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Valahoana Company Integrated Development v Joshua [2000] SBHC 80; HCSI-CC 293 of 1999 (6 March 2000)

CC 293/99 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 293 of 1999

VALAHOANA COMPANY INTEGRATED DEVELOPMENT

V

LEEROY JOSHUA AND OTHERS

High Court of Solomon Islands
(Palmer J.)

Civil Case No: 293 of 1999

Hearing: 3rd March 2000
Ruling: 6th March 2000

P. Tegavota for the Plaintiff
P. Lavery for the Defendants

PALMER J: This is an application by the Defendants for orders inter alia, to have the Plaintiffs, their servants or agents restrained from entering into Patukae and Bukulu lands in Vangunu until trial or further orders of this Court. The Plaintiffs do not dispute that their Licence No. Tim 2/117 issued on 21st September 1998 did not include Bukulu Lands and therefore do not oppose the Defendant’s application in respect of that land. They do however oppose the application for interim injunction in respect of Patukae Land.

The Defendants claim ownership rights over said land. They rely on the affidavit of Leeroy Joshua filed 5th November 1999 in which he states inter alia, that ownership of Patukae Land vested in Nito Garamo of Mazola tribe and which was subsequently transferred to Joshua Lami on 30th January 1946 and in turn to Derold Joshua, the Second Defendant in this case. Leeroy and Joshua are brothers and so claim similar rights of ownership over the said land. There is evidence before this Court which showed that the Defendants were aware of the Plaintiff’s intentions and applications to acquire timber rights over inter alia, Patukae Land (see affidavit of Leeroy Joshua filed 5th November 1999 at paragraphs 10 and 11). The affidavit evidence filed to date showed that the Marovo Area Council met on 16th January 1998 to determine question of timber rights over the proposed concession areas. Leeroy Joshua was present and according to his affidavit evidence made his claims known. The meeting unfortunately was not completed and adjourned to a later date; 10th March 1998. In that meeting it was determined who were the persons lawfully entitled to grant timber rights over inter alia, Patukae Land. None of the Defendants appeared at that meeting. Leeroy Joshua claimed he was not aware of the hearing date. He also claims there was no notice put up at his village concerning the Form II Determination and accordingly was not able to exercise his rights of appeal within the statutory period. The Form II Determination is dated 23rd March 1998 (see copy attached to the Affidavit of Leeroy Joshua filed 5th November 1999 and marked “Document No. 4.4”). A period of three months would have elapsed before a certificate of no appeal would have been issued by the Clerk to the Customary Land Appeal Court (Principal Magistrate Western). No appeal was lodged by the Defendants. This is surprising because as an interested party the Defendants have obligation to find out for themselves what the adjourned hearing dates for the Area Council Meeting was. Had they done so, they would have been told what the current position was. From January 16th 1998 to 10th March 1998 is close to two months and from March 23rd to June 23rd 1998 is a further period of three months, bringing a total of five months over which nothing it seems was done by the Defendants to try and address their claims of ownership over Patukae Lands. They did not bother it seems to find out the hearings dates of the adjourned Area Council Meeting. Had they done so in that period they would have been aware of what was happening and be able to take prompt action. There has been delay in this action which has not been satisfactorily accounted for. At the most therefore, with all due respects to their claims of ownership rights over Patukae Land, these are mere assertions as at this point of time. The appropriate avenue to have those claims now addressed is before the Chiefs and the Local Courts. I note however that it is the Plaintiff who has taken all the initiative with regards to resolving the issues of customary ownership in the appropriate forums. One would have expected the Defendants to have taken the initiative, and where this had been done by the opposing parties, to ensure his attendance at the said chiefs hearing. A Chiefs hearing was convened on 30th September 1999 and a finding made in favour of the opposing parties, Timothy Aleve and Samuel Hape. The Defendants did not even attend or were represented at that hearing. One of the reasons given was that Leeroy Joshua was here in Honiara to attend to this Case. I would have expected an appearance in any event to have been made by one of his representatives. Nothing of that sort too was done. I accept though that that finding is not conclusive until it is accepted by all parties concerned; which is most unlikely in this case.

For the reasons given above, I would dismiss the application for injunction. There are however other issues which have been raised which require consideration of the accepted principles as set out in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396. These pertain to the validity of the Form II Determination. It was alleged there had been non-compliances with the relevant provisions as to the issue of publication of the said notices. This raises it seems factual questions which can be addressed in detail at trial. On the question of damages however, I am satisfied this can be adequately compensated for by the Plaintiff. At this point of time it cannot be said the Defendants would incur irreparable damage in relation to their assertions of ownership. I am not satisfied in the circumstances of this case an injunction would be appropriate.

Having said that I point out the possibility exists that the Defendants might win their claims of ownership at the end of the day in the appropriate courts and be entitled to take out a claim for damages for trespass and conversion against the Plaintiff.

ORDERS OF THE COURT:

1. JOIN (OMEX LIMITED OF PO BOX 730, YAM & CO. LOT 43, FOX STREET, HONIARA) AS SECOND PLAINTIFF.

2. DISMISS APPLICATION FOR RESTRAINING ORDERS AGAINST THE PLAINTIFF OVER PATUKAE LAND.

3. GRANT RESTRAING ORDERS AGAINST THE PLAINTIFFS, THEIR SERVANTS OR AGENTS FROM ENTERING BUKULU LAND (AS DEFINED BY THE DEFENDANTS) UNTIL TRIAL OR FURTHER ORDERS OF THIS COURT.

4. COSTS IN THE CAUSE.

THE COURT