Bako v Gedi [2014] SBHC 159; HCSI-CC 366 of 2011 (16 December 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 366 OF 2011

BETWEEN:

JAMES BAKO (As Representatives of Thogokama Tribe)
Claimant

AND:

LEPPING GEDI, GORRENCE ROO, ABEDNIGO KAHE, CHARLES DAFE and MARSDEN MAIRI
1st Defendant

AND:

GLENGROW (SI) COMPANY LTD
2nd Defendant

Date of Hearing: 14th November 2014
Date of Ruling: 16th December 2014

Mr D. Hou for the Claimant
Mr W. Rano for the First and Second Defendants

RULING

Faukona PJ: This application was based on R 9.75 and was filed on behalf of the first and second Defendants on 28th May 2013. The relief sought are in the following terms. That the Claimant's claim or part thereof be dismissed for being frivolous and vexatious, or in the alternative the restraining orders on 16th August 2013 be varied.

2. An amended claim (Category A) was filed on 18th June 2013 for restraining orders restraining the first and second Defendants, their servants and agents from entering into bagaho customary land for the purpose of felling trees, and milling, or removing any timber therein. At the same time permanent injunction on the same term as sought in the first relief above.

3. The land being the subject of this dispute was clearly defined in paragraph 2 of the claim. On 16th August 2012 restraining orders were granted restraining the first and second Defendants not to enter bagaho customary land as demarcated in paragraph 2 of the statement of case.

4. Mr. Rano's argument on behalf of the Defendants based on the fact that the injunctive orders did not cover the rest of bagaho customary land. Land boundaries as described by paragraph 2 of the statement of case are a small portion of bagaho customary land. Bagaho customary land itself is a large area from the sea coast to the mountains. See Exh. JGA attached to the sworn statement of J. Gedi filed on 12th August 2013.

5. The intention of paragraph 1 of the restraining orders is no way ambiguous or dubious, but precise with maximum clarity. That the restraining orders were confined to the land area demarcated by paragraph 2 of the statement of case. Any social or economic activities outside of the described boundary should not be affected by the injunctive orders. The Claimant desired how the orders were structured that injunction should operate within the structured boundary of the land as precisely described and not beyond. It is clear that land outside of boundary described by Claimants in the claim is not covered by injunctive orders.

6. The Claimant adduces reasons for their short comings and says that the boundaries were selected to correspond to their capacity to give and secure undertaking as to damages. I do not accept that excuse. It is a legal requirement that a person applied for injunctive relief must be prepared to give undertaking as to damages. And that undertaking should be able to secure the entire land the Claimant claimed to have owned. In this case the Claimant claim the whole of bagaho customary land but decided to give undertaking as to selected part of it because felling licence did not cover the disputed land. Realistically the Claimant's perception is an absolute misconception of the status of the law. In this branch of the law, injunctive relief sought must cover the land one claims as an offer to meet damages that may incur by the other party. That is to preserve the status quo and to protect further damages and violation to tress and land until trial of the issues.

7. I noted the issue of customary land ownership is contested by both parties. The first Defendant obtained a decision from Katova House of Chiefs on 18th July 2012. Before that on 27th February 2006 the issue had been addressed by a combined Isabel Chiefs. In 2013 the Claimants went before the Hograno House of Chiefs and obtain a decision in their favour. The question is which Chiefs determination should take precedent? It is not a difficult task to determine but the principle in law first in time should prevail over the later. The Claimant was erred in obtaining a determination from differently constituted Chiefs concerning the same parties and the same customary land. What they should have done was to refer the case to Isabel Local Court.

8. In this Court the Claimants adduce they have filed a referral case in the Local Court at Central Magistrates Court, a piece of evidence Mr. Rano has contested. He states there is no evidence to proof filing of a referral case. In rebuttal Mr Hou submits that evidence of that was exhibited in one of the sworn statements but not specifically indicated whose sworn statement. Mr Hou refers to the Court of Appeal decision with the precedent that a pending local Court case is good reason to grant injunction to aid the Local Court until judgment is delivered.

9. The case Mr Hou refers to was decided on the basis of being satisfied that there was a letter inquiring about referring a case to the Chief. Although no fees or actual referral was materialised the intention to refer a dispute is sufficient ground to grant injunction in aid of the Chiefs hearing. In this case, there is no evidence at all to proof a referral or intended referral case had been filed by the Claimant in the Local Court? This can be distinguished from the Court of Appeal case.

Application to strike out:
10. The application is premised on the principle based on R9.75, which comprised of three legal requirements which must be proved by the Applicant. Should one is proved on the balance of probability the Court may exercise its powers to strike out the proceedings. Subsidiary to the principle application is the application for variation of restraining orders, which is drawn and structured in an alternative manner. I have dealt with the alternative application in this ruling.

11. With due respect to principle application there is nothing advanced by Mr Rano in his submissions. He is concerned basically with the boundaries of the land in dispute and that the injunctive orders are confined to that. Any Customary land outside of that boundary is not covered by the injunctive orders.

12. Rather than relying on speculation, it is apparent that Mr. Rano is more focused on the boundary issue, the application and the physical jurisdiction the orders ought to apply. In such circumstance, I will refuse to strike out the claim or part thereof. However, I will grant an order to vary restraining orders dated 16th August 2013.

Orders:
1. Refuse to grant order that the Claimant's claim or part thereof be strike out or dismissed.

2. Grant order that the restraining orders dated 16th August 2013 be varied by directing its applicability be within the bounds of the boundaries described by paragraphs 2 of the statement of case.

3. Cost of this application is paid by the Claimant to the first and second Defendants.

The Court.