Aneka v Oeta [2014] SBHC 120; HCSI-CC 321 of 2013 (9 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

CHIEF JOHN KAIA ANEKA
(Mana'ara tribe)
Claimant

AND:

PHILIP OETA, DONALD KAIA, INITO Defendants
RADELE and EPHREM KELESI
(representing themselves, their lines,
Clans and Rere tribe)

For the claimant: G. Fa'aitoa

For the Defendants : E. Garo

Date of hearing: 21 July 2014

Date of judgment: 9 September 2014.

Apaniai PJ

Introduction.

1. The claimant claims that his Mana'ara tribe is the owner of the Fio, Busu and Anoato customary lands ("Lands") situated in North Malaita.
   
2. He says that his claim of ownership is based on a decision of the Baelelea Council of Chiefs ("BCC") made in November 1989 in a dispute over the Lands between himself and the 1st and 2nd named defendants whereby the BCC had awarded primary ownership of the Lands in favour of his tribe. He says that since then the defendants have not taken the dispute further to the local court.
   
3. He alleges that the defendants have, on various occasions since the BCC decision, entered the Lands without the consent of his tribe and felled and removed trees for sale in the Land. He also claims that the defendants have built structures on the Land without their approval and have trespassed onto the reefs and coastal areas of the Land also without their approval. He further alleges that the defendants have been assaulting, harassing and threatening them in relation to the Lands.
   
4. As a result, the claimant has filed a claim seeking a declaration that the BCC decision is a valid decision and a permanent injunction restraining the defendants and the members of their tribes, clans and family members from entering, occupying or using the Lands or any part thereof, without their approval. In addition, the claimant also seeks permanent injunction against the defendants and the members of their tribes and families from harassing, threatening or intimidating him or any member of his tribe or family or damaging, or threatening to damage, any property belonging to the claimant or to any member of his tribe or family.
   

Defence and counter claim.

5. The defendants have filed their defence to the claim as well as a counterclaim. In the defence, the defendants say that they represent the Rere tribe. They say the Rere tribe owns the Tolomatanga land. They deny that the claimant and his Mana'ara tribe own the Fio, Busu and Anoato customary lands.
   
6. Also in their defence, the defendants admit that the BCC heard a land dispute in November 1989 between the claimant and the 1st and 2nd named defendants over Fio, Busu and Anoato customary lands. However, they say that the land under dispute was Tolomatanga customary land, not Fio, Busu and Anoato customary lands.
   
7. They also deny the validity of the decision saying that not all of the members of the BCC who heard the dispute took part in making the decision. They also allege that the decision was fraudulent in that the chairman of the BCC did not sign the decision and that the secretary's signature on the decision is not that of the secretary.
   
8. The defendants also say that the land on which the claimant is currently milling timber and building the church building is not Fio, Busu and Anoato customary lands but Tolomatanga customary land owned by the defendants and their Rere tribe.
   
9. There are other matters raised by the defendants by way of defence but the above mentioned defences are sufficient to show that there are serious issues to be tried in regards to this claim. The main issue, of course, is whether the BCC decision made in November 1989 was a valid decision and whether the dispute, and hence the BCC decision, relates to Fio, Busu and Anoato customary lands or the Tolomatanga customary land.
   
10. In their counterclaim, the defendants seek a declaration that the BCC decision is false and therefore invalid. For that reason, they seek an order that the court refer the dispute back to the BCC for rehearing.
    

Application for interim orders.

11. Meanwhile, the claimant has been milling timber from the Lands and has begun construction of a church building on the Lands. The defendants are not happy with the claimant's actions. They therefore filed an application seeking interim orders, amongst others, to restrain the claimant from milling timber and to halt construction of the church building pending the trial of the claimant's claim and their counterclaim. The interim orders were granted by consent on 6 May 2014 pending full hearing of the defendants' application. It is noted that the claimant has not applied for interim orders against the defendants.
    
12. The full hearing occurred on 21 July 2014. At that hearing, the defendants sought continuation of the interim consent orders until trial of the claim and the counterclaim. The claimant opposes the extension of the orders.
    

Issues.

13. The issue, therefore, is whether the interim consent orders should continue until trial of the claim and the counterclaim.
    
14. To decide that issue, it is necessary to decide a number of preliminary issues. The first is whether the counterclaim by the defendant has disclosed a triable issue. If no triable issue is disclosed, the matter ends there and the orders will be discharged.
    
15. If a triable issue is disclosed, the second is whether damages will be an adequate remedy. If damages are an adequate remedy, the orders will be discharged. If damages will not be an adequate remedy, the next issue is whether the balance of convenience favours the granting (or continuation) of the interim orders. In deciding this issue, the question is whether it will do more good than harm if the orders are granted or continued.
    
16. If the court finds that it will do more harm than good if the orders are continued, the orders will be discharged. Conversely, if the court finds that it will do more good than harm if the orders are continued, then the final issue is whether the defendants have made an undertaking as to damages.
    
17. In giving this undertaking, the party giving it undertakes that, if the orders are granted and it is later shown that they should not have been granted, the party giving the undertaking will be liable, without further order, to pay such damages as the other party or parties, or any other affected persons, may have suffered as a result of the orders. Whether the applicants have the means to honour the undertaking is another matter. In appropriate cases, the usual undertaking as to damages would not be required. Such cases are restricted to those where injunction is being sought by village people who want to protect their land and environment. It is generally recognised that failure to give the usual undertaking as to damages by ordinary village people wanting to protect their land and environment from long term and irreparable damage that often accompany logging operations is not fatal to granting interim injunctions[1].
    

Whether there is triable issue.

18. So, the first question before the court is whether there are triable issues in this case. I must say I am satisfied there is an important triable issue in this case. That issue is the validity of the BCC decision.
    
19. The defendants have also alleged that the land which is the subject of the BCC decision was Tolomatanga customary land owned by their Rere tribe. Unfortunately, the issue whether the land was Fio, Busu and Anoato customary lands or Tolomatanga customary land is an issue which the High Court has no jurisdiction to determine nor is the question whether Tolomatanga customary land is owned by the defendants' Rere tribe. As such, these two issues do not justify continuation of the orders. However, on the basis of the issue surrounding the validity of the BCC decision, I am satisfied there is a triable issue on hand.
    

Whether damages are adequate remedy.

20. The next issue is whether damages are an adequate remedy. As regards this issue, I do not think damages will be an adequate remedy. There is no evidence that the defendants are in a position to pay damages if the orders are continued. Similarly, I do not think the claimants are in a position to pay damages either if they are allowed to continue milling timbers in the disputed area or if they continue with the construction of the church building. In that regard, I think the proper approach is to make an order that will result in maintaining the status quo until trial of the issues. For this reason also, I think the requirement regarding undertaking as to damages should not be insisted upon.
    

Balance of convenience.

21. The final issue is whether it will do more good than harm if the orders are continued. I think the answer should be in the affirmative. Of course, there will be delay in milling timber for the church and in the construction of the church but if the claimants succeed in their claim in the end, the trees will still be there for them to mill and they can also commence construction of the church then. Compared to the case if the orders are discharged and the defendants win their case in the end, the trees would have gone and the church building will have to be dismantled. There is no guarantee that the claimants are in a position to pay if the orders are discharged.
    

Decision and orders.

22. It follows therefore that the interim orders granted by consent against the claimants on 6 May 2014 will continue until trial or further orders of the court.
    
23. The costs of this application shall be paid on standard basis by the claimants to be taxed if not agreed.
    
24. Orders accordingly.
    

THE COURT

J. Apaniai
Puisne Judge

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^[1] Kalena Timber Company Ltd v Labere [2004] SBCA 10; CA-CAC 012 of 2001 (10 November 2004); Bako v Rozo [2012] SBCA 15; CA-CAC 42 of 2012 (30 March 2012).