Pajata v Mimolo [2012] SBHC 140; HCSI-CC 239 of 2012 (20 December 2012)

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

Civil Case No. 239 of 2012.

BETWEEN:

EUNICE PAJATA
Claimant.
(Representing members of the Sapekava tribe).

AND:

CHIEF CHARISANTO MIMOLO
First Defendant.

AND:

REKO ENTERPRISES
Second Defendant.

AND:

OCEAN TRADING COMPANY Third Defendant.

Date of Hearing: 6th December, 2012.
Date of Ruling: 20th December, 2012.

Mr Kaboke for the Claimant.
Mr P. Watts for the First Defendant.
Mr B. Etomea for Second and Third Defendants.

RULING.

Faukona J: Application for interlocutory injunctive orders was filed on 6th August, 2012, by the Claimant. Following that was a claim under category A filed on 15th August, 2012. The relief sought is restraining order for damages to be assessed. I took it that the cause of action on foot is trespass and damages, though not specifically mention.

2. This application calls for grant of three restraining orders.

The background facts:

3. There was an application in Form 1 by Jimmy Pita of Reko Enterprises Company for approval and negotiation to acquire timber rights in Repaqa customary land. Upon approval, the application was sent to Choiseul Province Executive to hear and determine persons lawfully entitle to grant timber rights. On 19th of July, 2002, a determination was made. The Choiseul Provincial Executive identified the First Defendant and three trustees namely Gabriel Somo, J. Lumubatu and Davidson Rato as grantors of the timber rights.

4. From the determination the Executive seemed to identify the same persons as identified previously by North East Choiseul Area Council in another application. It makes sense because the current application covers the same customary land. The perception by the claimant that the proceedings were flawed is far from so. It may appear the determination was an extract from the previous Area Councils, however, that can't be true. Perhaps the right word to describe the determination by the Executive as being lazy. Despite that, the significant part is that persons lawfully entitled to grant timber rights had been identified.

5. From that determination there was no appeal to the Western Customary land Appeal Court. Amazingly, the Principal Magistrate, Western, refused to issue certificate of no appeal on the ground of certain anomaly which he said would rectify in latter course.

6. Despite the foregoing a licence No. A10223 was issued to the second Defendant to carry out felling and export of logs from Repaqa customary land.

7. Ever since the Claimant was an aggrieved party. Time allowable in law to lodge an appeal had lapsed and an appeal was never filed. Subsequently the Claimant filed this claim and hence this application to restraint.

Locus Standi:

8. The question is, has the Claimant locus standi or right to be heard? She did not attend the Timber Rights hearing and did not appeal against the Provincial Executive determination. Would that perceive as barring her right? In her sworn statement she averts some argument and had reasons for not attending. She was convinced that she and her tribe would be included as grantors of her Sapekava/Panaka customary land which she says located right within Repaqa customary land which was covered by the logging concession. By her statement she explain that she could not able to appeal because the form 2 (determination) was not published by way of public notice.

9. What she did was invoke Section 12 of the Local Court Act and referred the landownership issue before the Tavula House of Chiefs which subsequently decided in her favour.

10. There are arguments that the Claimant cannot come to Court to invoke the power of this Court whilst she failed to appear in the timber rights hearing to reveal her interest. There is also further argument that the Chiefs decision is still subject to amenable and that the Local Court has yet to conclude who is the rightful customary landowner.

11. Further argument that the Chiefs had failed to comply with Section 12 and that the Act does not provided for ex-parte hearing. That should all traditional means of resolving the dispute have been exhausted, the chiefs should not make a determination but refer the dispute to the Local Court. That argument supports my initial view of the application and the purpose of which the Act was enacted. Over time, the Courts have developed principles of law to apply in certain circumstances. That can be perceived as expansion of Section 12.

12. There is also suggestion by the Counsels for the Defendants that the proper course of action taken is a claim for Judicial Review. That option was never considered and not even form part of the Claimant's case.

13. There is evidence from the sworn statement by the Claimant filed on 6th August 2012 that her tribal members did attend the timber rights hearing at Taro station to object but the First Defendant instructed them recognising their rights and hence should withdraw their objection and that he will include them in the Form 2 determination. Nothing materialised.

14. It appears the Claimant's party expressed their interest right from the initial stages of the timber rights processes. They attended but blocked by the First Defendant. She couldn't appeal because no Form 2 was published. Assertion of customary ownership of land is quite common. The Claimant further deposed that they had evidence of customary rights over the disputed land. They have coconut plantations, old village sites settlements, taboo sites and shoreline passage on the coast. That customary evidence show the Claimant has interest in the dispute and is affected in particular where logging operation still continues. Tavula House of Chiefs was in favour of her. That confirms her interest in the land. Having said that, it shows the claimant has customary interest in the land and has pursued that interest even at initial stages of timber rights process. In the case of James Bako and Others V Lepping Gedi and Others[1], the Court of Appeal accepted that a letter addressed to the Chiefs was an appropriate method of initiating a reference. That ruling manifested two significant matters. One that the Claimant has a genuine interest and is pursuing it. Secondly it manifested that reference by letter to the Chiefs is sufficient ground to come to Court and apply for interlocutory orders.

Triable issue:

15. The issue here is related to ownership of customary land in custom. The Claimant claims that her piece of land was located within the Repaqa customary land which is owned by the First Defendant. The land was given to her by way of custom transfer of title called Panaka. Because three members of her tribe died caused by negligent act by a woman from Repaqa tribe who lit the fire that engulfed the entire village.

16. The question whether the land was owned by Claimant from time immemorial, or whether the land was under contention, the fact is that to establish the issue of ownership the process allowable in law that a reference be made to the chiefs as a rightful forum to determine issue of customary ownership. The Claimant had done that, the chiefs had determined the ownership in her favour. The case now is pending before the Choiseul Local Court to determine the ownership.

17. Whilst the case is yet to be filed in the Local Court, the Claimant came to Court and seek interlocutory injunction to maintain the status quo, that no logging activities be carried on the land in dispute until the question of ownership is determined by the Local Court.

18. It is not the case that failure of the Claimant to appeal, therefore nullify the option available to file a claim for judicial review. The case of Bako and Others -V- Lepping and Others[2] carries similar facts as this case. The Claimant has the right to pursue her interest in the Chiefs hearing, although its decision is amenable to challenge. When at last the result of that challenge emerges, then it could have bearing on the conditions of the injunctive orders.

19. Meantime the ownership issue is pending before the local Court and the First Defendant being an aggrieved party should make a reference to the local court. In deed the issue of customary ownership of Sapekava/ Panaka customary land is a real issue and is still pending determination.

Balance of Convenience:

20. The famous case authority of American Cyanamid Co. V Ethicon Ltd[3] set down the test to be applied. Lord Diplock held:

"The extent to which the disadvantage to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of inconvenience lies"

The test is applied in the case of John Talasasa -V- AG and Others[4].

21. With the determination by the Chiefs in her favour the Claimant is the current owner of Sapekava/ Panaka customary land until the Local Court decide otherwise. Despite that, the Defendants continued remain therein and harvest and export round logs which amounted around 8,000 cubic.

22. There is no doubt the Defendants will suffer economic loss, loss of employment, loss of financial contribution to the communities and the Government in terms of tax will also be ceased.

23. In any event the customary owners of the land stand to lose the economic benefits and will suffer environmental damages which will affect the livelihood of human, flora and fauna. Further it will change the eco-system and environmental dilapidation which will take many years to naturally replenish itself.

24. Having balance the conveniences, one thing that stand out clear is that there is need to protect the rights of the customary owners of the land they will lose the fundamental source of their living and existence. Therefore the balance of convenience tilts towards the Claimant.

Damages as adequate remedy:

25. Damages have always been a consideration when considering an application for injunctive relief. This requires some form of assessment of damages available to either party, depending on who succeeds at trial.

26 The question to ask is, will the Claimant suffer irreparable harm if the injunction is not granted? Or will the Defendants suffer loss if the logging operation ceased. The Courts in this jurisdiction have accepted logging caused irreparable harm which damages are not adequately remedied[5]. On the other hand the Defendants would not be able to meet damages to environment, landscape and trees which cannot be measured.

27. I noted the Defendants' concession area covers the land in dispute within a large portion of customary land Repaqa, which the First Defendant and tribe own. There is no dispute as to that. It appears from the sworn statement by the Claimant filed on 6th August 2012, that the Second Defendant entered Sapekava/Panaka land and commenced logging operation on or about late 2010 or in early 2011. And by paragraph 34 of the same sworn statement she deposed that there were about 2-3 shipments of round logs were already exported.

28. I have no doubt that should injunction is granted the Defendants will incur loss of employment, income and revenue. However, with 2-3 shipment that is vast volume of logs. In my view it is ideal that the issue of landownership has to be determined as priority over all other issues. Having said that I can able to conclude that damages cannot adequately remedy the Claimant.

Undertaking in damages:

29. Usual practice require a cross undertaking in damages as a condition to grant interim relief. In this case the claimant has not made any undertaking because most of her tribesmen are not employed and lived at Vurango village in Choiseul and do not have money to meet such undertaking.

30. The appropriateness of requiring an undertaking as to damages may vary depends upon the nature of the proceedings and may less appropriate in environment cases[6]. The failure to provide undertaking makes it such an exception where the inability to provide adequate undertaking would precluded the Claimant from the opportunity of having her rights determined in full trial so that poverty would be a direct cause of an injustice in the plaintiff would be kept from proving those rights[7].

31. In the case of Richardson V Forestry Commissioner and Another[8] Masa J in granting injunction said, ".. a case such as the present it is enough for the plaintiff to show that irreparable injury is a possibility in the sense stated".

32. This is an environment case, and it appears from evidence that the Claimant and her tribe's man are village dwellers who survive by subsistence farming. In that circumstance, this is a case where undertaking in damages should not be required.

33. With what I have said above, I hereby grant the orders sought.

Orders:

1. Order restraining the Third Defendant from paying out to the First and Second Defendants, their servants, tribal members or agents the proceeds of the entire round logs felled and exported by it from Sapekava/Panaka customary land situated in Northwest Choiseul, until further orders of the Court.

2. Order that the Third Defendant shall pay into a joint trust account to be opened in the joint names of the Claimants Solicitor and the Defendants' Solicitor all the proceeds of all logs felled and exported from Sapekava/Panaka customary land until further orders of the Court.

3. Order that the Defendants shall produce and account to the Claimant all the particulars and proceeds of all the round logs felled and exported from Sapekava/Panaka customary land within 14 days;

4. That all the Defendants, their servants, agents, tribal members and employees shall be restraint from further entering into the Claimant's Sapekava/Panaka customary land to conduct logging activities there in;

5. Costs are awarded to the Claimant.

The Court.

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^[1] [2011] HC – SICC No. 366 of 2011, (16^th August, 2012).
^[2] Ibid, para 14.
^[3] (1975) 1ER Page 511.
^[4] Unreported, HCSI CC No. 43 of 1995.
^[5] Beti V Allardyce Lumber Company [1992] SBHC 28; Sade V A-G [199] SBHC66; Kalena Timber Co. Ltd V Labere [2004] SBCA 10.
^[6] Tegra [NSW] Pty Ltd V Gandagai Shire council and Ano (2007] NSWLEL 806.
^[7] [Vorley V Vorley [2006] NSWSC 1025.
^[8] [1987] 77 ALR 586.