Solomon Islands Resources Co. Ltd v Cortez [2020] SBHC 131; HCSI-CC 103 of 2019 (20 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Islands Resources Co. Ltd v Cortez
Citation:
Date of decision:	20 July 2020
Parties:	Solomon Islands Resources Company Limited v Elliot Cortez, Lonsdale Manase
Date of hearing:	30 June 2020
Court file number(s):	103 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, I will set aside the injunction order issued on 24/5/2019. I will not order cost, because the change of circumstance was the basis for setting aside. Not any doing of the second defendant.
Representation:	Mr. J Taupongi for the Applicant/Claimant Mr. M Ipo for the First Defendant (case against first defendant discontinued before hearing) Mr. E Toifai for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Local Court Act [cap 19] S 12 and 13, S 12 , 13 and 14, S 13 (a), (b) (1), C (i) (ii), 13 (d), 13 (e), S 14 (1), (2) and (3)
Cases cited:	SMM Solomon Limited v Axiom KB [2016] SBCA 1, Bugoro v Tango [1997] SBHC 2

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 103 of 2019

BETWWEN

SOLOMON ISLANDS RESOURCES COMPANY LIMITED
Claimant

AND

ELLIOT CORTEZ
(Representing himself and his Vihuvunagi Tribe of Isabel Province)
First Defendant

LONSDALE MANASE
(Representing himself and his Iputu Tribe of Isabel Province)

Date of Hearing: 30 June 2020
Date of Ruling: 20 July 2020

Mr. J Taupongi for the Applicant/Claimant
Mr. M Ipo for the First Defendant (case against first defendant discontinued before hearing)
Mr. E Toifai for the Second Defendant

KENIAPISIA; PJ

RULING ON APLLICATION TO VARY INTERIM INJUNCTIVE ORDERS

1. After inter-parties hearing on 18/04/2019, I granted interim injunction orders prohibiting the claimant not to do prospecting activities under prospecting license, PL-02-19. The said orders were made in a ruling I delivered on 24/05/2019. A year later, claimant wants to vary the current injunction orders by application filed on 22/05/2020. Applicant wants the 24/05/2019 injunctive orders to be set aside and to permit it to resume prospecting under PL-02-19.

Significant change in circumstance or new facts can justify amending a current interim injunction

2. Claimant submitted that since the 24/05/2019 injunctive orders, there has been a substantial change in the circumstances, in that the disputed boundary overlap has been decided in favor of the landowners who granted Surface Access Agreements (“SAA”) to the claimant under PL-02-19. Those landowners I will refer to as the 3 brothers led by Mr. Martin Tango (Tango brothers).
3. It is settled law that a current interim injunction order can be subsequently changed if new facts justify doing that. So are there new facts, to justify setting aside the 24/05/2019 injunctive orders? I will start by briefly outlining why I granted the current injunctive orders. I thought that the lands, covered under PL-02-19 were 4 separate lands: Kologajoga, Pirega, Kolosori and Vara customary lands. First and second defendants filed materials and disputed Pirega, Kolosori and Vara. I say then in paragraph 8^[1], that the only land free from dispute is Kologajoga, because it was not disputed by the defendants. I also thought that the land defendants disputed has its boundary at Kolosori AKA Beahutu River.
4. But now my understanding is different in view of change of circumstances and the presentation of better facts to get a clear picture. So the clear picture is that the customary lands covered under PL-02-19 are Kologajoga, Piregha, Kolosori and Vara – the 4 collective plots. The big name covering the 4 collective plots is Piregha-Kolosori land, also referred to as the 3 brothers' land. Then the bigger name for the bigger land upon which Piregha-Kolosori land is located is Kolosori. And that bigger Kolosori land is more widely known for mining related purposes as the Kolosori tenement. So Piregha-Kolosori land is just a portion within the greater Kolosori tenement. And the Piregha-Kolosori land belongs to the 3 brothers. Other portions of lands within the greater Kolosori tenement belong to second defendant and other tribes. From sworn statement of Mr. Martin Tango^[2], I picture what Tango says about the Piregha-Kolosori land in Figure 1 below; in relation to the greater Kolosori tenement

Figure 1

G1

G2

G3

G4

G5

G6

No Trustee
Bugoro
Joel Malo
Joseph Bengere

Lonsdale Manase
Iputu
Land
Levi Likoho

5. The demarcations of the greater Kolosori tenement into 6 main customary plots with 6 male trustees were made under Palmer Acquisition of 1992, as in Figure 1. Appeals were made to Magistrate Court and High Court against Palmer’s acquisition determination of trustees. Appeal against determined trustee Bugoro was filed by Martin Tango. Bugoro also made a cross appeal. Appeal against determined trustee Levi Likoho was filed by Lonsdale Manase. Appeal by Manase against trustee Levi Likoho concluded in Magistrate Court. In 1995 Manase appeal was decided. Based on a 1971 Native Court decision, which Levi Likoho’s uncle Hugo Vaevare lost to Manase’s uncle Hollis Havibugotu, the Magistrate Court held that Likoho and his tribe (Cortez’s tribe) were estopped by res judicata from claiming for the same land^[3]. Appeal was allowed and Likoho was removed as trustee for G3. There was no appeal to High Court against that decision. Result was G3 and G4 were one plot belonging under Manase trusteeship.
6. Appeals by Tango/Bugoro was really an internal dispute between the 3 brothers. The end result of the internal dispute was that the High Court pronounced that Piregha-Kolosori land was jointly owned by the 3 brothers and therefore by their descendants and not by the 3 tribes they belong to. Mr. Martin Tango to become their trustee. On conclusion of Manase appeal and Tango/Bugoro appeals trustees for Kolosori tenement are: G1 – Joel Malo, G2 – Martin Tango, G3 and G4 – Lonsdale Manase and G6 – Joseph Bengere. No trustee determined for G5.
8. The factual background to the Kolosori tenement was put to rest in the Palmer Acquisition as noted by the Court of Appeal SMM case. The relevant factual background SMM case noted are:

“Several appeals against Palmer’s determination were brought with mixed success. The appeal process was concluded by 2002. In the result, there were four representatives of the customary owners authorised to sign a lease to the Commissioner of Lands: Joel Malo, Martin Tango (in lieu of Bugoro), Lonsdale Manase and Joseph Bengere. Time passed and the country was embroiled in ethnic and political tensions for some years. BNL disappeared from the scene and Bengere died in 2003. Meanwhile, nothing was done to progress the acquisition process that had commenced in 1992”^[4]

9. Then around 2008, there was a hijacking in the registration of the Perpetual Estate in Kolosori tenement as Parcel Number 130-004-1, which was quashed by the Court of Appeal in 2016. And the Kolosori tenement reverted back to customary ownership. What this reversion meant is the Kolosori tenement and the 6 main customary plots in it are susceptible to dispute between emerging possible claimant clans and tribes such as – the Thokamana, the Vihuvunaghi, Posomogo and Thavia or sub-tribes such as Thavis-Thokamana and Veronica Lona-Posomoga^[5]. There may be more claimants because land disputes always come up on customary lands. Whilst disputes may still remain open, it is known that two groups in this case (3 brothers and Manase) both have ownership rights to two of the 6 main customary plots within the greater Kolosori tenement. The 3 brothers' plot is called Piregha-Kolosori land^[6]. Manase’s plot is called Iptu, from the pleadings and evidence.
10. What is also clear from the pleadings and evidence is the 3 brothers' land (Piregha-Kolosori) the boundary is at Kolosori stream. And Manase’s plot, Iputu, the boundary is the east of Kolosori stream. So the disputed overlap boundary is actually located inside of the 3 brothers' land: Piregha-Kolosori land, as per the findings of the first Hograno chiefs’ decision. That was a decision between the 3 brothers and Manase. So it will bind them (will return to this later).
11. 1The case against Cortez, 1^st defendant has been discontinued. Even so the land court decisions Cortez relied on, do not bind Cortez tribe and the 3 brothers’ clan. That does not stop Cortez taking the 3 brothers to a fresh dispute. The 3 brothers and Manase both agree in pleadings and in evidence (rough analysis) that Cortez no longer has any ownership claim over the land to the east of Kolosori stream, which Manase called Iputu, by virtue of res judicata principle in Magistrate Muna’s decision^[7].
12. So the new facts and clarity of presentation made at this application that was absent at first inter-partes are:-
    • (i) Piregha-Kolosori land within the greater Kolosori tenement was mixed up and confused with Kologajoga, Piregha, Kolosori and Vara. Because of the mixed-up confusion, I initially thought these were 4 separate lands. So when the defendants initially disputed Piregha, Kolosori and Vara, I thought these 3 separate lands are also claimed by the defendants. That is not so, because Kologajoga, Piregha, Kolosori and Vara are actually inside of and collectively referred to as Piregha-Kolosori land (claimed by the 3 brothers). And that Piregha-Kolosori land ends at Kolosori stream. And to the east of Kolosori stream is Iputu land owned by Manase (as per findings and conclusions contained in the first chiefs decision).
    • (ii) The 2 land court decisions Cortez relied on, do not bind the 3 brothers because they were not a party to those 2 disputes. Not only that but now Cortez is no longer a party, following claimant’s filing of notice of discontinuance dated 22/06/2020.
    • (iii) The new 2017 acquisition instigated by Isabel Province and Martin Tango was made null and void by consent on appeal because of legal defects in the appointment of the Acquisition officer. Isabel Provincial Government and Tango may start new if they wish. I initially thought that the acquisition was set aside by consent because Tango was not the appropriate person to call for acquisition of the Kologajoga, Peregha, Suma and Kolosori customary lands or the Piregha-Kolosori land. These are made clear at Orders 1 and 2, of the said consent order^[8]. But none of the counsel at inter-partes submitted on these clearly to the Court. Counsel Taupongi has made those submissions clear this time.
    • (iv) So the alleged overlap into Iputu land which Manase disputed has now been put to rest in the first chief's decision. That is to say Piregha-Kolosori land, its boundary is at Kolosori stream, not at Beahuta River as asserted by Manase. The first chiefs decision is detailed. It touched on previous mining on the 3 brothers' land, the boundary witnessed by chiefs at purchase and pegging’s on the ground for previous mining activities in the 1970. So I am satisfied on balance of probability that certainty over the 3 brothers' land goes a long way back to 1960/1970. That does not mean it is immuned from dispute. It only means the 3 brother’s claim to Piregha-Kolosori land becomes strong.

Revisiting the inter-locutory tests for injunction

13. I now turn to Ground 2 of the submission by Mr. Taupongi. This is where I revisit the interlocutory tests for injunction as per the well-known American Cyanamid case. The revisit is necessary in view of change of circumstances. Mr. Cortez is out. The land PL-02-19, covers is Peregha-Kolosori. Its boundary is at Kolosori stream. Manase’s Iuptu land is to the east of Kolosori stream. On the basis of the first chief’s decision, the boundary overlap dispute has been settled. So the alleged trespass is settled unless and until revoked by Local Court (will say more on this later). Trespass in relation to the disputed overlap boundary is no longer an issue until Local Court says otherwise.
14. Defendants also raised issues about illegality in the grant of the license. But those issues can only be properly dealt with in a judicial review claim, against the Mining Board. At present, there is no such claim before me.
15. Adequacy of damages, claimant has filed an undertaking as to damages. That will cover for any damages suffered by the defendant. But I now note that claimant has since injunction, moved its base far away from the disputed portion to Suma. And should claimant resume prospecting, it may not go near to the disputed overlap portion by the time its license expires. By such time any referral to Local Court will have yielded a result. And to stay clear of any dispute claimant will be wise not to dig inside the disputed portion (overlap boundary). For now, overlap boundary dispute is settled, but may still be referred to Local Court.
16. What I cannot do now is to stop prospecting under the lands covered under PL-02-19. If I do it will be manifestly unfair. This dispute is about the small portion at the boundary (over-lap dispute). Not about ownership of the 3 brothers' land. So I cannot maintain the injunction over the whole of the 3 brothers' land. If I do and the outcome at trial turns in favor of the claimant, will the defendant be able to cover for any loss claimant may have suffered? I doubt because the defendant has not filed an undertaking. And the defendant is only a village farmer, not able to pay for the kind of damages suffered in a commercial mining venture.
17. 16. Balance of convenience, the balance of convenience now tilts in favor of discharging the injunction. An important factor in the balancing exercise is the relative strength of parties case. The claimant's case is relatively stronger. It has a valid prospecting license, with consent over the 3 brothers' land and the alleged overlap boundary trespass by Manase is settled in favor of the 3 brothers in the first chiefs decision. The 3 brothers are the grantors of SAA to claimant company. I agree entirely with paragraphs 6.14 – 6.19, of counsel Taupongi’s written submission.

Injunctions at inter-partes – a nullity?

18. As to Ground 3, the injunctions at inter-partes were not a nullity. The purpose of inter-partes was to hear both sides. And to make a decision on injunction applying the tests for interlocutory injunction. The Court of Appeal case Mr. Taupongi relied on can be distinguished. There was no ex-parte injunction order preceding the inter-partes hearing, in the appealed High Court case. Here there was an ex-parte injunction order. And so the issue at inter-partes was either to set aside or maintain the ex-parte order?
19. And so I am not setting aside the current injunction orders on the ground of nullity but on the ground of significant change of circumstances.

Two conflicting chiefs decision over one dispute – “first in time and first in right” and “functus officio” principles will apply to solve problem

20. Now I wish to dwell on the issue of two opposing chiefs decisions. One decision is in favor of the 3 brothers – Mr Tango (who invited the claimant via SAA) onto their land for prospecting (first chiefs decision^[9]). Second decision was in favor of 2^nd defendant, Mr Manase (second chiefs decision^[10]). I do not know why this happened. Chiefs should have never made 2 decisions over one disputed land or boundary. Particularly, the same House of Chiefs should not make 2 decisions over one boundary dispute, as is the case here. To overcome this problem, I will disregard the second chief's decision and uphold the first chiefs decision, on the principle of “first in time and first in right^[11]” (an equitable maxim in latin described as qui prior est tempore potior est jure). It simply means “He who is first in time is first in right” or applied to the facts here - the first chiefs decision was first in time and has first in right to be accepted over the second chiefs decision. I read the 2 decisions. Both are similar in their contents, are between the same parties, from the same house of chiefs, over the same boundary dispute, but vary only in the major finding on boundary overlap. In addition, I will also use the principle of “functus officio^[12]” to disregard the second chiefs decision. Principle of “functus officio” will insist that once a court or tribunal has made a decision in a dispute that court or tribunal is “functus officio” (a latin phrase meaning a court or tribunal no longer has authority or competence over a proceeding they have previously dealt with because their duties are fully accomplished). Same court or tribunal cannot make another decision or even alter the records of its proceedings to alter its findings. Now I am not saying the second chiefs decision is null and void. That is an issue to be settled once a referral is made to local court or on proper application brought to this Court. I am just saying I have found a way out of the problem to just disregard the second chiefs decision on the principles of “first in time first in right” and “functus officio”.
21. The first chiefs decision agreed with Martin Tango that the boundary of the 3 brothers' land (Piregha-Kolosori) is at Kolosori stream. So the boundary overlap dispute has been put to rest at current by the first chief's decision.
22. It needs to be said, that a party who has a chief's decision in his/her favor can rely on it as proof of ownership of customary land. A decision by the chiefs binds both parties until revoked by Local Court^[13]. In Majoria the Court of Appeal relevantly stated:
    • “If the party who succeeded before the chiefs is left in the situation that the other party can simply act as though that decision had never occurred that would tend to discourage attempts to settle disputes by traditional means. It would encourage parties with weak cases to ignore a summons by the chiefs to hearings or not to take the chiefs seriously, in the knowledge that any adverse decision will not affect them. It would tend seriously to undermine the authority of the chiefs, a result that is obviously the very opposite of that intended by the legislative scheme. It would also encourage multiplication of litigation. It follows as we think, that a party who disagrees with a decision of the chiefs but who declines to take advantage of the legislative scheme for reconsidering that determination by invoking the jurisdiction of the local court must be considered to be bound by the decision”.
    • In this case, the first respondent declined to refer the decision of the chiefs to the local court seeking instead relief in the High Court, but then discontinuing those proceedings. The decision of the Marovo council of chiefs is therefore extant and is binding on both parties. It may be that the first respondent can refer the matter to local court if he maintains that the decision is unacceptable. The local court will then be in a position to exercise jurisdiction to determine the question of the customary ownership and extend of Rodo land and Havahava land. Until the matter is determined by the local court, however, the decision of the chiefs must stand and first respondent is estopped from maintaining in WCLAC that it is wrong” (underlined my emphasis)^[14].
23. There is wisdom in this stand, because the Local Court Act (Cap19) – Section 12 and 13, read together says, that a dispute on customary land must be referred to chiefs and all traditional means of settlement exhausted and where there is no wholly acceptable decision, then only, can the Local Court assume jurisdiction, as official Court of record for customary land disputes. Section 13 (e) says, Local Court can refer the dispute to chiefs with directions as it may consider necessary OR Section (13) (a) says, Local Court may have regard to the decision made by the chiefs in connection with the dispute OR Section 13 (d) says, Local Court may substitute its decision for that of the chiefs.
24. I think what parliament intended under Sections 12, 13 and 14 of Local Court Act (Cap 19) was, to give authority to the chiefs for the “chiefs eyes” to first look into and exhaust all traditional means of settlement for customary land disputes. Chiefs would be able to have the upper hand knowledge on matters of custom in the locality of the disputed land. And when “chiefs eyes” have looked into a dispute and their eyes have reached a decision or settlement, that decision must be given authority to bind both parties until revoked by Local Court. Local Court being the Court with exclusive jurisdiction over customary land disputes^[15]. In performing its functions, Local Court can still seek support and rely heavily on the authority legislature vested in the chiefs under Section 13 as follows:-
    • (i) s.13 (a) – have regard to the chiefs decision;
    • (ii) s.13 (b) (1) – hear evidence from any or all of the witnesses who gave evidence before the chiefs;
    • (iii) s.13 (c) - call one or more of the chiefs who took part in making the decision to give evidence on customary law;
    • (iv) s.13 (d) – substitute for the decision made by the chiefs such decision, Local Court deems fit or;
    • (v) s.13 (e) – refer the dispute to chiefs with directions.
25. In view of the statutory provisions discussed in paragraph 23, I must say that the work and decision or settlement of chiefs in settling of land disputes must not be given a low profile. For under Section 13 (d) – Local Court may substitute a chief's decision or simply uphold it if Local Court does not choose to make a substitute decision. Furthermore, in Section 14, if a decision reached by chiefs is acceptable to disputing parties, the chiefs or any of the parties to the dispute, may within 3 months, caused a copy of the decision to be recorded by Local Court. And will be deemed as a Local Court decision. This is why this Court must give effect to a decision of chiefs until revoked by Local Court. To do otherwise is to disregard the authority Parliament attached to the work of the chiefs under the legislative framework discussed.

No strong argument from the defendant

26. I should just make a quick mention that the case for the applicant was eloquent and persuasively presented. The written submission, oral submission, supplementary written submission and the third sworn statement by Martin Tango were comprehensive. The third sworn statement by Tango was not rebutted in any substantive way. The sworn statement filed in response by Manase did not bring new facts in rebuttal, except to disclose the second chief's decision, which I excluded. I accepted the first chiefs decision. The case put forward to revise the current injunction orders in terms of a significant change of facts was overwhelmingly strong. Second defendants’ submission was mainly on the tests for interlocutory injunction. But that has now shifted in favor of applicant/claimant in view of the unrebutted new facts. Counsel for the defendant did not file supplementary written submission on the issue of two conflicting chiefs decision as directed by the Court. Even the High Court case authority counsel used to support its argument was found by the Court to have been overturned by the Court of Appeal.

26. The claim may well be amended to cater for the change of facts and in view of removal of the 1^st defendant. It also becomes clear that the 3 brothers should be made as second claimant in any amendment. They were clear omissions in the beginning. Amending the claim will pull in new and better facts to clearly present the issues. Claimant’s counsel to consider this.
27. Accordingly, I will set aside the injunction order issued on 24/5/2019. I will not order cost, because the change of circumstance was the basis for setting aside. Not any doing of the second defendant.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See my earlier Ruling dated 24/05/2019.
^[2] 3^rd Statement filed 22/05/2020.
^[3] Magistrate Muna’s decision is referenced as foot note 7 below.
^[4] See paragraphs 14 and 15 of SMM Solomon Limited v Axiom KB [2016] SBCA 1; Civil Appeal 34 of 2014 (21^st March 2016).
^[5] See paragraph 97 of SMM Court of Appeal case.
^[6] Same plot description Piregha-Kolosori land was also made in the 2 consolidated High Court Case – both appeals from the 1992 Acquisition – Bugoro v Tango [1997] SBHC 2; HC-LAC 005 and 006 of 1995 (10^th January 1997).
^[7] Sworn statement of Mr. Belakame filed 29/03/2019, at Exhibit SB 3.
^[8] Copy of consent order at Exhibit EC 4 of Elliot Cortez statement filed 12/4/2019.
^[9] Decision made on 22^nd March 2020.
^[10] Decision made on 21^st April 2020.
^[11] Case of Bird...
^[12] Pitakaka and Simbe Vaikesa cases....
^[13] See decision by Justice Kabui in Pou v Soro [2004] SBHC 107;HC-CC 452 of 2004 (22 Nov 2004)
^[14] Majoria....
^[15] Bavare v Nerapa [2011] SBCA 22; CA-CAC 21 of 2011 ( 25 Nov November 2011)