Harohau v IIo [2016] SBHC 56; HCSI-CC 137 of 2015 (5 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 137 of 2015

BETWEEN:

PAUL HAROHAU AND MICHAEL TOKII
Appellant

AND:

HENSON IIO, ALICK NAITORO,
AMSON KARIHANUA, JAMES MAETOTRO
DICKSON TAHAOI, PARAEU’U PAPAPU,
THOMAS HO’UMAEA, JOE KENNY AND
JACK NAOSUANA AND SMITH PAUNAO
First Respondents

AND:

KEN KINIORE, DICKSON TAHAOI,
JAMES HISUOTA, MORIS MAEANIAPU
AND JOE KINIMEMEANA
Second Respondents

AND:

PACIFIC VENTURE (SI) LIMITED
Third Respondents

Date of Ruling: 5th May 2016

Mr. Ipo for the Applicant
Mr. Lidimani D for the Respondent

RULING

Maina J:

Introduction

This application was filed on 27^th May 2015 and seeks orders to compel the First, Second and Third Defendants to comply with the ex parte interim orders of April, 17^th 2015. The orders are to pay the proceeds of any logs felled and exported or to be exported from the First Defendants’ Tarapaneo/Paua customary land into the joint trust account until further orders of the court.

Claimant also seeks Default judgment to be entered against all the Defendants for trespass, conversion and environmental destruction with cost for this application, actions and interest.

The Defendants disputed the claim and challenges the application and the interim orders.

Brief Background

The Claimant on 14^th April 2015 filed a Category A case and seeks damage for trespass, conversion and environmental destruction against the first, second and third Defendants.

Also on 14^th April 2015 an urgent application seeking interim injunction against the Defendants which was heard the orders was granted on April, 17^th 2015. The orders was perfected, signed and sealed on 20^th April 2015.

And the interim orders are:

1. The First, Second and Third Defendants, their servants, agents, invitees, assignees and anyone else under the authority or purported authority are restrained from entering, felling any trees or carry out any logging activities or any related activities within the boundary of Waroara Customary Land which covers or includes the current boundary dispute with the First Defendants’ Tarapaneo/Paua Customary land until the boundary issue is finally determined by the chiefs or appropriate courts or further orders of the court.
   
2. The Second and Third Defendants are required to remove and export any logs already felled within the Waroara customary land and all proceeds to be paid into a joint trust account to be opened in the names of the parties’ solicitors.
   
3. The Second and Third Defendants are required to remove all the logging machines from the Waraoa customary land and restrain from re-entry.
   
4. The Second and Third Defendants are required to produce by sworn statement the details of trees within 14 days of the order.
   
5. Order for the Police to enforce if they are violated or a breach of the order by the First, The Second and Third Defendants, their servant, agents, invitees, assignees and anyone else under the authority or purported authority.
   
6. A penal notice be attached to the orders made therein.
   
7. And cost for this application.

There has not been any ex parte hearing for the orders of 17^th April 2015 when this application comes to court. And now Counsel Lidimani D appeared for the First and second Defendants and challenges this application that was filed on 27^th May 2015 and the ex parte orders of 17^th April 2015.

The Application

The application filed on 27^th May 2015 concerns the ex parte interim orders obtained by the Claimant on 17^th April 2015 which the Defendants allegedly fail to comply with. It seeks orders for the enforcement of the interim orders. Whatever the hearing at this time be, it is in fact the inter parte hearing of the application and interim orders made on 17^th April 2015. It was the opportunity for the Defendants to reply to the evidences used to obtain the ex parte interim orders. And whatever the outcome would serve the purposes or issues relates to complying with the orders.

Issue

The issue is whether the ex parte interlocutory orders 17^th April 2015 be discharge due to the lack of evidences to support the application and existences of the orders.

The First and Second Defendants disputed the claim and said that the Claimant fail to show or disclose the area of land they are disputing than just or to say the boundaries in his evidences for the interim orders that were granted to him on April, 17^th 2015.

Counsel Lidimani for the Defendants said the ex parte order obtained by the Claimant is too general or blanket order that usually not granted by the court. You cannot come to court and ask for order to restrain the Defendants for the monies from their Tarapaneo/Paua Customary Land. It is not the Claimant’s Waroara Customary Land and they know it very well. The Claimants should proper identify or specify to the court the areas of land they are claiming to be Waroara Customary Land but they did not do that.

The Defendants are logging within the area belongs to them and as appeared in the map attached to the sworn statement of Alick Naitoro.

In the sworn statement of Alick Naitoro filed on 24^th April 2015 he delineates in the sketch maps and marked ANH - Map B and ANH - Map C of the area of land subject to the dispute with the claimants. And they are not logging the disputed area.

And Counsel Ipo for the Claimant in his submission states that the Claimant relies on the statements of Michael Tokii filed on 27^th May 2015 and 11^th June 2015 that logging was continuing on the dispute land after the interim orders was served on the Defendants. The order to deposit the money in the trust account has not been complied with. And this application is for an order to stay the money until the boundary is sorted out by the parties.

Counsel made reference to Claimant Michael Tokii’s sworn statement filed on 11^th June 2015 and to paragraph 6 of the sworn statement filed on 27^th May 2015 which states that matter or the boundary that separates Tarapaneo/Paua customary land and Waroara customary land has not been settled with the Defendants.

It is clear that there is a dispute over the boundary of claimants’ Waroara Customary Land and Defendant’s Tarapaneo/Paua customary land although the Claimant was not able to specifically show to the court the exactly areas of land they are claiming to be Waroara Customary Land. The Claimant also did not provides evidences of the likely volumes and types of logs allegedly fell from the disputed area that just saying or make reference to logging activities at the disputed area.

With the dispute over the boundary it involves or claims in ownership of land in custom and this court lacks the jurisdiction. It may proper for the parties to pursue through the chiefs and the appropriate courts on appeals etc.

There is an order for the proceeds or monies to be paid into a joint trust account to be opened in the names of the parties’ solicitors and allegedly not complied by the Defendants. In responding to this interim order, the Defendants said they were operating on the land outside of the disputed area. The Defendants are operating on the land area as marked in the map with “X” attached with Alick Naitoro sworn statement filed on 24^th April 2015. It is not on the dispute area. Again the Claimant fails to any evidence to specific on the area of land the Defendants were allegedly operating than just saying dispute on the boundary.

It is also interesting to note what the Claimant said in his sworn statement filed on 27^th May 2015 at paragraph 8 when he remarked or said that he feared the overlapping land claim by the First Defendant, fell logs etc was within the Waroara customary land. What this statement implies is that he was not sure rather suspecting the land that is claimed by the First Defendant with the logs felled might be within Waroara customary land. That simply shows that there is no proof or sure of any occurrence but fear of the likely occurrence and if there may be.

With the application and interlocutory orders it is clear that the Claimant was not able to specify the exact area of land, any volumes and types of logs and even whereabouts of the fell logs than just making reference to the dispute over the boundary.

With this allegation of felling trees or logging in the Waroara customary land it appears to be a mere suspicion on part of the Claimant. He has not shown any evidence or proofs the area, types of logs fell or description of allegedly felled by the Defendants and to support his application for the interim orders.

Order 2 cannot stand and therefore is set aside.

With the Default judgment there was no submission made for that except Claimant’s counsel was saying that it was served on 22^nd April 2015 and no response and defence was filed in court.

ORDER

1. The dispute of boundary Tarapaneo/Paua customary land Waroara customary land be dealt with by the chiefs
   
2. Interim Order 2 of 17^th April 2015 is set aside.
   
3. No order is made for Default judgment
   
4. Cost of the application is reserved
   

THE COURT

Justice Leonard R Maina
Puisne Judge