Taraoa Development Association v Manelusi [2015] SBHC 65; HCSI-CC 609 of 2005 (5 August 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
FAUKONA J:

CC: NO. 609 of 2005

BETWEEN:

TARAOA DEVELOPMENT ASSOCIATION
Claimant

AND:

GABRIEL MANELUSI, ROBERT KIKOLO, MOSES KAUKU, HUGO HEBALA, ELLISON PUHI AND ZEBEDEE HAGEMU
(Representing themselves and Members of the Thogokama Tribe of Jejevo/Furona, Isabel Province)
1st Defendant

AND:

ALWYN SIPA, SUBOTO SIPA, SIMON SUKA AND WELSHMAN SIPA
(Representing themselves and Members of the Hobrae Tribe of Hurepelo, Isabel Province)
2nd Defendants

AND:

JOHN PALMER
(Representing himself and other Members of the Hobrae Tribe of Hurepelo, Isabel Province)
3rd Defendant

Date of Hearing: 22nd May 2015
Date of Judgment: 5th August 2015.

Mr W Rano for the Claimant
Ms L Ramo for the First Defendant
No one for the Second Defendant
Mr M Pitakaka for the Third Defendant

RULING

FAUKONA PJ: This application was filed by the Claimant on 17th March, 2014. It was an application to discharge and or set aside the injunction order granted by this Court on 12th October, 2007.

2. The background history of this case is rather tenuous to reminiscent; suffice to say that there are two appeals filed in this Court by Mr John Palmer of the third Defendant and Mr Vikasi representing the Vihuvunagi tribe. These appeals were filed against the Isabel Customary Land Appeal Court (ICLAC) decision given on the 5th of August, 2013 and 8th August, 2013 respectively.

3. As it could be perceived, dates in this case reflect a long history of dispute between the parties in respect of the same customary land, Varei Land (also known as LR 698).

Grounds for Application

4. Pursuant to R 17.55 (c) of SI (Civil Procedure) Rules 2007, the Claimant intended to invoke the Court to exercise its inherent jurisdiction in this case to grant the orders sought.

5. The grounds upon which this application was brought are threefold. One was against Manelusi group; after filing of the appeal, neither Mr Manelusi nor Mr Vikasi took reasonable steps to progress the appeal forward. As a result, an application for dismissal was filed on 6th May, 2015. Secondly, as against Palmer group; that the Claimants' tribe has been adjudged as owner of Varei Customary Land. Whilst an appeal is pending in the High Court, there is no order staying the Judgment of Isabel Customary Land Appeal Court (ICLAC). Thirdly, are the logging issues?

6. I noted there are two appeals pending in the High Court. The appeal by John Palmer was filed on 20th September, 2013 and the appeal by Mr Hedly Vikasi was filed on 8th November 2013. One of the appeals had been set for hearing, whilst the other is still on mention list.

Facts Surrounding the Issuant of the Order

7. In 1998, the Chiefs heard conflicting claims asserted by four parties. One party named exempted from this case is Andrew Gedi and his Rogisi Tribe. The Chiefs' finding was in favour of Hedly Vikasi. The matter then went before the Local Court, and finally ended up in the Isabel Customary Land Appeal Court (ICLAC) which delivered its decision on 14th November, 2001. The ICLAC remitted the matter back to the Local Court to be reheard.

8. In the mid 1990's, a Felling Licence No. TIM 2/32 was issued to Isabel Timber Company Limited for logging operation on LR 698. That licence was cancelled on 15th December 1998. On 28th August, 2002, a second licence No. A1034 was issued to the Claimant. That licence suffered from fundamental defects in law.

9. There can be no assumption or mistake that as early as 1998, the Claimant had knowledge of the existence of the dispute over the land in issue. Despite having knowledge of the existence of the dispute, and flawed licences, the Claimant still pursues to acquire felling licence. A peculiar contrast can be noted that while the ICLAC had remitted the case to Local Court in November 2011, the Claimant acquired Licence No. 1004. Further still, whilst the issue of ownership is still subsisting in the Court, the Claimant was issued with another Felling Licence No. A10529 on 15th September, 2005. It was found that the Claimant had not complied with the procedures set out by the Forestry Act therefore defected which affected the validity of the Licence.

10. It is those facts; inclusive of the fact that while the ownership issue between the parties was moving forward and back in the court system, the Claimant found it fit to acquire felling licences. It was under these circumstances that the Court issued the restraining order.

Has Circumstances changed

11. The question now is, has circumstances being changed to permit discharging of the restraining order. Clearly it is not. The case had accelerated from the Local Court to ICLAC, which gave its decisions in August, 2013. The issue of landownership has yet to be finally determined. One of the options suggested by the Court is, when will the Order lapse? It was clearly stated until the determination of triable issues. The ownership issue is a fundamental issue in this case. At the moment, the two appeals are still pending in the High Court. One will be heard soon (in October), the other probably at the same time or may be later.

12. One of the reasons supporting this application is that neither Mr Vikasi nor Mr Manelusi has taken necessary steps to move the appeal forward. It would appear the Claimant is utilising Rules 9.71 and 9.72. There is evidence an application had already been filed. I noted an appeal was filed on 8th November 2013. The Appellant may have contributed to any delay. However, it has to be noted that appeals to the High Court normally experiences a long delay because we have to wait for minutes of the CLAC proceedings to be remitted. Poor appellants cannot do much. The court administration has to do something to rectify the delay. In the meantime there is assurance that one of the appeals has been given a hearing date and probably the second one will fall on the same date or little later?

Stay of decision

It is not the question that there was no application to stay the decision of the ICLAC, so that the Claimant will enjoy fruit of its litigation, Pou -v- Soro ([1]). In my respective opinion, one cannot capitalise on the decision, which was appealed to do an act that may be prejudicial to another party.

13. Licence No. Tim 2/32 may have been revived, and of course, decision of Area Council was valid where no appeal was lodged. The fact of the matter is that at the time of the Order that Licence was cancelled and accordingly was extinguished.

14. It appears from the surrounding facts that the Claimant and those who are members of that Association have appetite to undertake logging operations. I agree with Mr Pitakaka that Licence Tim 2/32 was issued to Isabel Timber Company (ITC). This application appears to be on behalf of ITC, which is not a party to these proceedings and it's up to them, if so wishes to do whatever with its licence. It is a matter for them to pursue and not for the Claimants as grantors.

15. Mr Rano refers to Rule 16.20 (a) and argues there is no order by this Court to 'Stay' the decision of ICLAC at that time or immediately after filing of the appeals. At that time of filing of the appeals, there were two things existed. One is the decision by ICLAC, which decided the Claimant was the owner of the land, and secondly, the restraining order obtained from a judgment, which was still on foot. The question is what is it in the decision of CLAC that this Court ought to stay? There are no other orders apart from Claimant being the owner of the land. Can this Court stay decision of ownership, I don't think so. There is nothing in the CLAC decision to stay. Correspondingly, it is also true to say that without an order of stay, it is a ground, inter alia, to discharge the restraining order. One can twist the coin around but will not see any validity of an order of stay is necessary in this case.

16. This case hints on the principle of law that upholds practical perception to maintain the status quo; that while the issue of appeals are yet to be determined by the Court, restraining order must be persisted to preserve the environment and all other land resources which are significantly fundamental to human existence and survival. The Court therefore is urged to intervene and exercise its inherent powers to give aid to assist itself while appeals are pending determinations before it.

17. The issue of ownership is one which reigns above all others, and must be finally determined where legal issues attached to it are determined before discharging the restraining order.

18. As concerning any defect in the manner the appeal was filed, that should be an issue left for the Court to decide at an appropriate time when considering the gist of the appeals.

19. In my view, since the Restraining Order was made on 12th October, 2007, circumstances have never changed and nothing has impinged on me to discharge the order.

ORDERS:

1. Application dismissed.
   
2. Restraining Order granted on 12th October 2007 will continue inoperative until further orders, or determination of the triable issue of ownership.
   
3. Cost is to be paid to the Defendants by the Claimant.
   

THE COURT

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^[1] (1999) SBHC 131; HC-CC 359 of 1999 (12 November 1999).