IN THE HIGH COURT OF SOLOMON ISLANDS 

(Faukona PJ)

Civil Case No. 452 of 2014

BETWEEN: 

SAM PATAVAQARA 
First Claimant 
(Representing Luga Konggukolo Tribe of Marovo Lagoon, North East New Georgia,Western Province)

AND:
 
KONGGUKOLO FOREST RESOURCES DEVELOPMENT COMPANY 
Second Claimant 
(Licencee over Luga Konggakolo Land of
Marovo Lagoon)

AND:  

ATHENA INVESTMENT LIMITED 
Third Claimant

AND:

SIMON CHACHABULE AND SISIFA FA’ARODO 	
First Defendants
(Representing Lio Tribe of Marovo, Western Province)

AND:

PACIFIC CREST ENTERPRISES LIMITED 
Second Defendant

Date of Hearing:  8th June 2016

Date of Ruling:    1st July 2016 

Mr C. Fakari’i   for Claimants (1) to (3)
Mr D. Marahare for Defendants (1) and (2)

RULING ON INTER-PARTE HEARING 

Faukona PJ:  Following from an ex-parte hearing and granting of ex-parte orders, an inter-parte hearing be pursued as soon as possible, according to the rules. On 2nd January 2015 a set of regime of interim orders were granted by this Court. In addition, there were other orders granted on 25th September 2015 by way of consent by Counsels representing parties.

	The Issue:	
		
2.	The traditional issue to determine in an inter-parte proceedings after the grant of the interim orders, is whether the interim orders of 2nd January 2015 should continue remain in force? 	
		
3.	Rules 17.55 (a) and (c) of the Court Rules 2007 vested upon the Court general discretionary power to set aside an interlocutory order at any time, where such order was made in the absence of one party or was obtained by fraud. In this case the orders were granted ex-parte. Also noted is Rule 17-56 which states if the Court sets aside an order, it may also set aside any order made to enforce the orders.  	
		
4.	In such circumstance, the court is not obliged to go into the substance rights of the parties and the related substantives legal issues. That will be a matter for trial. For the present purpose, what must be ascertained is the question whether on evidence and the material before the Court interim orders should be set aside.	
		
5.	Notably the prime consideration is the notion of business efficacy where the processes conferred by statute had been legally complied with, hence could have prospered uninterruptedly in the absence of any interim orders which truly retardates positive progress of business operation.	
		
	Some background facts:	
	Land in issue:	
		
6.	There is no dispute that the first Claimant’s land is luqa konggukolo customary land and lio customary land is owned by the first Defendant. Both customary lands shared one common boundary.	
		
7.	The second Claimant is the holder of felling licence No. Tim 2/176 issued on 20th August 2014 covering luqa koggukolo customary land, while the second Defendant has a felling licence No. A101306 issued on 16th January 2014, covering lio, buti, nono and podokana customary lands.  All the customary lands are located in the Marovo Lagoon of Western Province.	
		
8.	Apparently, when the two felling licences were issued paragraph 3 appeared common to both licenses, indicating location of each concession area marked on map coloured red, with implicated scale from which the maps were drawn. At that very time there was no complaint of overlapping of concessions, hence, the boundaries between the two concessions areas must be accepted as being agreed to.	
		
9.

10.	In latter course of time, the Claimant complained that the first and second Defendants encroached unlawfully into their logging concession namely blocks 17 and 18. 

 To resolve the issue the Claimants come to Court seeking restraining interim orders, and filed a claim for trespass and damages on 9th January 2015.	
		
11.	The first and second Defendants deny the trespass and state that blocks 17 and 18 are located within the second Defendant’s concession.  Mr Lyndon said in his sworn statement that the blocks were about 10 km from the disputed area. A similar assertion was given by Mr Farodo in his sworn statement filed on 8th June 2016 that the land between jakili and kolo rivers is owned by lio tribe. 	
		
12.	In reality, the dispute is fundamentally footed on the issue of boundary between the first Claimant’s land and the first Defendant’s land.	
		
13.	Materials disclosed have shown that there were certain land Courts and tribunals that had made determination as to and matters related to customary land, in particular concern the parties now under dispute.	
		
14.	On 26th March 1974 was the date the High Court had affirmed the decision of the Magistrates Court in relation to an acquisition proceedings appeal. The High Court affirmed that the following persons were proper representatives in trust for the land owning groups; they are Banabas Ari, Simion Ari, Stephen Rigeo and Simion Tuni. Unfortunately, there was no mention of any boundary. 	
		
15.	On 6th October 1994, the Local Court gave its decision by identifying Mr Peter Panahite and Nemeki Malako having rights and entitlement to luqa (or Lungga konggukolo) customary land.  Again there was no mention of any boundary, or at least a boundary that separates luqa land from other lands own by the first Defendants, that is, lio, buti, nono and podokana customary lands.	
		
16.	Also noted are two decisions of Western Customary Land Appeal Court (WCLAC) in respect of puava kukuru ulu customary land and lio, podokana and buti customary lands.  In both appeals the WCLAC affirmed the decision of the Western Provincial Executive (WPE). 	
		
17.	In respect of puava kukuru ulu appeal the Appellant Mr Peter Ratusia attempted to reinforce that the original boundary of nonoulu customary land submitted during the timber rights hearing was from jakili river to vorikaka river to tokutoku to jovini and to koqoqo customary land. He also stated as well that the Respondents licence encroached into nonoulu felling Licence No. A10208.	
		
18.	The question whether that boundary can possibly be taken as a boundary between konggukolo customary land and lands own by the first Defendant cannot be ascertained. The fact that in the second appeal, there was no one from the parties attempted to define the boundary between which separated lio, buti and podokana customary lands from konggukolo customary land. Even the Court did not mention in its determination the land boundary which separated both tribal lands. 	
		
19.	In the absence of important materials available it can well be said that affirming Western Province Executive decision is not sufficient without defining boundaries that separates customary lands that own by the first Claimant and lands own by the first Defendant.	
		
20.	In such situation reliance are heavily vested on the Commissioner of Forests who actually grant the felling licences and have full knowledge of the concession areas and their boundaries.	
		
21.	Further, I noted there was a decision by the Marovo Council of chiefs on 23rd August 2002, in respect of a customary land located between jakili river and kolo river.  That decision was in favour of luqa tribe.  That same land with the same parties was heard again by the Chiefs of Marovo and a decision was given on 20th June 2016, in favour of the current first Defendants. In fact both decisions are in conflict. 	
		
22.	This Court is not legally urged to determine whether the processes are correct and whether appearing before Chiefs twice on the same subject land with the same parties was procedural.  What I can able to glean from the decisions is that there existed customary lands own by luqa tribe and lands own by lio tribe and they exist side by side with one common boundary.  What this Court is looking for in the decisions is, whether there had been any decision by any court or tribunal which had defined the common boundary that separates both tribal lands. Unfortunately, I find there is none.  All this Court can extract is that land between jakili river and kolu river is a clear prescription of land and nothing concerning any tangible common boundary.  Further still, the Marovo House of Chiefs on 18th May 2006 affirmed the Local Court decision in Civil Case No. 3/7 that nono customary land is owned by Ngatu and lio customary land is owned by lio tribe.  Again no boundary was mentioned.  	
		
23.	In the midst of anxiety, the Chiefs and the Court decisions disclosed in the materials dealt with ownership issue only. And that the High Court and the Court of Appeal had dealt with other preliminary issues. There was no boundary defined which separated the Claimant’s land and the first Defendants lands.	
		
24.	Amazingly, there were conflicting reports related to allegations of trespass by the Defendants. Officer in Charge of Police Station, Seghe, and Senior Forestry Officer based at Seghe, compiled reports that affirmed there were trespasses.  Against those reports was evidence of certain acts by other Police Officers based at Seghe Police Station. There was also a letter containing fourteen (14) days noticed to show cause, written by a Senior Forest Officer, Honiara, on 27th July 2015 and addressed to the Managing Director of Konggukolo Forest Dev. Co, that blocks 17 and 18 marked as coupes 1 and 2 in the field of operation is covered by the decision of WCLAC, which is under Pacific Crest Enterprises Limited’s felling licence.  It would appear the Forest Officer’s letter seemed to say that the second Claimant is trespassing into lio land, which was not covered by its felling licence. In other words, the second Claimant was trespassing; therefore, given 14 days’ notice to show cause why its felling licence is not suspended.	
		
25.	At the end of it all, I noted the Commissioner’s letter dated 6th September 2005 addressed to the second Claimant confirming its concession boundary under the licence Tim 2/126 was as follow; from jakili river mouth to vinuvinu to taropachie to balola to rahiruja to kukumoa (tirua) to Mt. mahiba to nukuvesu down to oba river mouth.	
		
26.	The significant conclusion which I can able to extract from the above propose boundary, is whether blocks 17 and 18 are located within konggukolo customary land, the concession area the Claimants were bound to operate logging activities on. 

Aiding jurisdiction of the High Court.	
		
27.	I noted there are submissions in relation to aiding jurisdiction of the High Court.  It is well conceded there are two situations, which the High Court can grant injunctions.  One in aid of the lower Court to exercise its jurisdiction to decide on an issue related to customary land, which is pending before it.  Secondly, injunction can be granted where the applicant has a binding decision in his favour	
		
28.	The crux of this case is somewhat associated to the first instance.  There is however no clear cut, but grounded in the test propounded by the leading case of American Cyanamid Co V Ethicon. The question is, are there triable issue to be tried at the trial.  There are arguments by the Councils for and against. Ultimately, as I would perceive the issue of trespass and damages are live issues.  Having said that, I am confident in the light of the back ground facts of this case, that it is not an issue that the Claimant owns luqa customary land and the first Defendants own lio, bati and podokana customary lands. It is the common boundary that separates the lands own by both tribes, which is still undecided.     	
		
29.	I have taken heed of the submissions by the Counsel for the Defendants, that the claimants have not referred any dispute to any of the land tribunals to foot a relief for restraining orders.  My approach to this point is in different. It is not necessary at this stage to refer a boundary dispute issue to the Chiefs, although that is the recommended process provided by the statutes. However, an alternative, which I consider more relevant, is that the Commissioner of Forest should identify by independent report the location of blocks 17 and 18. That should determine whether there was an act of trespass by the Defendants at all or not. 	
		
30.	I am in favour of this option, grounded on personal belief and acknowledgment that the Commissioner of Forests had granted two felling licences to two applicants to undertake logging activities in two concession areas that exist side by side.  He should know the boundaries of each concession area.  The fact that there was no complaint right at the beginning of no overlapping signified the Commissioner’s grant of licences to operate in the two concessions was in order.  Hence it is not necessary, according to the facts of this case, at this stage, to call upon one of the land tribunals, as chiefs, to decide and where possible demarcate the common boundary between the two tribal lands. I am optimistic the Commissioner of Forest can resolve this dilemma amicably.   Therefore the issues of trespass and damages are serious issues to be tried.	
		
	Application for contempt:	
		
31.	I noted from file record that there was an application for contempt filed on 24th August 2015.  That was before 17th September 2015 when an urgent application for setting aside ex-parte orders was filed.  The contempt case may not be part of the submissions, but it gives a hint that there is argument concerning a portion of the land, which gives rise to an issue which must be resolved at trial.  	
		
32.	Argument may touch on the crevices that the Court has misdirect itself, for considering facts which are not included in the submissions.  I think I am entitled to read all the documents that are in the file that had been filed by the parties.  They are facts that lends to the ultimate determination of the case.  Some may not be necessary, but of course, they may be necessary at some course of time. This point may not be necessary now, nevertheless can be regarded as small contributing factor.	
		
	Full disclosure:	
		
33.	There is submission that the Claimant has failed to comply with rule related to full disclosure. I noted the Counsel based his argument on the notion that the Claimant’s reference is made to a non-proved allegation of trespass. I have outlined the relevant facts significant to this case.  There is undeniable fact that both tribal lands are owned by their respective tribes. It is the issue of common boundary which remain to resolve. So far as this case is concerned, I have decided to resolve the impasse, there is no need to go to the Chiefs, suffice to say the Commissioner of Forest can assist the Court by an independent report. He had granted the felling licences to operate logging activities in two concession areas existed side by side. He should know the boundaries of each concession area. He should assist the court in an independent report to ascertain whether blocks 17 and 18 are located with the concession area of the Claimants or existed in the concession area of the Defendants. The court thereafter will make its decision that will assist the parties resolve the issue. That is the crux of this case and I cannot go further than that.  	
		
34.	I noted the case of CTP International (SI) Co. Ltd V Ghiro which His Lordship, Apaniai J had also encompassed this point. And further, referred to suppressing of facts or making misleading statements. I do not think it occurs in this case. There is nothing misleading or suppressing of any fact. Simple way out rests upon the Commissioner of Forests who is conferred with responsibility by statute to grant felling licences.  Felling licences which expectedly contemplated to operate in a define concession area.  Should the Commissioner of Forest is not helpful enough to resolve the issue there are alternative means available. However, this option is suggested as more appropriate and perceived as less time wastage. 	
		
	Undertaking as to damages:	
		
35.	I noted the argument advances by Mr Marahare that the Claimant who had made the undertaking is an individual as oppose to Commercial entity. Whilst I agree with Mr Marahare in a generic sense, it ought to be understood that the Claimant is not standing alone or by himself.  He represented a tribe, which own a customary land a vast resource and own an incorporated company Konggukolo Forest Resources Development Company and a holder of a felling licence No. Tim 2/126, and which contracted the third Claimant to carry out logging operation in his tribal land.   	
		
36.	It is further argued that the Claimant does not have the authority to make any undertaking on behalf of the third Defendant.  That is an argument which has no flavour in it.  It ought to be understood that the three Claimants had filed one single case.  It is expected they would work cooperatively to pursue their case.  Undoubtedly they would support one another, and I have no doubt the third Defendant had supported the Claimant through and though.  Any undertaking as to damages made by the first Claimant will definitely involve the third Defendant. 	
		
	Damages as an adequate remedy:	
		
37.	I have no doubt this case involves two logging companies operating side by side.  I have no doubt as well their capabilities in meeting orders for damages.  The principle in the famous Cyanamid case has been applied respectively in this jurisdiction, now become a trite law.  Once the applicant can establish a serious issue to be tried, the injunctive relief must be granted, and damages will not be an adequate remedy and the balance of convenience lies in favour of granting because it do more good than harm.	
		
38.	In this case serious issue to be tried has been identified and established, therefore damages will not be an adequate remedy and the balance should tilt in favour of granting.	
		
	Where does the balance of convenience lies:	
		
39.	From the reasons, I have propounded in this ruling, considering the Cyanamid case, which laid down the tests to be applied, and other authorities that applied the test, and the facts. I am convinced that the balance of convenience tilts towards maintaining the restraining orders granted on 2 January 2015, in particular in respect of blocks 17 and 18, until the trespass issue is resolved. 	
		
	Orders:	
		
1.	Interim Orders of 2nd January 2015 continue to be in force.	
		
2.	Cost of this hearing payable to the Claimants. 	

		
		
	The Court.