Manase v Pacific Nickel Mining Kolosori Ltd [2024] SBHC 110; HCSI-CC 370 of 2023 (13 August 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Manase v Pacific Nickel Mining Kolosori Ltd
Citation:
Date of decision:	13 August 2024
Parties:	Mitchell Manase v Pacific Nickel Mining Kolosori Limited, Solomon Resources Company Limited, Attorney General
Date of hearing:	16 October 2023
Court file number(s):	370 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	Based on the Courts findings, I order that the interim injunctive orders issue against the Defendants be discharge forth with. In view of the Courts finding that, the Claimant was not authorised to represent the Iputu tribe and that the claim is an abuse of the process of the Court, I order that the claim be struck out. Cost for the Defendant/Applicant to be taxed if not agreed.
Representation:	Kwaiga L for the Claimant Hite L for the First Defendant NA for the Second Defendant F Fakarii for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	CTP International (SI) Co. Ltd v Bernard Ghiro and Others [2014] SBHC 66

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.370 of 2023

BETWEEN:

MITCHELL MANASE
(Rep himself & his Iputu Tribe of Isabel Province)
Claimants

AND:

PACIFIC NICKEL MINING KOLOSORI LIMITED
First Defendants

AND:

SOLOMON RESOURCES COMPANY LIMITED
Second Defendants

AND:

ATTORNEY GENERAL
(Representing the Minister of Mines & Rural Electrification & Energy,
The Director of Mines and the Mines and Mineral Board)
Third Defendants

Date of Hearing: 16 October 2023
Date of Judgment: 13 August 2024

Kwaiga L for the Claimant
Hite L for the First Defendant
NA for the Second Defendant
F Fakarii for the Third Defendant

RULING ON APPLICATION INTERLOCUTORY ORDERS AND INTER-PARTE HEARING

Kouhota PJ:

The Claimant on 14/8/23 filed a category A claim against the Defendant seeking the following orders;

1. An order permanently restraining the First Defendant, their servants, employees, agents, invitees or persons acting under their instructions inclusive of any purported landowners also acting under their instructions from entering Kolosori Customary Land,

An Orders declaring that;

1. Mining Lease No. 02/22 issued to the First Defendant covering Havihua Kolosori in Bugotu District, Isabel Province on 14^th September 2022 by the Minister of Mines, Rural Electrification and Energy does not cover Kolosori Customary Land.
2. Mining Lease No. 02/22 issued to the First Defendant covering Suma in Bugotu District, Isabel Province on 14^th September 2022 by the Minister of Mines, Rural Electrification and Energy does not cover Kolosori Customary Land.
3. Consequential to orders 1 and 2, an orders for damages and for trespass by the First and Second Defendants, their servants, employees, agents, invitees or persons acting under their instructions within Kolosori Customary Land to be assed.

On 31^st July 2023, the Claimant also obtained interim restraining orders inter-alia against the Defendants as follows’

1. The First Defendant their servants, employees, agents, invitees or persons acting under their instructions inclusive of any purported landowners also acting under their instructions from entering Kolosori Customary Land, described as commencing from Beahutu (Kolosori River) to Kokoilovathe on the Coast from kokoilovathe to Ghegheremughu and then to Tanginausi and down along the Beahutu to its mouth.
2. The First Defendant their servants, employees, agents, invitees or persons acting under their instructions inclusive of any purported landowners also acting under their instructions are to remove all machineries and equipment’s placed in or within the boundaries of Kolosori Customary Land, described as commencing from Beahutu (Kolosori River) to Kokoilovathe on the coast from kokoilovathe to Ghegheremughu and then to Tanginausi and down along the Beahutu to its mouth until further orders of the Court.

Inter-parte Hearing/Interlocutory Application

This is an inter-parte hearing in which the Court will determine inter-alia whether the interim orders should remain, varied, or discharge. The determination of the interlocutory application will also do the same. In view of this, I will deal with inter-parte and the application together.

The cases arises out of a dispute over boundary of Kolosori Customary Land and issuance of a mining lease over the land. The dispute over the land went before the Bugothu House of Chiefs. The House of Chief’s decision on 25^th September 2023 was in favour of Stanley Barnabas of Iputu Vihuvunghi Tribe. That decision has been referred to the Isabel Local Court.

However, counsel for the Claimant submit that this should not hinder the Courts power to grant injunctions. Counsel submit that the balance of convenience favours maintain in the injunctive orders on the basis that there is a likelihood of permanent damages being occasioned on the land where valuable resources and forest product and minerals will be extracted. That the value of any mineral extracted from the Claimant’s Kolosori Customary Land cannot be determine without proper Valuation by experts and loss that remain unknown and incapable of been remedied if the injunctive orders are set aside.

The Claimant in opposing the Defendant’s application for interlocutory orders, submit the application has no merit as it plead matters not pleaded in the defence or counter claim.

Counsel Kwaiga for the Claimant submit that the Claimant had shown serious issues and claimed ownership of Kolosori land.

In his submission counsel for the Applicant for interlocutory orders, submit that in other proceeding over the same land, Chief Stanley Barnabas was suing the Defendant on behalf of Iputu tribe. Now Michelle Manase is suing on behalf of Iputu tribe over the same land. Counsel for the Defendant/Applicant therefore draw the Court’s attention to rule 3.42 of CPR 2007. The Defendant therefore raised the subject of representation on the basis that in cc 554 of 2022 and cc 587 of 2022, Stanley Barnabas represented Iputu tribe in his capacity as Chief of Iputu tribe. Counsel submit the boundary of Kolosori land is already before the Isabel Local Court in case No.5 of 2022 referred to the Court by Chief Stanley Barnabas. In that respect counsel, submit that the Claimant and his tribe do not have any existing rights and clear customary land boundary to seek relief sought in the claim and to sustain the Court order restraining the Defendant PNMKL from conducting Mining operations within its Mining Lease area under ML No.02/22.

Counsel for the Defendant/Applicant submit that ML No.2 was issued to PNMKL after due diligence and due process pursuant to Mines and Mineral Act. The Mine and Mineral board’s decision was based on the following;

1. Bugotu House of Chiefs decision in case No.6 of 2018 dated 29^th November 2018’
2. Tatamba House of Chiefs decision in case No.3 of 2022, dated 25/5/ 2022.
3. The Verification Report dated 29^th April 2022 by Geologist Mining Division.

In considering whether to set aside an interim injunction, the Court take into account a number of issues include the issue of balance of convenience. In CTP International (SI) Co. Ltd v Bernard Ghiro and Others [2014] SBHC 66; HCSI-CC 33 of 2014, in considering whether the balance of convenience favours the continuation of the interim orders or discharging them, Apaniai J said “I asked myself whether it will do more harm than good if the interim injunctions remain in force”.

I had consider submission of counsel for the parties and I am satisfied that the submission of counsel for the Defendant/Applicant had raised a number of crucial issue relevant to this case. These include no authorisation of the Claimant to represent the Iputu tribe in this proceeding. I had check the filed and did not find any indication that he was authorise to represent the tribe. I also find that a number of cases had been filed over the land between the same tribe over the same issues. In view of this, I consider that the Claimant’s claim amount to an abuse of the process of the Court as the cases filed earlier should take precent over this case. In that respect, this claim is just a duplication of the earlier cases. I also consider damages would be an appropriate remedy if the Claimant’s claim succeeded, as such maintaining the injunctive orders would do more harm than good, in that the Defendants will lose money if the injunctive orders are maintained.

Based on the Courts findings, I order that the interim injunctive orders issue against the Defendants be discharge forth with. In view of the Courts finding that, the Claimant was not authorised to represent the Iputu tribe and that the claim is an abuse of the process of the Court, I order that the claim be struck out. Cost for the Defendant/Applicant to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge