HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 020 of 2000

JOHN OSIRAMO

V

MEZACH AEOUNIA

High Court of Solomon Islands
(F.O. KABUI), J)

Hearing: 16th May 2000
Judgment: 17th May 2000

D. Hou for the Plaintiff
J. Wasiraro for the Defendant

JUDGMENT

(Kabui, J): On 26th January 2000, I made ex parte Orders in favour of the Plaintiff in these terms –

1.	That ANZ Bank Account No. 4076404 in the Name of Augiria Development Fund be frozen at a monetary limit of $40,000.00.

2.	That the Defendants, their servants or agents or otherwise and their Banker ANZ bank be restrained from facilitating further withdrawals from the said account to lessen the credit balance below $40,000.00.

3.	That the Defendant deposit any outstanding royalties yet to be received into the above said account if the credit balance is now below $40,000.00.

4.	That costs be in the cause.

5.	That the matter be adjourned to an inter parties hearing on a date to be fixed.

At the inter partes hearing yesterday 16th May 2000, the Plaintiff asked this Court to grant or continue the same Orders in the same terms except 4 and 5 above in favour of himself and the members of the Alasa’a Tribe. The Defendant on behalf of the Aa’a Tribe opposed the Plaintiff’s application for the Orders on those terms.

The Facts

The Plaintiff and members of the Alasa’a Tribe are the owners of Arabala Kwarulilia Land in East Kwara’ae in the Malaita Province. The Defendant and members of the Aa’a Tribe are the owners of Augiria Aa’a Land which has a common boundary with the Arabala Kwarulilia Land. The Defendant in the latter part of 1999 went on to the Arabala Kwarulilia Land and constructed roads and fell trees for gain. These activities were done without the consent of the Plaintiff’s tribe who owns Arabala Kwarulilia Land. The Plaintiff and his tribe are now claiming relief against the Defendant and his tribe for the loss of trees and damage to their land. Exactly where the common boundary runs between the Augiria Aa’a Land and Arabala Kwarulilia Land has not been agreed by the parties or determined by a Court of Law. The area that has been logged is put at approximately 5 square hectares of land. This dispute is about where the common boundary should be between the Arabala Kwarulilia Land and Augiria Aa’a Land.

The Relief Sought by the Plaintiff

The total claim by the Plaintiff against the Defendant is $40,000.00 for loss and damages. All the logs extracted by the Defendant have been sold and the proceeds thereof have been deposited in an account kept at the ANZ Bank in Honiara. The Plaintiff is therefore seeking Orders of this Court to –

(a)	preserve the ANZ Bank Account No. 4076404 at a monetary level of $40,000.00;

(b)	grant an injunction to restrain the Defendant and members of his tribe their servants or agents or otherwise and their bank ANZ Bank from facilitating further withdrawals from the said Account to lessen the credit balance below $40,000.00;

(c)	grant an Order that the Defendants deposit any outstanding royalties yet to be received into the said Account if the credit balance is now below $40,000.00;

(d)	order cost of this application against the Defendant.

The basis upon which relief should be granted or otherwise

There is no evidence to suggest that logging activity is continuing in the area of land under dispute over the correct boundary between the Arabala Kwarulilia Land and Augiria Aa’a Land.

There is indeed a tribal issue before the Chiefs. Exhibit “D” in the affidavit filed by the Plaintiff on 25th January 2000 was the letter written by the Plaintiff to the Secretary to the Aimela Council of Chiefs to deal with the boundary dispute between the Plaintiff and the Defendant. A fee of $300 was paid by the Plaintiff on 9th May 2000 to the Rade-Kwai Council of Chiefs so that the boundary dispute can be sorted out between the Plaintiff and the Defendant. No date has yet been set for the hearing by the Chiefs. On this point, Mr. Hou, Counsel for the Plaintiff, argued that this Court should grant the injunction sought by the Plaintiff on the strength of the remarks made by the Court of Appeal in Gandly Simbe v East Choiseul Area Council, Eagon Resources Development Company Ltd., Steven Taki and Peter Madada (Civil Appeal No. 8/97). At pages 22-23, the Court said,

“The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal court specifically invested by Parliament with the power to decide it.”

That is to say, the High Court has the power to grant an injunctive order in aid of the exercise of the jurisdiction of a local court as well as a customary land appeal court excepting deciding ownership of customary land. In my view, I do not see any reason why the Chiefs in their adjudication role in customary land disputes should be excluded from the same benefit of injunctive orders by the High Court as they are also forums created by statute. On the question of balance of convenience, Mr. Hou, Counsel for the Plaintiff, argued that the balance of convenience would lie in favour of his client, the Plaintiff. That is to say, in weighing the balance of convenience, it should be observed that if I refuse the injunction in favour of the Defendant and the Plaintiff wins, would the Plaintiff be adequately compensated for his loss? If the answer is yes then I need not grant the injunction. If I grant the injunction on the undertaking of the Plaintiff that the Plaintiff would abide by Orders for damages, would the Defendant’s loss be adequately compensated? If the answer is yes, then I would grant the injunction. If I am in doubt as to these factors, then I must take into account all the factors into account bearing in mind the need for maintaining the status quo. If, I am still doubtful, then I must take into account the respected strength of each case. In this case, there is no undertaking by the Plaintiff as to damages likely to be claimed by the Defendant. This consideration is discounted. If I refuse the injunction in favour of the Defendant and the Plaintiff wins, the Plaintiff, in my view, would be the loser because all the royalties will have gone by the time the boundary dispute is finally determined. The trees are gone, the soil is damaged and the money for the logs are gone. Already there is evidence of this. According to the affidavit filed by the Plaintiff on 7th March 2000, only $20,000 or so of royalties is left in the ANZ Account. A little more delay on the part of the Plaintiff would certainly result in all the royalties being used up by the Defendant for what is termed by the Defendant as “development”. I would grant the injunctive order on this basis. Even if I am wrong in this, I would do so on another ground.

Mr. Hou, Counsel for the Plaintiff, pointed out that the injunctive order could also be made on the basis of a “Mareva injunction”. I agree with Mr. Hou’s remark on this point. An injunctive order can also be granted on this basis. I would do so in this case. The Plaintiff’s application is therefore granted in the terms in (i), (ii), (iii) and (vi) in the Plaintiff’s Summons filed on 18th April 2000. That is to say, I order that –

1.	the ANZ Bank Account No. 4076404 be preserved at the monetary level of $40,000.00;

2.	the Defendant and members of his tribe their servants, agents or otherwise and their bank ANZ Bank be restrained from facilitating further withdrawals from the said Account to lessen the credit balance below $40,000.00;

3.	the Defendant deposit any outstanding royalties yet to be received into the said Account if the credit is below $40,000.00;

4.	the Defendant bears the cost of this application. These Orders will be in force until the dispute over the common boundary is finally determined or earlier discharged, whichever is the earlier. These are the Orders of the Court.

F.O. Kabui
Judge