Middle Islands Investment Pty Ltd v Tauni [2015] SBHC 80; HCSI-CC 355 of 2013 (29 September 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 355 of 2013

BETWEEN:

MIDDLE ISLANDS INVESTMENT PTY LIMITED
Claimant

AND:

JERRY TAUNI
(Representing himself, member of his family, relatives, servants, agents and associates)
Defendant

Date of Hearing: 3rd August 2015
Date of Ruling: 29th September 2013.

Ms A. Willly for the Claimant
Mr G. Fa'aitoa for the Defendant

RULING ON APPLICATION FOR RESTRAINING ORDERS

Faukona PJ: This application was filed by the Defendant for interim restraining orders and other orders as well. The application was filed on 6th November 2014 and was premised on Rules 3.5, 7.2 (a) (ii), 7.3-7.5, 7.38 and 1.14.

2. The Applicant in this proceeding is a Defendant in a claim filed by the Claimant on 26th September 2013. The claim is basically for general damages and permanent restraining orders. A defence was filed in response on 7th November 2013.

3. This application is purposely to restraint the Claimant from entering into arohane and rakena customary lands which the Defendant claims belong to his tribe.

4. On the other hand the Claimant says it has a forestry felling licence No. A101039 over a concession area that covered certain customary lands within ward 11, East Bauro, Makira, Makira Province. On the face of the felling licence there are about twenty (20) blocks of customary lands identified as located within the concession area.

5. I noted the felling licence No. A101039 was issued by the Commissioner of Forests to the Claimant on 19th September 2011 and due to expire on 19th September 2016. The concession area under that licence comprised twenty (20) blocks of customary lands within Ward 11 of Makira, Makira Province.

6. Around 16th May 2013 the Claimant's machines and workforce landed at pawa camp and logging operations commenced forthwith. After two weeks of operation the Claimant encountered disgruntled individuals. About 500 meters into road construction the Claimant was approached and cautioned not to progress with any work by the Defendant who claims the Claimant was trespassing into a disputed land called arohane customary land. At the same time demanding $300,000.00 compensation for trespass and damages.

7. In around November or December 2013, Wencelas Bwaghi, Thomas Tauni and Godfrey Waisi filed a land boundary dispute case against the Defendant in the Bauro Council of Chiefs. The case was heard on 31st January 2014 and was endorsed by the Chiefs on 17th February 2014. The Chiefs decided, inter alia, that the logging operation had never entered or encroached into arohane customary land. Simply, the boundary claimed by the Claimants at the Chiefs hearing was convincing and believed so the decision was in their favour. The Defendant as an aggrieved party filed a referral case with the Local Court. Since then that case is still pending hearing and determination. Whether hearing can be soon or later, time will tell. If later, how much time later cannot be ascertained. Local Court operations in this country very much rely on availability of funds from the SI Government. The sooner the funds are made available the sooner the cases are heard.

8. Indeed the issue here is one of boundary dispute. I can assume it is probably the western boundary of the land is subject to dispute. Associated to that is the location of the three customary lands namely, manigaibao, baonga and waigirigiri, and whether they are located within arohane customary land or not.

9. Given the issue is a boundary dispute I have noted the Chiefs had failed to conduct a boundary survey to ascertain the truth. That remains an issue to be further resolved by the Local Court and the issue is fundamental to this case.

10. Another point is that I have given the privilege to observe and assess the boundaries in the map exh. as LT2 attached to sworn statement of L. Tauni filed on 6th November 2014, and a map exh. as L2 attached to sworn statement of Lusito filed on 26th September 2013. From those two maps a contrast can be drawn. My perception of their revelations is that they are almost similar in all aspects depicting arohane customary land. However, it would be in the interest of the parties that a survey be conducted by the Local Court to ascertain the boundaries of arohane land in the light of the logging operation. In doing so, will resolve doubts as to the real boundary of arohane land.

11. It would appear the customary ownership of arohane land is not an issue. It is the location of the three lands which ought to be identified. The Claimant is denying those lands are inside arohane land and they are covered by the timber rights processes. In 1984 the CLAC in its determination outlined the boundaries of arohane land. The description of the boundary will be quite helpful to the Local Court in determining the issue of boundary.

12. Whilst the issue of boundary remains to be determined by the Local Court, the Defendant comes to Court and seek orders to restraint the Claimant in the interim to cease logging operation on arohane land until the land the boundary issue is properly determined.

13. The Defendant comes to Court for an order in aid of the Local Court discharge its responsibility determining arohane land boundary as a customary issue, which the High Court lacks jurisdiction to entertain. In the case of Veno and Others V Jino & Others,[1] His Lordship Palmer CJ said,

"... In so far as customary issues enumerated in this judgment are beyond jurisdiction of this Court, that the proper forum for dealing with such matters is before the Chiefs and Local Courts, this Court nevertheless has power to grant relief by way of injunction as an aid to the exercise by a Local Court or customary Land Appeal Court in its jurisdiction to decide such disputes. Such injunctive relief is designed to facilitate the determination of the ownership issues in the Local Court or the customary Land Appeal Court".

14. What His Lordship was saying is that where a customary issue is pending hearing and determination in a Local Court or customary had Appeal Court, this Court has the power to grant interim injunctions only in aid of the local Court or the Customary Land Appeal Court conduct their sittings and determine the customary land issue pending before them.

15. In this case, the customary land issue pending before the Local Court is the boundary of arohane land, in consideration with the current logging operation that has been taking place. In addition, is identification of the three customary lands as mention above, whether they are located within the arohane land boundaries demarcated by the CLAC in 1984, or are outside of those boundaries.

16. In both maps I refer to in paragraph (10) above, there is no boundary or location of the three lands. The concession map shows straight lines. This is a case where the Local Court is tasked to hear and determine the issue of boundaries. It requires proper survey to ascertain the truth.

17. The issue in this case stands out very clear and which is currently pending determination by the local Court. The balance of convenience is that damages are not a sufficient remedy. The Claimant might miss out on earnings from the operation if there is injunction. However, the Defendant stands to lose the environment at the end if he succeeds and not having injuncted the Claimant. Once damages are done to the environment, trees, waters, rivers, flora and fauna cannot be retrieved for some decades. Therefore the balance tills towards the Defendant. I must therefore grant the restraining orders prayed for.

Orders:

1. Grant interim order restraining the Claimant and any of its servants, agents, contractors, licensees or invitees from entering onto arohane and rakena customary lands situated in Central Bauro District of Makira, Makira/Ulawa Province.

2. Further interim order restraining the Claimant and any of its servants, agents, contractors, licensees or invitees from felling and removing from any of the above mentioned lands any tree or log for possible export or any other reason whatsoever.

3. An order compelling the Claimant to forthwith account to the Defendant or his Solicitor (including making available all relevant banking and shipping documents) for all proceeds of logs extracted from the said lands since about June 2013 until the present.

4. Consequent to Order (3) above hereby order directing the Claimant to forthwith deposit into a joint IBD trust account in the names of the parties Solicitors, all proceeds from logs extracted and shipped from the said lands from about June 2013.

5. Order that a Penal Notice be attached to these orders.

6. Cost incidental to this case is to be paid by the Claimant to the Defendant on standard basis.

The Court.

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^[1] HCSI CC No 152 of 2003