Galo v Zaleke [2016] SBHC 69; HCSI-CC 198 of 2016 (23 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTIONS

Civil Case No. 198 of 2016

BETWEEN:

CHIEF LINCOLN GALO, MARK GALO, JOEL GALOPUI,
GREGORY PITA, TREVOR GALO, LOMA TANITO,
ROBERTSON GALO, WILSON PITA & ORS
(Representing Kubongava Veveda Tribe – South Choiseul)
Claimant

AND:

CHIEF GLEN ZALEKE, CHIEF HENRY TOTO, CHIEF M PAZA
KOLO, ROVA ZAKELE AND GIDEON SOLOM
(Representing Kubongava Bere Tribe)
First Resp./Defendant

AND:

TREASURY TIMBER LIMITED
Second Resp./Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Forests)
Third Resp./Defendant

Date of Hearing: 16th May 2016.
Date of Ruling: 23rd May 2016.

Mr. J.S. Pitabelama for the Claimants/Applicants.
Mr. M. Tagini for the First and Defendants/Respondents.

KENIAPISIA; PJ:

RULING ON AN APPLICATION FOR INTERIM RESTRAINING ORDERS

1. This is an application for inter-locutory injunction, brought under Rule^[1] 7.9. The application is made before a proceeding has started. A claim is yet to be filed. The application was filed for ex – parte hearing, but I ordered inter – parte hearing, because; it is not urgent under Rule.7.6 (a).
   
2. Application came for hearing on 12/5/2016. I adjourned because the supporting sworn statement (ss) did not contain relevant exhibits. There is cross referencing to ss and exhibits in another civil case 41/2016. I adjourn to 16/5/2016, to make good these defects. Every case must be prepared on their own merits, separate from other cases in Court, until a consolidation order is made. Counsels should not merely rely on ss made in another case.
   
3. On 16/5/2016, I proceeded to hear the application, but ruled to exclude joint ss by Wilson Pita and Loma, filed on 16/5/2016; because Counsel Tagini for the first and second defendants objected and the ss is confusing in the manner it was prepared.
   
4. On the materials before me, I would rule that both the applicants/claimants and the first defendants and their respective contractors, refrain from felling any trees in the disputed area, until further orders of this Court. I make this order from a practical stand point, on the basis of a Memorandum of Agreement (MOA), between the claimants and the first defendants.^[2] The Claimants are alleging the first defendants and their contractor have trespassed into that common boundary area covered by the MOA. On the other hand, the first defendants are also alleging the same against the claimants and their contractor. Both parties and their respective contractors should also pay proceeds from trees felled in the disputed area into a joint trust account.
   
5. I made the above orders because evidence also shows that a referral on the “common disputed boundary area” is now before the Babatana Council of Chiefs.^[3] The High Court can issue injunction to aid the work of the customary land courts including the Chiefs.^[4] I also made these orders until further evidence have come before me, to suggest that both parties have implemented the terms of the MOA referred to above.
   
6. The balance of convenience favours the making of these orders under R.7.11 (b) because the common agreement of the parties to reserve the “disputed common boundary” must be given time and space to implement. To that extent, a referral has now been made to the House of Chiefs in the locality - Babatana House of Chiefs. It is fair, just and convenient that both parties refrain from felling trees in the “disputed common boundary area”, covered by the MOA.
   
7. Under Rule 7.11 (a), this Court can issue restraining/injunction orders if the applicant has “serious questions” to be tried and if the evidence brought by the applicant, remain as it is, the applicant is likely to succeed. I consider that there are serious issues to be tried, disclosed here. First, is whether or not there was trespass into the reserved area under the MOA^[5], by either the claimants and their contractors or the first defendants and their respective contractors? Second, whether or not the “disputed common boundary” belongs to the claimants or first defendants under the two processes: Timber Rights Acquisition (TRA) and Chief’s resolution processes. The Court will deal with the two competing processes of determining ownership – One on grant of Timber Rights under the Forestry Act^[6]. The other, a more comprehensive process on land ownership, boundary, genealogy etc, under the Chief adjudicating process^[7]. So the issue here is whether a TRA is conclusive on land ownership and therefore you cannot raise ownership under the Chiefs Court. These are issues for trial. If the MOA remain as it is to trial, the case for preserving the common disputed area is likely to succeed.
   
8. Irreparable harm to the environment is not relevant for consideration here. Both parties are into logging. The only concern is who gets the benefits from trees felled from the “common disputed boundary area”. I do not consider the undertaking as to damages, by the applicants, because I think parties should be given time and space to abide by the terms of the MOA. There will be protracted investment for both claimants and the first defendants and their respective contractors. But both parties must exercise restraint as regards the disputed area covered by the MOA.
   
9. Accordingly, the Orders of the Court are:
   
   • 9.1 Claimants and the First defendants and their respective contractors are restrained from felling trees in the common disputed area covered under the MOA, referred to in orange colour.
     
   • 9.2 Both parties remove all their machineries forthwith from the said common disputed area under the MOA.
     
   • 9.3 Proceeds from trees felled in the common disputed area (CDA) either by the claimants or defendants are to be restraint after tax deductions and paid into a joint trust account.
     
   • 9.4 Forestry and or the Chiefs have to determine who of the parties have felled trees from the CDA, for purposes of Order 9.3.
     
   • 9.5 Subject to Order 9.4, the party concerned to account for all trees felled in terms of species, prices, incomes earned etc.
     
   • 9.6 Claimant to file and serve a claim in 14 days.
     

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Reference to Rules means Solomon Islands Courts (Civil Procedure Rules) 2007.
^[2] Memorandum is at Exhibit GRG8 of ss by Richmond Young filed 13/5/16. Claimants’ case is premised on the said MOA.
^[3]See ss by Mr. Galokamake filed 12/5/16 – letter exhibited as BCC 1 – referral to Babatana chiefs council.
^[4] Well known Gandly Simbe Court of Appeal case.
^[5] Area shaded in orange to the map exhibited by the claimants/applicants.
^[6] Forest Resources and Timber Utilization Act (Cap 40), as amended.
^[7] Local Courts Act (Cap 19).