Zupukana v Sogati [2016] SBHC 202; HCSI-CC 117 of 2015 (21 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 117 of 2015

BETWEEN: CHERRY ZUPUKANA, DERALD GALOTABA AND - First Applicant/
GRAHAM RUPAKANA Claimant
(Representatives of Baravaziu Clan – North Choiseul Province)

AND: PROFIT ON ENTERPRISE LIMITED - Second Applicant/
Claimant

AND: ALICK SOGATI, RENCE ZAMA AND DERALD DANIEL- First Respondent/
(Representatives of Kope Tribe, North Choiseul Province) Defendant

AND: MIDDLE ISLAND INVESTMENT PTY LIMITED - Second Respondent/
Defendant

AND: ATTORNEY-GENERAL - Third Respondent/
(Representing the Commissioner of Forest) Defendant

Date of Hearing: 8^th November 2016.
Date of Ruling: 21^st November 2016.

Mr. M. Tagini for the First and Second Claimants.
Mr. L. Hite for the First and Second Defendants.
No Appearance for the Third Defendant.

KENIAPISIA; PJ:

Introduction

1. I granted restraining orders, after an inter-partes hearing that took place on 1^st July 2016. Today Court is hearing claimants’ application to vary the restraining orders perfected on 22^nd July 2016 (“restraining orders”). Claimants seek to vary Order 22.1 of the restraining orders, to allow their operations to continue inside Ngatakobo Mother Land (“NML”). The restraining orders may however continue in respect of Kope Land (“KL”) and Baravaziu Land (“BL”). First and Second defendants opposed variation.

Justification for Variation – Submissions by Counsel for Claimants

2. Claimants did not file new material to support their application. When the application was filed, I asked for a supporting sworn statement (“ss”). Counsel through the Registrar of High Court says he’ll rely on the current materials on file. That means, claimants rely on the same materials used at the 1^st July 2016 inter-partes hearing. This is unusual.
   
3. Claimants justify that NML is not a disputed land in this proceeding. Disputed lands are KL and BL. Only these two disputed lands should be covered by the restraining orders. Counsel submitted that there was a confusion in the pleadings or evidence, by his client. In the joint ss by Cherry and Robertson filed 31/3/2015, the confusion is in relation to the description of NML at paragraph 3 of the said joint ss. At paragraph 3; deponents described the disputed lands as: “We confirm Baravaziu clan own portion of land within greater Ngatakobo (Mother Land) known as BL...”.
   
4. Claimants say that the Court rightly made the restraining orders, because of the confused pleadings or evidence. Counsel says that the more appropriate evidence to use is Exhibit CP1 of the said joint ss – map. The map clearly shows that BL, Qaloroata Land (QL), NML, Maka Land (ML) Qapota Land (QaLand) and Sikuvai Land (SL) are separate plots of lands under claimants’ concession lands, covered by claimants’ timber rights application. These are the six (6) plots shared between the six (6) sons of Biopogo. This is not new fact. This was already clear to this Court (see paragraph 21.3 of Ruling dated 22/7/2016).
   
5. NML is at the bottom of the map. That is the portion still owned by the big tribe. The other six portions are divided between the six (6) sons. Counsel says his client have a valid license over BL and NML. Disputed area is between BL and QL. That is to say, KL is between BL and QL. And NML is separate, down at the bottom, clearly far from the disputed area. Claimants seek to make this clarification and distinction with a view to varying the restraining orders. So that BL and QL should be restrained not NML. This is consistent with Form One (F1) timber rights application by claimants where you see the four separate concession lands, namely: BL, QL, NML and SL.

Justification to oppose – submission by Counsel for 1^st and 2^nd Defendants

6. First and second defendants opposed the application and say that according to Soqati ss filed 17/4/2015, KL and BL are two separate lands; within NML. That KL is a portion of land within NML. In other words, defendants disagree with what claimants say. There is therefore a clear dispute to resolve at trial in regards to whether or not KL is within NML. So NML is the disputed land (issue for trial). Parties are still disagreeing on the boundary and demarcation.
7. Nothing has changed since the grant of restraining orders to warrant variation. There are no new facts. Same facts means same issues that justify the grant of restraining orders remain the same. For instance at issue 8.8 of Ruling dated 22/7/2016, there are two competing licenses over the same NML, by the claimants camp and first and second defendants camp. At issue 8.1 is whether BL and KL are two separate lands. Additionally whether or not BL or KL is within NML.
8. Court is not convinced that the restraining orders should be varied either on the grounds submitted by Counsel Tagini or under R.17.55. There are no change in circumstances. What counsel see as clarity to previous confusions is not a confusion because the ss has not be amended by the deponents and because the defendants still oppose what claimants are saying. There are no new facts and so issues remain unchanged till trial. So too are the restraining orders.

9. Orders of the Court:

9.1 Application to vary refused with costs to be taxed if not agreed;

9.2 Parties to prepare matter for trial with speed;

9.3 Mention again on 24/01/2017, at 9.30 am.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE