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Attorney General v Paia [2013] SBHC 16; HCSI-CC 39 of 2013 (25 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction


HCSI-CC 39 of 2013


BETWEEN:


ATTORNEY GENERAL
Applicant


AND:


HUGH PAIA and DONALD MAEPIO BISILI
(Representing the Voramali tribe)
First Respondents


AND:


ALPHONSE DAGA
(Representing the Daga family)
Second Respondent


AND:


NELSON BIBO BETI
(Representing the Nosedua, Tekurana & Lemazi Group)
Third Respondent


Date of Hearing: 18th and 22nd February 2013
Date of Judgment: 25th February 2013


Mr. J. Muria (Jr) for the Applicant.
Mr. J. Zama for the First Respondents.
No appearance for the Second and Third Respondents.


RULING


Apaniai, PJ:


  1. This is an application for injunctive relief under Rule 7.9 of the Solomon Island Courts (Civil Procedure) Rules 2007 (Rules). It is an application before proceedings are commenced. It was filed on 23rd January 2013 and an amendment to the application was filed on 21st February 2013. The application seeks the following orders:-

[1] that the Respondents, their servants, agents, invitees, licensees and others currently acting under the Respondents' authority or purported authority be restrained from interfering with the gravel extraction from Mamamisi Hill;


[2] that the sum of $1.2 million as payment for use of Mamamisi Hill be paid into court by the Solomon Island Government pending the Respondents agree on the appropriate disbursements to each Respondent;


[3] penal notice be attached to the orders; and,


[4] other orders as the court deems fit.


  1. A sworn statement by Mr. Moses Virivolomo, the Permanent Secretary to the Ministry of Infrastructure Development (MID), was filed in support of the application.
  2. The facts giving rise to the application can be summarised as follows.
  3. In February 2012, the Solomon Island Government ("SIG") entered into a funding arrangement ("Funding agreement") with the New Zealand Government ("NZG") worth NZD23,500,000.00 to redevelop the Munda runway, the Noro-Munda road and the Nusatupe runway in the Western Province. To carry out these projects, the SIG had engaged a New Zealand company which is now on site at Munda and which, it seems, may have already commenced preparatory work for the redevelopment of the Munda runway.
  4. The redevelopment of the Munda runway would require the use of gravel and suitable gravel had been identified in an area within the vicinity of the Munda airport known as Mamamisi Hill.
  5. In December 2012, the SIG passed the 2013 Appropriation Act 2012 which authorised the SIG to spend approximately $3.4 billion from the consolidated fund in 2013. Of that amount, the MID has been authorised to spend approximately $64,636,901.00 as recurrent expenditure, $98,800,000.00 as Development expenditure and $20 million as Donor-Funded Development expenditure.
  6. Obviously, some of those allocations will be used in connection with the projects.
  7. After the signing of the Funding agreement in February 2012, the MID, through Mr. Virivolomo, commenced consultations with communities in and around Munda to identify suitable gravel sites where gravel could be extracted for use in regards to the projects as well as to identify the owners of the gravel sites. The Mamamisi Hill was identified as a suitable gravel site. The Daga family was also identified as the owners of the Mamamisi Hill.
  8. It is alleged that on 28 August 2012, the Daga family signed a Memorandum of Understanding ("Daga MOU") with the MID allowing the gravel from Mamamisi Hill to be extracted for the projects. No copy of the Daga MOU had been tendered and nothing more will be said about it.
  9. It appears that extraction of gravel from Mamamisi Hill began immediately after the signing of the Daga MOU.
  10. It also seems clear that the Voramali tribe may have got wind of the gravel extraction and the Daga MOU for on the 11th September 2012, the Voramali tribe held a meeting during which the tribe resolved to seek court injunction to restrain gravel extraction from Mamamisi Hill and demanded compensation of $2.5 million for trespass.
  11. On the 12th September 2012, the Daga family issued an open note to the public at large reiterating, amongst other things, their ownership of the Mamamisi Hill and further reiterating their decision to allow the extraction of gravel from the Mamamisi Hill.
  12. On 13th September 2012, Hugh Paia (1st Respondent) and Alfred Bisili wrote a letter to the MID on behalf of the Voramali tribe purportedly challenging the validity of the Daga MOU and claiming that their Voramali tribe, not the Daga family, is the owner of the Mamamisi Hill. They attached to that letter a copy of the minutes of the Voramali tribal meeting held on 11th September.
  13. In the light of these disputes, the MID wrote a letter on the 9th October 2012 to the Voramali tribe, the Daga family and the Nosedua/Tekurade/Lemazi Group inviting them to a meeting to be held at Lambete on the 11th October 2012. The purpose of the meeting was to obtain the consent of those three groups for gravel extraction from the Mamamisi Hill to continue while they resolve their ownership claims to the Mamamisi Hill in the appropriate forum. A fresh draft of a new MOU ("combine MOU") was also placed before the meeting for consideration by the three groups. This new draft was to replace the Daga MOU.
  14. The meeting was held as requested and at the meeting, the Daga family and the Nosedua/Tekurade/Lemazi Group reiterated their ownership claim to the Hill. They also confirmed their willingness to allow gravel extraction to continue while attempts are made to settle their disputes.
  15. The Voramali tribe, however, was not represented at the meeting by their senior representatives and therefore those who attended the meeting on behalf of the tribe undertook to consult their tribal elders before they could convey their official position as regards the combine MOU.
  16. Also at that meeting, the Voramali tribe expressed disagreement with the rate of $25.00 per cubic for gravel extracted from the Hill. They proposed a rate of $200.00 per cubic. The MID however expressed that $40.00 per cubic would be more realistic.
  17. The meeting closed without any agreement from the Voramali tribal representatives as to the gravel extraction or the rate per cubic meter for the gravel. They promised to come back the next day with their decisions but never did.
  18. On the 14th October 2012, the Daga family and the Nosedua/Tekurade/Lemazi Group issued a letter to the MID indicating their willingness to sign the combine MOU and further confirming their willingness to allow gravel extraction to continue while their dispute is referred to the chiefs. They also agreed that the gravel payment be made into a trust account to be held by the MID.
  19. On or about the 31st October 2012, the combine MOU was entered into between representatives of the Voramali tribe, the Daga family and the Nosedua/Tekurade/Lemazi Group.
  20. In the combine MOU, the parties agreed:-

[1] not to hinder the Munda Airport runway project;


[2] that the Voramali tribe/trustees are to be signatories to the contractual arrangement entered into between the SIG and the Landholding Group;


[3] that the Voramali tribe shall have the discretion to consider the benefits to be given to the 12 sub-tribes of the Voramali tribe;


[4] the Daga claimant, Nosedua claimant, Tekurade claimant and Lemazi claimant are beneficiaries to the proceeds from the gravel site;


[5] the claimants' shares from the gravel site shall be determined by the sub-tribes;


[6] financial consideration in respect of environmental degradation and destruction of flora and fauna will be:-


[a] Environment - $1.8 million;


[b] Goodwill - $200,000.00


[7] special consideration will be given to the inhabitants of the area, namely, Alphonse Daga and Ruth Tausinga for appropriate pecuniary benefits; and,


[8] that the parties agree to let Downer Company commence work but that the SIG must immediately agree to negotiate with the Voramali tribe within the next 14 days.


  1. The execution of this combine MOU had effectively replaced the Daga MOU. Surprisingly, the SIG was not a party to the combine MOU.
  2. The Applicant says that the sum of $200,000.00 has been paid to each of the claimants as Goodwill payment under the combine MOU. The First Respondent did not dispute receiving the money but alleged that the payment was in respect of their claim for $1.8 million for environmental degradation and destruction of flora and fauna.
  3. It is not known on what date these payments were made, however, on 2nd November 2012, representatives of the Voramali tribe, the Daga family and the Nosedua/Tekurade/Lemazi Group issued a letter to the Project Manager of Downer Company (Downer Construction (NZ)) giving their consent for extraction of gravel to commence and guaranteeing that they would not interfere with the work of extracting the gravel at the Mamamisi Hill.
  4. Then on the 5th November 2012, the Daga family issued a letter to the Minister for Civil Aviation ("Minister") expressing their disagreement with the clause in the combine MOU requiring the SIG to negotiate with the Voramali tribe within 14 days and alleging that they have not been properly consulted in relation to the combine MOU. A second letter dated 7th November 2012 was sent to the Minister on behalf of the Daga family abrogating the combine MOU and requesting a fresh MOU as well as stating further conditions for gravel extractions.
  5. On the 13th November 2012, Kingdom Lawyers, representing the Gasimata descendants, also wrote to the Minister claiming ownership of the gravel area and requesting that they be included in any negotiations for gravel extractions for the Munda airport runway. It is not so clear whether this claim relates to the Mamamisi Hill.
  6. The letter from Kingdom Lawyers seems to suggest that there are now 4 claimants claiming the ownership of the Mamamisi Hill. These are the Voramali tribe, the Daga family, the Nosedua/Tekurade/Lemazi Group and the Gasimata descendants.
  7. On the 23rd November 2012, the Nosedua/Tekurade/Lemazi Group also wrote a letter to the Permanent Secretary to the MID and the Permanent Secretary to the Ministry of Communications & Aviation revoking their signatories to the combine MOU alleging that they have been coerced into signing the MOU. A similar letter was issued that same date by Nelson Beti on behalf of the Beti clan revoking his signature to the combine MOU.
  8. On the 4th February 2013, Donald M. Bisili, on behalf of the Voramali tribe, wrote a letter to the Project Manager of Downer Construction (NZ) revoking his signature to the combine MOU and informing the company that they are no longer permitted to enter Mamamisi Hill until further notice.
  9. The revocation of these signatures means that the combine MOU had effectively been terminated so that the position in regards to the Mamamisi Hill issue is that the ownership of the gravel site is still in issue and that no gravel extraction agreement is on foot to allow the SIG to extract gravel therefrom.
  10. On the 5th February 2013, Ronald Bei Talasasa (Snr), Chairman of the Roviana Chiefs Hearing ("RCH"), wrote to the Ministry of Communication & Aviation informing them of the estimated costs of the RCH for hearing the dispute over the Mamamisi Hill and requesting that the costs be paid as soon as possible to enable the RCH to commence the hearing.
  11. It is not known whether or not these costs have been paid and whether or not the dispute had been heard by the RCH.
  12. However, on the 15th February 2013, this application was filed seeking the interim orders referred to in paragraph 1 above. It is an application before commencement of proceedings. Rule 7.9 authorises the making of such applications and requires that such application must:-

[1] set out the substance of the application;


[2] have a brief statement of the evidence on which the applicant will rely;


[3] set out the reasons why it is appropriate that the order be made before a proceeding has started; and,


[4] have with it a sworn statement in support of the application.


  1. Under Rule 7.11, the court may make the orders if it is satisfied that:-

[1] the applicant has a serious issue to be tried and, if the evidence brought by the applicant remain as it is, the applicant is likely to succeed; and,


[2] the balance of convenience favours the making of the orders.


  1. That means, for the application to succeed, the application must satisfy three conditions. These are, first, there is a serious issue to be tried; second, the applicant has a strong case against the respondents; and third, the balance of convenience favours the granting of the orders.
  2. Generally, proceedings are started by a claim[1] and to determine whether or not a serious issue has been disclosed, it is to the claim that one must look.
  3. But in an application such as the present where no claim has yet been filed, it is difficult to determine whether or not there is a serious issue to be tried. It is for that reason that Rule 7.10 has laid down the conditions that must be complied with when making an application under Rule 7.9.
  4. In the present application, paragraph (c) (which required the applicant to set out the reasons why it is appropriate that the orders be made before a proceeding has started) of Rule 7.10 has not been complied with and paragraph (b) (which required the applicant to provide a brief statement of the evidence he will rely on) has only been complied with when an Amended Application was filed in the afternoon of the day before the date of hearing which provided the statement of the case of the applicant.
  5. Now that a statement of the case has been provided, it is to that statement and the sworn statement by Mr. Virivolomo that one must now look to see if a triable issue has been disclosed.
  6. If a triable issue is disclosed, the next issue is whether the applicant has a strong case against the Respondents. If a strong case is disclosed, the final issue is whether the balance of convenience favours the granting of the interim orders sought.
  7. On the other hand, if no triable issue is disclosed, the matter ends there and the court need not consider whether a strong case has been disclosed. Likewise, if no strong case is disclosed, the matter ends there also.
  8. What then is the triable issue in this case?
  9. From the material before the court, I was not able to identify what cause of action the SIG could have against the Respondents. The ownership of the Mamamisi Hill is still an issue which has not yet been finally determined and there is no agreement on foot between the SIG and the Respondents in connection with the Mamamisi Hill.
  10. I asked Mr. Muria what the triable issue is. Mr. Muria could not point to any. He submits however that the application is brought by the Attorney General in his capacity as guardian of the public interest and that the court has power to grant injunction to prevent infringement or threatened infringement of public rights. He says that Parliament has passed the 2013 Appropriation Act 2012 and it is in the public interest that the Act is obeyed. He further says that the conduct of the Respondents is jeopardising the implementation of the Act and so injunction must be granted to restrain the Respondents conducting themselves in that manner even if the granting of an injunction would involve invasion of the rights or property of others.
  11. I agree with Mr. Muria that the project is indeed one of national interest. All the Respondents also agree that the project is one of national interest and are prepared to allow gravel to be extracted from the Hill should they win the ownership title to the Hill subject to the renegotiation of terms of an MOU.
  12. Unfortunately, I do not agree with Mr. Muria that injunction is necessary in this case in order to ensure that the 2013 Appropriation Act 2012 is complied with.
  13. First, the 2013 Appropriation Act 2012 only authorises the Government to spend the funds appropriated by the Act for the purposes specified by the Act. It did not oblige the Government to spend the funds. Hence, while the Act may have authorised the Government to spend funds in relation to the redevelopment of the Munda runway, it would not be a breach of the Act if the Government fails to spend those funds. It is therefore not correct to say that the conduct of the Respondents will lead to a breach of the Act.
  14. Second, the Government has no right to extract gravel from Mamamisi Hill without the consent of the owners of that Hill or without utilising the constitutional provisions for compulsory acquisition of properties under section 8 of the Constitution. In this case, those who are claiming ownership of the Hill have revoked their consent and I am not aware of any statute that authorises compulsory extraction of gravel from Mamamisi Hill. To grant the orders ought in this application would result in the Government extracting gravel from Mamamisi Hill illegally. Injunction cannot be granted to enable the commission of illegal acts.
  15. Thirdly, this application is brought under Rule 7.9 of the Rules which has prescribed in Rule 7.10 the conditions for granting such applications. There is nothing in the Rules which places applications by the Attorney General in a special category that is exempted from compliance with those prescribed conditions.
  16. In the premises, the submissions by Mr. Muria must fail and it must also follow that this application must also fail.
  17. The orders of the court are:-

[a] the application is dismissed; and,


[b] in the light of the conduct of the Respondents which has led to the filing of this application, I make no order as to costs.


THE COURT


Justice James Apaniai
Puisne Judge

[1] Rule 2.2, SI Courts (Civil Procedure) Rules 2007.

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