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Levo v Exploration Acabit Incorporated [1998] SBHC 76; HCSI-CC 264 of 1997 (16 March 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 264 of 1997

JOHN WESLEY LEVO

-v-

EXPLORATION ACABIT INCORPORATED AND THE ATTORNEY-GENERAL

HIGH COURT OF SOLOMON ISLANDS
(Palmer J.)
Civil Case No. 264 of 1997

Hearing: 27th February, 1998
Judgment: 16th March, 1998

S. Watt for the Applicant
A. Radclyffe for the First Respondent
J. Hauirae for the Second Respondent

PALMER J.: This is an application by notice of motion filed on 24th October, 1997 for inter alia, restraining orders preventing the First Defendant, his servants or agents from entering “Kariki Land”. Initially there were two Plaintiffs. Subsequently, the Second Plaintiff, Joel Iagoi discontinued proceedings against the Defendants. The rights of Joel Iagoi to do this have now been challenged and are the subject of an application before this Court for re-instatement by Mark Hoala, brother of the Second Plaintiff on behalf of Baoahu Tribe. This application will be dealt with separately.

The present application relates to whether restraining orders should be granted in favour of the First Plaintiff in respect of land he claims ownership of within “Kariki Land”. It appears from affidavit evidence, filed to date that “Kariki Land” is the name given to the combined tribal lands of Simea, Hanapara and Baoahu Tribes. The First Plaintiff claims to be the Chief of Simea Tribe who own in custom Simea Tribal Land.

In paragraph (1) of John Wesley Levo’s affidavit filed 24th October, 1997, he states their lands comprise a number of blocks which are owned in custom by individual members of his tribe. By his own words therefore, it should be made plain that whatever rights he has should extend only to those areas that he has been given the right to control and exert ownership rights over. Otherwise, the owners of those individual blocks are the rightful persons to determine whether surface access rights and entry to their respective lands should be granted to the First Defendants.

The First Defendant does not dispute that serious issues have been raised and that damages would not be adequate as compensation. It takes the view however, that an injunction is not necessary in view of certain protective clauses as contained in the Prospective Licence dated 17th July, 1997 and identified as No. PL 13-97. Those clauses adequately cover the position of landowners who had not granted Surface Access rights to the First Defendant (see Clauses (7) and (15) of Third Schedule). The First Defendants also argue against any blanket restraining orders in respect of “Kariki Land” because it is clear that there are other landowners who do not object to the activities of the First Defendant and who have in fact granted Surface Access rights to the said Company. Mr. Radclyffe argues that these persons should not be deprived of their rights to exercise control over their customary lands by allowing access to whom they wish.

Taking all factors into account, I am satisfied in the circumstances of this case, that restraining orders should be granted. These however should be confined to those specific areas which the First Plaintiff exerts direct control and ownership rights over. To that extent, for purposes of this injunction, the First Plaintiff must file within 14 days from date of judgment, clear details of the boundaries of those lands which he claims ownership rights over.

The orders of the Court should read as follows:

1. Grant restraining orders against the First Defendant, his servants or agents or otherwise, from entering those areas of land to be clearly identified as controlled and owned by the First Plaintiff within “Kariki Land”.

2. Refuse paragraph (2) of the order sought.

3. Refuse paragraph (3) of order sought except those payments made in respect of land controlled or owned by the First Plaintiff.

4. Costs in the cause.

ALBERT R. PALMER

THE COURT.