Oda v Bemobile (SI) Ltd [2010] SBHC 129; HCSI-CC 332 of 2010 (26 October 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 332 of 2010

BETWEEN

HAROLD ODA
Claimants

And

BEMOBILE (SI) Ltd
First Defendant

And

THE ATTORNEY GENERAL
(Representing the Acquisition Officer)
Second Defendant

And

THE ATTORNEY GENERAL
(Representing the Malaita Provincial Government)
Third Defendant

And

JOHN CRISWELL and others
Fourth Defendant

Mr Marahare for the Claimant
Mr Togamae for the First Defendant
Mr Banuve for Second and Third Defendants
Mr Tegavota for Fourth Defendant

Date of Hearing: 5th October 2010
Date of Judgment: 26th October 2010

Ruling

1. This case involves an area of land 20 metres by 20 metres in Auki, Malaita Province. The First Defendant (Bemobile) is a telecommunication company. It was granted a licence in December of last year to set up a mobile telephone network in Solomon Islands. Bemobile require a number of base stations in order to operate a mobile telephone network and one of them was to be built in Auki. An area of land was identified for the base station. It was customary land, at least I must assume it was customary land because although there is no direct evidence on that issue there would be no point in going through the acquisition process if it were not. The Malaita Provincial Secretary appointed the Second Defendant, Mr Ganito Filiramo as Acquisition Officer. The notice of appointment [1] does not say under what provision the appointment was made but again I believe I am safe to assume it was under s.62 (2) the Lands and Titles Act [Cap 133] (the Act). The public participation element of the acquisition process was completed and the Second Defendant made his determination. He identified the Fourth Defendants as the persons who were the owners of the land. The Claimant says he should be the person named as customary land owner. On the face of it this is all straightforward. It is nothing of the sort.
   
2. I must be circumspect in my comments because the determination of the Acquisition Officer has been appealed to the Malaita Magistrates' Court [2]. I would not want the Magistrate who hears the appeal to be constrained by what I say in this ruling. What is clear is that the acquisition process has not been completed. It does not end with the determination, it ends with the registration as set out in s.70 of the Act and that can only happen following the vesting order made by the Commissioner, in this case under s.69(1)(d) of the Act. Even though Bemobile have actual possession of the land the acquisition process is still continuing. Bearing in mind the provisions of s 69(1)(d) the agreement between "the Landowners" and Bemobile dated 14th March 2010 [3] will have little, if any, effect on the final outcome of this case or indeed the appeal before the Magistrate. Bemobile will only be able to take lawful possession of the land when a lease between them and Malaita Provincial Assembly is completed.
   
3. It is necessary to take a view as to how the proceedings have come before the High Court. That is not so easy to establish. What is clear is that the application I heard can only be for interlocutory relief pursuant to Chapter 7 of the Rules [4]. An appeal to the Magistrates' Court in Malaita is on foot. I cannot deal with the substantive matters sought in the application because they ask me to make orders which finally determine the rights of the parties and of course they are the subject of the appeal to the Magistrates' Court. I asked counsel for their views and no one argued that the application for interlocutory relief could not be dealt with by the High Court notwithstanding the appeal.
   
4. A party can choose the venue for determination of their claim. There is nothing to prevent a litigant doing exactly what the Claimant has done in this case. I am not dealing with an appeal against the Acquisition Officers determination. The claim before the High Court is based on trespass. Even so, the substantive matters will have to be adjourned until the Magistrates' Court has dealt with the appeal. That appeal may resolve all the issues. It may itself be the subject of an appeal to this court. In the meantime I can deal with the interlocutory application.
   
5. I can do so quite shortly and I will do so on the basis of the balance of convenience. Everyone agrees that Bemobile have built their tower. This is not a case where there is continuing work which will exacerbate any physical damage. If the Claimant can establish trespass and succeeds in his claim the level of physical damage and therefore the level of legal damages has already crystalised. The Claimant can be recompensed in damages. The trespass will still be continuing of course but that is not the same as saying the Claimants position will deteriorate further. Against that, removal of the tower will involve the First Defendant in considerable cost. It may also involve Bemobile in large penalty payments to the Government under it's licence. If I order the removal of the tower and the Claimant does not succeed the First Defendant will be involved in more cost in re-constructing the tower. The balance of convenience must be with the First Defendant.
   
6. I decline to make any of the orders which the court is asked to make and I dismiss the application filed on 13th September 2010. As mentioned in paragraph 4 above, the substantive claim is adjourned generally pending the appeal before the Malaita Magistrates' Court. The parties shall have liberty to apply on 5 days notice and I order that the costs of this application be costs in the cause.
   

Chetwynd J

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^[1] See the copy at page 47 of the Annexure MA-1 exhibited with the sworn statement of Michael Ah Koy filed 5^th October 2010.
^[2] See Exhibit HO-8 of the sworn statement of Harold Oda filed 13^th September 2010.
^[3] See page 39 of the Annexure MA-1 ibid
^[4] Solomon Islands Courts (Civil Proceedings) Rules 2007