IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

CIVIL CASE NO. 243 of 2014

BEFORE:

DAGA FAMILY ASSOCIATION, REPRESENTING
THE DAGA FAMILY
Claimant

AND:

EDDIE DAGA
First Defendant

AND:

DERRICK GASIMATA ON BEHALF OF THE
VORAMALI TRIBE
Second Defendant

AND:

NELSON BIBO BETI, ON BEHALF OF NOSEDUA
TEKURADE AND LEMAZI FAMILY
Third Defendant

AND:

ATTORNEY-GENERAL ON BEHALF OF THE
MINISTRY OF INFRASTRUCTURE DEVELOPMENT
Fourth Defendant

Date of Hearing: 10th December 2014
Date of Ruling: 21st January 2015.

Mr C. Hapa for the Claimant
Mr P. Tegavota for the First Defendant
Mr N. Laurere for the Second Defendant
Mr F. Waleilia for the Third Defendant 
Mr J. Muria (Junior) for the Fourth Defendant

RULING ON APPLICATION TO SET ASIDE EX PARTE ORDERS.

Faukona PJ: Interim ex-parte orders were granted by this Court on 31st July 2014. On 18th August 2014, a claim in Category A was filed. On 13th August 2014 this application was filed to set aside the ex-parte orders. 
 
2.	There are five ex-parte orders altogether. The most significant is order 1, which specifically ordered the Ministry of Infrastructure and the Ministry of Finance to pay into High Court a total sum of four million, five hundred and thirty eight thousands, one hundred and twenty dollars (SBD$4,538,120.00), being the value of gravel extracted from mamamisi hill gravel pit. 

3.	From material evidence, the issue of landownership appeared to be settled by the Roviana Chief's decision, which the parties appear to condone and accepted, except for the Claimant. There are two major decisions exhibited by the sworn statements. One was the Roviana Local Court decision delivered on 23rd December 1985, and the most recent Roviana House of Chiefs' decision delivered on 13th May 2013. Apart from those, there are others, which were in the form of documents tendered during the Chiefs proceedings.

4.	A parallel impact perceived from the Chief's determination is reflected in the first agreement (valusa MOU), which was executed by the representatives of the major players identified in the Chief's determination. A variation to an important term of the MOU on 10th June 2014 left its status unchanged irrespective of party's expectations. The same can be noted in the execution of the Settlement Agreement. 

5.	There can be no doubt the wisdom instil on the Chiefs by prioritising in sequence, the order of rights of ownership associated with ownership rights in custom, possessory, and usage rights which directly associated to the land in issue, its location, and traditional activities that occurred on and within its vicinity.

6.	Despite what appears to be a unilateral consensus, the Claimant thought that all the agreements executed were null and void on the basis that the first Defendant was not authorized by Daga Family to enter into terms of settlement and the sharing ratio stipulated in paragraph (1) of the Settlement Agreement. And says that vulea/mamamisi customary land is owned by Daga family and should be entitled to receive a total amount of two million, seven hundred and eighty eight thousand and six hundred dollars ($2,788,600.00), and that the Claimant should be the rightful representative of the Daga family and not the first Defendant who was the signatory to the Settlement Agreement on behalf of Daga family.

7.	The problem encountered by the Claimant is that, it acquired its legal status through incorporation process on 11th March 2014. For legal reasons, and because of its date of birth later in time, it did not participate in the first MOU executed on 28th August 2012 and also not a party in the Chiefs hearing of which a determination was delivered on 13th May 2013. Despite its birth, it was never a signatory to other MOU and the Settlement Agreement signed on 18th July 2014. 

8.	From material evidence and submissions, certain facts become obvious. One of which that the Claimant did not dispute nor has an issue with other parties to the MOU and the Settlement Agreement who are entitled to some payment out of the general compensation to be paid by the SI Government for the extraction of gravel. Secondly, the core of this dispute rooted on the fact as to who will represent the Daga family in the negotiations and the settlement of the restitution payment. Thirdly, it would be acceptable that since the Claimant is an independent entity, from being a human, it did not own any customary land. Therefore paragraph 7 of the statement of case which duly reflected a referral been filed in the Local Court on 13th December 2013 impliedly make reference to the Claimant as having done so. The Claimant may deny but has not clarified in any sworn statement. Frankly, the Claimant as an incorporated body cannot be a party to a case where the major issue is customary land ownership, an issue the Local Court has jurisdiction to entertain. Taking the facts at its best, the Claimant surely has no locus standing to file any reference case in the Local Court and to institute a claim upon which the interim injunctive orders were founded and issued. It did not own any customary land by its status, a common knowledge of fact being well versed with.

9.	The bulk of argument which gave rise to this case is leadership representative of the Daga family. Two significant issues noted are debatable. One that both the Claimant and the first Defendant rely on the same Local Court case No. 1 of 1985 which the first Defendant's father was a party to the case and whom the decision was in his favour. Secondly, at the recent Roviana Chiefs' hearing the father of the first Defendant was a party who represented the Daga tribe and presented his submissions. To affirm the first Defendant's status I noted a formal will was executed by the first Defendant's father. From my perception looking inward, the first Defendant's father seems to be upfront defending his rights and rights of his tribe. And that right had been formally transferred by a will. If those actions taken are given less value and controversial in nature then the Daga family need to sort out themselves amicably. If it would mean individual family rights of ownership then that should also be sorted out among them, if not in the rightful forum.

Application of S.18 of Crown Proceeding Act:

10.	The Defendants by their Counsels opposed the grant of interim injunctive orders which also injuncted the Crown (Attorney-General) who is a major component and a party (fourth Defendant) in this case. The merit of that argument is premised on Section 18 (1) of Crown Proceedings Act. I have the privilege to peruse the section and I am satisfied on the arguments advance by the Counsels. That S.18 (1) prohibits the Court from granting an injunction order against the Crown as a party to any proceedings but may make an order declaratory of the rights of the parties. 

11.	Neither of the Counsels addressed the Court on the second limb of the section in respect of what are the likely declaratory orders, which may be granted. But all seem to focus on the first limb as a static legal obligation without any recourse to settle the second requirement. Generally, I would agree with the submissions. The circumstances surrounding the grant of the injunctive orders were error in law. There was nothing on record which revealed any declaratory orders as to rights of the parties. In the absence of such, the injunctive orders granted were contrary to the operation of section 18 (1) of the Act, hence must be void against the fourth Defendant. From general perception the orders were meant to apply to all Defendants equally. Unfortunately, the manner in which they were structured was directed at the fourth Defendant to perform accordingly. The problem is that the parties to the Settlement Agreement had finally agreed that payment should directly pay to them. That was in accordance with the Settlement Agreement. 

12.	This leaves no room for the Claimant who is not a party to the agreement to divert the manner of payment, which had been agreed upon by the concern parties. By attempting to utilise the inherent power of the Court to grant orders directing the fourth Defendant to perform accordingly was an error. The Claimant was not a party to the agreement and cannot intervene and meddle with the affairs of others. It has no standing to do so by seeking a Court order to defeat what the parties had agreed upon and had executed a document to that effect. By including the fourth Defendant under the injunctive orders is contrary to section 18 (1) of Crown Proceeding Act, a situation marred by creating double jeopardy to its case. 

13.	Suffice to say there are sufficient evidence disclosed of which a rightful decision could have reached without even considering the effect of withdrawal by one of the standing parties. To give justice to this case I am judicially obliged to impart the legal status of the agreement in the circumstance where one party had withdrawn his signature. 

Revocation of signature from settlement agreement:

14.	By notice dated 18th July 2014, the third Defendant formally revoked his signature to the Settlement Agreement he executed with others. His reason being that he did not consult the family group he represented but done so in his own personal capacity. 

15.	What impact does it have on the document? All Counsels for the Defendants submit that by formal revocation of signature of one party to the agreement render that agreement not enforceable in law.

16.	From a literal perception, two possible outcomes can be expected. One as submitted by the Counsels and secondly the third party can be loss out temporarily with all its liabilities and obligations. Simply mean, whatever the third Defendant obliged to receive be halted until such further time. Whilst that may be so, the rest of the parties (recipients) will continue vying for their remunerable shares as in the ratio. A significant aspect of all the agreements is that although the third party is withdrawing his participation from the rest, the SI Government's liability and obligation to pay the three groups of landowners had never been rescinded. It only affects the manner in which the payment is supposed to be transacted to the recipient parties. 

17.	In any event, both outcomes do have an impact on the manner the money is to be paid. To be fair to the third Defendant who may lag behind because of the change in circumstances, I am inclined to go along with submissions by the Counsels for the Defendants. 

18.	The effect of revocation of signature renders the agreement imbalance and to avoid legal imbalance, a scale is instilled to manage the equilibrium. That is, it would be fair and equitable to treat the agreement as stall with no effect and which cannot be enforced by law. With the agreement at stake there is nothing the Claimant can achieve by way of injunctive orders. There is nothing available to injunct. Therefore, the ex-parte interim orders are not for any good purpose at all, and must therefore be discharged accordingly and be set aside.

19.	With all that I say, there is evidence on the balance, which require the ex-parte orders not to prevail but have to fail on the grounds I have alluded above.

Orders:

1.	The ex-parte orders issued by this Court on 31st July 2014 be discharged and set aside.

2.	Cost incidental to this hearing be paid to all the Defendants by the Claimant

The Court.