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Vahgi v Viuru Forest Enterprises [2004] SBHC 99; HC-CC 207 of 2004 (7 October 2004)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No 207 of 2004

GHEMU VAHGI AND OTHERS

-v-

VIURU FOREST ENTERPRISES AND OTHERS

Date of Hearing: 4^th October 2004.
Date of Ruling: 7^th October 2004.

M. Swainson for the Plaintiffs.
P. Tegavota for the 1^st-3^rd Defendants.

RULING

Kabui, J.: By a summons filed on 10^th September 2004, the Plaintiffs seek the following orders-

1. That an interim injunction be granted restraining the First, Second and Third Defendants, by themselves, their employees or agents, from any further felling of trees on Voko Land, being the area as marked on the map, endorsed by the Kolombangara Council of Chiefs on 16^th August 2004 and referred to as annexure "FGVM3" in the Further affidavit of Ghemu Vaghi Mada on 9^th September 2004("Voko Land")

2. That the Second Defendant within 14 days account to the Court all marketable trees felled on the area referred to as Voko Land since the commencement of their operation to the date hereof and to provide details of-

(a) species, quantity and prices of logs extracted from Voko customary land.

(b) the quantity of logs already sold and/or exported and the amount not yet sold and/or exported as at date hereof.

3. That all marketable logs already felled on Voko land to be exported or loaded onto vessel and their proceeds to be paid into an account in the name of the Public Solicitor and to remain there until further orders of the court.

4. That the fourth Defendant be directed to conduct an assessment of the number and value of trees felled and logs removed from Voko land by the first and second Defendants or their agents or employees.

5. Such further orders as the court seems fit.

6. Costs in the cause.

Ownership of Voko land.

There is no dispute that Voko land is owned in custom by the Plaintiffs on behalf of the Voko tribe.

Dispute is over boundary.

What was in dispute was part of the common boundary between Voko land and the adjacent Viuru land. The matter of the boundaries of Voko land had been discussed by the Kolombangara Council of Chiefs at Hunda village on 30^th June 2004. A petition had been brought to the Council of Chiefs by the Voko landholding group for discussion.

Interlocutory relief denied on two grounds.

Firstly, the Plaintiffs are now saying that the boundaries of Voko land have been fixed by the Council of Chiefs and therefore the orders sought in their summons should be granted by this Court. That argument assumes that the Council of Chiefs had finally fixed the common boundary between Voko land and Viuru land. If that is the case, then there is no room for an interim injunction for there is no status quo to maintain. Ownership is final following the determination by the Council of Chiefs there being no unacceptable settlement before the Local Court. A permanent injunction should be the appropriate relief to be sought to prevent the Defendants continuing to be on Voko land, that being obviously unlawful. An injunctive injunction as an interlocutory relief plays no part after ownership has been finally settled by the Council of Chiefs between the parties. On that basis alone, the interim injunction as an interlocutory relief cannot be granted. The Plaintiffs should have proceeded with their main action and secure the relief sought there in the statement of claim in the fast place. Secondly, the matter however does not stop there. Counsel for the Defendants argued that the meeting of the Kolombangara Council of Chiefs on 30^th June 2004 was not a hearing by the Chiefs to settle the common boundary dispute between the parties. Rather, he argued, the meeting only facilitated a discussion about the boundaries of Voko land amongst the members of the Voko tribe alone. I agree. The minutes of the meeting of the Council of Chiefs on 30^th June 2004 do clearly show that the meeting was not an inquiry about any dispute. According to Elijah Ghemu at that meeting, the eastern boundary of Voko land runs between Manau and Gevala down to Kolakori River. The western boundary, on the other hand, runs from Kukudu River up to Kuhene and Daipago. Counsel for the Plaintiffs however argued that the meeting of the Council of Chiefs did indeed result in the determination of the boundary of Voko land which in itself delimits the boundary of Viuru land. Counsel cited Eddie Muna and Smiley Muna v. Holland Billey and Toben Muna and Attorney-General, Civil Case No.284 of 2001 as the authority for his argument. There is a difference between this case and Eddie Muna's case cited above. The difference is that in this case there was no dispute before the Council of Chiefs on 30th June 2004 unlike in the Eddie Muna's case cited, by Counsel, there was a dispute. Section 11 of the Local Courts Act (Cap. 19) defines "dispute" as "customary land dispute." So there must be a dispute in existence for the Chiefs to assume jurisdiction under the Act. There cannot be a dispute without a second party. From the minutes of the meeting of the Council of Chiefs, the Defendants were not present. It is possible that they did not know about the meeting of the Council of Chiefs and so were not in a position to question the validity of that meeting in so far as it affects their land rights. As a matter of fact, the minutes do confirm that the meeting was not a "disputed inquiry" to use the exact words in the minutes. There was clearly no dispute about the common boundary between Voko land and Viuru land before the Kolombangara Council of Chiefs on 30 June 2004. There is no evidence to show that the dispute between the parties over the common boundary between the two areas of land had been referred to the Chiefs for determination. The High Court therefore still has no jurisdiction to assist the Chiefs' forum by granting an interim restraining order pending the resolution of the dispute. The application is dismissed. No order as to costs.

F.O. Kabui
Puisne Judge