Ahikau v Ririoa [2015] SBHC 53; HCSI-CC 295 of 2014 (15 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 295 of 2014

BETWEEN:

MICHAEL AHIKAU
First Claimant
(Representing the Karonai Tribe)

AND:

JOSEPH WA'ARAMU
Second Claimant
(Representing Haukorekore Tribe)

AND:

ABRAHAM AIHIKAU
(Representing Heranihio Tribe)
Third Claimant

AND:

JERRY HAIPORA
Fourth Claimant
(Representing Aporo Tribe)

AND:

JOHN RIRIOA, TOM HUTUKA, JOSEPH
MAHEANA, VINCENT RAUSI, STEVEN
KAUNOROI RIRIOA, JOHN HA'AWARU,
BEN NAITORO
(trading as ARIHA RESOURCE DEVELOPMENT
COMPNAY)
First Defendant

AND:

SAMLIMSAN LTD
Second Defendant

AND:

ATTORNEY-GENERAL
Third Defendant
(Representing Commissioner of Forest)

AND:

MALAITA PROVINCIAL EXECUTIVE
Fourth Defendant

Date of Hearing: 13th May 2015
Date of Ruling: 15th June 2015.

Mr A. Rose for the Claimants
Mr W. Rano for First Defendant
Mr E. Kii for the third and Fourth Defendant

RULING ON APPLICATION FOR INTERLOCUTARY ORDERS

Faukona PJ: A claim in category A was filed by the Claimants on 5th of September 2014. Attached to the Claim and filed on the same date was this application for interlocutory orders pursuant to Rule 2.9, 7.5 and 7.38.

2. This application seeks a number of reliefs in terms of restraining the first and second Defendants from undertaking initial activities related to logging including felling of trees within karonai, haukorekore, heranihio and apora customary lands, and to restraint the same not to move its logging machineries from current location into any of the four concern customary lands. Also seek an order should there be dispute raised on boundaries or ownership in custom, that should be referred to an appropriate Chiefs for deliberation. A penal notice is attached to the orders and costs.

The Background facts:

3. On or about 18th May 2011 notices for timber rights hearing were displayed at various places at villages near where the lands identified in East AreAre. The four concern customary lands were part of the concession applied for in form 1 by the first Defendant.

4. On or about 10th August 2011 a timber rights hearing was conducted. Representatives of the first, second, third and fourth Claimant tribes were present. The second and third Claimant attended the hearing personally. The first and the fourth Claimants were present through relatives and agents. On or about 16th August 2011 a determination in Form II was released by the fourth Defendant. On 30th September 2011, a certification letter from Magistrates Office Auki affirmed there was no appeal to Malaita Customary Land Appeal Court (MCLAC).

5. On 25th May 2012 a felling licence No. A101124 was issued to the first Defendant who operated under the registration of business name as Ariha Resources Development Company. On or about 15th December 2011 the first Defendant signed a Standard Logging Agreement (SLA) with the trustees identified of the lands concerned. On or about 15th April 2014 the first and second Defendants landed machineries at aitomu to commence logging operations.

6. The Defendants oppose this application on certain grounds. That this case is simply an appeal in disguise. The Claimants had already waived their rights to challenge the decision of Malaita Provincial Executive (MPE) by failing to file an appeal to the Malaita Customary Land Appeal Court (MCLAC).

7. The Defendants also deny Mr Joseph Wa'aramu has locus standi to come to Court. He is a member of the patrilineal linage. In November 1996 his genealogy in connection to haukorekore customary land was declared not true by the Namoaraha House of Chiefs.

Process to invoke High Court Jurisdiction to grant injunction:

8. It would appear as a common understanding, that there are two processes in which to invoke the jurisdictional power of the High Court to grant injunctive orders pursuant to Rule 7.38 and which can also make interim declaration by an interlocutory order under Rule 7.39.

9. At the outset, it is to be noted that the purpose for an interlocutory injunction is to preserve the status quo until hearing of the main action. To serve the purpose, the two approaches form a guiding principle for assessing interlocutory applications.

10. The first one is set out in the famous case of American Cyanamid Co V Ethicom Ltd[1]. That case sets out the tests and requirements as guidelines. At page 407 Lord Diplock said,

"... the Court is required to investigate the merits to a limited extent only/ all that need to be shown is that the plaintiff's cause of action has substance and reality".

11. Again His Lordship stated;

"...that if an award of damages in the measures are recoverable at common law would be an adequate remedy and the defendant could be in a financial position to pay them, no interlocutory injunction should be granted".

12. Again at page 511 His Lordship continued;

"The extent to which the disadvantage to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies".

There are many cases in this country applying the test in the above authority (expression is mine).

13. The second path is in relation to the issue of jurisdiction and is grounded in the Court of Appeal case Simbe V Eagon Resources Development Company Ltd & others[2]. The Court started;

"The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To that extent that a local Court or customary land appeal Court has and the High Court has no jurisdiction over questions of disputed ownership of customary land the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by local Court or customary land appeal Court of its jurisdiction to decide such dispute. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary land appeal Court specifically invested by Parliament with the powers to decide it. Pending determination of that dispute in the local or customary land appeal Court, proceedings in the High Court would ordinarily be stayed on appropriate terms."

14. Base on Simbe case the jurisdiction of the High Court when dealing with issues of custom is limited to injunction aiding the exercise by local and customary land appeal Courts exercise their respective jurisdiction to decide such dispute. A number of High Court decision have applied and adopted the position, and others have expanded to include the Chiefs hearing. One of such case is Hilli V Balesi[3]. In that case the Court stated;

"At the moment the dispute between 1st and 4th Defendants and the Plaintiff on behalf of his family and others is yet to surface in the Chief's forum and the Local Court and therefore, the High Court is unable to exercise its jurisdiction to assist the Chief's forum or Local Court if asked to exercise its jurisdiction in that regards"

15. In the case of Dautaha and Others V Garimarau and Others,[4] the Court stated,

"Doing that is an inappropriate extension of the High Court's aiding jurisdiction which is limited in application to the extent that the Gandley Simbe rule only applies to granting an interim injunction to maintain the status quo pending the resolution of a dispute referred to the Chiefs forum for determination (my emphasis)".

16. Further in the case of Kuiti V Amoi[5] the Court stated;

"Acting under this aiding jurisdiction the High Court could assist the Chiefs by granting injunctive orders to maintain the status quo between the parties for the meantime, if the dispute was reported to the Chiefs and the dispute is pending before that forum".

17. In the case of Bako V Gedi[6] the Court specifically define the minimum requirement that;

"where the applicant had referred to a chiefs panel by way of a letter is sufficient ground to grant injunctive orders".

Locus Standi:

18. Two most commonalities in both natures of applications is the issue of locus standi and whether the cause of action has a substance in reality. In this case, it appears there is dispute as to the issue of standing in a technical form or as a point of law. The first and the second Defendants argue that the Claimants had waived their rights by not challenging the decision of the Malaita Provincial Executive (MPE) by way of an appeal. Therefore, by referring the case to the Chiefs as a ground to come to this Court and seek orders for injunction is an appeal in disguise. The question ought to be asked is, has the Timber Rights determination concern ownership in customary land? By failing to appeal that decision, had the Claimants exhausted their rights to refer a case to the Chiefs panel? In both questions I must answer in the negative. Provincial Executive merely identifies persons lawfully able to grant timber right in a given customary land. There have never since the inception of the Forest Resources and Timber Utilisation Act determined the issue of land ownership. It is a function that is vested upon the Chiefs and the Court system. Having said that, the rights of the Claimants to invoke the powers of the Chiefs to determine the issue of ownership to customary land was not exhausted. By referring the dispute to the Chief was of right and which was accorded to them by law (Local Court Act). Determination in a timber rights application does not substitute or waive their rights at a mercy of not appealing. The Claimants still have the right to refer the issue of ownership of customary land to the Chiefs tribunal for determination.

Substantive cause of action:

19. Substantive cause of action or triable issues are natural cohesions as part and partial of tests and guidelines enumerated in the American Cyanamid case when considering whether to grant injunction or not. In this case there are two major triable issues. One is a challenge processes in sections 8 and 9 of the Forest Resources and Timber Utilisation Act and whether the granting of the felling licence No. A101124 was done on proper legal basis. And the second issue relates to the ownership in custom to the four customary lands being the subject of this case. I have pointed out some commentary on the two issues. However, both are serious issue which ought to be fully argued at trial.

Undertaking as to damages:

20. There is no dispute as to this issue. The Claimants had filed undertaking as to damages on 5th September 2014 to fulfil the requirement of rule 7.38. However, very interesting is the point of capability by the Claimants to pay damages should they loss the case at the end of the day. I have no doubt the Defendants are capable. Even if the timber rights process is flawed they are able to compensate. I have no doubt the ability of the second Defendant which for all reasons capable to shoulder.

21. Having said that, if injunctive orders are refused, and at the end of the day the decision is in favour of the Claimants, then mass destruction caused to flora and fauna, environment, soil, rivers, stream and trees which may be immeasurable and irreversible in terms of monetary damages, see Naisi V Western Customary land Appeal Court.[7]

Balance of Convenience:

22. In balancing the convenience of the parties, the scale in my view should tilt towards the Claimant. There are serious issues to be tried which are still pending at this stage. More significant is the land ownership issue which will determine the true owners of the four customary lands. Whilst logging operation is still at its initial stage and damages can be foreseen as minimal to some extent, to preserve the status quo, it is convenient to grant the injunctive orders sought in the relief. Relying on the authorities quoted in paragraphs 13 – 17 above, this court must therefore grant the orders sought to assist and enable the Chiefs forum resolve the ownership dispute which had been referred to it for determination.

Orders:

1. An interim injunctive order granted to restraint the first and second Defendants, by themselves, their servants or agents from entering, clearing bushes, removing soil for purposes of constructing any road, felling trees, or undertaking any other related logging activities within the Claimant's lands namely karonai, haukorekore, heranihio and apora until further orders of the Court.

2. An interim injunctive order is granted restraining the first and second Defendants from moving any of its machinery from the current location into any of the Claimant's lands namely Karonai, haukorekore, heranihio and apora pending further orders from the Court.

3. Grant of order 3 is not necessary, as land ownership issue had already been referred to the Chiefs.

4. That penal notice is attached to Orders 1 and 2 above.

5. Costs of this application is paid by the 1st and 2nd Defendants to the Claimants.

The Court.

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^[1] (1975) AC 11 508-510
^[2] (Unreported) CASI, Civil Appeal Case No. 8 of 1997 (9 February 1999)
^[3] (Unreported) HCSI, civil Case No. 224 of 2001, (6^th November 2001)
^[4] (Unreported) HCSI, civil Case No. 327 of 2003 (6^th October 2004)
^[5] (Unreported) HCSI, Civil Case No. 268 of 2005 (9 August 2005)
^[6] (2012) SBHC 90; HCSI CC 366 of 2011 (16 August 2012.
^[7] (2013) SBHC 10, CC No. 298 of 2012.