HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 23 of 2002

Francis Edeau, Alick Ofotalau and Fred Ri’idau

–v-

Paul Maenu’u, Fenigolo Gagame and Sage Belo

High Court of Solomon Islands
(Palmer ACJ)

Hearing: April 9, 2002
Judgment: April 18, 2002

J. Apaniai for the Plaintiffs
D. Hou for the 2nd Defendant
First Defendant not present

PALMER ACJ: Three tribes, the Suu’ae tribe of North Malaita represented by Francis Ede’au, Langane tribe of North Malaita represented by Alick Ofotalau and Waloilangi tribe of North Malaita represented by Fred Riidau have come to court by Writ of Summons and Statement of Claim filed 1st February 2002 seeking (I) a permanent injunction to prohibit the 1st and 2nd Defendants (hereinafter referred to as “the Defendants”) from entering Urasi Harbour for purposes of using the harbour as a log pond connected to the 1st Defendant’s logging operations and (II) damages for trespass.

The three tribes claim ownership in custom over Urasi Harbour. Their claims of ownership stem inter alia, from the fact that Urasi Harbour was formed by three rivers, which originate from their customary land. Their claims in custom over Urasi Harbour however have yet to be finally litigated under the Local Courts Act [Cap. 19]. The most they have done to pursue their claims under the said Act has been the filing of a customary land dispute with the Marodo House of Chiefs of North Malaita on or about 13th January 2002 (see paragraph 9 of the joint affidavit of Francis Edeau and Alick Ofotalau filed 1st February 2002). 

Apart from this claim of ownership in custom which this court obviously does not have jurisdiction to determine and therefore is not a live issue before this court, the Plaintiff has not demonstrated any other issue which this court has jurisdiction to determine. Though I acknowledge that whilst the issue of trespass is a matter which, this court has jurisdiction to deal with, that can only be done at the end of the day when issues of dispute between the competing landowners have been completed under the Local Courts Act. 

To that extent there is no triable or serious issue before this court, which can activate its powers at this point of time for the issue of an interim injunction to restrain the Defendants from entering or remaining on or within Urasi land. That there are triable issues in custom and a genuine land dispute in existence between the parties however cannot be denied. Plaintiffs have not merely made assertions but are serious about their claim in custom. The problem they face is that until their claim is finally determined as against the 2nd Defendants their claim is no better than that of the 2nd Defendants. As to the strength of the parties’ case, the scale tilts somewhat in favour of the 2nd Defendants. 

The Plaintiffs however have not sat idly by. Since observing use by the 1st Defendant of what they allege is their harbour in December 2001, they have run to court to seek restraining orders. They have also run to the Marodo House of Chiefs under the Local Courts Act to report a land dispute case against the 2nd Defendants. To that extent, their claim in custom cannot be easily brushed aside. This court alone has the jurisdiction to provide interlocutory injunctions as an aide to the Chiefs, Local Court and Customary Land Appeal Courts whilst deciding on customary land disputes (see Gandly Simbe v. East Choiseul Area Council and Others CAC 8 of 1997, 21st October 1998). 

To that extent, whilst I am satisfied there is no triable issue that would warrant the issue of an interlocutory injunction to restrain use of Urasi Harbour, I take the view that it would be in the interest of justice that order 2 of the interim orders issued on 20th February 2002 be continued until further orders of this court. Costs to be in the cause.

Orders of the Court:

1.	Refuse restraining orders sought in paragraph 1 of the Summons filed 1st February 2002.

2.	Paragraph 2 of the interim orders issued on 20th February 2002 shall continue until further orders of the court.

3.	Costs in the cause.

The Court.