Anifaelolo v Maemarine [2011] SBHC 187; HCSI-CC 243 of 2011 (25 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 243 of 2011

BETWEEN:

DONA ANIFAELOLO and LINUS OGALI
- (Representaives of Feratalona Tribe)
Claimants

AND:

AUGUSTINE MAEMARINE and SIOSI
DIOKO - (As Representatives of Kwao Tribe)
Defendant

Date of Hearing: 12 October 2011
Date of Decision: 25 October 2011

D Hou for Claimants
D Tigulu for Defendants

RULING

Mwanesala J

l. The claimants seek three main Orders in this application. They are: (a) An interlocutory injunction restraining the defendants whether by themselves or their servants or agents, from entering the Matalibore and Suliliu Islands for the purposes of interfering with the operations and activities of the Feratalona cultural centre and/or interfering in any way with the financial support/funding as arranged and agreed between the claimants on the one hand and the Ministry of Culture and Tourism by its employees, servants and agents on the other hand until further order; (b) An Order that any profits earned from the Feratalona Centre in the future be paid by the Claimants into an account in the names of the parties pending further order; and a penal notice be attached to any interlocutory orders granted herein.

2. Matalibore and Suliliu Islands are situated at the Bina Harbour Area of the Langalanga Lagoon, in the Malaita Province. At present, the Claimants have developed a Cultural Centre on Matalibore Island with funding assistance from the Ministry of Culture and Tourism. The second phase of this Project is to construct houses to accommodate tourists on Suliliu Island. That has yet to be done. Further developments and funding for this Project have been prevented by a prevailing land dispute between the Claimants' and the Defendants' tribes over the customary ownership of the Islands; and, alleged interferences from the Defendants.

3. With regard to the interferences, the Claimants referred to, inter alia, to a letter of 18 February 2011 from the Defendants to the Feratalona Tourism Association of which the Claimants are Members; a letter of 28 March 2011 to the Director of Tourism via the Permanent Secretary of the Ministry of Culture and Tourism; and a letter of 3 June 2011 to Feratalona Association annexed to the Sworn Statement of Linus Ogali filed on 19 September 2011. These letters are markers as Exhibits "Lo8", "Lo10" and "Lo15" respectively. As to exhibit Lo8, the Defendants advised the Claimants to "cease work on any development on Matalibore Island and cease to invite, arrange or organize any tourism activities or attraction on the Islands." Exh. "Lo10" raises the ownership of Matalibore Island; and Exh "Lo15" shows that the Defendants stopped the Ministry of Culture and Tourism from continuing to provide any more support to Feratalona Cultural Centre; not to attend the opening of the Cultural Centre on 2 March 2011; and that Mr Ariana Everst issued threats to officers of the Ministry of Culture and Tourism who might attend the official opening of the Cultural Centre, first on 2 March, and then, when the date was moved to 9 March 2011, that did not eventuate as well.

4. The claimants submit that the injunction sought in this application should be granted against the Defendants. They say, if the injunction is refused, the Claimants would suffer irreparable loss and damage on their investment. They have so far invested much time and resources on the project. They then proposed that the income from the Investment should be deposited into a bank account in the joint names of the parties pending final determination of the land courts as to which of them owns the Islands according to custom. They submit that if injunction is refused, the Defendants would not suffer any loss or damage in relation to the investment.

5. The Defendants opposed the application. They contend that it would be wrong for the Claimants to continue with their project whilst an injunction is on foot against them. The customary ownership of the islands should have been resolved first before the project was allowed to start. That was not done.

6. The jurisdiction of the High Court to the grant of injunction in relation to customary land was explained by the Court of Appeal in Simbe's Case.^[1] The court staid:

"The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such dispute. An injunction of that kind is designed not to facilitate the determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary land appeal court specifically invested by parliament with the power to decide it. Pending decision of that dispute in the local court or the customary land appeal court, proceedings in the High Court would be ordinarily stayed on appropriate terms ... ... As it is, such a result can be allowed indirectly by using the procedure of an injunction and staying the action discussed above ".

7. In relation to the above passage, Mr. Hou for the Claimants submits, no mention was ever made for the need for a pre-existing cause of action, a fully accrued cause of action or jurisdiction by the High Court over customary land as a pre-cursor to the power to grant injunctions to aid the local court etc,. He therefore contends that Simbe is authority for the granting of a "freestanding" interlocutory injunction over customary land in Solomon Islands pending the determination of a land dispute by the land courts. It is not based on the cause of action before the High Court. All that is required to be pleaded is to show that the dispute is pending before the relevant land courts starting before the Chiefs' Court.

8. Mr. Hou went on to say, according to Peter Devonshire, the High Court of Australia "having emancipated mareva orders from the realm of injunctions, [....] has positioned Australian law to impose mareva and analognous relief as free standing aid where the circumstances warrant"^[2] Mr. Hou then reiterates that this was what has confronted the Court of Appeal of Solomon Islands in the Simbe case and that was exactly what they did.

9. The Claimants have referred their dispute over the customary ownership of Matalibore and Suliliu to the Langalanga House of Chiefs. The hearing was conducted on 19 August 2011 on Matalibore Island. The hearing was adjourned because one of the Defendants' brothers assaulted a member of Claimant's tribe. (See Exhibit marked "LO14" annext to Mr. Linus Ogali's sworn statement). The Chiefs recommended to the Claimants and the Defendants to reschedule the hearing to be held at the Auki Police Leaf Hut for security reasons.

10. The law^[3] requires that disputes regarding the ownership and interest relating to customary land must be heard by the chiefs before they can heard by the local courts, and, would add the customary land courts. The Claimants have done that and the dispute is now pending before the Chiefs. I am of the view that the aiding rule laid down in the Simbe case as quoted above, equally applies to disputes pending before the Chiefs like in this case.

11. I consider, however, that it would be wrong to have an injunctive order on foot against the Defendants in order to enable the Claimants to proceed with their developments on Matalibore and Suliliu islands. This is because in my respectful view, that would be inconsistent aiding principle as provided in the Simbe referred to above.

12. But, as the dispute between the present parties in this proceeding is now pending before the Chiefs, I would grant the injunction sought by the Claimants to enable land courts to deal with the dispute between them so that they know their respective positions as to the ownership of the islands. This should be done quickly so that existing developments on the islands do not deteriorate which would result in loss and damage to the affected party.

Order: 1 Interim injunction is grant against the Defendants not to interfere with Claimants' developments already on the islands and likewise the Ministry of Culture and Tourism, their employees' officers and agents.

2. That the (Langalanga) House of Chiefs complete their hearing on the ownership of Matalibore and Suliliu Islands as soon as possible after the date of this ruling.

3. That Claimants and the Defendants and their members co-operate with the Chiefs and the land courts when notified of hearings on the islands.

4. Penal notice is to be attached to these orders.

5. Parties to meet their own costs.

Order accordingly.

THE COURT

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^[1] Simbe v East Choiseul Area Council CA-CAC 8 of 1997 at p.13; [1999] SBCA 9.
^[2] P Devonshire "Freezing assets, disappeared asserts and the problem of enjoying non-parties" (2002) LQR 124, 136,138.
^[3] Local Court Act [Cap. 19]