HIGH
COURT OF SOLOMON ISLANDS
Civil Case
No 274 of 2001
WILSON
SAGEVAKA
(Representing The Sinagi Clan)
AND
BULACAN INTEGRATED WOOD INDUSTRIES
(SI) COMPANY LIMITED
v
DAVID
E
(Representing the Makara/Rorongo Clan
Before:
Frank O. Kabui, J
Civil
Case Number 274 of 2001
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Hearing:
1st November 2001
Ruling: 6th
November 2001
Mr. P.
Tegavota for the Plaintiffs
Mr. J.
Hauirae for the Defendants
(Kabui,
J):
The 1st and 2nd Plaintiff (the Plaintiffs) filed a Writ
of Summons and a Statement of Claims on 5th October 2001,
claiming declarations, injunction and costs against the Defendant. On 12th
October 2001, the Plaintiffs filed a Summons seeking the following -
1.
That an interim injunction be issued to restrain the &nbbsp;
defendant himself his servants, agents, persons
authorized by the defendant and any ms of ra/Rorongo Tribe
ribe from from interinterfering with the
Plaintiffs� logging operation in East Barora Ite by any
means whatsoever and
including all or any of the
following acts:
(a)
<
Closing of logging roads;
(b) p;
P Pting the felling and ebsp;extraction of lospan>
(c)
span>
<
Preventing the shipment of l/span
&nbs>
>
clap class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
(d)
n>&nbs> &nbbsp;
pan>
Threatening the Plaintiffs and
their employees from carrying
out their work within thin the
concession.
(e) nbsp;
and the doing of any act whatsoever which will affect
the Plaintiffs' ng opon in
Barora
Ite either directly or
indirectly.
un further orders from from the Court.
2.
That the defendant be ordered to pay the costs of this
application.
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3.
That the Court to grant such other or further order as it sees
fit.
This
Summons was set down for hearing on Thursday 1st November 2001 at 2:at 2:30 pm.
The Defendant, in the meantime, also
filed a Notice of Motion on 25th
October 2001, claim the following orders -
1.
(a) it
discloses no cause of action and/or is frivolous and vexatioxatious; and
(b)
the claim is an abuse of process
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These
two applications were heard together as a matter of convenience. But first
the backgrackground facts.
The Facts
In a
decision made by sabel Local Court on 29th May 2001, the 1stup>st
Plaintiff was awarded the East Barora Ite, which runs from Vedekeo to Venao
Bay across the Barora Island to the north
to Burubeana including the Island
of Nidero. The Defendant was awarded the West Barora Ite which runs from
Sele to Rerekaharo
to Matavagi including the adjacent islands. Both the
Plaintiff and the Defendant appealed against that decision of the Ysabel
Local Court. The Plaintiff's appeal was dated 27th July 2001 and
the Defendant's appeal was dated 27th August 2001. Both these
appeals are yet to be heard by the Ysabel Customary Land Appeal Court. In
the meantime, the Plaintiff
entered into a Timber Rights Agreement with the
2nd Plaintiff to harvest trees of commercial value on the East Barora Ite.
The Timber Rights Agreement was signed on 31st January 2001. The
Licence was granted to the 2nd Plaintiff on 12th July
2001. The Licence No. is A10011. Because of the Plaintiff's appeal and the
Defendant's cross - appeal, the Plaintiff
wants an injunction against the
Defendant to restrain him, his servants, agents etc from interfering in any
way with
the 2nd Plaintiff's logging operation on the East Barora
Ite.
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Are there
triable issues in this case?
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
There are
two undisputed facts in this case. The first fact is that the Plaintiffntiff is
the owner on behalf of his tribe
of the East Barora Ite. Likewise, the
second fact is that the Defendant is the owner on behalf of his tribe of the
West
Barora Ite. These are not triable issues because they are simply facts.
It is also the legal position in custom decided by
the Ysabel Local Court.
Based upon these facts, I do not think the Validity of the Timber Rights
Agreement and the
2nd
Plaintiffs Licence can be challenged in so far as they cover the East Barora
Ite correctly. The
2nd
Plaintiff is entitled to operate in the East Barora Ite under its Timber
Rights Agreement and its Licence. In theory,
the
2nd
Plaintiff can enter upon the land owned by the 1st Plaintiff. I
say this because the Defendant in his cross - appeal claims ownership of the
East Barora Ite including the
whole Island. He has already expressed his
displeasure at the landing of machinery by the
2nd
Plaintiff on the East Barora Ite. Returning to the question of triable
issues for the purpose of granting interim injunctions,
I say there are no
triable issues disclosed by the evidence before the Court. I do not think I
can grant interim the
injunction requested by the Plaintiff. There may
however be a case for a quia timet injunction to prevent the Defendant
causing damage or hardship to the Plaintiffs by his conduct or that of his
servants and agents etc (see Eastern Development Enterprises Limited v
Stanley
Zae and Others
Civil
Case No. 350/1999). The terms of the injunctive order sought by the
Plaintiffs seem to wear the colours of a quia
timet injunction. Even if this
application were for a quia timet injunctions, I would not grant it also
because there
is no evidence to support it. The only piece of evidence of
any value is the letter of 6th October
2001
written by the Defendant�s Solicitor to inform the Plaintiffs of their
unwise conduct of landing machinery on East Barora
Ite despite both appeals
pending before the Ysabel Customary Land Appeal Court. The Plaintiffs were
asked to remove the
machinery or else legal proceedings might be taken
against them. This is not a threat of physical harm or. damage to the
Plaintiffs or their machinery. The Plaintiff�s application is refused with
costs. It is needless to say that I need not
now rule upon the Defendant�s
Notice of Motion. The Defendant�s Notice of Motion was unnecessary because
the points raised
in it would be covered in Counsel's oral submissions,
which was done in this case.
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F.
O.
Kabui
Judge
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