Tanhimana v Poga [2016] SBHC 114; HCSI-CC 25 of 2016 (19 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 25 of 2016

BETWEEN: CECIL TANHIMANA Claimant
(Representing himself and members of the
Nakimirufunei Tribe of Isabel Province being the
owners of in custom of the Varanitu customary land)

AND: AGATHA POGA AND FERGUSON RAGOSO Defendants
(Representing themselves and the members of the
Posamogo Tribe of Isabel and those who have
entered onto Varanitu customary land for the
purpose of conducting logging operation).

Date of Hearing: 9^th June 2016

Date of Ruling: 19^th July 2016

Mr D. Marahare for the Claimant
Mr M. Ipo for the Defendants

RULING ON INTER-PARTE HEARING

Faukona PJ: A set of interlocutory orders were made by this Court on the 5^th of February 2016. Those orders were obtained by way of ex-parte application under the pretext of certification of its urgency.

2.	Among the bundles filed on 1st February 2016, was a claim. The documents were to enhance and support the application for interim orders.
3.	In normal cause of event after the interim orders were granted, an inter-parte hearing should follow. How soon depends entirely on the service of the orders and filing of a defence supported by a sworn statement.
4.	In this case, a sworn statement had been filed on 19th February 2016 in support of an application to set aside or varied the interim orders. Despite filing of the application and the supported sworn statement are still insufficient to ground an inter-parte hearing. There ought to be a defence filed. Subsequently a defence was filed on 9th June 2016, the very date this Court sits to hear the inter-parte hearing.
	The issue:
5.	There are number of issues often highlighted in the inter-parte proceedings which will be considered to determine whether the interim orders of 5th February 2016 should continue remain in force. However the source of argument should confine to whether there are serious triable issues, balance of convenience and of course whether the court should dispense with the undertaking.
	The powers of the High Court:
6.	The general powers of the High Court in relation to setting aside of an order is entrenched in Rule 17.55 of Solomon Islands Court (Civil Procedure) Rules 2007, herein after refer to as “Rules”. This Rule confers discretionary power upon the Court to set aside an order at any time (a) if the order was made in the absence of a party or (c) the order is for an injunction. In this case the orders that were granted on 5th February 2016 were in the nature of ex-parte in the absence of the Defendant and they were injunctive in nature.
	Dispute over varanitu customary land:
7.	Before the issuant of the Milling License No. A201613 to the Defendants to operate a mill, on 4th February 2016, there had already been dispute between the current parties concerning varanitu customary land. A number of Chiefs hearing had been convened and heard and determined the issue of ownership to the land.
8.	The last land forum which heard the dispute was the Isabel Local Court which heard and delivered its decision on 30th September 2006. The decision of the Court awarded ownership to the eastern portion of the land to posamogo tribe and the western portion to the Claimant and his tribe.
9.	On 18th December 2006, the Claimant through one Philip Manegita filed an appeal in the Isabel Customary Land Appeal Court (ICLAC), and an amended notice of appeal was subsequently filed on the 24th January 2007. The appeal was filed within the period as required by S. 256 (1) of the Land and Titles Act.
10.	Following filing of the appeal a letter dated 24th January 2007, signed by the Claimant was addressed to the first named Defendant informing him that an appeal against the Local Court decision had been filed on 18th December 2006, and an amended notice of appeal and grounds were filed on 24th January 2007.
11.	Unfortunately, the second named Defendant denied in his sworn statement receiving any copy of any grounds of appeal. Therefore not aware of any pending appeal in the Isabel CLAC. Whether that is true or not at least the Claimant had the courtesy to inform the first named Defendant of his appeal. In fact the appeal was served by Mr Cecil according to his letters attached to his sworn statement filed on 1st February 2016.
12.	Whilst service is disputed, the Defendants cannot deny the existence of an appeal which is still pending in the Isabel CLAC. There is evidence which clearly showed a pending appeal in CLAC.
13.	Virtually, either lack of knowledge or denial of the truth had induced them to think their eastern portion of varanitu customary land was still free of any appeal. Consequently, that was a mere assertion; the truth is, there was an appeal pending Isabel CLAC determination in respect of ownership of varanity customary land. Hence the right of ownership of varanitu customary land is still in limbo. Of course it would be prejudicial for one party to undertake large scale commercial operation even if it was presumed, by mistake of the validity of the Local Court decision. In reality the appeal was against the overall decision of the local Court, hence, affected the portion of land granted to the Defendants by the Local court. Until the CLAC finally decides on the issue of ownership, a large scale commercial activity undermines the rights of the other party should the CLAC decided in their favour.
	Aiding jurisdiction of the High Court:
14.	The aiding jurisdiction of the High Court is well conceded in two circumstances where the High Court can exercise grant of injunctive reliefs. One is in aid of a lower Court to exercise its jurisdiction to decide an ownership 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[1].
15.	The status of this case premises on the unchallenged fact that there was an appeal pending in the CLAC which is yet to be determined, thus fall under the first category. There is no dispute and that remains one to uphold in the circumstances.
16.	The Defendants argument is that they had conducted milling processes, but could have been a mistake of fact not knowing the existence of a pending appeal. The gravity of any mistake is in no way assisting the Defendants at all. There is sufficient evidence and information about the appeal and any excuses cannot be accepted.
17.	The second exercise is that the prospect of milling was one which involved the Member of Parliament for the area assisting his constituents in a housing project. Whether that can be taken as a public policy which ought to be maintained cannot be measured against the rights of the Claimant which have to be determined by the rightful land forum. Furthermore, the operation was on a large scale milling using heavy plant machineries which of course had left behind tracks of damages. In fact such activities are development in nature. As such should temporary halted until the appeal has finally being determined. Perceivably, I find there is no difficulty in complying with the orders, simply cease work awaiting determination by the CLAC. Whether the operation is for the betterment of the people does not matter, it is the right of a person to lend, and that cannot be compromised for a cheap exercise in terms of social development.
18.	In order for the interim orders are set aside or varied, it has to be shown that there are triable issues to be tried at the hearing and the balance of convenience favours maintaining the interim orders.
19.	The issue here is one of customary land ownership, which is currently pending before the CLAC the rightful forum conferred with power to hear the appeal. There is nothing much pending before this court at all. What may arise in the future as a source of litigation depends on the decision by the Isabel Customary Land Appeal Court?
20.	On the issue of balance of convenience the facts narrated above tilt towards maintaining the orders until the CLAC finally determines the appeal.
21.	On the issue of undertaking as to damages there are no arguments advanced as to whether I should dispense with the undertakings. In fact the Claimants who filed undertaking were merely complying with the rules. The question whether he has financial capability is not argued, hence suffice to accept and maintain such undertakings.
22.	Having said that, I am convinced that the balance of convenience favours maintaining the orders, because it does more good than harm.
	Orders:
	1.	Interim Order of 5th February 2016 continues to be in force.
	2.	All timbers milled can be sold and all proceeds be deposited in a joint Trust Account in the names of the Solicitors.
	3.	Cost of this inter-parte hearing is paid to the Claimant by the Defendants.
	The Court.

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^[1] Kalekau & Ors V George Pou (HC Civil Case No. 357 of 2015) (6/10/2015