HIGH
COURT OF SOLOMON ISLANDS
>
Civil
Case No. 224 of 2001
HAROLD
HILLI>
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LETIPIKO BALESBALESI AND OTHERS
High Court
Solomon Islands
>
Before:
Frank O. Kabui, J
Civil
Case No: 224 of 2001
<
Hearing:
24th August 2001
Ruling:
27th August 2001
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Mr. D.
Hou for the Applicant
Defendant not in Court
(Kabui,
J):
I heard the Plaintiffs ex parte application on Friday 24th August
2001 last week and granted the orders sought by the Plaintiff. I said that I
would give my reasons today. I do
so now.
By Notice
of Motion filed on 15th August 2001, the Plaintiaintiff sought the
following Orders-
1. A Declaration that
Licence No. A10102 issued to the 4th Defendant is null and void
insofarsofar as it purports to
cover NONO customary Land and/or se Land, and, and the registered land
described as parcel no. 143-008-.
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2.
A Declaration that
the Form IV logging agreement entered between the 1st, 2nd,
and 3rd defendants on the one part and the 4th
defendant on the other part dated 10th May 2001 is null and void
in so far as it purports to cover Nono land and/or Ose land and the said
registered land.
3. An
injunction tion restraining the 4th
and 6th
defendants, their servants or agents or otherwise from further entering
Nono land and/or Ose land
and the
said
registered land
and/or felling, extracting and
removing
timer from the said
land.
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4. Further or other
orders deem fit by the court.
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And that
the costs of this application be costs in the
cause.
Matter be
adjourned to a date to be fixed by the Register.
uote>
The Noti Notice ofce of Moti Motion is yet
to be served upon the Defendants. Whilst the 4th and 6th
Defendants could have been served in Honiara, the other Defendants could not
have been because they are in the Western Province. This is all explained in
the Certificate of Urgency filed on 16th August 2001.
The
Facts
The
Plaintiff is a member of the Nono tribe in the Marovo Lagoon, New Georgia,
in the Western Province. The boundary of
Nono Customary Land begins at
Mahini Point stretching to Mt Vinuvinu inland. The western boundary begins
at the
mouth of
Noti river and follows that river to its head-waters. From this point, it
connects through the valley running
in the eastern direction and emerging at
the sea through a small stream. This is Ose Land, owned by the Plaintiffs
sub-tribe
of the Nono tribe. Also, within Nono land, there is Parcel No.
143-008-1 owned by the
Plaintiff as a fifth joint owner together with other members of his family.
Logging machinery and equipment were landed
on Nono land on 2nd
August 2001. The machinery and equipment were brought in by the 4th
Defendant, the holder of Licence No. A10102 issue on 2nd July
2001 by the Government under the Forest and Timber Utilization Act (Cap.
40). They belong to the 6th Defendant. They were brought in
without the consent of the Plaintiff and other landowners. A log pond and a
road are
being constructed in defiance of the Plaintiffs rights and the
rights of those whom he represents.
The
Relief Sought
The Writ
of Summons and the Statement of Claim were filed on 15th sup> August
2001. The relief sought are declarations that the licence issued was null
and void, Form IV, the logging
agreement was null and void and that the 1st,
2nd and 3rd Defendants were not the authorized
trustees for Nono land. An injunction was therefore sought to restrain the 4th
and 6th Defendants from further entering Nono land/ Ose land for
the purpose of felling, extracting, removing timber etc from the said
Land.
Clearly, there are triable issues raised in the Plaintiff�s Writ of Summons
and Statement of Claim. The granting
of an injunction is discretionary. In
this case, I had exercised my discretion in favour of the Plaintiff. The
lack of
an injunction for whatever reasons would have given a go ahead for
the logging operation to proceed despite opposition from
the Plaintiff and
those whom he represents. Whether those in opposition are in the majority or
otherwise is yet to emerge.
The fact however is that there is opposition. If
the trees were felled, removed and sold, would they be replaceable in terms
of damages? Theoretically, damages may be paid but in reality, that option
is often an illusion. I say this because experience
has sown that in these
sort of cases, the Licence holder is often the landowners themselves in a
corporate from and the
royalties at times do not reach all the landowners or
those who opposed the operation from the start. For those who miss out,
the
damage caused is irreparable. I do not think in such cases damages would be
a adequate remedy. In this case, the
Plaintiff offered no undertaking that
he would abide by any order for damages that if an injunction was granted
and the
Defendants won at the end of the day they would be adequately
compensated for the loss suffered by them. Realistically, the
Plaintiff
would not have been in the position o make an undertaking because the
Plaintiff and those whom he represents
are just villagers having no financial
base upon which they can trade-off for an injunction. It is in the interest
of fairness
that the status quo be maintained until the dispute between them
is resolved. The balance of convenience clearly lies in favour
of the
Plaintiff. I granted the Orders sought on this basis. Paragraphs 1 and 2 of
the orders sought were put aside for
the inter partes hearing on a date to be
fixed.
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F. O.
Kabui
Judge
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