Solomon Imports and Export Ltd v Top Timber Co Ltd [2018] SBCA 17; SICOA-CAC 27 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Solomon Imports and Export Limited v Top Timber Company Limited
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands ( Rex Faukona J)
Court File Number(s):	CA 27 of 2018
Parties:	Solomon Imports and Export Limited v Top Timber Company Limited, Wong Chee Kong John
Hearing date(s):	10 October 2018
Place of delivery:
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	Gabriel Suri for the Appellant John Taupongi for the Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	American Cyanamid v Ethicon Limited
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	This appeal is dismissed with costs to the respondent
Pages:	1-5

JUDGMENT OF THE COURT

1. This is an appeal against the refusal by Faukona J to grant an injunction sought by the appellant company, Solomon Imports and Exports (SIEL). It was one of a number of court actions in respect of the fixed term estate of PN192-010-262 on the Ranadi coastline.
2. The first defendant, Top Timber Co (TT) holds the land, PN 228, adjacent to 192-010-262. TT is an active timber business and the third defendant is its Managing Director. It uses access to PN 262 in order to unload timber.
3. The claimant was first registered as the holder of PN 262 in April 2011 but the parcel was deregistered by the Registrar of Titles in March 2014. In April 2014 the claimant challenged the deregistration in High Court Civil Case 102 of 14 in which the first and third respondents were also parties.
4. Before the issue in Civil Case 102/14 could be decided conclusively, the claimant and the Attorney General signed a consent judgment, on 15 June 2015, purporting to settle the dispute about them in the action. As a result the claimants’ title to PN 262 was restored by the Registrar of Titles on 21 July 2017 but the validity of the consent order in 102/14 was challenged and was awaiting a hearing at the time of the applications for injunctions in the present case. The aim of the challenge was that, if the consent order could be set aside, the restoration of PN 262 to the register in the name of the appellant would be set aside once more.
5. In December 2016, the claimant instituted proceedings for trespass into PN 262. The respondents filed a counter claim in May 2017 seeking to cancel the registration of the claimant’s title to PN 262.
6. Pending the determination of those proceedings, TT has resumed using PN 262 for unloading and storing timber. The claimant has started restoring eroded land on the same parcel an operation which will prevent any access to PN 228 from the sea.
7. In June 2017, the respondents applied for an injunction to stop the claimants carrying out further construction work or earthwork in PN 262. In a ruling delivered on 29 September 2017, the learned judge refused the application.
8. The respondents having failed, the claimant decided to have a try at obtaining a restraining order of its own. On 9 January 2018 they filed an application for orders restraining the first and second respondents from continuing occupying or using PN 262 unless authorized by the Claimants authorized officer, to remove all their tools, equipment, vehicles, timbers, logs and other things within five days and to stop dumping timber, sawdust, timber waste or other wastes within PN 262.
9. The judge gave a careful judgment. After acknowledging the previous unsuccessful application by the respondents, he suggested that the claimant’s application was a “kind of utilizing the gap created by refusing to grant the first and second defendants’ application for restraining the claimant.”
10. He continued:
    • “This is not an application filed at the initial stage of the proceeding or as early as at the inception of the case, which is so often in a form of ex parte application. Even at that stage a claim is yet being filed.
    • The substantive issue in this case is a claim for trespass and damages to follow suit. The proceeding has reached the stage where pleadings have been closed and the position then is for the parties to have direction orders to move the case forward to pre-trial conference no doubt facts pleaded have the support of evidence which have been filed and later will be grilled during course of a trial.
    • In this case submissions by counsel for the first and second defendants outline certain mischiefs which could be pointed out now, but they are issues for trial.”
11. Having referred to the requirements of the American Cyanamid case, (American Cyanamid v Ethicon Limited [1975] UKHL 1; [1975] AC 396) , he concluded:
    • “It definitely appears for now, the evidence both defendants rely on are stronger. Therefore, it is convenient to preserve the status quo even in the midst of the previous application by the claimant for injunctive orders were refused. In like manner, is his application to maintain fairness. Therefore the balance of convenience tilts towards both defendants. I must therefore refuse to grant the reliefs sought in this application with costs. Application dismissed.”
12. It is from that refusal to grant its application that the claimant appeals to this court.
13. We are satisfied the learned judge conducted the correct tests and considered the grant of such an injunction in respect of a situation which had been continuing over such a long period would clearly be an unnecessary and futile exercise. It was about to be the subject of a trial for which the pleadings had already closed and it was important not to do anything which could possibly add to the delay. It was a thoughtful, sensible exercise of his discretion.
14. This appeal is dismissed with costs to the respondents.

......................................................
Goldsbrough P
......................................................
Ward JA
......................................................
Lunabek JA