SMM Solomon Ltd v Axiom KB Ltd - Extempore Judgment [2014] SBCA 29; SICOA-CAC 31 of 2014 (8 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

PARTIES:

SMM SOLOMON LIMITED
First Applicant

AND:

ALFRED JOLO
(Representing the Trustees and members of the Anika Thai clan)
Second Applicant

AND:

HUGO BURORO AND WILLIE DENIMANA
(representing the Trustees and members of The Thavia clan)
Third Applicant

AND:

HENRY VASULA RAOGA
(Representing the trustee and members of the Vihuvanagi tribe)
Fourth Applicant

AND:

BEN SALUSU
(representing the trustees and members of the Vihuvunagi tribe in respect of the Chogea and Beajong land area within Takata)
Fifth Applicant

AND:

PAUL FOTAMANA
(representing the Trustees and members of the Veronica Lona clan
Sixth Applicant

V

AXIOM KB LIMITED
First Respondent

AND:

ROBERT MALO, FRANCIS SELO, LEONARD BAVA, REV. WILSON MAPURU AND ELLIOT CORTEZ
Second Respondents

THE COURT: Goldsbrough P
Hansen JA
Wilson JA

NATURE OF JURISDICTION: Application is set aside and appeal from Interim Order of a Single Judge of the Court of Appeal of Solomon Islands (Palmer CJ)

COURT FILE NUMBER: Civil Appeal No. 31 of 2014 (On Appeal from High Court Civil Case No. 258 of 2011)

DATE OF HEARING: 8th October 2014
DATE OF JUDGMENT: 8th October 2014

ADVOCATES:

Appellants: Mr Sullivan QC, Mr Kingmele

Respondent: Mr Lilley QC
Mr Pitakaka
Mr Nimepo
Mr Carter

Key Words:

Ex tempore: Judgment

PAGES: 1 - 4

COURT: After more than 90 hearing days, the Commissioner delivered his Judgment in this matter on 24th of September 2014. He granted a continuing permanent injunction restraining the First Claimant (whom I shall refer to as "SMM") by its servants agents employees and or officers from interfering howsoever in the mining prospecting or other lawful business interests of Axiom KB in Solomon Islands, and a continuing permanent injunction restraining SMM by its servants, agents, employees and or officers from lodging an application for a prospecting licence pursuant to section 20 of the Mines and Minerals Act in competition with the Sixth Defendant (i.e Axiom) over the areas formerly the subject of Axiom's San Jorge Letter of Intent. His Lordship made a number of other orders which I will not refer to this afternoon.

The time for appeal against that decision is still running.

On 30th September 2014, an application came before the Chief Justice sitting as a single Judge of Appeal in which SMM sought restraints against Axiom and the Seventh Defendants. His Lordship made a number of Orders which are set out in the formal order of the Court which bears filing date 1 October 2014. I will not read them into the record.

This is an application to set aside those interim Orders.

To obtain the interim Orders SMM had to show prejudice if they were not granted. The material before the Chief Justice did not raise adequately, if at all, the prejudice now relied on.

The Orders of the Commissioner were premised on Axiom having a registered interest in the lands in question. Mr Sullivan of Queen's Counsel, who appeared today for SMM, submitted that the Commissioner's failure to deal with the threshold question of whether Axiom truly had a registered interest was an error. He submitted that if Axiom did have such interest and if Axiom were not restrained in the manner sought before the Chief Justice, the customary land owners' rights would be irreparably damaged.

In our respectful view, the Orders ought not to have been made in the absence of evidence of this prejudice. The prejudice not having being raised before the Chief Justice, it would be wrong to allow it to be raised now. It would be wrong to allow SMM to file further material at this point. Accordingly we are of the view that the interim orders should be set aside.

These are the Orders of the Court. The Orders made by the Chief Justice are vacated and the application before His Lordship is dismissed. The Court further orders the Respondents to this application to set aside the interim Orders to pay the Applicants' costs, including costs incurred before the Chief Justice. The Court certifies for an overseas Queen's Counsel and one overseas junior.

Goldsbrough P
President of the Court of Appeal

Hansen JA
Member of the Court of Appeal

Wilson JA
Member of the Court of Appeal