Bako v Rozo [2011] SBHC 139; HCSI-CC 366 of 2011 (22 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 366 of 2011.

BETWEEN:

JAMES BAKO, BEN GNAGO, and JAPHET Claimant
MUNAI (as representatives of the Thogokama tribe).

AND:

LEPPING GEDI GORRENCE ROZO,
ABEDNIGO KAHE, CHARLES DAFE, and
MARSDEN MAIRI (as representatives of the
other group that are purportedly claiming to
own the Bagaho customary land).
First Defendant

AND:

GLENGROW SI. CO. LTD
Second Defendant

Date of Hearing: 27th October, 2011.
Date of Ruling: 22nd November, 2011.

Mr D. Hou for the Claimant.
Mr D. Tigulu for the Defendants.

RULING ON APPLICATION FOR INJUNCTIVE ORDERS.

Faukona J: This application was filed on 14th September 2011 by the Claimants. The orders sought are;

1. An interlocutory order restraining first and second defendants whether by themselves or their servants or agents from entering onto the bagaho customary land as demarcated below in paragraph 2, for the purpose of felling any trees of economic value and milling or removing any timber therein until further order;

2. An order that all the trees felled from the said land be sold and the proceeds thereof be paid into a joint trust account in the names of the lawyers of the parties until further orders;

3. The defendants produce an account of all the timber already shipped and exported;

4. A penal notice is attached to the interlocutory orders.

2. Rule 7.9 states a person may apply for an interlocutory order before a proceeding has started. Rule 7.10 sets out the requirements to enhance such application. Rule 7.11 sets out grounds for consideration before making such order.

3. In this case the Claimants rely on a letter dated 18th July 2011, written by Mr David Bako addressed to Hograno House of chiefs requesting them to convene and hear the customary land dispute concerning bagaho customary land; as a basis to come to Court and seek injunctive orders. The purpose of injunction is to preserve the status quo until the core issue of ownership is determined.

4. From my perspective view, it appears; that letter was an initial arrangement or request for an administrative process that may lead to the conduction of the chiefs hearing. The fact is that there is no guarantee that Hograno chiefs will hear the dispute unless both parties agree to. In any event sections 11 and 12 of the Local Court Act have to be complied with. Though the line of arrangement may require time, however, reflective of the true intention of the claimants.

5. Despite whatever the outcome may be, the intention is recognised as one which desired a customary resolution of the ownership of bagaho land. And that has to come from a forum empowered, or having legitimate jurisdiction to exercise. When, the case is heard by the chiefs is any body's guess.

Locus Standi:

6. One of the requirements under Rule 7.10 is that a person seeking injunctive orders must have legal standing or rights to come to Court. In other words, the person bringing such action has sufficient relationship to the dispute or the issues to be determined.

7. Allegation of ownership to customary land is an assertive claim which can be broadly interpreted to include others unexpectedly. But that cannot be brushed aside by mere understanding of history of a particular land, or whether the litigant originated from the land itself, or in the surrounding vicinity. Such assertion has to be filtered through the legally required system; and in this case through the chief's determination. Assertive ownership though fluid at the beginning has placed a person (litigant) directly affected and graded as having interest to the land. The question is, has a person with assertive claim of ownership, entitled him to seek injunction over a disputed customary land.

8. There is material evidence that the grandfather of the claimants Mr Walter Notere had undertaking a deal with the Government of the Protectorate in 1919 (see exhibit "JB2") selling part of the land now subject of this application. On that basis the claimants in bringing this action, has some relationship to the dispute or the issue to be determined. Therefore has standing to come to court.

Delay to challenge the timber rights hearing:

9. The issue of delay is submitted by Mr. Tigulu base on the case of Havea Majoria. Mr. Tigulu persisted that this case is wrongly brought to Court. The defendants had carried out logging based on timber rights granted in 1991 followed by issuant of felling licence renewed from time to time. He submits that since 1991 there was no challenge to the timber rights process and thus leads to the question, what cause of action the claimants are pursuing in Court now.

10. From materials it appears the claimants are pursuing the ownership of customary land. There is no dispute that the timber right process had been done according to the old Act, and there is no dispute none of the Claimants name appeared as person identified as having rights to grant timber right in bagaho customary land. The reason for being delay as appear from the material is that they were not aware of the timber rights process. At the same time attempt was made when they learned of it to sort out the question of customary ownership outside of court. Therefore could not able to challenge.

11. This is an unusual case where after timber rights processes had been completed, and licence issued, it took nineteen (19) years before the second defendant commenced logging operations. It arouses suspicion why the licence continued to be renewed without actually indulged in the business it was issued for. Because of the length of time taken, it may prompt one to assume there was no timber rights at all, and so not able and bother to challenge. I have considered the rights of the claimants who may not be the generation at the time of the timber rights hearing.

12. However, if the claimants are persons without money and could not afford legal cost of private lawyers, then it reflects they are village dwellers without any form of financial sustenance. And that will prompt the only conclusion that they have been at home all the past years, and expectedly, should well verse with all the events including the timber rights hearing, after which they would have sought to exercise whatever rights they may have to bring the dispute about ownership before the right forum. The issue of delay to challenge the timber rights process, and late commencement of logging operation, are events beyond normality, however, is considered in the circumstances of this case.

On the other hand the Court of Appeal stated in Simbe's case[1] paragraph 27, first part;

"In determining whether an injunction should be granted or continued, the learned primary judge was entitled, if not bound, to take into account this history of inactivity or inaction of the part of the plaintiff in pursuing his claim to be interested in the land as customary owner. It was a factor relevant to the discretion which His Lordship was exercising to grant or withhold the relief sought by way of injunction".

13 In this case it appears until the logging operation commenced in June 2010 that the claimants for the first time rely on the claim currently advance. In fact it was one year after the operation that Mr David Bako wrote a letter to the Hograno house of chiefs to convene and hear the claim of ownership. They have sit on their rights ever since, and that is not good enough.

Serious issue:

14. First and foremost is that the claimants in this application must show that there is a serious issue to be tried. In this case there is only one issue. That is the ownership of bagaho customary land. As I have mentioned above there is correspondence initiated where possible, for the Hograno house of chiefs to hear the matter. Whilst that has not been confirmed, however, there is likelihood the issue be heard in an appropriate house of chiefs in latter course of time. When would be a fix time cannot be confirmed for now.

15. The power of the High Court to grant relief by injunction is well stated in Simbe's case[2] in aiding the local or customary appeal court decide such disputes. Whether or not the court would prepare to grant injunction to restraint entry, and felling and removal of timber depends on the circumstances including assessment of the claimant's claim of ownership and the prospect of succeeding in the relevant court.

16. Mr. Hou argues that the Court of Appeal in Simbe's case[3] has no mention of a need for pre-existing cause of action, a fully accrued cause of action or jurisdiction by the High Court over customary land to enable the High Court to grant injunction to aid the local Court. He submits that Simbe is authority for granting free standing interlocutory injunction over customary land pending determination by the land Courts. All that is required to be pleaded is to show that a dispute is pending before a relevant land Court or the chiefs Court.

17. On the contrary, Mr. Tigulu submits that entry into customary land is permitted by the timber rights process followed by the issuant of a logging license. The Court will only intervene where the process under FRTU Act is not complied with. Any grievances in relation to that process and determination must be brought through the right process under the relevant Act. Where there is no challenge of the timber rights processes or under the regime for review that has to be considered as evidence of ownership of land. Mr Tigulu then refer to the case of Havea Majoria; unfortunately Mr Tigulu failed to provide the case as he promised he would.

18. I noted there are cases in this jurisdiction where application for interlocutory injunction was dismissed on the basis that there were no cause of action accrued or will be filed immediately. Nevertheless, if nothing is on foot Mr Hou suggests that the Rule is broad enough to accommodate filing of a cause of action later. He refers to a number of foreign case authorities. One such case that upholds the view that there has to be a claim on foot is in Basil Manepuhi & others v Marovo Development Company Limited and New World Ltd[4]. In that case the court said on paragraph 14;

"In submissions for the applicants it was asserted that the test is satisfied if it can be shown that there is more harm to the applicants in allowing the logging to continue than to the defendants in being restraint. That is not the correct test but represents a misunderstanding of the balance of convenience. The balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not an adequate remedy. The latter is not present here and the former is not shown because there is no claim on foot. It is where there is doubt as to the adequacy of damages that the balance of convenience arises. Here damages are adequate".

19. Having said that the Simbe case[5] further reiterate on paragraph 27, second part;

For the purpose of assessing its status as an interest in land capable of supporting a claim to impugn the timber rights agreement and attracting an injunction restraining entry on, and felling and removal of timber from, customary land, it is not altogether easy, nor even necessary, to identify it with any corresponding interest in land at common law; but, on any view of it, the claim or interest now asserted by the plaintiff is contingent and remote, and not of a direct or present kind that would readily call for an injunction to restraint trespass or even waste at common law. The fact that whatever its true character, its existence has not yet been recognised in proceedings before any tribunal or court is a cogent reason for saying that the question of ownership ought first to have been passed upon in a customary court before it was made the basis of the plaintiff's claim for an injunction in the High Court.

20. In this case the issue of ownership has yet to be filed in the chief's tribunal. What the claimants did were mere inquires where possible the Hograno house of chiefs to hear the issue. There is no doubt the issue of ownership is so significant in that, although none of the claimants names were on the list of logging agreement as grantors; there is evidence in James Bako sworn statement filed on 14/9/2011, Exhibit "JB2", in relation to a conveyance document which Mr Walter Notere executed as a beneficial owner conveying upon the Acting Resident Commissioner of Solomon Islands a parcel of land situate at jingero, which is within the disputed land. Mr Walter Notere is the grandfather of the Claimants, and that piece of evidence is yet to be tested.

21. On the same note there is a conveyance of will over moloforu land by Japhet Munai (one of the claimants) to his two children. Moloforu land is part of the land now in dispute. That document was witnessed and signed by James Bako. On clause 4 it was declared that Janet Munai and Ben Polycarp Munai are the land owners of moloforu and caretaker, but they must respect the original owners of bagaho land. Who are the original owners? Definitely not the claimants as it appear.

22. In any event the issue of ownership of land become, as usual, a serious and triable issue which has to be determined. The claim which seems to gain momentum is straight forward as oppose to the timber rights determination. I have taken cognitive the sooner the chiefs determine the issue the better.

Irreparable harm:

23. The question to ask is will the claimants suffer irreparable harm that cannot be adequately compensated by damage; and there is unlikely harm to the defendant that cannot be compensated by the Claimant's undertaking as to damages. The Court will normally grant injunction in such circumstances.

24. In this case there is no undertaking secured by the Claimants to adequately compensate any damages that may harm the defendants? The reason as stated is because the claimants are village people with no source of income at all.

25. One of the reasons for introducing the practice requiring undertaking is to assist the Court from expressing an opinion on the merits of the case until trial of the hearing. If the Court should strictly adhered to undertaking practice as to damage upon grant of interlocutory injunction, then the theory that the ability to pay seems to favour the rich. Mr Hou refer to Lord Denning in Allen v Jambo Holding[6] who said,

"I do not see why a poor plaintiff should be denied a mareva injunction just because he is poor, whereas a rich plaintiff would get it".

26. As I have said earlier that the issue of undertaking and adequacy of damage is only one factor to be taken into account in determining the balance of convenience.

Balance of Convenience:

27. Balance of convenience mean that the Court is not balancing the convenience of the parties, but must consider the risk of doing injustice to the parties. In any event each party may suffer harm if the injunction is granted, and the claimant fails at trial, or if the injunction is not granted and subsequently the claimant succeeds at trial. In such circumstances the Court must consider the balance of convenience whether to grant or refuse granting the interlocutory injunction.

28. Mr Hou submits that six shipments had been gone and good majority of virgin forest still to be logged. To allow logging to continue whilst awaiting determination by the chiefs meant a good volume of damages is expected which cannot be adequately compensated from the land. There is need to preserve the land from further damages.

29. On the overall, may I ask, on what basis does the claimants brought this case; is it on timber rights process or claim for trespass and damages. From the claimants point of view it is not a challenge to the timber rights process or a claim for trespass and damages or even for judicial review. If so, it is apparent, that all relevant gateways had been closed. It remains one reason that is a challenge to the customary ownership to the land. It may seem the claimants may have the privilege to bring the issue of ownership in the chiefs hearing. And whilst that right is still open to pursue, where does the balance of justice lies.

30. To conclude, the claimants may not be rich enough to provide undertaking, or late to file a claim, but the issue of ownership remains significant to determine. There is evidence that the case may go either way. However the cases of Simbe and Basil refer to above, seem to advocate a corresponding and a very important point. That is the filing of the claim has yet been recognised in the chiefs tribunal. Simbe has made it clear that has to be done before it was made the basis of the claimant's claim for an injunction in the High Court. There is no claim file with the relevant house of chiefs. That tips the balance of convenience on the defendants. I therefore refuse to grant interlocutory injunction as sought.

Orders.

1. Interlocutory injunction Order refused and dismissed.

2. Cost of this application is paid to the defendant to be agreed or taxed.

The Court.

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^[1] SBCA 9; CA—CAC 8 of 1997, 9^th February 1999.
^[2] Ibid
^[3] Ibid
^[4] Unreported CC 294 of 2008 (28^th October 2010).
^[5] Ibid.
^[6] (1980) 1 WLR 1252.