Hearing: 11 March 1998
Judgment: 18h 1998
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Counsel:
A
Nori for the plaintiffs;
P
Tegavota for the defendant
JUDGMENT
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(LUNGOLE-AWICH,
J): The Case and Application:
The plaintiffs, Timoteus Taediu and Samuel Malolo, of Manakwai tribe sued
for reliefs based on ownership of customary
land which they described as
Manakwai land. They said that Manakwai land included a place where Marvin
Brothers Limited
has established a log pond on the sea shore. They averred
in the statement of claim that the defendant's tribe of Role, represented
by
Auga, named as the defendant in this case, has encroached on Manakwai land
by entering lease agreement over the land
with a company ( Marvin Brothers
Limited). Pursuant to the agreement, Marvin Brothers established log pond on
the sea
shore within Manakwai land. The defendant's tribe receives payment
under the lease. The plaintiffs then brought interlocutory
application by
motion for interlocutory injunction. They got the application amended, the
amended application asked for
orders that:
"1. The defendant or his tribal leaders or members are restrained from doing
any of the following-
(a) demanding lease pts from Marvin Brothers Limited
for the use of the log pond, situated near Saunigei igei in East Malaita
and for
the use of the harbour adjacent thereto, until trial or further orders;
(b) entering into agreement or granting permisto any
other third parties for the use of any part ofrt of the land herein described
and
the harbour adjacent thereto; and
2. The defendant to prodn account of any funds rece received from Marvin
Brothers Limited for the construction and use
of the log pond and for the
use of the harbour, and how such funds have been used.
3. Such other orders the court deems just and equitable in the cihe circumstance;
and
4. Costs to be in the cause."
The amendment introduced Fakanakafo Bay into the area of land over which
interlocutory injunction is asked.
he application to amend the motion application was filed toed together with one
to amend the statement of claim. The intended
amendment to the statement of
claim did not state the particulars of the intended amendment, and an
amended writ of summons
and statement of claim was not filed. The defendant
in fact consented to the two amendments of the statement of claim and of
the
motion application. As the amendment in the application sought injunction
over Fakanakafo Bay in addition to over
the log pond, it was obvious that
the amendment intended in the statement of claim was to add Fakanakafo Bay
in the claim
as being part of Manakwai land, and to claim for encroachment
on the bay. I shall condone the omission, but direct that the
amendment
consented to be filed forthwith, in any case, not later than 3 days of
today's date.
The plaintiffs rely on a judgment of the Local C confirmed by the
Dis District Officer, in 1961. The case was between
Mani and Seven Others as
plaintiffs against Naphtali Tomani and Nine Others as defendants. The
plaintiffs say that in
that judgment, it was determined that the plaintiffs'
tribe owned the land now in issue. The defendant's answer to the claim
is
simply that the defendant's tribe was not a party to the 1961 case and so,
as between the plaintiffs and the defendant,
the 1961 judgment does not have
any effect; it does not bind the defendant's tribe. If that is true, that
would mean,
that the rights or ownership of the defendant's tribe in custom
was not excluded by the 1961 judgment, and so their rights
to use the log
pond and bay, even if, the log pond and bay be within Manakwai land, would
have not been excluded by the
1961 judgment. That is also the ground upon
which the defendant opposed the application for the 4 interlocutory orders.
The other main defence was that the plaintiffs have right only over Aisato
land, part of Manakwai and that the bay and the
log pond were outside Aisato.
The defendant says that his tribe owns the land known as Mararabu which
includes and extends
beyond Aisato. The defendant filed judgment of Native
Land Appeal Court in case No. 6 of 1975 to prove his tribes ownership.
He
says that the log pond is in Mararabu land which is his tribes.
he intended order numbered (2) requiring the defendafendant to produce
accounts and to state how money paid to the defendant has been used,
is not a proper order to be granted in this case, on application for
interlocutory
order. The accounts are matters for normal pleadings and can
be compelled in the normal way in pleading. It is required to
enable the
plaintiffs to calculate their claims. They may proceed to obtain the
accounts and information in due pleading.
The order is refused.
The plaintiffs seemingly a good cause of action if n if they can, by
evidence or by affidavit in support of their application, show that
the defendant or one or more of his line or tribe was one or more of those
in the party that
lost to the plaintiffs in the 1961 case. As it is now, the
defendant's name, Auga, does not appear in the 1961 case. In addition
to
that the defendant has filed affidavit of Samuel Siau which stated
categorically that Role tribe (of the defendant)
was not a party in the 1961
case. The plaintiffs have no such positive evidence made available on their
behalf. They
do not even deny. Then in regard to the log pond, a very
important point emerged; the plaintiffs seem to admit that the log
pond is
at Abe or Ambe on the sea shore. Samuel Malolo, in his affidavit sworn on
3.3.1998 and filed at 13.35, on behalf
of the plaintiffs, at paragraph (4),
concedes that the defendant has the right of access to the sea at Ambe. The
1975
judgment deposed about by Samuel Siau also places Ambe within Mararabu
land which the defendant says belongs to his tribe and
the plaintiffs do not
claim Mararabu land. As the plaintiffs concede that Mararabu land has access
to the sea at Abe/Ambe,
it becomes illogical to say that the defendants
cannot use the access.
The Bay and Sea Bed
Mr. Nori made complementary submission that there is serioserious issue about the
water and sea bed in Fakanakafo Bay. The
issue he raised centred on whether
anyone owns the water or the sea bed or the state owns them. Even if that be
an issue
in this case, it cannot be an issue in favour of the plaintiffs
against the defendant. For now there is no evidence to show
that link so as
to support the application. Maybe that will shape up in the trial.
Final Determination
In the end it was my conclusion that the statement of claim, so far, does
oes
not sufficiently disclose that the defendant
was one of the losing parties
in the 1961 case. Moreover, that case did not decide that Fakanakafo Bay
belongs to the
plaintiffs even if the coastal land was to be shown to be
that part of Manakwai land which belongs to the plaintiffs. Most
important
is that there is no sufficient averment or evidence availed by the
plaintiffs as to the location of Abe/Ambe
where the log pond is, to show
that the pond is on land that belongs to the plaintiffs and not to the
defendant. There
is no serious issue raised to entitle the plaintiffs to the
interlocutory orders prayed for by them. Interlocutory order for
injunction
can only be granted if the applicant's case discloses serious issue to be
tried, that is, an issue with prospects
of success. See the case of
American Cynamid Company -v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396 and John
Wesley v. Attorney General, Solomon Taiyo and Others Civil Case No. 35
of 1995. There is no apparent prospect for the plaintiffs to succeed on the
evidence so far. The application
of the plaintiffs is dismissed. The to
pay the costs ofts of the application to the defendant.
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Dated this 18th day of March 1998
At the High Court Honiara.
Sam Lungole-Awich
JUDGE
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