Amonie Thaona Bureau of Junior Jayson Burau (trading as Triple A Holdings (BN 20070287)) v Tahi [2022] SBCA 24; SICOA-CAC 27 of 2021 (18 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Amonie Thaona Bureau of Junior Jayson Burau T/A Triple A Holdings (BN 20070287) v Tahi
Citation:
Decision date:	18 November 2022
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona, DCJ)
Court File Number(s):	27 of 2021
Parties:	Amonie Thaona Bureau of Junior Jayson Burau T/A Triple A Holdings (BN 20070287) & Morris Warl, John Taro, Robinson Rongo & Zacheus Kahoa V David Tahi, A’Aron Tahi, Moses Tahi T/A Uru’u Resources Development Company & Chia Tai Enterprises (SI) Limited (201617920)
Hearing date(s):	25 October 2022 by circulation of Papers
Place of delivery:
Judge(s):	Hansen JA, Vice President Goldsbrough, JA Lunabek, JA
Representation:	L. Kwaiga for Appellant E. Toifai First Respondent L. Puhimana for Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Island Courts (Civil Procedure ) Rules 2007
Cases cited:	American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-9

JUDGMENT OF THE COURT

Introduction

1. This notice of appeal is jointly filed by the First and Second Appellants on 8 October 2021 against orders and decision of Faukona DCJ of 8 September 2021 where His Lordship found in favour of the First and Second Respondents when he made orders to the following effect:
   • “1. Refusing to grant all the reliefs sought in the application for interim injunctive orders by the First and Second Claimants/Applicants on 25^th August 2020;
   • 2. The Commissioner of Forests to look into the entire case and where possible act according to paragraph 32 of the written ruling of this Court;
   • 3. That all the relief sought in the counter-claim is hereby granted;
   • 4. The costs of the hearing of the Application for injunctive orders be paid by the Claimants to the Defendants.”
2. The grounds of appeal are contained in the said notice of appeal.
3. The appellants seek the following judgment in lieu of that appeal from:
   • “1. The appeal be allowed;
   • 2. That the Orders of the High Court made on the 08^th September 2021 be set aside;
   • 3. That the matter be remitted to the High Court for further hearing de novo of this matter before a new judge;
   • Any such orders deemed fit in these circumstances.”

Background

4. On 25 August 2020, the High Court Civil Case No. 429 of 2020 was instituted by way of a Category A claim for a permanent injunction, damages for trespass and conversion of logs or in the alternative an order for damages to the environment.
5. An Urgent Application for Injunctive Order was also filed with the Claim on 25 August 2020.
6. The First Appellants (being the First Claimants in CC No. 429/20) are the persons holding Felling Licence No. A101142 granted by the Commissioner of Forests which includes lands described as Madahorosi, Arounaihasianga, Wabubauaro, Rarotai and Arounamawa.
7. The Second appellants (being the Second Claimants in CC No. 429/20) are members and representatives of the Amaeo Tribe of Makira Ulawa Province and are the persons determined by the Makira Ulawa Provincial Executive as the rightful persons able to grant timber rights over the said Madahorosi, Arounaihasianga, Wabubwauaro, Rarotai and Arounnamanawa customary land.
8. The First Respondent (being the First Defendant in CC429/20) is the holder of Felling Licence No. A10942 covering various customary lands in Arosi 1, Makira/Ulawa Province.
9. The Second Respondent (being the Second Defendant in CC429/20) is a company duly registered in Solomon Islands and is the First Respondent’s logging contractor.
10. The Appellants alleged that the Respondents have encroached into their lawfully granted concession under Felling Licence No. A101142 and felled and exported logs.
11. The Respondents denied the allegations of trespass and alleged that they had been granted Felling Licence No. A10942 earlier in time, their Licence covered the same lands complained of and therefore they had felled and exported logs from within their lawfully granted concession.
12. Prior to 8 September 2021, the appellant had filed 9 sworn statements in support of the claim. The First Respondents had filed a total of 3 sworn statements and the second respondents had filed 1 sworn statement. The claim, defences and counter-claim with respective sworn statements were pending before the High Court for determination on the basis of a trial.
13. Directions for trial preparation and management are yet to be made. While the trial on the merit of the claim was pending, the application for injunctive orders was listed and heard on 20 April 2021 by the learned judge in the High Court.
14. On 8 September 2021, the Court ruled in favour of the Respondents and made the following substantive orders:
    • “1. Order refusing to grant all the reliefs sought in the application;
    • 2. The Commissioner of Forests to look into the whole entire case and here possible act according to Paragraph 32 of this ruling;
    • All the relief sought in the counter-claim is hereby granted;
    • 4. The costs of this hearing to be paid by the Claimants to the Defendants”.
15. For ease of reference, the relief sought in the counterclaim which were granted under Order 3 above were as follows:

“1. An order that the first counter defendant’s approved concession map of its harvesting plan under License No. A101142 of customary lands in coup 8 (Madahorosi, Arounaihasianga and Wabubwauaro) and coup 9 (Rarotai and Arounaimanwa) be amended to reflect the current concession areas granted to the first counter claimant under Licence No. A10942 of the said customary lands within area known as from Wairorongo to Waimaoba and from Adoaihana to Arounaimanwa under Licence No. A10942 and/or in the alternative;

2. An order that the lands known as Madahorosi, Arounaihasianga and Wabubwauaro (Coupe 8) and Rarotai and Arounamanawa (coupe 9) under License No. A101142 be cancelled;
3. A permanent order to restrain the first and second counter defendants not to disturb lawful logging operation of the first and second counter claimants in concession areas under the first counter claimant’s License No. A10942 in Arosi 1, West Makira, Makira Ulawa Province.
4. Costs;
5. Any other orders court deems fit in the circumstances of the case.”
16. The appellants now appeal against the orders and ruling of the High Court dated 8 September 2021.

The appeal

17. The grounds of appeal are that:
    1. That the learned Judge erred in law and/or fact and thereon misdirected himself in refusing to determine the issue of trespass in the First and Second Appellant’s claim which he had the unlimited and original jurisdiction to adjudicate.
    2. That the learned Judge erred in law and/or fact and miscarried when he dismissed the Appellant’s Claim and granted all the relief sought in the 1^st Respondent’s Counter-Claim without conducting a trail to determine all issues pleaded.
    3. That the learned Judge erred in law and /or fact and thereon misdirected himself when he determined the merits of the Appellant’s Claim and the 1^st Respondent’s Counter-claim filed on the 14^th April 2021 in their entirety whilst purporting to determine the Appellant’s Interim application for injunctive relief.
    4. That the learned Judge erred in law and/or fact and miscarried when he refused the Appellants application for injunctive relief without considering the applicable principles of law as enunciated in American Cyanamid Co - v – Ethicon Ltd [1975] UKHL 1; [1975] AC 396.
    5. The learned Judge erred in law in failing to consider all the circumstances of this case on its own merits.

Submissions

18. For the appellants, Mr Lazarus Kwaiga argued that the learned judge erred in law and miscarried himself in refusing to determine the issue of trespass on the merit at a trial proper while the issue of trespass is a live issue between the parties. He further submitted that the failure of the learned judge to conduct a trial breached the rule in Browne v Dunn which requires the authors of contradictory sworn statements to be cross-examined on their statements. He finally submitted that the failure of the learned judge to allow the matter to proceed to trial deprived the appellants of their right to be heard and the learned judge the opportunity to consider all the circumstances of the case on its own merits. He, therefore asks that the appeal should be allowed.
19. For the first respondent, Mr Eddie Toifai made submissions in support of the entire judgment of the court below which is now under appeal. He asks that the appeal be dismissed with costs.
20. For the second respondents, Mr Lionel Puhimana submitted in essence that the learned judge was correct in adjudicating that there was no issue of trespass to be tried in trial. He further made submissions in support of the entire judgment under appeal. He therefore asks that the appeal should be dismissed.

Discussion

21. This present appeal reflects an instance where the learned judge upon application being made, listed and heard an application seeking for interlocutory orders while a substantive claim (A claim in Category A) was filed and pending before the High Court for determination. Defences to the claim and counter-claim were also filed. Respective sworn statements to the claim, defences and counter-claim were also filed and pending adjudication.
22. The claim seeks for:
    • (a) Permanent restraining orders against the respondents ...;
    • (b) Order for damages for trespass on the customary lands;
    • (c) Order for damages of logs extracted from those custom lands;
    • (d) In the alternative an order for damages for conversion to be assessed;
    • (e) Further in alternative, an order for damages caused to the environment.
23. The problem with this appeal is that while the learned judge focussed on the application for interlocutory restraining orders based on the principles outlined in the case of American Cyanamid Co. v Ethicon Ltd. and rule 7.11 of SI courts (Civil Procedure) Rules 2007, he went further without notice. He should have stopped when he was satisfied whether the interlocutory relief sought should be granted. Here, the learned judge went beyond by determining the claim and the counter-claim without the active participation of the parties and their witnesses. We are of the view that the learned judge was wrong in so doing.
24. It is worth mentioning that there is an obligation on the courts to hear interlocutory matters as soon as practicable to ensure the trial on the substantive relief (merits) is properly prepared and managed. Given the relatively limited material required for such an application, which should be properly identified by counsel and the Court, a decision on interlocutory relief should swiftly follow.

Disposition

25. We make the following orders:-
    • (1) The appeal is allowed and remitted to the High Court to be heard by a different judge;
    • (2) The claim and the counter-claim are reinstated;
    • (3) In the event that interlocutory orders are needed, then, parties should apply afresh because the previous application for interlocutory orders was moot;
    • (4) Costs of and incidental to the appeal are awarded in favour of the appellants against the first and second respondents. Such costs shall be assessed failing agreement.

Justice J. Hansen JA, Vice President
Justice E. Goldsbrough, JA
Justice V. Lunabek, JA