Kalekau v Pou [2015] SBHC 84; HCSI-CC 357 of 2015 (6 October 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 357of 2015

BETWEEN:

JOHN KALEKAU AND WALTER ALU
(Representing their family members who are members of the hogokiki tribe who had purchased tasogu customary land)
First Claimant

AND:

BASIL TARA, ANDREW LALAUMA PIKU and JOHN MARK PIKU
(Representing the members of the kakau (bole magutu) tribe who purchased customary lands of takaio, valepelo and tutupi/vatupota, big Gella, Central Islands Province).
Second Claimant

AND:

GEORGE SENIOR and GEORGE POU JUNIOR
First Defendants

AND:

HYBRID RESOURCES COMPANY LIMITED
Second Defendant

AND:

EVERWIND COMPANY LIMITED
Third Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commission of Forests)
Fourth Defendant

Date of Hearing: 7th August 2015
Date of Ruling: 6th October 2015

Mr. D. Marahare for First and Second Claimants
Mr. C. Fakarii for the First and Second Defendants

RULING ON APPLICATION FOR INTERLOCUTORY ORDERS

Faukona PJ: This application was filed by the Claimants on 27th July 2015. The application sought eleven interlocutory reliefs including costs.

2. As a predominant practice in this Court, any application of this nature must be footed by a claim. In fulfilment of that requirement a claim was filed on 27th July 2015, together with this application as a fundamental basis upon which this application premises.

3. There are number of reliefs sought in the claim, ranging from trespass to land, conversion of economic trees, damages, permanent injunction and of course costs.

Triable issue.

4. From evidence it is not a contentious issue that George Pou owns pugu customary land by virtue of various Chiefs decisions and Courts decisions. However, Mr Pou denies that pugu customary land exhibited as "JK3" to "JK6" attached to Kalekau's sworn statement are not true. Those exhibits were unscaled maps which the Claimants wrongly interpreted to suit their case. The fact that the same map is exhibited in Kalekau's sworn statement and George Pou's sworn statement may have depicted consensus to pugu land and its boundaries on paper but may not be the same on the ground.

5. On the other hand, there seems to be a non-issue as well that the first Claimants own tasogu customary land by virtue of customary purchase given to gaubata tribe. The same transaction was performed by the second Claimants to gaubata tribe for the purchase of takaio, valepelo, tutupi and vatupota customary lands. On paragraph 8 of Pou Junior's sworn statement, last sentence, Mr Pou deposes, "The applicants are extending their land boundaries into pugu customary land without any justification in custom". Again on paragraph 9 he further states, " the lands of tagosu, takaio, valepelo, tutupi and vatupota are outside the boundaries of pugu customary land as stated in the previous court, (that previous court decision was not disclosed).

6. It would appear Mr. Pou knows quite well the customary lands own by the Claimants which he attested are outside of pugu land.

7. In this case, it is not disputed that acquisition of rights of ownership to customary land, though obtained by various means, including decisions of institutions established under law, has never materialised in any formal dispute between the parties in the Chiefs or Court. That is a clear indication that their rights and interests are well recognized without any test through Chiefs or Court proceedings.

8. The problem emerged when the Claimants alleged that the Defendants are conducting logging operations in their various customary lands without their consent. That action in law tantamount to trespass and damages. As such it requires a resolution by a Court process. Hence, the filing of this case.

9. The determinant factors prior to grant of injunctive relief are ownership of customary land, their identification and locations and of course their boundaries. Whether those lands claim by the Claimants located within the larger pugu land or outside? By assessing the evidence, it may appear that there seems to be a common boundary shared by the lands. Hence, it is obvious the main issues to determine at trial are whether or not the Defendants had actually encroached onto the adjoining customary lands beyond the concession area and whether or not the actions by the Defendants amounted to trespass in law.

10. There are other maps exhibited in Mr Kalekau's sworn statement as Exh JK3, JK7, JK8 and JK9. However, none of those maps indicated by showing location of those lands in contrast to pugu land. How would this Court effectively and able to decide interlocutory injunctive orders when there is no identification or location of the Claimants' customary lands as claimed. The basis upon which a party may be granted relief is proof of ownership of land. Particularly where the claim is for trespass and damages, so that will warrant a grant of interlocutory orders including injunctions. The Claimants ought to establish this on the balance of probabilities; the onus is on them. In the famous case of American Cyanamid Co v Ethicon[1], one of the requirements is that the applicant must establish a serious issue to be tried.

11. The courts in this country had derived and had formulated the principles required to obtain an injunction in the High Court against development activities on customary land. In the case of Gandly Simbe v East Choiseul Area Council and Others[2] the famous quote states,

"The jurisdiction of the High Court to grant an injunction in a case like this, however, not unlimited. To the 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 injunction aiding the exercise by a Local or Customary Land Appeal Court of its jurisdiction to decide such disputes."

12. In the case of Bako V Kelly[3], the High Court stated;

"Whilst this court recognizes there may be disputes over the boundaries of Kasera land in custom, this court does not have jurisdiction to determine such dispute...With respect the first plaintiffs have failed to show that they have an arguable sufficient interest over Kasera Land".

"Unless it can be shown to my satisfaction on the balance of probability that a binding decision in favour of the plaintiffs as against the first defendants exist."

13. The two situations which the High Court can grant injunction is in aid of the lower courts exercise their jurisdictions to decide dispute related to customary land pending before them. Secondly that injunction can be granted where the applicant can show that he has a binding decision in his favour. In this case the Claimants do not possess any decision in their favour, nor do they have any land dispute pending either in the local court or in the customary land appeal court or even before the chiefs.

14. The Claimants are relying on their claim of customary purchase and on the environmental report and the report filed by a Forestry staff. Such claim in custom is mere assertion and relying on the reports is insufficient to ground grant of injunction. The reports were filed by persons not of the area, but following information obtained from one party, as it appears, and the same party is taking the leadership role in site viewing. Any photograph can be taken on logging activities scenery whether it is within pugu customary land or outside of it. What this Court is expected is a joint party survey and audition, where the parties themselves identified and located their lands by showing their boundaries, then it will be helpful to the Court to determine the current issues before it.

15. With the materials so far available, it is inadequate to rule on the application. The missing link is the boundaries between the lands and their actual locations. The only institution vested with the power to determine the issue of land boundaries is the Chiefs and not this Court. Meantime it is premature to consider the case of Sekevolomo v Eagon Resources Development Company[4] which stated, "a licence however issued covey no right or authority whatsoever, without the authority of the owner of the said customary land." In this case there is no doubt the first Defendants own pugu land. The issue is whether logging operation on pugu land concession or part thereof, encroached onto Claimants' lands? It is more or less the question of boundaries which must be identified together with the land claimed by the Claimants. Having failed to fulfil one of the requirements I must therefore find there is no serious issue to be argued at trial.

Balance of convenience

16. Having found there is no serious issue or arguable case to be tried, the balance of convenience is tilted towards refusing to grant the orders prayed for. The test to apply is well founded in the case of Zobule & Others v AG & Others[5], in which the court stated;

"To dispute the process one has to establish his rights to the ownership of the customary land concern. Mere assertion of ownership is insufficient to ground injunctive relief. I consider the effects, among others, the result this case may have on the parties. The cost, the irreparable damages etc. On the balancing exercise, the most importantly, one has establish his ownership right to a specific customary land which will be affected by the logging activity. Failure to do so, an assertion is not a good basis to do so. Likewise, sympathetic assumption for cost of irreparability is unconvincing".

17. The authority reflects and reiterated what I have said earlier. Both Claimants had failed to identify their lands and their boundaries. Claim of ownership by custom purchase is equated to any customary claim which is a mere assertion. It is no better by evidence of land purchase document. The documents are customary evidence of transaction but proof of ownership ought to be realised by a court decision in their favour. Without it is insufficient to ground injunctive relief.

18. With the reasons I have expounded in this ruling, I therefore must refuse to grant injunctive orders prayed for.

Orders:

1. Refuse to grant all orders prayed for in this application.

2. Costs are to paid by the Claimants to the Defendants.

The Court.

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^[1] [1975] All E.R 396 UK (House of Lords).
^[2] (1997) SBHC 23; HC-CC 033 of 1997 (20 May 1997)
^[3] HC CC 287 of b2002.
^[4] (1999) SBHC 116; HC-CC 218 od 1992 ( 2 December 1999).
^[5] HCC 297 of 2008.