Kimata v Koqoatova Tribe [2016] SBHC 162; HCSI-CC 147 of 2016 (5 October 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: ALPHA KIMATA REPRESENTING
THE KESI BAUKOLO TRIBE - Claimant

AND: KOQOATOVA TRIBE - 1^st Defendant

BULACAN INTEGRATED WOOD - 2^nd Defendant

INDUSTRIES (SI) COMPANY LIMITED

SYNERGY BRISK (SI) LIMITED - 3^rd Defendant

Date of hearing and ruling: 5 October 2016

Mr. C. Hapa for applicant
Mr. P. Tegavota for defendant

Application to deal with persons allegedly in contempt of court orders and consequent orders in relation to continuation of Claim [Category A] seeking declaration as to rights.

Brown J

Reasons:

On the hearing of the charge for contempt I gave extempore reasons why the defendant was not guilty, I now give these written reasons.

On the 26 May 2016 an application was filed seeking committal of two persons named, Daniel Dela Peva, Camp Manager of Vou Camp representing the logging company, Synergy Brisk [SI] Ltd and Chief Zachariah Nanavolomo representing the Koqoatovo tribe and 1^st defendant for continued breach of the earlier injunctive order restraining them from using Zurisaqe customary land in the course of their logging operations. The restraining order was given ex parte on the 14 April 2016 following an urgent application supported by an undertaking as to damages and an affidavit in support by Alpha Kimata who stated he represented the Kesi Baukolo tribe which owned in custom portion of land known as Zarisaqe through which the defendants had accessed a logging concession without the landowners consent. No Claim had unfortunately been filed at that time although I was then satisfied the matter was so urgent that the interlocutory injunctive orders should be made without notice. [R 7.6 [b]]

On the 6 May the Claim was filed. The principal claim sought a declaration that in the absence of any express agreement with the Kesi Baukolo Tribe, the 1^st, 2^nd, and 3^rd defendants had committed trespass by constructing and using an access road which encroached into the Zurisaqe customary land owned by the Kesi Baukolo Tribe. Following the filing, on the 9 May the interlocutory order came back before the court after service of the interlocutory application and supporting documents on the defendants, when Mr. Hapa for the claimant sought an extension of the orders, granted to a date to be fixed by the Registrar at least 14 days after Friday 6 May. Mr. Hapa quite rightly brought to the Court’s attention the fact that Mr. Tegavota, of counsel had contacted him on the various defendant’s behalf but was unable to then appear through sickness. I expected proper appearances on the next occasion.

Mr. Hapa intimated a contempt application would be made.
On the 6 June a statement of defence by the three defendants was filed. The defence stated facts going to show that the claimant and the tribe they allege to represent are not entitled to claim or to be granted the reliefs sought in paragraphs 1 to 5 of the Claim. Except for the matters expressly admitted they deny each and every allegation in the claimant’s Claim.

There would appear then to be serious issues to be tried for one Zachariah Nanaovolomo’s sworn statement in support of the defence recounted customary reasons why the facts alleged by the claimant were mistaken.

On the 20 June an application was filed to discharge the injunctive order which was set down for hearing on the same day as an application for committal of these two named persons for contempt of the Court Order. Further statements by Alpha Kimata and Peter Varanga in relation to the continuing use of the access through Zurisaqe land were filed in support while that of Zachariah Nanaovolomo’s was filed for the defendants.

Both applications came before me on the 5 October when I presumed to deal with the applications on the material filed rather than strictly following the Rules, which called for the alleged contemnors to be formally charged. The proceedings were again fixed for hearing on Wednesday 5 October when on the non-appearance of Daniel Dela Peva, I proceeded to charge Zachariah Nanaovolomo with the breach of the injunctive order in that he continued access through the Zurisaqe customary land. He pleaded not guilty.

I have read the material supporting the claimant’s application for contempt and that of the defendants denying the basis of the case. Clearly, access has continued but the defendants plead an honest belief in their right of access despite the existence of the injunctive order.

For the order was made ex parte on material filed by the claimant, material which has since been disputed by the defendants as to facts and conclusions at law available on those facts. To grant injunctive orders without notice of the claim rather puts the claimants to a high onus of proof to show the contemnors have acted contumaciously in the face of the injunction. The fact that this injunctive order was made without notice of its application to the various defendant has no doubt caused much dissention amongst the tribal members seeking to pursue, what they see as their right to deal with land, which they have occupied since time immemorial.

The absence of a claim at the time the injunctive order was made has been shown to have been a mistake for the nature of the claim is one of tort for trespass and while filed as a category 1 claim, seeks a declaration of right more properly framed as a category 3 claim. When looking at the wording of the 1^st claim, [above] this is immediately apparent. A declaration of right is one of discretionary remedy, and to quote the succinct exposition of principle accorded declarations, I set out Hutley JA’s ratio in Dorney v Commissioner of Taxation^[1] :- “There is a further restriction on the effectiveness of a declaration, namely that, as its name indicates, it is not a constitutive legal act as is, for example, a judgment for debt or damages; and except by giving to existing legal relations the status of a res judicata, it cannot change them.”
For the Claim presumes ownership in the claimant, a claim wholly denied, so the “existing legal relations” are presumptions at best pending trial.

Here there are competing claims reliant not only on decisions of other tribunals and courts perhaps, [claims to facts which quite properly may fall within the 1^st category] but the Court should be chary in allowing, in its discretion, a claim for a declaration when it, by its own language, calls for determination on principles of tort, inappropriate by way of declaration.^[2] To quote from the judgment of Megarry V-C;- “ the court does not make declarations just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is plain.”
Lord Esher MR in Charles v Shepherd said, when dealing with the discretionary power of the court, said;- “ Different considerations however apply when what is sought is a money or property judgment. When a defendant fails to plead, it is ordinarily in the interests of justice that the plaintiff should be able without more ado to obtain judgment for money or property for which he is suing; the defendant is not without remedy after judgment in default, for if he can show a bona fide defence, he can get it set aside before it is enforced. But, when what is sought is a declaration, there is the risk of irremediable injustice: the court has spoken and words cannot be recalled, even though later they be negative: “nescit vox missa reverti, “ Horace, Ars Poetica, line 390.”

The weakness in the claimant’s case for contempt is rather encapsulated by those words for the injunction issued before the Claim was filed and the Claim is shown by the defence to be that of a tortious nature rather than one necessarily available by declaration. To convict on the bare fact of the access in these circumstances would be unjust. As I have said before, using a discretionary power in the circumstances of a mixed category claim where the declaration in effect would cement the claimant’s status as landowner without perhaps proper argument or evidence, would be contrary to established precedent and would impose injustice upon the defendants.

This court should not have its order ignored, but to ignore the orders when the person presently before the court charged with contempt had honest belief in his actions, and has provided sworn reasons for that belief, may not be contumacious conduct when his conduct was based on that honest belief. To proceed with the charge when the originating order was given in the absence of the claim now shown to be discretionary in any event, would be unfair.

Zachariah Nanaovolomo is found not guilty and discharged with a warning that any further order of the court affecting him or his tribe will need to be obeyed pending resolution by this court.
The acts of the 3^rd defendant are reliant on those of the 1^st and 2^nd defendants. I bring no charge against Daniel Dela Peva.

The interlocutory injunctive order is discharged.
The claims for contempt are dismissed.
The Claim shall be stood over for hearing to Thursday 2 March 2017.
Court book need be filed 7 clear days before the date fixed unless consent orders are made in the interim.
The costs of today are reserved.

BROWN J

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^[1] [1980] 1 NSWLR 408
^[2] Metzger v Dept. of Health and Social Security [1977] 3 All E R 444 at 451