Talasasa v Lamupio & Others [2010] SBHC 83; HCSI-CC 390 of 2010 (29 November 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 390 of 2010

BETWEEN:

JOHN WESLEY TALASASA and TERRY TALASASA
(Representing the Kazukuru Left Hand
Land Owning Group)
Claimants

And :

MICAH LAMUPIO, JOHN TUTA ZIO, KITCHENER VAZU,
MAGELLAN LUBARA PIRIPITA and BILLY VEO
First Defendants

And :

BEMOBILE (SOLOMON ISLANDS) LTD
Second Defendant

Mr Tigulu for the Claimants
Mr Pitikaka for the First Defendants
Mr Togamae for the Second Defendant

Date of Hearing: 22nd November 2010
Date of Judgment: 29th November 2010

Ruling

1. I am today dealing with an interlocutory application for injunctive relief. The application is by the Claimants and it was filed on 22nd October 2010. I heard it as an urgent matter on 4th November. That hearing was adjourned to allow the Claimants' legal representative to make some changes and amendments to the filed pleadings. It came before me again on 22nd November. In their application the Claimants seek injunctions against both defendants restraining them from constructing a telecommunications tower (and doing other work) within Kazukuru Left Hand Land (KLHL) and stopping the Second Defendant (Bemobile) from making any payments to the First Defendants.

2. Bemobile is a new telecommunications company in Solomon Islands. It was granted a telecommunications licence on 18th December 2009 [1]. It is busy engineering the infrastructure needed to provide telecommunications all over Solomon Islands. This is one of a number of cases involving the company in similar circumstances. This case involves a "mobile base station", a tower, being built on Kerapagara land close to Munda. It involves a plot of land some 40 metres square and from an aerial photomap [2] it can be seen the plot of land is just to the north of the Munda airstrip.

3. The Claimants say they are the primary owners of KLHL and the plot of land is within KLHL. They argue their primary rights flow from High Court Judgments in 1971 and 1972 [3] and any work on the land such as that carried out by Bemobile can only be done with their express permission. No permission has been granted.

4. The First Defendants say they, "...have right to land in question" and "do have right to invite and enter into an agreement with the Second Defendant". Their rights flow, they say, from a decision of the Western Customary Land Appeal Court (WCLAC) [4] in 1985 which judgment was upheld in the High Court and Court of Appeal [5].

5. In order to acquire access to the site there was some contact between Bemobile and the Western Provincial Executive. There is no evidence of that but it must have occurred for what happened next to have taken place. What happened was the appointment by the Provincial Secretary (Supervising) Western Province of one Japhet Limopu as an Acquisition Officer pursuant to section 61(1) of the Lands and Titles Act [Cap133] (the L&T Act) [6]. Mr Japhet's appointment was on 16th July 2010. It is not disputed that prior to Mr Japhet's appointment, Bemobile had been negotiating with the First Defendants and had signed a memorandum of understanding [7] dated 1st July 2010. Mr Japhet was involved to some extent in those negotiations. On 21st July there was a public hearing pursuant to section 64 of the L&T Act. It had been advertised by notice dated 1st July and signed by Mr Japhet as acquisition officer and posted at Kekehe village. Following the meeting Mr Japhet published his determination and reported as required.

6. At this point it should be noted that I am dealing with a procedure under the L&T Act. There is a process for acquiring access to public and non-public land set out in the Telecommunications Act (No. 20 of 2009) (the Act). The Act was brought into force by Legal Notice dated 8th September 2009 and published by Legal Notice No.56 on 10th September. The appointed day was 11th September. Part 14 of the Act, sections 85 to 89 inclusive, deal with the access to Public Land. Part 15, sections 90 to 95 inclusive, deal with the access to non-public land. It is clear the procedures described in paragraph 5 above are not in accordance with the Act as set out in those sections and they can only be in respect of a process under Part V of the L&T Act. I do not know why Bemobile have not used the Act to access the land. Perhaps because, it appears to me anyway, its provisions as to land are somewhat suspect and it looks as if it is in direct conflict with the L&T Act in some very important respects. For example what other "interest" can the Commissioner of Lands "create" in accordance with section 92(2) of the Act, if the land over which access is sought is not registered land or registered customary land (whatever that might be). How can the Commissioner create a lease over customary land given the definitions of "lease" and "estate" in section 2 of the L&T Act? How does any interest created by The Commissioner sit alongside section 241(1) of the L&T Act? Fortunately those questions and the answers to them are not relevant in this case as the Bemobile are endeavouring to access the land via the land acquisition process set out in Part V of the L&T Act.

7. That finding has consequences for the Claimants. There is a specific appeal procedure set out in the L&T Act in respect of the acts and determinations of an acquisition officer. By section 66 of the L&T Act appeal is to the Magistrates' Court. There is no evidence before me about any appeal. If there were an appeal I would have to adjourn this matter generally pending the appeal. The Claimants are now well outside the time allowed for an appeal to the Magistrates' Court and I have to assume no appeal was lodged. No reasons have been given. This has some considerable bearing on whether the Claimants are entitled to the order they seek or indeed whether they are entitled to any orders. Another way of putting that is do the Claimants have a cause of action? As both counsel agree in their submissions that I need to consider whether there is a serious triable issue before granting the interlocutory orders that is what I need to do now.

8. The relief claimed in the amended Claim filed 8th November is for a declaration relating to 1971 and 1972 High Court decisions; a declaration the land acquisition process, "is a nullity"; an injunction restraining the construction of a telecommunications tower, "without the permission of the Claimants; damages and costs. The whole claim is premised on the basis that the Claimants are the Primary owners of KLHL and that their status as such is fixed by the High Court cases.

9. As the case is presently pleaded, there is no reasonable chance of success as regards the "declaration" concerning the acquisition process. The Claimants are seeking a judicial review by way of a quashing order. The claim is defective in that regard and discloses no reasonable cause of action or serious triable issue.

10. The balance of the claim is also seriously defective because it is premised on the bald assertion that, with nothing else, the High Court cases in 1971and 1972 are conclusive evidence the Claimants are Primary owners. The Defendants have produced later cases, including a Court of Appeal decision, which cast considerable doubt on the assertion of Primary ownership. As pleaded at the moment the claim could not be said to show there are serious issues to be tried. Even if a declaration was made in the terms sought in paragraph 1 of the claim for relief, it may not assist the Claimants. The reason being the later judgments produced by the Defendants may render such a declaration worthless. If the First Defendants are in breach of the judgments in the 1971 and 1972 cases it may be the later judgments vindicate their behaviour. Having said that, the pleadings so far do show some kind of issue or issues to be decided, it is just not clear what it or they might be. This is not a case where the claim should immediately be struck out. It may be possible, by amendment, for the Claimants to raise their game.

11. I can go on to consider the interlocutory order that is being sought. In doing so I turn to the question of the adequacy of damages should the Claimants succeed in whatever claim they manage to salvage. There is no doubt in my mind that damages would be an adequate remedy. We are talking about a tower constructed out of metal and seated on concrete pillars[8] . Whilst it is not a temporary installation it is by no means a permanent one. It could be removed, no doubt at considerable cost to the Second Defendant but that is not my concern, and the land re-instated. The reference to the many millions of dollars in the Claimants' submissions mistakes the penalties that the Second Defendant says it might face for not complying with its licence with the proposed extent of the "development". The tower has been completed and nothing further to be done to it will increase the damage to the land. In any event this may be a moot point, the claim for damages is incomplete because no cause of action is pleaded which could give rise to damages. On the basis that the claim is amended so that there is a genuine cause of action I find that damages would be an adequate remedy for any claim that might arise.

12. On the question of the balance of convenience I would have to say this is weighted considerably in favour of the Second Defendant. I do not accept that the Claimants want to get rid of the tower, their concern is that they were not consulted and that they may not share the financial rewards, i.e. the rent paid for the tower. If I were to order the cessation of any remaining work on and the dismantling of the tower there may be serious financial consequences for the Second Defendant in particular. In saying that, I do bear very much in mind the Second Defendant is a business and it must be prepared to take the risks as well as the rewards of commerce.

13. That is not an end to the matter. My firm view is Bemobile cannot be absolved completely from the blame for this messy dispute. As I have said earlier, there are two distinct procedures for obtaining access to land available to it. Bemobile could have opted to utilise the procedures set out in the Act. It chose to go the Part V route under the L&T Act instead. It has not properly followed the process though. It seems to want to mix and match the procedures under the two acts. It cannot do so. The provisions in each act are mutually exclusive. The implication in the evidence is Bemobile will enter into a lease with the landowners. It cannot do so under the Part V procedure. Under Part V of the L&T Act and on acquisition pursuant to section 69(1)(d) the Landowners (the First Defendants) will be registered as the holders of the perpetual estate and they grant a lease to the Western Provincial Assembly. The Western Provincial Assembly can sublease to Bemobile or even transfer the lease to Bemobile subject to the provisions of the L&T Act. Using part V of the L&T Act means Bemobile cannot take advantage of any of the provisions in the Act relating to access to land, i.e. Parts 14 and 15 of the Act. They cannot pay money to the Telecommunications Commission under section 91(6) of the Act.

14. As there is a possible dispute and as amendment of the pleadings may give rise to a triable issue which may result in negating the agreement between Bemobile and the First Defendants I am prepared to make an order protecting any financial consideration likely to be paid by Bemobile. I am prepared to make an order stopping Bemobile paying any money to the First Defendants relating to the use and construction of the tower. The order will be limited in time.

14. The order I am prepared to make on this application is as follows:-

1. The Second Defendants are restrained from making any payments to the First Defendants in connection with the construction and use of the telecommunications tower erected on or in the course of erection on Kerapagara Land at Munda, subject to clause 4 below or until further order.

2. The Claimants are granted leave to amend the Claim and Statement of Case.

3. The pleadings amended in accordance with clause 2 above shall be filed and served within 14 days.

4. If, and only if, amended pleadings are filed within 14 days in accordance with clause 3 above any monies in whatever form payable to the First Defendants shall instead be held in an account in the joint names of the Claimants' and First and Second Defendants' Legal Representatives or otherwise to the satisfaction of such Legal Representatives. If no amended pleadings are filed within 14 days the injunction at clause 1 above shall be discharged.

5. Each party shall bear their own costs of this application.

6. Liberty to apply on 3 days notice.

Chetwynd J

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^[1] See page 29 of the exhibits to sworn statement of Michael Ahkoy filed 3/11/10
^[2] See exhibit MT4 to the sworn statement of Milton Talasasa filed 22^nd October 2010
^[3] See exhibit MT1 ibid
^[4] See exhibit BV2 to the sworn statement of Billy Veo filed 12^th November 2010
^[5] See exhibit BV3 ibid
^[6] See pages 18 to 20 inclusive of exhibit MA1 to the sworn statement of Michael Ahkov filed 3^rd November 2010
^[7] See pages 1 to 8 inclusive ibid
^[8] See Exhibit MT6 in the sworn statement of Milton Talasasa filed 22^nd October 2010