IN THE HIGH COURTOF SOLOMON ISLANDS
(Civil Jurisdiction)

Civil Case no. 205 of 2011

Dr. Derek Sikua and Doris Sikua
The Claimants

V

Daniel Jeffrey Eta
The Defendant

Hearing: 26 July 2011
Ruling: 26 July 2011

J. Keniapisia for the Claimants
M. Pitakaka for the Defendant.

Palmer CJ.: 

1.	This is an application for interlocutory orders inter alia to remove metal barricades set up on an access strip of road abutting both parties land at East Kola Ridge, Honiara. The defendant had recently put up the barricade and prevented the claimants in particular their building contractors, from accessing that strip of road to reach part of their property at the back of their land.

2.	The claimants say that access to their property has been denied through the unreasonable action of the defendant in blocking off the part of the access strip which goes through his land before reaching the claimants area. They say there had been common understanding between the parties in the use of that access strip and that it had only been in the recent past, as recent as 21st May 2011, when access through the portion of the defendant's land was denied. This appears to have been triggered by some construction works which the claimants had commenced at the back of their property and were using that access way for vehicles and other machineries to bring in materials and carry out construction works on their land. 

3.	There is no dispute that the access road passes through both parties land. As at today's date the defendant has filed an amended defence and counter claim, asserting inter alia, that two plots of land, lots 4261 and 4262, had been registered as the claimants' land by fraud and or mistake.

4.	During submissions before this court this morning, learned Counsel, Mr. Pitakaka referred this court to section 115 of the Land and Titles Act, which he says applies to this dispute. I have now had opportunity to peruse that provision and concur with his view that that section applies on all fours it seems to the facts in this dispute. I quote:

"115.—(1) Notwithstanding anything to the contrary in this Act contained, all interests in land (including customary land) shall be held subject to an implied right that any person (whether or not a Solomon Islander) who is the owner of an estate in or lease of, or of rights equivalent thereto in, or the occupier of, land adjoining or in the neighbourhood of that land who has no other reasonable means of access from his land to any one of the following, that is to say, a road, way, river, creek or foreshore affording reasonable means of access, shall have a right of way for all reasonable purposes over such land and to pass and repass with or without boats or vehicles. 

(2) If the persons concerned cannot agree among themselves to the location of or to the terms and conditions of or incidental to the right of way, the matter shall be referred to the Commissioner by the person requiring the right of way, and the Commissioner shall decide the matter.

(3) Where the right of way is to be exercised over an existing path or track which has been formed or maintained at the expense of the person over whose land it passes, the Commissioner may require the person by whom the right of way is to be exercised to pay to such other person such reasonable sum as the Commissioner may assess by way of compensation.

(4) In any case where the Commissioner has given his decision upon a right of way under subsection (2) he shall issue a right of way certificate which shall—

(a) specify the land served by the right of way, the land over which it exists and such other details as he may consider desirable; and

(b) upon application by him be noted in the land register in so far as it relates to registered land.

(5) Compensation for loss or damage in respect of or to land over which a right of way is made, or in respect of or to anything therein or thereupon, shall be payable and shall be assessed by mutual agreement by the parties concerned and in the absence of agreement the matter shall be referred to the Commissioner and the compensation shall be assessed by him.

(6) Any person aggrieved by any decision of the Commissioner under this section may, within three months of being informed of such decision, appeal to the High Court, and the Court's decision thereon shall be final and conclusive and shall not be questioned in any proceedings whatsoever."
 
5.	I thank Counsel Pitakaka for raising this provision for it actually supports the claimants' case for interlocutory orders to be issued in respect of this application. It confirms that there is at least a triable issue in respect of the dispute between the parties, that of a right of way. 

6.	I am satisfied the claimants in this case have established that they have at least, a legal right which has been interfered with.

7.	On the issue of whether damages would be adequate, I am satisfied the claimants had incurred costs and detriment and will continue to do so if a restraining order is not imposed. They have in reliance on that right of way incurred a huge loan to the tune of $852,000 to build a residence on their property and that costs will continue to accrue the longer the construction work is delayed. While the damages incurred if an injunction is not imposed can be quantified, and so may not be regarded as irreparable, on the other hand, there is no indication that the defendant will be able to meet the damages of the claimants if at the end of the day they should win their case. 

On the other hand, the claimants have given an undertaking from the bar table, to be filed therewith, in the event the defendant is ultimately successful, that they will be liable (without further order) to pay such damages as the defendant may have suffered as a result of the order being made, to be assessed if not agreed. 

I am also not satisfied that the defendant will be severely prejudiced if an interlocutory injunction is imposed. 

8.	I am satisfied as well that the balance of convenience tilts in favour of the claimants in terms of preserving the status quo pending the determination of the triable issues now before the court. 

9.	If the strength of the parties case is considered as well, the scales also tilt in favour of the claimants. Materials filed in support of the claimants' case show they had obtained consent from the Honiara City Council's Town and Country Planning Board for construction works and that there are also indications that the Office of the Commissioner of Lands was aware of the work being done and of the importance of having access to the site for service delivery and emergency purposes etc. It seems that the claimants were already in the process of attending to the issue of access when the dispute arose.

10.	Finally, the effect of subsection 115(2) of the Land and Titles Act is that if the parties cannot agree, then the dispute should now be referred by the claimants to the Commissioner of Lands for determination.

I am satisfied the orders sought should be granted as follows:

1.	That the defendant, his agents, servants, family members or employees are restrained from obstructing the claimants, their servants, agents and employees from using the disputed access road until further orders of the court. This includes usage of the access road to transport machines, materials etc. to and from the construction work site located at the back of the claimants' property.

2.	That the defendant, his agents, servants, family members or employees shall have the metal barricade removed forthwith. 

3.	Costs to be reserved.

Orders of the Court:

1.	That the defendant, his agents, servants, family members or employees are restrained from obstructing the claimants, their servants, agents and employees from using the disputed access road until further orders of the court. 

2.	That the defendant, his agents, servants, family members or employees shall have the metal barricade removed forthwith. 

3.	Costs to be reserved.

The Court.