|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No. 134 of 2016
BETWEEN:
ANDREW LADA and EXMAS JINO MYRE
(Representing the Bareke/Veala Tribe)
Claimants
AND :
HAVE MAJORIA
(Representing the Kadiki Tribe)
First Defendant
AND :
RODO DEVELOPMENT COMPANY LIMITED
Second Defendant
AND :
THE ATTORNEY GENERAL
(Representing the Commissioner of Forests)
Third Defendant
Date of Hearing: 10 May 2016
Date of Ruling: 17 May 2016
Bird. M for Claimants
Pitakaka. M for 1st & 2nd Defendant
No appearance of 3rd Defendant
BROWN PJ:
REASONS FOR DECISION AND ORDERS
Claimant’s ex parte injunction.
These proceedings were instituted by the claimants representing the Bareke/Veala tribe which sought orders restraining the 1st and 2nd defendants “from negotiating or conducting any form of logging activity on Rodo customary land”. Following an ex parte hearing on the 8 April I made orders in the following terms.
In support, Ms. Bird for the applicants had read the sworn statement of Andrew Lada, one of the applicants and her own statement which annexed a copy of an earlier High Court ruling on which the applicants relied. That ruling purported to affect Rodo customary land and was between the tribes now before the court. Ms. Bird argued that there was a permanent injunction preventing logging in Rodo customary land as evidenced by this earlier ruling made in August 2007 [the August 2007 ruling]. In that case, Havea Majoria [representing the Kadiki tribe] v Oliver Biimoro Jino [representing the Bareke tribe] and the Clerk to the Customary Land Appeal Court [1] Para. 18 said;
“The summons seeking discharge of the interim injunction originally given on the 23 September 2005 is predicated on the fact that all the consolidated issues in cc 255/05 and cc462/05 have been decided. But the validity or otherwise of the logging licence no. A10202 under which the plaintiffs claim to log within Rodo land has not specifically been addressed before now. For the reasons that I have given, it would be wrong to discharge that injunction for the effect would be to allow logging pursuant to a licence which is void. The appropriate order is to make the injunction permanent and I so order. What flows of course will be the need to address disbursement of funds held pending resolution of these proceedings in the light of my order but that disbursement can await further argument and order if resolution cannot be achieved between the parties.”
But that case was taken on appeal [2] with the Appeal Court upholding the appeal by Havea Majoria, and making the following orders;
“1. Summons number 255 of 2005 is reinstated and the matter remitted to the High Court to determine in light of any evidence tendered by the parties. This matter is consolidated with the First Respondent’s Summons no 255 of 2005 for the purpose of enabling a decision as to appropriate interlocutory relief that might be afforded to one or other or both parties.
2. The appeal against the decision of the WPE of 18 September 2002 is remitted to the WCLAC for hearing and determination in accordance with this judgment.
3. The First Respondent is to pay the costs of the appeal.”
The Bareke tribe points to that permanent injunction given in the August 2007 ruling as reason to prevent the Kadiki tribe from logging Rodo land. In my reasons given on the 8 April, I based the exercise of my discretion to grant the orders, ex parte on the apparent contravention of this previous court order without having had the benefit of the arguments raised today by both counsel in their submissions. That permanent injunction was discharged by the Appeals Court decision.
Defendant’s application to discharge injunction.
The 1st and 2nd defendants have taken issue with my ex parte injunctive orders and have filed an application in terms of Rule 7.3, seeking discharge of the injunction as well as claiming its own injunction preventing the applicants from interfering with the logging carried out on Rodo land by the defendants.
The Attorney has not appeared on the hearing of the defendants application today; both the applicant and defendants representative raise no objection to my hearing the matter in the Attorneys absence and I am satisfied the hearing may proceed with the Attorney abiding my decision.
The defendant’s statement of case.
The 1st and 2nd defendants have filed a statement of case. I shall summarise the pertinent parts for this enquiry.
Rodo Development Company Ltd holds a valid timber felling licence [no. 10202] to log within Rodo customary land, effective until 2017. Havea Majoria is a director and shareholder of the second defendant company.
The applicant, Andrew Lada is not from the Bareke/Veala tribe [but from the Sugili tribe which is not part of the of the Bareki tribe and which had no part in disputes over Rodo land].
The pending dispute as to ownership and/or boundaries of Rodo customary land does not affect the 2nd defendant’s felling licence which is based on grant of timber rights eventually confirmed by the Western Customary Land Appeal Court on January 13, 2012.
The permanent injunction [relied upon by Ms. Bird] in HC-CC255/2005 was superseded by the decision of the Court of Appeal dated November 1, 2007 in Civil Appeal Case no. 36 of 2006 which dealt with HC-CC255/2005.
By Court of Appeal decision of March 26. 2009 in Civil Appeal Case 16 of 2008, the only existing injunction in HC-CC255/2005 is that restraining the claimant’s tribe from logging within Rodo customary land, including Havahava customary land.
The injunction in HC-CC243/2013 is against a business entity which was at the material time and is still owned by Rose Matai and does not affect the First and second Defendants or the latters felling licence.
The defendants further say that the applicants have deliberately failed to disclose all material facts, particularly those detrimental to their case when applying for and obtaining this stop order. This is pertinent to the question of the exercise of my discretion on the costs of the defendant’s application to discharge the ex parte orders, as well as the bona fides of the claimant’s original case in support of the claim for the stop order.
The question today is whether the ex parte order should stand pending hearing of the Claims. Since I am satisfied there are serious issues to be tried, the second leg of the American Cyanamid test is to my mind, the appropriate way to consider that question.
Again, the applicants had not filed any claim which discloses a cause of action in the matter. Ms. Bird did hand a Claim and statement of case across the bar table during a short adjournment in the course of the hearing and had earlier handed Mr. Pitakaka a further sworn statement of Andrew Lada dated 10 May.
I have determined to accept the documents when considering the application to discharge my existing injunctive order, for I consider, from the arguments that I have heard from Mr. Pitakaka, that his clients will not be unduly prejudiced by this course, keeping in mind that his clients have not had any opportunity to address fresh matters raised or refute statements. I will place such weight on the fresh statement as I see fit for I have read it in the proceedings today. Mr. Pitakaka’s clients may see need to answer the material in Andrew Lada’s 2nd statement, but that is for him. The material then before the court on the hearing may form part of the evidence subject to objection at the trial.
Further, the defendants claim an abuse of court process for, if the cause of action by the applicants is a breach of injunctions affecting the defendants, the proper course is to institute proceedings alleging contempt. This may be shortly be dealt with for the matters in dispute appear quite convoluted with the passage of time and justice would not be served were I to avoid attempting to unravel the issues which can await trial. But the issue before me today is whether the interlocutory injunction should be sustained.
The defendants claim, if the applicants assert a challenge to the validity of the 2nd defendants felling licence over Rodo customary land, then this purported challenge is time barred.
The issue surrounding the licence is one which will come for determination at trial, I expect.
Matters for consideration on the continuation or not of an injunction pending hearing.
Mr. Pitakaka points correctly to the matters which a court should consider when determining the question of the continuation of stop orders pending trial.
In Majoria v Jino[3] the Court of Appeal accepted that the various tests and considerations set out in the American Cyanamid case were appropriate. The first consideration is whether there is a serious issue to be tried. I am satisfied there are a number of serious issues as these reasons demonstrate.
The Rules, Ch 3.42 provides for representation of a tribe in circumstances such as this. Mr. Pitakaka has read the statement in support by Havea Majoria who challenges the right of representation by Andrew Lada. Normally any further step in the proceedings need await the determination of the claim to represent. The application with which I am concerned is not such a step since it seeks to deal with an existing order. Before the matter is set down for trial, however, the claimants need address this challenge. I see however that in the course of the of the WCLAC hearing of the 13 January 2012, at para 21 the record shows “ both parties had identified that Andrew Murray Landa is the spokesperson for the Appellants [speaking for Oliver Bikomoro Jino]” so that Andrew Lada had recognised authority in 2012 before that tribunal to represent. Whether such authority still exists for the purposes of these proceedings has been put in issue.
I should also say that the Chief Justice, in Veno anors v Jino anors[4] referred to a consent judgment of the WCLAC dated 17 April 2003 in which various persons were named as representative persons lawfully entitled to grant timber rights over Havahava land, land within Rodo land. These persons were Raevin Revo, Yalu Revo, Seith Piruku, Andrew Landa Murray, Oliver Jino and Witlyn Viulu. The issue whether in the case brought before Palmer CJ, the two plaintiffs, Stephen Veno and Gordon Young and the named defendants, [those above] accepted the Veala tribe as the owner in custom of Havahava land whilst seemingly accepted in the trial, was a matter for comment in the Court of Appeal decision which touched on the Chief Justices case, upholding his decision that the claimants had no standing. What was in issue before the Chief Justice were the rights of the Veala tribe and the concomitant right to membership of particular clan and hence the Veala tribe. For the applicants, Veno and Young claimed through the Veala tribe, a claim not accepted by the Chief Justice. The matter went on appeal since the Chief Justice had refused relief by way of injunction to stop logging by the Veala tribe on Havahava land finding neither plaintiff, Stephen Veno nor Gorden Young had standing to seek relief. The Appeals Court upheld the Chief Justices finding on standing.[5]
The Appeals Court, was clear in pointing out that the appellant, Havea Majoria [representing the Kadiki tribe] was not a party in Veno, nor was the Kadiki tribe. Most importantly the Appeals Court when discussing this earlier case of Veno, said;
“The question whether Havahava land is part of Rodo land with separate rights of customary ownership as between the Kadiki tribe and the Bareke tribe was not an issue in Veno, let alone determined, either by the Chief Justice at first instance or this court on appeal. Moreover, given the matters in issue, no information of a factual kind useful for determination of the issues in the present case is provided in the Veno judgment.
Not only was the Appellant not a party to the High Court proceedings, he was not a party to any of the preceding proceeding, including, in particular those instituted and settled in the CLAC. As this court held, the consent judgment was binding only on the parties to it and was not protected by the privative provisions of s10 of the Forest Resources and Timber Utilization Act. Furthermore the litigation was an application for interlocutory relief. Whether it was a final judgment for the purposes of the rules of res judicata must at least be open to substantial doubt.”
Speaking of Veno’s case then, it may be said that the assertions of both parties in that case about the Veala tribes’ right of ownership of Havahava land was self- serving and was not accepted by the Court of Appeal as evidence of substantial proof.
That Court of Appeal was concerned with an appeal from the August 2007 decision of the High Court which rejected Havea Majoria’s claim to prevent logging on Havahava land; to seek an account in respect of past logging and other orders as to the jurisdiction of the Customary Land Appeal Court [Western] [WCLAC] to reconsider the question of customary ownership. Havea Majoria’s appeal was upheld and the Appeals Court made these orders;
“1. Summons no. 255 of 2005 is reinstated and the matter is remitted to the High Court to determine in the light of any evidence tendered by the parties. This matter is consolidated with the First Respondent’s Summons no. 255 of 2005 for the purpose of enabling a decision as to appropriate interlocutory relief that might be afforded to one or both parties.
2. The appeal against the decision of the WPE of 18 September 2002 is remitted to the WCLAC for hearing and determination in accordance with this judgment.
3. The First Respondent is to pay the costs of the appeal.
After time, the remit to the WCLAC took place on the 13 January 2012. The consolidation of Summons no. 255 of 2005 and the Court of Appeal ruling came before my brother judge, Faukona PJ on the 30 April 2008[6] when after lapse of time and changed circumstances, the claimant, Havea Majoria varied the orders which he sought against Oliver Bikomoro Jino [representing the Bareke tribe of Vangunu Island, Marovo] at paragraph 1, to seek an injunction against logging activities within the “disputed area, namely the area between Nama River and Punuta River [accepted previously as Rodo land] including the area known as Havahava land {the “disputed Area”} as shown in Exhibit “HM9” of the affidavit sworn by Havea Majoria” , as well as an account of moneys received by the 1st respondent from logging activities in Havahava land and an account of all marketable trees felled on the Rodo land including the Havahava land”.
Justice Faukona dismissed the application and again, the Court of Appeal[7] entertained an appeal against the High Court decision. Quoting from the judgment;
“In the event, the appeal is allowed and the orders sought in the amended summons are granted in favour of the appellant save that as regards paragraph 1 of the amended claim the order is made “until further order”. Costs of this appeal are to be paid by the 1st Respondent to the appellant to be agreed or taxed.”.
By allowing the appeal Havea Majoria appeared to have an order for an injunction in his favour adversely affecting Oliver Bikomoro Jino [in his representative capacity].
But that Appeals Court order then had this addendum.
“After the foregoing reasons were handed down an interested third party drew to the attention of the court that the order directing the matter to be reheard in the WLCALC [para. 2 of final order in 36 of 2006 in the Court of Appeal] had been dissolved by consent in the Court of Appeal on 16 June 08. That was done because the impugned 2nd decision of the WCLAC was to be reviewed by certiorari. Those matters were not drawn to the attention of this court notwithstanding both counsel before us had been party to the consent order. When the matter was relisted to bring those matters to the attention of the parties it was agreed that the orders set out in the published reasons should not be perfected until the conclusion of the proceedings for certiorari or other order of this court.”
The decision on judicial review was heard by Cameron PJ on the 19 July 2010[8] and by ruling the judge ordered that the decision of the WCLAC dated 23 December 2006 [the 2nd decision] be quashed and directed the WCLAC rehear by way of appeal CLAC no. 6 of 2002. That WCLAC rehearing [the 3rd decision] is dealt with in my reasons. I have not been referred to any perfected order of the Court of Appeal in CAC 16 of 2008, or other order as envisaged, above. Justice Cameron’s judicial review was focused on the 2nd decision of the WCLAC and did not enter upon any question about injunctions. Consequently I am not satisfied the injunction sought in the amended summons in Justice Faukona’s case, above, has been effectuated.
These matters need to be addressed on the substantive hearing.
The defendants reliance on a WCLAC decision.
The defendants rely on the WCLAC decision of the 13 January 2012 [the 3rd decision] as affording his clients the Kadiki tribe, the right to grant timber rights over Rodo land. Amongst those named as having such rights is Havea Majoria, the 2nd defendant representing his Kadiki tribe.
There is then, the argument about the legal effect of the WCLAC 3rd decision, the decision of the New Georgia Local Court and Sam Nelson’s appeal against that decision to the WCLAC, as well as the current effect of the Court of Appeal’s decision in Civil Appeal no 16 of 2008. These are serious issues.
By Judgment dated 12 August 2013, the Local Court sitting at Munda heard proceedings in the matter of Rodo land between Oliver Jino, plaintiffs and Havea Majoria, defendant. The decision of the court after an analysis of the evidence presented was that the rightful ownership of Rodo land was with the “Veala Tribe” The court recognised Chief Zelicho Myre and in part said “ The particular boundary and ownership over Veala tribes is own by Chief Zelicho Myre will remain as it is. The Rodo land is separated land from Kadiki land. They have their own chief according to their genealogies.”
The decision has been appealed to the WCLAC.
The 3rd WCLAC decision,[ following upon the Court of Appeal decision involving these parties and the land], given on the 13 January, 2012 predates the Local Court decision at Munda involving Rodo land.
So it seems that the Local Court has accepted the Veala tribes claim to Rodo land in its entirety, a decision which as I say, the Kadiki tribe has appealed.
The WCLAC recited that it was a timber right appeal on Rodo Customary Land against the decision of the WPE [Western Province Executive] of 18 September 2002. It said;
2. This appeal is made in accordance with the Court of Appeal decision no. 36 of 2006 [on appeal from High Court case no 255 of 2005].
3. The Court of Appeal allows the appeal and remitted to the WCLAC to hear and determine in accordance with this judgment [Judgment of the Court of Appeal of the Solomon Islands] .
The WCLAC upheld the WPE decision of the 18 September 2002 and made the following orders.
There was no talk of Havahava land which had figured in earlier High Court proceedings. I have touched on Havahava land, earlier in these reasons. The Local Court judgment given at Munda can be seen to be at odds with the WCLAC findings.
The WCLAC 3rd decision has not been appealed.
On the 18 September 2012 the Western Provincial Executive Council approved the Rodo Development Company timber rights application in the customary land called Rodo at Vangunu Island. Afterwards, the 2nd defendant entered into contractual arrangements on the strength of the WCLAC decision and the Executive Council’s order, with a logging contractor, “Surf”.
There is clearly very great disputation over exercising timber rights affecting Rodo land. The parties Claims may be heard at a later time for I need only determine whether the ex parte injunction should be continued in force.
This question is the second limb as Mr. Pitakaka put it, of the American Cyanamid test.
Adequacy of damages and balance of convenience.
Ms. Bird argued strongly that the underlying basis of the Kadiki tribes claim to Rodo land, was flawed. This argument may wait. She followed up by pointing to the Local Court reasons where that court was not impressed with the claim by Havea Majoria. Consequently, the triable issue touching on ownership should leave me with in no doubt where the balance of convenience lay, with her clients, the Bareke/Veala tribe.
There were disputing counsels arguments concerning whether the injunction originally ordered in the case HC-CC 255/05 remained in force on a reading of various Court of Appeal decisions. I have alluded to this in my reasons. So the argument whether or not an injunction affecting the applicants remains in force in the light of all that has happened since must await a hearing. Ms. Bird argued as fact that there were restraining orders in place against the defendants in relation to logging on Rodo land. This is an issue which may go to trial since I am not minded to accept her argument at this juncture. It is not correct, however to say that the 1st defendant has ignored a permanent restraining order preventing him logging Rodo land. I have had regard to Ms. Birds other written submissions but they do not tilt the balance of convenience in her clients favour. I am minded to look to the practical effect of continuing my stop order.
Both parties have given undertakings as to damages. Since the 1st Defendant, Havea Majoria has proceeded to change the shareholding proprietors of Rodo Development company he has entered into, through the company, a Technology and Marketing Agreement with Renown Surf & Cargo Ltd [Renown] a logging contractor operating in the Western Province.
Mr. Pitakaka filed and read a sworn statement by Thomas John Crawford, the Managing Director of Surf, who deposed to the steps he had taken by way of “due diligence” to be sure Rodo Developments had the right to facilitate logging on Rodo land. I am satisfied Surf proceeded with the Agreement without notice of any shortcomings which may impede his logging plans or his right to enter the land. He also deposed to the costs that he had already incurred including disbursements paid the Government for the right to log and the performance bond in the sum of $250,000. He is making final preparations to commence work on the land.
The claimant’s,[ representing a tribe which had already commenced logging on Havahava land long ago] principle objection relates to the right to speak for the land, so that where logging has taken place, or projected after making proper enquiry or logging which is subsequently found to be carried out on land in disputation by a contractor without notice of such disputation, in the absence of facts which undermine the claim by the contractor to be acting in good faith, the fact of the contractors engagement may be taken into account when I consider the balance of convenience. Again when I see that the 1st defendant has induced the contractor to become involved and the contractor has by enquiry satisfied itself that the 1st defendant by his company, the 2nd defendant, has the necessary licence to log on Rodo land, the defendants are entitled to rely on the regularity of licences and acts of department officials in the absence of notice of irregularity. This also needs to be a matter which I consider on the balance of convenience.
Where logs are felled and sold, the Forestry officers are vitally concerned in the volume and type harvested for revenue purposes; it is consequently a relatively simple exercise to ascertain the value to the 2nd defendant were damages to be awarded the claimants after a final hearing. Damages then would be an adequate remedy were the logging to take place.
For all these reasons, I am not minded to extend the injunctive order.
The ex parte injunctive order of the 11 April is discharged.
The applications shall stand adjourned to the hearing of the claims.
In my discretion, I order the costs of the defendant’s application be paid by the claimants.
By the Court
Brown PJ
[1] Cc 255& 462/ 2005; 22 August 2007.
[2] Havea Majoria v Oliver Bikomoro Jino anor [2007]SBCA 20; CA-CAC 36 255 of 2006 [1 November 2007]
[3] [2009] SBCA 4; CA-CAC 16 of 2008 [26 March 2009]
[4] HC-CC 152 of 2003
[5] Civil Appeal no 2 of 2004 dated 12 April 2006; Majoria v Jino [2007] SBCA 20.
[6] HCSI-Civil Case no. 255 of 2005; HC- Final Judgment no. 25 of 2008.
[7] Civil Appeal no 16 of 2008; judgment dated 26 March 2009.
[8] Havea Majoria v Ben Lomulo, Attorney General and Oliver Jino; HCSI CC no 27 0f 2007 dated 3 August 2010.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2016/65.html