of Volekana land and the other for Ologho land. If that is another referral case then the Claimant ought to comply with requirements of S. 12(3)(a) and (b) of the Local Court Act before his referral case be accepted by the Local Court.

54. Having said a lot, it is obvious that the dispute in relation to Ologho/Oloko customary land is much alive between the parties. Neither the Choiseul Local Court nor WCLAC have the privilege to hear and determine the claims by the parties as yet.

55. Proceeding, abuse of Court Process

Mr. Tegavota pointed out that by deserting Civil Case No. 421 of 2005 which is still pending in the High Court and resort to this cause of action by the Claimant is an abuse of court process. Application for injunction orders in my view is an urgent application based on circumstances that arise. In this case logging machines and equipment had landed on the land which to the Claimants still under dispute and the Local Court has yet to decide the ownership in a case referred by Mr. Harrison. With that belief it is reasonable to file this case and sought the orders. I see there is no abuse of court process.

56. There seemed to be two referral cases to the Choiseul Local Court still pending, and perhaps one or two appeals to WCLAC still pending. To facilitate those courts to arrange for funds and hear the claims I have to exercise this court's discretion to:-

1. Refuse application to strike out this cause of action.

2. Grant relief sought in 1 and 2.

3. Costs in the cause.

THE COURT

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^[1]. HCSI CC No. 152 of 2003, Page 4, paragraph 3.
^[2] . Civil Case No. I of 1997.
^[3] . HC-CC No. 283 of 2002.
^[4] . HC.CC No. 205 of 2004, Page 2-3 paragraph 3.
^[5] . SICOA No. 36 of 2006Page 16 paragraph 2.
^[6] .HC-CC No. 205 of 2004, Page 3, paragraph 1.
^[7]. SICOA No. 2 of 2004, Page 5 paragraphs 8 and 9.
^[8]. SCA. CC No. 2 of 2004.
^[9] .(2003) CC No. 284 of 2004.