Lekezoto v Sonic Phase (SI) Co. Ltd [2023] SBHC 164; HCSI-CC 492 of 2022 (14 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lekezoto v Sonic Phase (SI) Co. Ltd
Citation:
Date of decision:	14 August 2023
Parties:	Chief Lemech Lekezoto and John Vare Amos Poloso v Sonic Phase (SI) Company Limited, Chief Donley Lekelalu, Jack Pita, Andrew Pitakaka, Moses Sesomo, Ramson Zabana, Dagnal Dereveke, Silvanas Buri, Simon Taniveke, Jerry Tapata, Newman Kongoro, Taniveke Doo, Kibi Lapo, Edwin Pita, Gregory Wilson, Gordon Keremama, Fred Vozoto
Date of hearing:	13 July 2023
Court file number(s):	492 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Palmer, CJ
On appeal from:
Order:	1. Direct that that ex parte orders issued on 25th October 2022 in respect of this case be discharged forthwith.
Representation:	Mr J Dudley for the Applicant/Claimant Mr M Pitakaka for the Respondents/Defendants
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 492 of 2022

BETWEEN

CHIEF LEMECH LEKEZOTO AND JOHN VARE AMOS POLOSO
(REPRESENTING THE KOA BANI TRIBE)
Claimants

AND:

SONIC PHASE (SI) COMPANY LIMITED
First Defendant

AND:

CHIEF DONLEY LEKELALU, JACK PITA, ANDREW PITAKAKA, MOSES SESOMO, RAMSON ZABANA, DAGNAL DEREVEKE, SILVANAS BURI, SIMON TANIVEKE, JERRY TAPATA, NEWMAN KONGORO, TANIVEKE DOO, KIBI LAPO, EDWIN PITA, GREGORY WILSON, GORDON KEREMAMA, FRED VOZOTO
(Representing Azaka Tribe)
Second Defendants

Date of Hearing: 13 July 2023
Date of Judgment: 14 August 2023

Mr. J Dudley for the Applicant/Claimant
Mr. M Pitakaka for the Respondents/Defendants

Palmer CJ:

1. This is an interlocutory application to determine whether the ex parte orders issued on or about the 25^th October 2022 should be continued or not.
2. Those orders inter alia, restrained the First Defendants, their servants, agents and associates from entering and felling and or extracting logs from the disputed land, called Bani Customary land, situated at Choiseul Province.

The claim of the Applicants.

3. The Claimants are members of the Koa Bani tribe and claim ownership of the Koa Bani customary land. This dispute arose from what the Claimants say has been trespass into part of their land by Sonic Phase (SI) Company Ltd (“the First Respondent”).
4. The second Respondents are members of the Azaka tribe and are the representatives of the owners of the Azaka customary land.
5. The Claimants say that at the timber rights hearing on or about the 12^th October 2020, one of their tribal leaders, John Vare raised objection to the area claimed by the Azaka tribe as encroaching onto their tribal land. According to their claim, this was noted and the area objected was excluded and marked red in the Map. John Vare then withdrew his objection on that basis.
6. They now say that the Respondents have trespassed into that no go zone or area.
7. Apart from that assertion of trespass into that area, no map or other clear description of the boundary of that disputed area has been provided to support their claim.

The Defence of the Respondents.

8. The Respondents on the other hand, at paragraph 8 of their defence filed 2^nd December 2022, have conceded that the objection was noted at the timber rights hearing and that area excluded. They pointed out that the area objected to was “Coupe 22 of Azaka Tenepe concession”. They deny that any logging has taken place at that objected area.
9. In the joint sworn statement of Chief Donely Lekelalu and Gordon Keremama filed 2^nd December 2022, at paragraph 11(e) and (f) they provided a map of the area they say had been excluded and has not been logged.

Triable or serious issues.

10. Before any injunctive orders can be issued, it is necessary to establish from the outset that a reasonable cause of action exists. The Claimant in this instance is required to establish that there is a pre-existing cause of action against the Defendants arising out of an invasion, actual or threatened by him of a legal or equitable right of the Claimant for the enforcement of which the Defendants are amenable to the jurisdiction of the Court (see The Siskina [1979] A.C. 210 at 256).
11. So are there triable issues raised in this claim. It is not in dispute that the claim is in respect of two tribes, the Koa Bani tribe of the Claimant and the Azaka tribe of the Second Respondents. It is not in dispute that the two lands in dispute are the Koa Bani land and the Azaka land.
12. The issue in contention however seems to be confined to an area of land which the Claimant say was excluded from the concession area of the Respondents during the timber rights hearing and determination. According to their claim, they say that the area was excluded and marked red in the Map purportedly relied on by the Respondents. To their chagrin, they say that the area supposedly excluded was encroached upon.
13. This claim is about that trespass into a specified area supposedly recognized and excluded from the concession area Map of the first Respondents.
14. The Respondents on the other while conceding that the area objected to in the timber rights hearing was excluded, they say that that area is in Coupe 22 of the Azaka Tenepe concession. They say that they have not yet reached that area. Their logging is currently confined to coupe 11 and 18 and have tendered maps to show where the excluded area is.
15. And so in so far as the question of triable issues are concerned, the dispute seems to relate to a specified area that was the subject of the objection and excluded. I am satisfied there is evidence of a triable issue between the parties though it would seem to be a narrow one confined to the area which was supposedly excluded.

The question of adequacy of damages

16. On this question of adequacy of damages, it seems fairly clear though it has not been directly addressed by parties in this case, that damages will not be inadequate as compensation at the end of the litigation. This dispute seems to be more about competing rights to allow logging operations to take place in those respective land areas. The Claimant wish to retain their rights to determine who should come into their customary land to conduct logging operations, while on the other hand, the second Respondents seek to conduct logging on the areas that they had acquired timber rights over and granted to the first Respondent to enter into their customary land to do so.

Balance of convenience.

17. On the question of balance of convenience and taking into account the strength of the competing claims of the parties and that damages will suffice, it is my considered view and conclusion that this falls in favour of having the ex parte orders discharged forthwith.

Decision.

18. Accordingly, I am satisfied on the balance of justice in this case that the orders issued on the 25^th October 2022 be discharged forthwith.
19. On the question of costs, this is to be in the cause.

Orders of the Court:

1. Direct that that ex parte orders issued on 25^th October 2022 in respect of this case be discharged forthwith.

The Court.