Harumae v Araiasi [2016] SBHC 151; HCSI-CC 365 of 2012 (13 September 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 365 of 2012

BETWEEN: JOSEPH HARUMAE AND VINCENT - Claimants

AKOHIRIA

AND: JEREMIAH ARAIASI - Defendant
(Representing himself, family members and Associates)

Date of Hearing: 30^th August 2016.
Date of Ruling: 13^th September 2016.

Mr. M. Ipo for the Claimants.
Mr. A. Rose for the Defendant.

KENIAPISIA; PJ:

RULING

Introduction

1. Court sat to hear claimants’ amended application, filed 3/02/2015. The said application seek : to join Joe E’erei and Tanikera as second defendants; to amend the claim filed 30/10/2012 and various interim restraining orders against Joe E’erei, Tanikera, Jeremiah Araiasi and their cohorts.
   
2. Joe E’erei appeared personally (Litigant in person), the second time at this hearing. Court had on his two appearances made it clear that the amended application cannot be delayed further. Court will hear the application and make a ruling. In the meantime, E’erei and Tanikera can seek legal representation. Upon legal advice, they can apply to amend and/or discharge any ruling the Court may issue. Current parties are represented.
   

Application for Joinder and Leave to Amend

3. Claimants seek to join Joe E’erei and Tanikera (E & T), as second defendants. The applicable Rule in adding of parties to a proceeding is Rule 3.5 - Court may order a person to become a party to a proceeding, if the person’s presence is necessary to enable the Court to make a decision “fairly” and “effectively”.
   
4. I first consider whether E & T’s presence as a party is necessary to make a decision fairly and effectively in this proceeding.
   
5. This dispute came about as a result of the defendant’s timber milling activities. Claimants aver that the defendant’s milling activities amount to trespass and conversion, because no prior consent was obtained from claimants (being from the male line descendants) of the tribal lands in question – Wasinoni/Hahoni. This is the heart of this claim. There are other complaints on: no licence to mill, environment damage and compensation. Claimants seek permanent restraining orders. Meantime, claimants seek interim orders against people who are intimidating, harassing and interfering with their rights to use of Wasinoni/Hahoni lands and to restrain funds or stop timbers taken to Honiara. This is where claimants want to pull in E & T. From materials, it appeared that these two are among the leading figures in the intimidation, harassment and interference.
   
6. At this stage of the proceeding, Court can rely on the current chief’s decision over Wasinoni/Hahoni tribal lands, in East Are’ Are along the East Are’ Are side of the Maramasike passage. The 2009 decision by Hauwariwari chief’s panel, is authority on ownership of Wasinoni/Hahoni Tribal Lands (“WHTL”), as between the current parties to the proceeding as well as E & T. The problem with the said 2009 chief’s decision is, it falls short of defining the boundary of WHTL. And yet the decision is not complete without defining a boundary^[1]. The issue on boundary over WHTL and Waware tribal lands is pending before Oru Iro, Warutana/Rau and Watarau/Au joint chiefs panels. Which land timbers are milled from, will be known, after determining the boundary between the three mentioned tribal lands.
   
7. Court is of the view that all parties (Claimants, Defendant and E & T) have ownership rights over WHTL, on the basis of the 2009 chief’s decision. This appeared to be an internal tribal dispute. Therefore all parties should be pulled into this proceeding. Court is of the view that the following should be made parties to the proceeding: Claimants, Defendant, P Toai, Roraimanu, J Manekwawa and E & T. These are the main parties or personalities to the 2009 Chief’s decision. They should be the main parties to this proceeding. This proceeding affects ownership of WHTL. It is fair and effective that all the same parties and personalities become part of this proceeding. Leave should be granted to accommodate this.
   

Inter- Locutory Restraining Orders

8. The purpose of granting interim injunction is to maintain the status quo, pending trial of the main issues in dispute between the parties to the proceeding. Status quo means, the position prevailing before the conduct complained of.
   
9. The principles of law that apply when determining whether or not to grant injunctive relief are settled in a number of cases in this Court, based on the well-known English case of American Cynamid.
   
10. I summarise quickly the legal principles: serious issues to be tried; damages will not be an adequate remedy; balance of convenience favours the granting of interim orders and applicant has given the usual undertaking as to damages. Other associated principles are: locus standi; irreparable harm; status quo and strength of the parties’ case.
    

Is there Triable Issues?

11. Serious issues can be deduced from the pleadings and sworn statement (ss) filed in the proceeding. Claimants and defendant have filed their respective claim and defence. Court referred to all the ss filed and relied on in submissions. There are triable issues emanating from the mentioned court documents. Brief summary of the issues are:
    
    • 11.1 Whether the trees milled by the defendant are from WHTL or from Waware (alleged tress pass). This would appear to be the main issue. Whether defendant owns Waware.
      
    • 11.2 Ancillary issues are whether the timbers are milled for personal livelihood uses or for commercial purpose. Whether the defendant must first obtain a milling licence. Whether claimants have superior rights of ownership over the defendant (male line and female line arguments – is this clear from the 2009 chiefs decision?).
      
12. Court is satisfied that the foregoing issues are among the serious issues that have surfaced at this stage of the proceeding.
    

Damages - Adequate Remedy?

13. Cases decided in this Court have repeatedly maintained that damages is not an adequate compensation for destruction caused to the land and environment. That irreparable harm is a factor to consider in granting or not granting inter- locutory injunction. Defendant has confessed to cutting timbers but say on a different land – issue to settle at trial. Court take judicial notice that milling of timbers do cause environmental damage, though not on the same scale as in logging. To maintain the status quo, an interim order should be issued. Status quo means the position prevailing before the cutting of timbers (that is the non-disturbance of the local environment from milling activities). Should that status quo be disturbed (destruction of environment), damages will not be an adequate remedy (irreparable harm). Court is convinced that minimum destruction is already caused to the environment from milling. Defendant confessed to milling and Forestry Officer at Afio had attempted to value timbers milled, but obstructed through threat, from defendant. Therefore injunction is justified to stop further milling awaiting the conclusion of this dispute.
    

Balance of Convenience and Undertaking as to Damages

14. Applicants did not file undertaking as to damages. When pressed for, applicants through Counsel, submitted they did not file one, because they do not have the ability to honour such undertaking. Counsel submitted that undertaking should be dispensed with. Both claimants and defendant have ownership rights to use of common resources on WHTL. If the trees are cut from WHTL, defendant has right to do that, on the basis of the 2009 chief’s decision. If trees are cut from another land, then that is outside of this proceeding. In either scenario, the defendant stand to suffer loss and therefore ought to be covered.
    
15. Both claimants and defendant are rural dwellers and the loss suffered are minimal compared to, if claimants was to front up against, say a logging company, in which case, undertaking may be waived. Claimants are obliged to make an undertaking.
    
16. On balance of convenience, Court is of the view that it is in favour of granting inter–locutory orders because whilst the issue of boundary and ownership is pending before the appropriate forum, status quo must be maintained. Additionally, High Court can issue Injunction, in aid of a lower Land Court exercising its jurisdiction to decide customary land dispute issues (the well-known Gandly Simbe Court of Appeal Case). Totorea case relied on by defendant, can be distinguished. Section 14 of the Local Courts Act (Cap 19); is for disputes which all parties have agreed with chiefs decision. Section 12 (2) is for cases that parties/or a party does not agree with chief’s decision. This matter, it appears that parties (defendant) do not agree with chief’s decision. The 2009 chief’s decision has gone past the 3 months period required in Section 14 – meaning both parties have not agreed with 2009 chief’s decision.
    
17. Neither of the parties are taking steps to appeal the 2009 chief’s decision to Local Court. It must therefore be assumed that the 2009 chief’s decision is final and binding as between the parties. As the Court of Appeal ratio in Majoria had stated:
    

“Where a decision has been made by the chiefs as to ownership of land, but the party who disagrees with the decision declines to make use of the legislative scheme for reconsideration of the decision, by invoking the jurisdiction of the Local Court, that party is bound by the Chiefs decision”^[2]

18. Additionally this matter is not about tress pass per se. It is also about cutting of timbers without a milling license allegations. It is also about male line and female line supremacy arguments. Furthermore the Gandly Simbe Court of Appeal case, says this Court can issue injunction in aid of a lower land court exercising its jurisdiction to decide customary land disputes. As long as a dispute is before a lower land court, even, through mere letters of referral^[3]; that is pre-requisite for this Court to exercise its aiding role; by issuing injunction. The lower land courts starts with the chiefs determination (Section 12 (1) (a), (b) and (c) of the Local Courts Act (Cap 19)). If parties have to wait for a final decision in the land courts; then status quo will not be preserved. To have a final decision through the land courts take many years. To destroy the land and environment take the blink of an eye.
    

Locus Standi

19. Court can simply conclude that claimants have locus standi to bring proceedings over WHTL, on the basis of the 2009 chief’s decision.
    
20. The orders of the Court are:
    
    • 20.1 Reliefs 1, 2, 3, 4, 5, 6 and 7 of the Amended Application are granted.
      
    • 20.2 Costs in the cause.
      
    • 20.3 Claimants to file an undertaking as to damages.
      
    • 20.4 Persons named in paragraph 7 above may be added as parties through amendment (if necessary).
      
    • 20.5 Leave also granted to accommodate all consequential amendments to pleadings.
      
    • 20.6 Defendant and E & T rights recognised under the 2009 chief’s decision are not restricted by this restraining orders; except for further felling and milling of timbers.
      

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Holo –v- Mapo development company (2013) SBHC; HCSI-CC 92 of 2011 (11^th June 2013).
^[2] Majoria –v- Jino (2007) SBCA 20; CA-CAC 36 of 2006 (1^st November 2007).
^[3] Bako –v- Razo (2012) SBCA 2; CA-CA 42 of 2011 (30^th March 2012).