Kile v Central Magistrate Court [2014] SBHC 20; HCSI-CC 163 of 2012 (11 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J)

Civil Case No. 163 of 2012.

BETWEEN:

NELSON KILE (representing Baehai Tribe)
Claimant

AND:

CENTRAL MAGISTRATE COURT
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF LANDS
Third Defendant

AND:

LISE DUKO
Fourth Defendant

AND:

SIA ENTERPRISES LIMITED
Fifth Defendant.

Date of Hearing: 17th March, 2014.
Date of Ruling: 11th April 2014.

Mr C. Hapa for the Claimant.
Mr E. Kii for First to Third Defendant.
Mr B. Eteomea for the Fourth Defendant
Mr Lidimani for the Fifth Defendant.

RULING.

Faukona J: A claim for Judicial Review was filed on 23rd May, 2012 for declaratory and rectification orders. The instituting of the review process is necessary following the determination by the land acquisition officer in favour of the fourth Defendant. An appeal was filed by the Claimant within prescribed time but failed to pay the relevant appeal fees. It may appear that this point is a contentious one. However, by letter from the Chief Magistrate dated 7th October 2010 advising the Commissioner of Lands that there was an appeal filed at the Central Magistrates Court, but had been withdrawn by the Appellant Wycliffe Ene. A sworn statement was filed on 1st October 2010 to formally withdraw the appeal. The effect of that letter affirms that there was no appeal against acquisition officer's determination. It is not clear, and I am not been directly addressed on whether it was the same appeal which the Claimant filed. In any event, I assume that Wycliffe Ene's appeal is different altogether from the Claimant's.

2. This application was filed on 25th September, 2013 seeking restraining orders against the fourth and the fifth Defendant.

3. The principles upon which interlocutory orders are made premise on the famous case of American Cyanamid.[1] The principles are widely applied and adopted in this jurisdiction. For the applicant to succeed, he must establish there are serious issue the Court must consider. Having found there are serious issue then the court must consider the question of adequacy of damages and the balance of convenience see Manepuhi V Marovo Dev. Co[2], where His Lordship Goldsborough set out the proper test. Does it include delay as an element to be considered? If not, have there been provisions in the Rules, which provided for such?

4. Quite often, this Court entertains additional issues as locus standi and delay. The issue of locus standi, in my opinion is an issue directly related to the institution of a claim. Once it is proved on the facts, it will affect the whole entire claim. Application for interlocutory orders does not finally determine the rights, duties and obligation of the parties. Whether such application succeeds or not do not end the case earlier. Therefore it is my respectable view that the issue of locus standi should only be raised when the substantive claim is actually litigated and not during application for restraining orders. If that should be raised, then the true meaning of locus standi, 'is someone who has an interest in the subject matter". In this case, the Claimant had won the Land in the CLAC. He has a genuine interest to come to Court[3].

5. On the issue of delay, there could have been some misunderstandings. The question of undue delay though of general proposition, is not part of the principles enshrine in the Cyanamid case. Obviously, the same can be said irrespective of the Rules. It would appear that Counsels are being carried away because one of the requirements under R. 15.3.18 is undue delay which ought to be negated by the Claimant or the Court will refuse to hear the claim. Concisely, the issue of delay may not be appropriate to be raised at the hearing of the application for restraining orders. That has been accommodated by chapter 15 conference. And there is no need to raise it prematurely. I may touch on this issue for justice sake, if not, the law is very clear.

Serious issue/issues to be tried:

6. The Counsel for the Claimant pointed out several serious issues that ought to be tried. Firstly, the Claimant's claim was tested by two applications. One was filed by the Attorney General on 26th July 2012 for dismissal. This Court, however, dismissed that application and allows this matter to proceed to trial. Again an application was filed by the fourth Defendant on the ground that the claim discloses no reasonable cause of action and hence an abuse of Court process. That application was also dismissed by this Court on 6th June 2013. From the two decisions reflected an overall assessment of the strength of the Claimant's case; that this case has some merit to be considered.

7. Evidence also reveal that the decision of Isabel Customary Land Appeal Court which upheld the Local Court decision that Nelson Kile and Dorah Kikolo for and on behalf of baehai clan have primary rights to sareai Land LR681.

8. Taken that decision which was never appealed by sesehu tribe, in contrast with 1940 document of customary transfer of right to the same land to the fourth Defendant and John Sike, which right should be prevailed? Having said that, was the customary transaction made by the toelegu people, which the fourth Defendant received a portion of to secure their settlement on the land, has an overriding effect over and above the court decisions. Was the effect of those traditional transactions guarantee more and valid rights than the rights determined and awarded by the Local and CLAC Courts to the Claimant. Perhaps this is one of the significant serious issues to be considered by the Court.

9. Further to that, the Local Court record reveals that the fourth Defendant was one of the six spokes people for Sesehu tribe and they lost. In addition, there is evidence that John Lote was from Sesehu tribe (para 8 – of Duko sworn statement filed on 16/7/2013) who transferred the right of ownership to the fourth Defendant and John Sike. In the Local Court and CLAC Sesehu tribe lost. Was the custom deed of transfer still valid after the Court cases? This is a very serious issue, which have to be considered at trial.

10. Another issue raised by the Claimant is the question whether the fourth Defendant is the same as Lise Duko in the 1940 document refer to as being the recipient of the transfer of deed in custom. The Claimant argues that the current Lise Duko was not yet born in 1940 at the time of land transfer. Apparently, this is another issue noted as being serous and ought to be tried.

11. Perhaps the most significant issue is the question of non-payment of appeal fees or non-filing of any appeal at all. This case is a claim for Judicial review premises on the first Defendant's decision dismissing the appeal against the acquisition officer's determination on the ground that it had been formally withdrawn. That ground has never been elaborated by the Counsels. All they canvas was that the appeal fee was not paid. As it appears, it is a litigated point, which in my view has to be decided in the forum intended to be.

Adequacy of damages:
12. Having found there are serious issues to be tried the question is where will the balance of convenience falls. Undoubtedly the fourth and the fifth Defendants are person conducting logging operations and are benefitting out of the proceeds since logging commenced (no actual date disclose) after licence No. A101101 was issued on 3rd March 2011. From evidence there are roughly twelve consignments being exported by the fourth and fifth Defendants from 2011 to 2013. There is no doubt that fourth and fifth Defendants have capability and affordability to provide adequate remedy. With more than two years of logging operations and about twelve shipments, how much of the forests had disappeared and how much of the trees are still standing. In such circumstances can damage alone is not an adequate remedy?

13. Mr Eteomea submits there were restraining orders against the Claimant in the previous case concerning logging on the same land. Therefore reinforces the principle of achieving benefits or shares rather than concern for preservation of forests and damages. See Manepuhi & Others V Maroro Development Company Ltd and Others[4]

14. Manepuhi's case can be distinguished from this one on the basis that the Claimant in this case was determined by CLAC as a primary owner on behalf of baehai tribe on 7th September 1998, where no appeal was filed against thereafter. This should answer the question raised by Mr Lidimani that issues in custom ought to be determined by appropriate forum. Which custom issues more are yet to be decided and by what forum. Can it be true to say custom deed of transfer of right of ownership and traditional transaction of valuables had an overriding effect over a court decision.

15. As a land owner he may perhaps wish to engage in logging, that should left entirely upon his own discretion. When someone did it without him and benefited would definitely appear that the Court decisions were not respected or wrongfully interpreted, even by Counsels in this case. Whether it is for money or preservation of forest or damages the rights of landowner must be respected and that gives one doubt as to the adequacy of damages. The decision of CLAC was given on 28th Aprils 1998, and land acquisition determination on 19th December, 2009 which identified 4th Defendant and John Sike as rightful persons to claim rights over sareai land. Follow on from that were grant of profit and issuant of logging licence. All of which the Claimant was totally misplaced and out of recognition.

16. Therefore, I doubt though the fourth and fifth Defendants are capable parties to provide adequate damages; with twelve shipments a lot of damages had been done. Not only it was done on the land but it was done on the land own by the Claimant who had won twelve years before logging by the fourth and fifth Defendants commenced. With the doubt, the balance of convenience arises and definitely tilts toward the Claimant. I must therefore grant the orders the Claimant sought.

Orders:

1. Order restraining the fourth Defendant her agents, relatives, servants or any person or persons authorized by the fourth Defendant from felling trees or conducting any other form of development within sareai land (LR 681, Perpetual Estate in PN 072-002-3) pending the judgment of this case or any such further orders.

2. Order restraining the fifth Defendant, its agents, associates, employees or any person or persons affiliated or authorized by the fifth Defendant from felling trees or conducting any form of development on sareai land pending judgment of this case or any such further orders.

3. Order that the fifth Defendant, its agents, associates, employees or any person or persons affiliated or authorized by the fifth Defendant, remove their machines or equipment out of sareai land forthwith until determination of this case or any such further orders.

4.Order that the fifth Defendant within one (1) month from the date of this order produces to the Court and Claimant an account together with the supporting evidence of the following;

(a) Total volume (in cubic meters) of logs felled and exported by the fifth Defendant from sareai land under felling licence No. A101101 and their respective species from the commencement of logging operations until the date of this order;

(b) Total FOB value of logs felled and exported by the fifth Defendant from sareai land under felling license No. A101101 from the commencement of the logging operations until the date of this order;

(c) Breakdown of the payments made for each shipment since the commencement of logging operations until the date of this order including royalty payments, export duties and the fifth Defendant's management and operation fees.

5. Order that all proceeds from logs felled and exported by the fifth Defendant within sareai land under felling licence No. A101101, which are yet to be received, be paid into a Joint Trust Account in the name of the Solicitors for the parties.

6. Costs of this application are paid to the Claimant by the Defendants.

The Court.

---

^[1] [1975] AC 396.
^[2] [2010] SBHC 75; HCSI- CC of 2008 (28 October 2010).
^[3] Kongungaloso Co Ltd v AG (1999) SBHC 39.
^[4] Ibid, page2 para.1.