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Talasasa (Jnr) v Talasasa [1999] SBHC 152; HCSI-CC 104 of 1999 (22 July 1999)

IN HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 104 of 1999

RONALD BEI TALASASA (JHR) & RONALB BEI TALASASA (SNR)

-v-

JOHN WESLEY TALASASA AND ATTORNEY GENERAL
(representing Commissioner of Lands)

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 104 of 1999

Hearing: 18th June 1999
Judgment: 22nd July 1999

G Suri for the First Plaintiff
P Lavery for the Second Plaintiff
F Waleilia for the First Defendant
S. Manetoali for the Second Defendant

JUDGMENT·

MURIA CJ: The plaintiffs have come to this Court seeking the continuation of the interim injunction granted against the first defendant on 7th May 1999. The evidence relied upon by the plaintiffs as well as by the defendants are contained in the various affidavits filed in this matter.

Brief Background

In order to appreciate the background to this case, it is necessary to briefly see the history of this case. This case arose as a result of the acquisition proceedings over Ziata Land. The acquisition proceedings were conducted as the Government was interested in acquiring the land in order to obtain the rights over the Ziata River Water Source.

The first and second plaintiffs and first defendant are all from the Talasasa Family group. During the acquisition proceedings which started in 1984, various landowning groups, including the Talasasa group, have been claiming ownership of Ziata Land. There were in fact three acquisition proceedings over the land in question. I shall mention them briefly here:

The First Acquisition

In about 1984 the Government represented by the Commissioner of Lands, the second defendant, was desirous of acquiring Ziata Land in the KLHL for the purpose of obtaining the rights over Ziata River Water Source to supply water to the Noro Township. The second defendant appointed David Gina as Acquisition Officer to acquire Ziata Land where the water source is. A determination was made by Mr. Gina, the Acquisition Officer on 17th April 1984, in which he determined that John Wesley Talasasa and Jacob Zinihite were the rightful persons to receive the purchase price over Ziata Land. Rex Biku who was one of the claimants appealed to the Magistrates Court in or about 19th June 1984 (date received by Magistrate Court) against the Acquisition Officer’s decision. That appeal was dismissed on the basis of late payment of the appeal fee. Rex Biku then appealed to the High Court which allowed the appeal and ordered the Magistrates Court to hear the original appeal against the Acquisition Officer’s decision made on 17th April, 1984. Following the High court’s Order, the Magistrates court, Gizo, heard Rex Biku’s·appeal and allowed it. The Magistrates Court on 10th June 1987 decided that the matter be referred to a different “assessor”.

The Second Acquisition

Following the Magistrates Court’s decision of 10th June 1987, the Government appointed a new Acquisition Officer by the name of Mason Nesa for the purpose of acquiring the Ziata Land. On 25th September 1990 the Acquisition Officer held a public hearing at Munda following which he determined on 17th April 1991 that Gordon Kiko Zinihite, Luxton Zovere, Timothy Niniki, Kiliver Kaepeza and John Roni had the right to lease the Ziata Land and received rent. Rex Biku and John Talasasa who were among the claimants, appealed to the Magistrates Court against the Acquisition Officer’s decision. The Magistrates Court, Gizo, heard that appeal and allowed in on 18th December 1991. It further ordered that another Acquisition Officer be appointed to conduct a new acquisition proceedings pursuant to section 63 of the Land and Titles Act. It was also further ordered that the new acquisition hearing be confined to hearing the claims by Zinihite, Rex Biku and John Talasasa, the first defendant.

Third Acquisition

Pursuant to the Magistrates Court’s order of 18th December 1991 a new Acquisition Officer, Mr. Maurice Maike Ferguson, was appointed to conduct a fresh acquisition proceedings in accordance with the provisions of Part V of the Land and Titles Act. The claimants at the hearing conducted on 23rd April 1987 were confined to Talasasa, Zinihite and Biku. At that hearing the claimants “reconciled” their differences and agreed to execute the·CL2 Form which was the Agreement to Lease Customary Land. Before that was done, objection was taken by Mrs. Nuatali Tongarutu who claimed that she should be recognised as the representative of the late Zinihite. Gordon Kiko, the son of the late Zinihite, argued, however, that he should be the right person to represent his father. No compromise was reached and so the Acquisition Officer determined that Gordon Kiko Zinihite was to represent his father, the late Zinihite.

Following that an agreement to lease the Ziata Land was made on 25th April 1997, there having been no further claims received. The parties to that agreement were John Talasasa, Rex Biku and Gordon Kiko Zinihite as Lessors and the Acquisition Officer on behalf of the Commissioner of Lands as lessee. The actual Agreement to Lease Ziata land was signed on 30th October 1997.

The Case for Plaintiffs

The case for the plaintiffs, in these proceedings, is that not only that the interim injunction made on 7th May 1999 be continued but that it be so continued in terms of the Amendea Summons filed on 22nd March 1999. There are other orders sought in that Amendea Summons. However, it is obvious that the plaintiffs have only concerned themselves in these proceedings with the question of whether the second defendant should be restrained from further paying the first defendant any access fees and or rent or part thereof in respect of the Ziata River Catchment area in the Kazukuru Left Hand Land (KLHL).

Basically the plaintiffs’ case is that the first defendant was the spokesman of the Dudi Tribe in the acquisition proceedings. The members of the Talasasa group belong to that Dudi Tribe. This, it was argued, when the first defendant was conducting the case over Ziata Land during the acquisition proceedings, he was doing so on behalf of his tribe and not for himself. The Agreement entered into was done on behalf of the tribe and the payments received in respect thereof from the second defendant were for the benefit of all the members of the tribe.

It is the plaintiffs’ case also that the first defendant had received payments of access fees from the second defendant and used them for himself. That, argued the plaintiffs, was a breach of trust and so he must be restrained from receiving further payments. It was also contended that the first defendant should account for the money which he so far received.

There is a further contention raised by the first plaintiff in this case and that is, that the settlement reached at the acquisition proceedings whereby the first defendant was determined as one of the “Lessors” of the land in question should not be allowed to stand and that the acquisition officer should be ordered to declare the rightful trustee on behalf of the Talasasa group. This claim is obviously not shared by the second plaintiff who agreed that the first defendant was the representative of the Talasasa group. However he agreed to the contention that the first defendant had received payments of money from the second defendant and had not fairly distributed them to the other members of the Talasasa group. As such the first defendant should be restrained from receiving further payments from the second defendant.

The First Defendant’s Case

The contention maintained by the first defendant is that he represented the Talasasa tribe’s claim during the acquisition proceedings. He did so as the rightful successor of his late father Milton Talasasa. So that throughout the acquisition proceedings, the first defendant was representing his tribe, the Dudi Tribe. He made no claim that he was the sole owner of Ziata Land.

In so far as the access fees payments from the second defendant, the first defendant said that he was entitled to be paid such fees as he was the only person in his tribal group who had done all the work throughout the acquisition hearings. He was the person determined by the Acquisition Officer to be entitled to receive the payment of access fees.

In so far as the payments of premium and rentals, the first defendant agreed that such payments belong to the tribe. As to the access fees, he said that he was the one entitled to it and those who had not struggled with him were not entitled to the access fees payments.

It is also the first defendant’s case that the plaintiffs are not entitled any payment over the Ziata Land under the Talasasa tribe’s entitlement. The reason for that was because of plaintiffs claim over the land through another tribe called Sobekolo Tribe. That, argued the first defendant, has put the plaintiffs out from their entitlement to any right over the land through his father, the late Milton Talasasa who always stood for the Talasasa tribe, Dudi Tribe, in all land matters in the area.

Issues

There are a number of issues raised in the course of argument by both parties many of which are best left to the main trial where they can be fully argued. In a case of this nature where the remedy sought is really one of a temporary nature, the Court will only concern itself with those issues which can best serve the purpose of an application such as this. That purpose is to ensure that the subject matter of the action is preserved until the trial of the action.

The only issue that is of importance at this stage is that of whether the interim injunction granted on 7th May 1999 should be extended until trial of the action. The other issues regarding the first defendant’s right to represent the Dudi Tribe, breach of trust, plaintiffs’ rights under the Agreement to lease customary land, the first defendant’s position as successor of his late father, Milton Talasasa and the lawfulness of the Acquisition proceedings, are all matters to be properly determined at the trial where evidence will be complete and tested in oral cross-examination.

Whether interim injunction granted should be continued

I bear in mind, of course, that in some circumstances the grant of an interim injunction can virtually give the plaintiff his victory in the case or it can have a serious effect on the defendant that there is no longer any asset or property worth fighting for. On the other hand to deny an injunction at this stage of the proceedings can equally cause injustice in that by the time the issue in dispute comes to trial there is nothing for the plaintiff to gain even though he may win the legal point in Court. It is in the light of these seemingly difficult balancing scenario that the Courts have developed the approach as that laid down in the American Cyanamid Company -v- Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396; [1975] All E R 504, a case that has been firmly followed in this jurisdiction. See the cases of Allardyce Lumber Co. Ltd and Dovele Development Co. Ltd -v- Nelson Anjo, Civil Appeal No. 8 of 1996 (C.A) (“the Anjo’s case”) (Judgment dated 15/4/97); North New Georgia Timber Corp. & Another -v- Sake Hivu & Others, Civil Case No. 387 of 1993 (Judgment dated 10/2/95); John Wesley Talasasa -v- AG & Others, Civil Case No. 43 of 1995 (Judgment dated 15th May 1995). Thus the question for determination here is whether interim injunction granted should continue in order to preserve the subject matter in this case until the issues relating to the rights of the parties have been tried and determined.

In determining this question the Court has to first of all consider whether there is a serious issue to be tried, meaning a triable issue beyond a vexatious and frivolous matter. If these is a triable issue, the Court will then consider whether the balance of convenience favours the grant or refusal of the interim injunction. The discussions on the principles to be considered in such cases as this can be found in the cases referred to and it is not necessary that I should dwell in them here.

Is there a serious issue to be tried?

Mr. Waleilia of Counsel for the first defendant argued that this case is only about the right to the access fees paid by the second defendant. It is true that this case has been brought about as a result of the access fees being paid by the second defendant to the first defendant allegedly not distributed to the other members of the Talasasa families including those of the plaintiffs. However, when one looks at the matters raised by the parties in these proceedings, it is clearly beyond a mere question of the entitlement to access fees. The issues raised now challenge the first defendant’s right to the access fee and other subsequent payments over the use of the land in question, his right to represent the Dudi Tribe in the Ziata transactions and also the plaintiffs right to access fees and other payment over Ziata Land.

The ex parte interim injunction granted on 7th May 1999 restrained the second defendant from: “payment of the sum of $216,666.68 and any other subsequent payment due in the matter to the First Defendant or Talasasa Group until further order.”

Thus on the materials before the Court there are clear challenges to the first defendant right to the sum of $216,666.68, part of the access fees and “any other subsequent payment due in the matter.” That is a serious issue to be tried. Not only that the first defendant’s right to receive the payments has been challenged but also the basis upon which that right stems. These matters must be resolved when this matter is tried. So there are serious issues here to be tried.

Whether balances of convenience favours granting or refusing interim injunction.

This is a balancing exercise which in doing so, the Court must bear in mind the need to protect the plaintiffs’ right from being violated against the corresponding need of the defendants· to be protected from injury ·suffered from being prevented from exercising their legal rights for which they could not be adequately compensated. So, would irreparable harm be done to the plaintiffs if the interim injunction is not granted? The immediate subject matter that needs to be protected here is the access to the payments of $1,000,000.00 access fees. Part of these fees had already been paid by the second defendant and received by the first defendant. The access to the balance of those payments is now what is sought to be prevented until the rights of the parties are resolved.

On the other hand, would there be any irreparable harm done to the first defendant, if he is continued to be restrained from having access to the access fees? Perhaps, he would suffer the inconvenience of not receiving the payments but I feel that would be temporary only. This is because he would still be one of those persons named in the Acquisition Officer’s determination as having the right to lease the land and receive rent therefor, unless otherwise decided by this Court. So any restraint on the first defendant to receive any further payments from the second defendant would not cause any irreparable harm to him at this stage. In fact on the materials before the Court so far, the Ziata River Water Source is still within Kazukuru Left Hand Land where both the plaintiffs and first defendant have rights in. On this basis it would only be sensible to prevent the dissipation of funds paid to the Talasasa group over this land until the disputes between the plaintiffs and first defendant is resolved.

This case must be compared with that of Allan Kasa & Elma Kasa -v- Rex Biku & Commissioner of Lands, Civil Case 126 of 99 (Judgment given 14th May 1999), a case also concerning the Ziata River Water Source. In that case, the Court recognised that the authority for the first defendant, Rex Biku, to receive payments from the Government was the determination of the Acquisition Officer. But having received the money, Rex Biku established a mechanism for the distribution of the money to the members of his Gumi Tribe. He set up a distribution committee who decided how much of the money should be shared out to the members of the tribe, how much should be set aside for litigation costs, how much should be set aside for further negotiations over the use of the land and how much should be set aside for investment for the future of the tribe. So it was not so much a question of whether the members of the Gumi Tribe being deprived of their share of the money paid to them by the Government. The complaint against Rex Biku was very much that he was using the money for himself. The Court refused to grant the injunction sought against the first defendant in that case because no evidence at all was produced to show any substance in that claim. The Court said:

“Plainly the first defendant has the right to receive the money on behalf of his tribe and it was on that basis that he had received the previous payments of rent. If the suggestion is that the first defendant had used the money previously paid for his own benefit and that it is a serious issue that the Court should look into, then evidence must be adduced to that effect. In the absence of such evidence, I do not see how this Court can; justify preventing the first defendant from continuing to receive payments of monies, rent or access fees over Ziata Land on behalf of his tribe.”

Again in Kasa -v- Biku, the first defendant accepted all along that he was actively involved in the litigation over the land and that he was doing so on behalf of his tribe and the plaintiffs in that case accepted that.

In the present case, there is no evidence to suggest that there is a mechanism set up for the distribution of the money paid by the second defendant to the first defendant. It therefore really depends on the first defendant as to how the money is to be distributed, if at all. Obviously the plaintiffs are not happy with such a method.

I think it is also worth nothing here that the first payment of $100,000 made by the second defendant to the Talasasa group was collected by Ian Talasasa, the first defendant’s brother, who distributed the money to the members of the Talasasa group. There was no objection from any of the members of the Talasasa group against Ian Talasasa collecting that first installment payment in January 1999 and distributing it to the members of the Talasasa group. This case came about after the first defendant collected the other payments thereafter and not distributing them.

The other argument relied upon by the first defendant is that he was the person who executed the Agreement to Lease Customary. Therefore it was him, and not the plaintiffs, who is a party to that agreement and who is entitled to claim under that Agreement. It is true that the first defendant was one of the signatories to that Agreement. However, it is plain from that Agreement that the Lessors were executing it on behalf of their landholding groups and not as sole owners. The Clause on “Sole Owners” in the Agreement had been deleted but the Clause relating to the “Line” owning the “Land” remained intact in the Agreement. In executing the Agreement, Clause 3 provides:-

“The Lessors declared that:-

a) under the current customary usage of the Roviana ... the land is owned by all the members of the landholding group which is known in the Roviana language as the Lambete group and Gumi group;

b) these members have appointed the Lessors to be registered as joint owners of the perpetual estate in the land; and to lease the land to the Lessee at the rent and on the terms set out in this Agreement, and to receive the rent for them, and have agreed that the rent and the terms are fair and reasonable,” (emphasis added).

The plaintiffs’ interest in that Agreement is therefore, not at all difficult to ascertain. The first defendant and the other executors of the Agreement acknowledged that they were executing the Agreement on behalf of all the members of their landholding groups and that these members have appointed them (the Lessors) -

1) to be registered as joint owners of the perpetual estate in the land;

2) to lease the land to the Lessee at the rent and on the terms set out in the agreement,

3) to receive the rent for them, and;

4) agreed that the rent and terms are fair and reasonable.

The plaintiffs are clearly not strangers to the Agreement. Of course, generally, a stranger is not entitled to interfere with a contractual arrangement of others. However, if he can show that he is directly affected by them he can still challenge such a contract. See Simbe v East Choiseul Area Council & Ors Civ. App. 8 of 1997 (C.A.) (Judgment dated 21st October 1998). The plaintiffs in the present case, have an interest an the Agreement which they are entitled at the trial to ensure that it is complied with.

Conclusion and Orders

I have given this matter the most anxions consideration and having done so, I come to the conclusion that the most appropriate course to take would be to make an order which would preserve the subject matter of dispute between the parties in this case. In order to achieve this, the ex parte interim injunction granted on 7th May 1999 should continue until this matter has been tried and determined. The case should be proceeded with in the usual manner but with some speed so that it can be made ready for trial as soon as possible.

The order of the court made on 7th May 1999 will continue but varied to the effect that the second defendant while not being restrained from paying the access fees and any other payments to the Lessors, is restrained from paying the same directly to the first defendant. All payments including the sum of $216,666.68 and any other subsequent payments must be made by the second defendant into an Interest Bearing Deposit Account to be held in the joint names of the solicitors for the plaintiffs and first defendant.

The first defendant was determined by the Acquisition Officer to receive payments from the second defendant according to the terms of the Agreement. One of such terms is that the land, the use of which has to be paid for, is owned by all the members of the landholding group. It is therefore only proper that payments so far received by the first defendant be accounted for and it is so ordered.

Orders

1. The ex parte interim injunction granted on 7/5/99 shall continue until trial of this case but varied in that the second defendant while continuing to pay access fees and or any other payments over Ziata River Water Source, is restrained from making such payments direct to the first defendant. Such payments shall be made into an IBD Account to be in the joint names of the solicitors of the plaintiffs and first defendant.

2. The first defendant shall account for all payments so far received by him from the second defendant as access fees.

3. Costs in the cause.

(GJB Muria)
CHIEF JUSTICE