Galoghasa v Bulacan Intergrated (SI) Company Ltd [2016] SBHC 161; HCSI-CC 411 of 2014 (3 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

CIVIL CASE NO. 411 OF 2014

BETWEEN: GANDLY GALOGHASA Claimant
Representing the Zeleboe Customary Landowning
Group.

AND: BULACAN INTERGRATED (SI) COMPNAY First
LIMITED Defendant
AND: WILSON PITAKAJI (HELSON PATAKAZI) Second
DAVID HAKEZAMA, SAMSON MAMAREANA, Defendant
SLIM BENJAMIN, PATSON PAPO, RAYBOE
KAREMAMA, JOHN SORIO, HENRY SOQO,
TENCILY QALONAKI, LENCY ZUAPA,
LIONEL PAPO & FRANCIS NIKINKOPE

Date of Hearing: 3^rd October 2016
Date of Ruling: 3^rd October 2016

Ms L. Ramo for Claimant
Mr M. Tagini for Defendant 1 and Defendant 2

RULING

Faukona PJ: This is an inter parte hearing following the grant of the restraining interlocutory orders made on 11^th December 2014.

2.	Firstly, it has to be noted that ex-parte restraining orders, should be interim orders, which should last for months only, not a year or more.
3.	The process of inter-parte hearing is encouraged to be heard as soon as the Defendant files his defence. Importantly, so that the Court will decide whether the interim-orders will continue or be discharged, and so that the interim orders are not prolonged unnecessarily.
4.	In usual cause of approach, any decision the Court may exercise in its discretion will premise an extenuating change of circumstances.
5.	In the application for ex-parte orders, the major reason upon which the application premised was that a claim of ownership was filed with the Batava Council of Chiefs. Unfortunate for the Claimant the Batava House of Chiefs determined the ownership of zeleboe customary land in favour of the second Defendants.
6.	Being aggrieved of the decision, the Claimant then filed a referral to the Choiseul Local Court. I noted there was a letter by Western Magistrate Court affirming the referral. Though there is dispute in regards to the production of the Chiefs decision in this court, is a minimal issue which should not attract any serious consideration at all.
7.	The point is that the land issue had been determined and all that is pending is a referral before the Local Court. Meantime the Chief’s decision stands until it is changed by the Local Court.
8.	A significant point to note is that the grant of the interim orders was based on illusive myth. That the Claimant anticipated to win in the Chiefs hearing. That turned out to be absolutely negative. He lost the right of ownership.
9.	Therefore, the change of circumstances does not in favour of the Claimant at all. To sustain a claim for trespass and damages, one has to have a decision either from the Chiefs or from the land courts to affirm his claim.
10.	The referral to the Local court is not a change of circumstance, if yes was minimal in nature and does not favour the Claimant’s case. The major change of circumstance is that the ownership of the land has been determined and had been conferred upon the second Defendant. Their rights and entitlements to the land are far better than the Claimant.
11.	In essence, those rights will continue to be enjoyed by the second Defendants until the Chiefs decision is dislocated by the local Court.
12.	There is evidence that the Claimants have challenged the Provincial Executive determination by way of appeal to the CLAC. Unfortunately, the appeal was dismissed for failure to pay the appeal fee in time.
13.	The Claimant in fact had attempted, by intention, to challenge the timber rights processes. The attempt was failed because of his own fault. That fault is now being substituted by referring a case to the Chiefs to reinforce his rights to be recognized. The second attempt was failed. The ownerships right was determined against him, and that is a massive change of circumstances which must go in favour of the Defendants.
14.	This is not an application based on exercising this Court’s supervisory jurisdiction to assist lower land courts and tribunals hear and determine an issue of land ownership that is pending before it. Therefore, there is no use to reconsider the usual tests expounded by the famous Cyanamid case. This case has gone passed that process; the only issue left is whether after granting of the interim orders, there has been change of circumstances or not. If not, the Court will maintain the orders, if yes the orders ought to be changed.
15.	Less I omit, I also consider the application to strike out filed by the Defendants. The effect of the change of circumstances does have a crucial impact on the application. The important consideration for sure is the issue of landownership. The interim orders were granted when the issue of landownership was yet to be determined by the chiefs. After its determination the second Defendant can be rest assure they are landowners until the Local Court changes that status.
16.	The normal requirement to foot orders for interlocutory injunction, where trespass and damages are claimed, is the issue of ownership of land, which must be in favour the Claimant by way of decision from the Chiefs or from the land courts.
17.	In this case the decision of landownership is in favour of second Defendant. Therefore, there is no legal foundation in existence upon, which the claim and the interim orders will premise. I must therefore discharge the orders and strike out the claim as well.
	Orders:
	1.	The interim orders of 11th December 2014 are hereby discharged.
	2.	The substantive claim filed by the Claimant on 12th December 2014 is dismissed.
	3.	Cost of this hearing be paid to the Defendants by the Claimant.
	The Court.