Namusu v Fairtrade Company Ltd [2016] SBHC 7; HCSI-CC 17 of 2015 (22 January 2016)

HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

Civil Case No. 17 of 2015

BETWEEN:

MOFFAT NAMUSU, PENIKERA NAMUSU,
RICKY NAMUSU, PR. KITURU GHEMU,
NATHAN HETISI, LIU HIDE, VERITY
NAMUSU, and RAJAKANA REGINALD
First Claimant

AND:

PACIFIC CREST ENTERPRISES LIMITED
Second Claimant

AND:

FAIRTRADE COMPANY LIMITED
First Defendant

AND:

RIMA LIMITED
Second Defendant

Date of Hearing: 24th November 2015
Date of Ruling: 22nd January 2016.

Ms L. Ramo for the First and Second Claimants
Mr W. Rano for the First and Second Defendants

RULING ON INTER-PARTE HEARING

Faukona, PJ: The first and the second Claimants had obtained an ex-parte interim restraining orders against the first and second Defendants on 2nd February 2015, and perfected on 4th February 2015.

2. Following on from the ex-parte application, the next process is an inter-parte hearing. This is an inter-parte hearing. At the inter-parte hearing facts adduced are those prominently capable of negating the evidence upon which the orders were granted. The rationale is to convince the court to decide otherwise that the orders were not capable of being granted at the first instance for some worthy reasons.

The issue:

3. The usual issue in an inter-parte hearing is whether or not the ex-parte interim orders of 4th February 2015 should be continued or discharged.

4. The Claimants persisted that the interim orders should continue to be on foot and operational. Their reasons are that they are the owners of geli customary land and that they were persons determined by the Western Provincial Executive in 2005 as having rights to grant timber rights in respect of that customary land. There was no appeal against that determination; hence a felling licence was issued to the second Claimant over geli customary land and five other lands as well.

5. Apart from that the first Claimants had successfully challenged in the High Court, in Civil Case No. 173 of 2008, the registration of geli land of which PE title of 143-001-17 was registered in the name of Mr Chachabule Amoi.

6. That unaccepted action had prompted the Claimants to come to Court and sought the orders premises on the fact that having acquired rights as expounded in paragraph 4 and 5 above, claim that without their consent, the Defendants together with their servants and or agents had made their access through geli customary land. In the course of doing so had felled and extracted logs for sale.

The Claim

7. The Counsel for the Defendants has raised a number of issues in his oral submissions. I noted the claim seeks damages for trespass and conversion to be assessed because of the unlawfully entry by the Defendants into geli land and felled and extracted commercial and economical trees for sale. I also noted there was no mention of any permanent injunction as one of the orders sought.

8. Where trespass paves a way for conversion and damages then a party seeking relief (the Claimants in this case) ought to possess documentary evidence that proves ownership of the subject land. Relying on determination of Provincial Executive or successful challenging a party in a Civil Litigation is insufficient to ground orders for damages. I am not determining the substantive issue here but a dictum since it is raised in the submissions; that has to be considered whether it is relevant or not. Of course I take note of the case of Simbe v East Choiseul Area Counsel and others, in which the Court uttered that a decision of Provincial Executive in terms of timber rights is not a binding decision of ownership. Decision related to ownership of customary land must be from the Chiefs or the Courts. There is nothing in this case.

9. What has been raised by the Council is pertinent for the Claimant's case in the substance; otherwise the progress of this case will be retardated. An option suggested by the Counsel, as an alternative, is by utilising section 14 of the Forestry Act.

10. For a claim of trespass and damages to be sustained, boundaries of the land must be well demarcated and identifiable. There must be maps to reflect that as a physical manifestation. Again this issue can best left for the Court when considering the substantive case. An initial mention of it is necessary as it will assist the Court consider whether the grounds for maintaining the interim restraining orders to continue in operative and remain valid and which premises on legal basis.

11. Another issue noted from the material is that there are certain members of the first Defendants tribe denying knowing the where about and the location of geli customary land. They are Rajacana, Moffat Namusu (1st named first Defendant). Mr Rajacana even denied signing Form II. In fact he was surprised that his name appeared as a trustee, his name had been taken out way back. Mr. Pulepanda admitted in the minutes of land inquiry on 19th August 2010 that mukimuki land was owned by Rebbi after a court decision in 1974 and that geli sounds new to him. In the same minute Pana Kituru on behalf of Pr. Kituru (4th named first Defendant) stated that geli land is new to him, and suggested if such land is in existence it must be belong to Rebbi. That evidence is contained in the minutes of meeting conducted and recorded by Mrs Hellen Hilli. There are challenges to the minutes of the meetings but I accepted Mrs Hilli's sworn statement that she recorded what the elders and the chiefs said during the meetings. It is quite difficult to omit or add extras in a minute of a meeting because it will become a public document in due course and everybody will view, and immediately have their comments. The scare of such a public domain diminishes any scrupulous dealing with the minutes, so that where the blame lies is unquestionable.

Locus Standing

12. Locus standing or right to come to Court and be heard is a legal requirement, an issue the Counsel for the Defendant has eloquently expressed in his submissions. The reason for relying on such is because there was no pleading related to a claim of ownership by the Claimant. There was no documentary evidence in a form of decision by the forums legally established by a statute affirming that the Claimants are the land owners. In a way the Counsel appears to be correct. But his version is not the only approach to the issue. Of course I would agree that the Claimants cannot rely on grant of timber rights alone to warrant their legal standing to come to Court. My personal opinion is that they might have standing so far as application for interim orders are concerned. However, it is perceivably obvious that they would encounter a steep climb when it comes to prove of the right of ownership related to trespass and damages. Again this is a substantive issue for the Court to determine.

13. The fact that this point and others have been upheaved because they comprised certain facts to balance out and negative the convenience which was presented to Court previously resulted in granting of those interim orders.

Previous Case-CC No. 173 of 2008

14. The Claimants attribute their success in the above case as one of the reasons warranting their standing to come to Court. Apart from a general view in submissions, there is no further evidence that the case determined that the Claimants had right of ownership to the land. There was no decision tender to Court to manifest the truth of any determination.

15. However, I am enlightened by the Counsel for the Defendants that that case concerned a claim for rectification of land register. The case did not proceed on merit, but Counsels consented for the register to be rectified. And the land becomes a customary land. Indeed there were no orders declaring the Claimants are the customary owner over the disputed land. Hence their dependency of their success is so trivial and has no effect at all to this case.

16. The status of this case in so far as geli customary land is concerned; there is no determination by the Chiefs or Courts in respect to it. Not that the Claimants would rely on as basis for their claim.

17. Another point is that part of geli land that was registered by Mr Amoi and Mr Serihite was subject to the above case. Now that the status had been relinquish to customary land; and dispute as to its ownership is subject to Local Court Act. What now transpired from CC No. 173 is that geli customary land is under dispute including its boundaries. That has to be sorted out in the right forum.

Non disclosure of certain evidence:

18. The rule regarding non-disclosure is clear. The case of CTP International (SI) Co. Ltd V Ghiro[1] has outlined the law in ex-parte applications. The Applicant should make full disclosure to the Court, meaning all relevant facts that support the application as well as all relevant facts which are unfavourable to the application. The Applicant must not withhold relevant facts, or must mislead the Court either in what he says or is not saying what he is supposed to say

19. In this case the Defendants submit that the Claimants failed to disclose the Court of Appeal ruling that determined the second Claimant has no standing to appeal to Customary Land Appeal Court. The Counsel for the Claimant has in fact provided better facts related to that case. The Ex-parte Orders were made on 4th February 2015 and the Court of Appeal ruling was made in April 2015. It would be logically unreasonable to provide a ruling which is yet to be made, that can't be possible. Non- disclosure of that ruling is reasonable and not possible in the circumstances.

20. In regards to the first Defendant's logging licence, there is indeed no disclosure. However, the licence in fact covered registered land which the Defendants had grant of profits over. I noted the Counsel had mentioned the licence in her written submissions but nothing stated in the documents filed in support of the application for interim orders. In any event, whether the licence is disclosed or not has little effect on this case.

21. The focus of this case concerns the beneficiary and the ownership of geli customary land. The Defendants are saying the land was owned by a tribe called topakokora and their Chief is Mr Amoi the current Director of the first Defendant. The claim to the disputed land is totally of a different course of action which comprised of ownership to the land and the boundaries. Since those issues have not been litigated and a decision yet to be materialised, there is no direct connection. There may be, but the issue of ownership of the land appears to be separated and ought to be litigated separately. Hence non-disclosure by the Defendants of the felling licence in regards to the disputed land does not assist the Defendant's case much, or to suggest that by not disclosing it prejudice the Defendant's case of their rights of ownership. Overally, I noted the parties claims of ownership is a segregated issue that is yet to be determined by the rightful forum.

Conclusion:

22. The issues raised by the Counsel for the Defendants are highlights and illuminations of existing facts of reality that surrounds this case. They are facts that can be measured against the standard and the veracity of facts upon which the interim restraining orders premised. They are new recitals for judicial analysis when considering the balance of convenience. This time, it is not for considering the grant of restraining orders, but for the purposes of discharging or to maintain the status quo. By carefully and vigorously examining the expositions, the question to pose is does the facts in the latter outweighs those upon which the orders were granted. All the evidence contains in the balance of convenience derive its roots from the question that there is an arguable case or serious issue which will be litigated at trial. This boils down to whether there is an arguable case to be tried and if so in which forum.

23. In the current case the issue is basically trespass, conversion and damages. That is the whole claim the Claimants come to Court to seek remedy for. As a useful proclamation, let me reiterate again that the High Court will not grant its assistance if the particular land is yet to be determined by a forum assigned to by law. If the issue of ownership and the boundary has yet to be finally determined it would be cumbersome for this Court to determine damages to be assessed. The prerequisite requirement in such claim is that the Claimant must possess a lawful determination in his favour before preceded to seek the assistance of the Court to consider his claim for trespass and damages. In the current case it certainly appears there is no arguable or serious issue to be tried, and if so, in which particular Court. There is nothing before the Chiefs or the Local Court. And this Court cannot determine the issue of trespass and ownership alone, as it lacks jurisdiction. It is the responsibility of the Chiefs and the Local Court to hear and determine.

24. The final analysis of the facts upheld a balance that tilts towards the Defendants. And I must therefore discharge the interim restraining orders and dismissed accordingly with costs.

Orders:

1. Interim restraining orders perfected by this Court on 2nd February 2015 against the first and second Defendants be discharged and dismissed.

2. Cost of this hearing is borne by the Claimants and payable to the Defendants.

The Court.

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^[1] (2014) SNHC, HCSI – CC 33 of 2014 (10 June 2014)