Aujare v Athena Investment Ltd [2013] SBHC 13; HCSI-CC 278 of 2011 (5 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona)

Civil Case No. 278 of 2011

BETWEEN:

CHIEF ERIC GNOKRO AUJARE
First Claimant
(Representing himself and Pai tribe)

AND:

CHIEF SILAS MAKO
Second Claimant
(Representing himself and Hoi tribe)

AND:

ATHENA INVESTMENT LTD
First Defendant

AND:

ATTORNEY GENERAL

(Representing Isabel Province)

Second Defendant

AND:

ATTORNEY GENERAL

(Representing the Commissioner of Forests)

Third Defendant

Date of Hearing: 24th January, 2013
Date of Ruling: 5th March, 2013.

Mr. M. Pitakaka and Mr. J. Kaboke for the Claimants
Mr. G. Suri for the First Defendant
Mrs. Maefiti for Second and Third Defendants

RULING

Faukona J: This is an application for interlocutory orders. The urgent nature of this application prompted this Court to permit an oral application under Rule 7.13 be made; with the condition that the claimants accept undertaking to file a written application within seven days.

2. Whilst a written version of the oral application is yet to be filed, it is submitted that the application is for restraining orders restraining the first Defendant his agents or employees not to enter LR 707 until trial and further orders are made by this Court.

3. In supporting the application is sworn evidence under oath given by Chief Eric Aujare. He states that at the time of occurrences of events he was in Honiara. However, full information about what had occurred was conveyed to him by Chief Silas Mako and Mr Appollos and other unnamed villagers.

4. At this juncture Mr Suri pause an argument that the witness is attempting to convince the Court to believe what someone else had told him, hence the evidence is hearsay. The same argument concerns Exhibit 1 – 4, the photographs taken by someone on the ground on the date of incidents and is tendered to the Court by the witness who lived in Honiara at the time of incidents.

5. That argument in fact is settled by section 127 of the Evidence Act which clearly states that hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

6. The witness in this case affirms believing the information about the events conveyed to him as true information received from two sources as in paragraph 3 above. Hence, by virtue of the section qualify his evidence as one of exception to the hearsay rule.

7. When the exception rule is tested on the evidence adduce in court in respect of the paragraphs, the difference is that no particular source was identified by the core witness as a person who actually took the photographs. The witness merely says that the photographs were taken by one of the protestors. If there were many protestors then it is difficult to name and identify a particular source (person). Clearly, in my respective opinion that defeats the exception to the hearsay rule. I must therefore rule that the photographs tendered to Court as Exhibits 1 - 4 of the events occurred on 23rd and 24th January 2013 is inadmissible.

8. The major issue in this case is an allegation of noncompliance with relevant provisions of the Forest Resources and Timber Utilisation Act, which assumably render felling licence No A10934 null and void. Based on that assertion an application for judicial review of the determination made by the second Defendant was filed and is currently pending hearing.

9. Associate with the processes and a claim for ultra vires action, is the issue of land ownership of LR707. It was this issue that delay initial inclusion of LR707 under the licence.

10. Whilst the application for judicial review is pending hearing, the land ownership issue was referred to the Chief for determination. On 19th January, 2012, a decision was made by the Chief in favour of khome tribe which is represented by Lanfrank Deke Quity.

11. Mr Suri has rightly submits that the issue of land ownership is not pending before any Court. In fact after the Chief determination, the Claimants who were affected and aggrieved by the decision have failed to refer the case to the Isabel Local Court, though had expressed dissatisfaction and grievances. Instead the Claimants initiated another case to be heard by different constituted chiefs within Hograna District, Isabel Province.

12. Apparent from materials the Claimants have no desire at all to refer a case to the Local Court. For some reason they thought that the chiefs' decision is bound to be changed by another chiefs' determination. And in this case premise on the fact that the chiefs who heard and made the determination were not properly constituted or authorised to perform duties as chiefs.

13. After many years of operation the Local Court Act has often misconstrued by a vast member of the community across the country. The Act itself is silent about the number of House of Chiefs to be established in one particular district or area. Yet uphold a broader perspective that people eligible to preside to hear customary land dispute are chiefs or traditional leaders residing within the locality where the land is located and who are recognised as such by both parties to the dispute. Apparently, this age, time and generation, tend to move away from what is supposed to be traditional means of solving disputes. The whole point is to resolve a dispute amicably according to custom.

14. In the case of Aujare v Athena Investment Ltd[1] where his Lordship Chetwynd J said, in paragraph 15:

".... and if persons involved in the dispute does not find the result wholly acceptable, either in itself or because of the manner in which it was reached their remedy is to go to the Local Court."

15. Having said that the Claimants' move to invoke the power of another House of Chiefs at Hograno District is a motive to contemplate a change to the determination originally given. This course taken by the Claimants is out of context and the language of the Act. Another House of Chief is not an appellate constituted House of Chiefs so that they have the discretionary power to change the decision of another House of Chiefs. The Claimants could have properly referred the case to the appropriate Local Court. The fact that they ignored and instead resort to unprecedented processes simply place them in an awkward position. If for some reasons that the Claimants are awaiting the outcome of the second chiefs hearing then for certainty they have no case and the issue of land ownership is not pending before any court of law, and therefore this Court cannot render assistance by granting the relief sought.

16. The argument that this application is necessary and based on pending application for judicial review, in my respective view is quite remote. The most immediate and valid ground to obtain interlocutory relief is to file a case with the Local Court. That remedy opens a good case to come to Court and seek interlocutory relief; as an immediate and proximity which follow on directly according to practice alluded in the Local Court Act. In the meantime lack of filing a Local Court case render the Khome tribe a better right of ownership and to develop the land given to them by decision of the chiefs.

17. The requirement that undertaking to damages be on foot is a normal argument on almost the same social basis, that the Claimants are home dwellers who have no source of earning regular finance but survive through subsisting farming. Mr Suri argues that if they lack funds to foot undertaking to damages why they should engage a private law firm to represent them in this case. Engaging a private law firm to represent a client is a right of a person. This case comes to Court label as urgent. As such it is anticipated there would be a grave delay to engage Government solicitors. That may be the only reason, but that cannot be taken as good in all respects as equated to other cases which parties were represented by private law firms. The most significant aspect to note is the wide discretionary power of the Court to exercise in any circumstances. Having said that it is considered fair that undertaking as normally required is waived in the circumstance of this case.

18. Given the circumstances where the undertaking is waived that do not change the position. Legal reasons and facts considered and assessed, do not support this application. Hence I am able to conclude by refusing to grant restraining orders sought.

Orders:

1. Application for restraining orders sought refused.
   
2. Cost of this hearing to be paid to the Defendants.
   

The Court.

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^[1] (2012) SBHC; HCSI-CC 778 of 2011 (17 July 2012)