Flanagita v Haidu [2014] SBHC 131; HCSI-CC 112 of 2014 (18 August 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

JOSIAH FLANAGITA and RIUGITA (On behalf of Toganago tribe, Maringe, Isabel Province).
Applicants

And:

NASON HAIDU, NATHANIEL BAKO, NOEL MASALA (representing themselves and the Logahaza land)
1st Defendant

And:

MAS PACIFIC INTERNATIONAL LTD
2nd Defendant

Mr. B. Hiele for the claimants.
Mr. W. Togamae for the 1st and 2nd defendants.

Date of hearing: 2 July 2014.
Date of Judgment: 18 August 2014.

RULING

Apaniai, PJ:

Introduction.

1. There are two applications for hearing today. The first application is by the claimant filed on 11 April 2014 seeking interim orders against the 2nd defendant and its servants and agents to restrain them from carrying out any logging operations in Kumaibrahu to Kolo'oga customary lands. The second application is by the 1st and 2nd defendants filed on 4 June 2014 seeking a stay of this proceeding until the determination of Civil Case No. 509 of 2011.
   

First application.

2. In its application, the claimants seek the following orders:-
   

[1] Interim injunction against the 2nd respondent (2nd defendant) restraining them, their servants and agents, from felling and removing any trees from Kumaibrahu to Kolo'oga customary lands in Maringe district of Isabel Province;

[2] An order that the 2nd defendant remove its logging machines and equipments from the lands mentioned in paragraph [1];

[3] An order that trees already felled from the lands be exported and that the proceeds be paid into a trust account pending the outcome of the claimant's claim filed wherewith;

[4] Costs;

[5] Other orders as the court deems fit.

Principles governing granting of interlocutory orders.

3. The principles applicable to any application for interlocutory or interim restraining orders are clear. The applicant must show that there is a serious issue to be tried, that the balance of convenience favours the granting of the interim orders sought in that it will do more good than harm if the orders are granted, and, that the applicant has given the usual undertaking as to damages.
   
4. The claim, or the sworn statement in support of the application, must disclose a serious issue. The issue must not be vexatious or frivolous. There is a serious issue if some legal or equitable rights of the applicant have been invaded or threatened to be invaded by the defendant. The evidence must show what those rights are and that the defendant has invaded, or is threatening to invade, those rights.
   
5. If no serious issue is disclosed, the application must be dismissed without having to consider the others issues, that is, the balance of convenience and the undertaking as to damages.
   
6. In cases involving customary land, the High Court has no jurisdiction to decide disputes relating to ownership of customary land. Hence, where ownership of customary land is pleaded before the High Court, without the existence of a decision from the proper forum (that is, the chiefs or the local court or the Customary Land Appeal Court ("CLAC")) as to the ownership of the land under dispute, there is no serious issue before the High Court and any application for interim restraining orders must be dismissed[1].
   
7. However, where no decision exists but the evidence shows that the ownership issue has been referred to the proper forum, the High Court has jurisdiction to exercise its powers in aid of the chiefs, the local court or the CLAC by granting the interim orders sought[2].
   

Whether there is a serious issue.

8. The claim is a Category A claim. It was filed on 11 April 2014. In it, the claimants claim two remedies including costs. The first is a permanent injunction to restrain the defendants, their servants and agents from carrying out logging operations in a plot of land which they described as "Coup 1 of their (defendants') Harvesting Plan" and the second is damages for environmental damage.
   
9. The manner in which the claim has been drafted lacks precision. The statement of the case says that the claimants claim customary ownership of "various lands from within Kolo'oga to Kumaibraha customary lands" situated in Havikolo ward of Isabel Province. They say that there is a land dispute between the claimants and the 1st defendants herein which is still pending before the High Court in Civil Case No. 509 of 2011 ("CC 509/11"). They say that dispute relates to the "various lands from within Kolo'oga to Kumaibraha customary lands". It appears that this application is based on that pending case.
   
10. The claimants say that despite that pending case, the 1st defendants have applied for, and were granted, a logging licence to "perform logging operations on Kolo'oga, Sisiro, Bakrufekao and Kumaibrahu customary lands" which they say the 1st defendants have referred to in their timber rights application as Logahaza customary land. So it is now clear that this is a claim which relates to the ownership of the Kolo'oga, Sisiro, Bakrufekao and Kumaibrahu customary lands, which the 1st defendants now call the Logahaza customary land.
    
11. To succeed in this application, the claimants, in accordance with the principles referred to above, must show either that they have a decision from the proper forum (that is, the chiefs or the local court or the Customary Land Appeal Court ("CLAC")) that they are the customary owners of the Kolo'oga, Sisiro, Bakrufekao and Kumaibrahu (or Logahaza) customary lands, or, that they have a pending dispute before the proper forum in relation to the ownership of those lands.
    
12. Is there a decision in favour of the claimants by a proper forum in regards to the ownership of the Kolo'oga, Sisiro, Bakrufekao and Kumaibrahu (or Logahaza) customary lands?
    
13. In a sworn statement by Cecil Rhodes Kusapa in CC 509/11, two decisions relating to the ownership and custodianship of Logahaja and Garanga customary lands have been exhibited as exhibits "CRK-1" and "CRK-2" respectively.
    
14. "CRK-1" is a decision by the Maringe House of Chiefs on or about 15 November 2004 awarding equal rights over the "areas of land between Gigigrai to Bobokana, Bibitio, Tirotue, Bakrufekao, Bebeo and Huhunu Sisiruo to Khada". The parties in that dispute were Nason Naidu Jr and his Group I as plaintiffs. Their spokesman was Nason Naidu Jr. The defending party was Mathew Krogagita and his Group II. Their spokesmen were Ellison Riugita and Mathew Krogagita. The customary lands in dispute were Logahaja and Garanga.
    
15. Mathew Krogagita and Ellison Riugita were not satisfied with the decision by the Maringe House of Chiefs so they referred the dispute further to the Isabel Local Court. "CRK-2" is the Isabel Local Court decision (28 July 2007) on that referral. In that decision, the Isabel Local Court held that "Nason Naidu and his party is the true custodian of Kolo'oga/Kumaibraha land".
    
16. No appeal has been made to the Isabel Customary Land Appeal Court against the Isabel Local Court decision. Instead, on 22 November 2011, the claimants filed a claim in CC 509/11 asking the High Court to declare, amongst others, that the Isabel Local Court decision had given them the ownership of the said lands, that is, the Kolo'oga/Kumaibraha land which have also been variously described as "areas of land between Gigigrai to Bobokana, Bibitio, Tirotue, Bakrufekao, Bebeo and Huhunu Sisiruo to Khada"; "Kolo'oga, Sisiro, Bakrufekao and Kumaibrahu" customary land and "Logahaza" customary land.
    
17. Unfortunately, there is nothing in the Isabel Local Court decision which says that the claimants are the owners of, or have any ownership rights over, the Kolo'oga/Kumaibraha land. The Local Court decision simply says that Nason Naidu Jr and his Group are the "custodians" of the Kolo'oga/Kumaibraha customary lands. In my view, the word "custodian", when used in relation to land, simply means the person who keeps the land or who has control and care over the land. The Australian Concise Oxford Dictionary, 4th edition, defines the word "custodian" as a guardian or keeper. It further defines the word "custody" as guardianship; protective care.
    
18. Hence, while it could be argued that the Isabel Local Court had merely established that Chief Nason Naidu Jr and his Group have the power of control and care over the Kolo'oga/Kumaibraha customary lands, the fact is, the Isabel Local Court decision had neither conferred any ownership rights, nor even any power of control or care, over the Kolo'oga/Kumaibraha customary lands to the claimants. The fact that the High Court decision in CC 509/11 is still outstanding does not, and will not, change the legal position that the High Court has no jurisdiction to determine ownership issues relating to customary land[3].
    
19. It follows therefore that the claimants have not established that there is a serious issue to be tried before the High Court in this proceeding to justify the granting of the interim orders sought in their application, hence, the application is dismissed with costs.
    
20. Having dealt with the claimants' application, I now turn to the by the 1st and 2nd defendants' application seeking a stay of this proceeding until the determination of Civil Case No. 509 of 2011.
    

Decision and orders.

21. I am satisfied both this proceeding and Civil Case No. 509 of 2011 involve the same parties and relate to the same subject matter and they should be consolidated pursuant to rule 3.10 of the Solomon Island Courts (Civil Procedure) Rules 2007. In the meantime, I am satisfied further steps in the consolidated proceedings should be stayed until the court delivers its decision in CC 509/11.
    
22. The orders of the court are:-
    

[1] The application by the claimants seeking injunctive relief against the 1st and 2nd defendants is dismissed.

[2] The application by the 1st and 2nd defendants for stay of this proceeding until delivery of the ruling in CC 509/11 is granted.

[3] This proceeding shall be consolidated with CC 509/11.

[4] Further proceedings in the consolidated action is stayed pending the delivery of the ruling in CC 509/11 with liberty to apply on three days' notice.

[5] The claimants shall pay the costs of the 1st and 2nd defendants in connection with today's applications to be taxed if not agreed.

THE COURT

James Apaniai
Puisne Judge.

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^[1] Gandley Simbe v East Choiseul Area Concil & Others [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999).
^[2] Osiramo v Aeounia [2000] SBHC 21; HC-CC 020 of 2000 (17 May 2000); Konggukolo Forest Resources Development Company v Lokete [2002] SBHC 53; HC-CC 199 of 2002 (31 July 2002). To exercise such power, there must be a dispute before the chiefs, the local court or the CLAC (Simbe case).
^[3] Gandley Simbe v East Choiseul Area Concil & Others [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999).