Asabola v Sim Resources Development Co. Ltd [2023] SBCA 11; SICOA-CAC 01 of 2021 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Asabola v Sim Resources Development Co. Ltd
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona, J)
Court File Number(s):	01 of 2021
Parties:	Chief Jonathan Asabola, Macolu Solomon Limited v Sim Resources Development Company Limited, Metro Team Limited, Attorney General, Martin Kelly, William Slans Dimi and Simon Jarikibo, Macolu Solomon Limited, Jonathan Asabola, Gabriel Kakale, Misael Kinokibo, Steven Seti, Lawrence Vularavu, Samson Ngegele, Fredrick Avitina and Godrey Raubola v Isaac Palakonina, Simon Jarikibo, William Slans Dimi, Martin John, Attorney General
Hearing date(s):	20 April 2023
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Wilson JA
Representation:	Kwaiga L for Appellant Teddy P 1st & 4th Respondent Suri G for 2nd Respondent Ofanakwai for 3rd Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-5

1. This appeal is against orders made by the High Court on 1 February 2021 in two proceedings – CC 597 of 2019 and CC 258 of 2020.
2. By way of background, there has been dispute as to customary ownership of lands in Guadalcanal Province referred to as Belanene and Belachacha over an extended period. Suffice it to say that despite various proceedings in customary courts, the disputation continues.

Injunction in CC 597 of 2020

3. At all material times Macolu Solomon Limited (the first defendant in CC 597 of 2019 and the second claimant in CC 258 of 2020) has held Felling Licence No A101418. That licence covers lands described as Viru, Kolasavuvudi, Kolosabetibeti, Kolosamolau, Vaurarata, Talakiva, Klosa aro aro, Soghaihuru, Karo, Kolsa Chimiu, Saha Sahata, Kolosa Uli and Kolomole Customary Land.
4. The second defendants in CC 597 of 2019 are also the first claimant in 258 of 2020. We shall refer to them as ‘Asabola & ors’. They are individuals from Guadalcanal Province who claim customary ownership over Belanene and Belachacha.
5. Representatives of four tribes (the first to fourth claimants in CC 597 of 2019) alleged that Macolu was trespassing on their customary lands by logging on Belanene and Belachacha. In October 2019 they obtained an interim injunction against Macolu and Asabola & ors restraining them from entering Belanene and or Belachacha for logging purposes.
6. SIM Resources Development Company Limited (the first defendant in CC 258 of 2020) was granted Felling Licence No A101807 from 3 October 2018 over customary land in Guadalcanal described as Tinahoto. On 24 December 2019 that licence was amended to include Belanene and Belachacha.
7. Kelly, Dimi & Jarikibo (the fourth respondent in CC 258 of 2020) are representatives of tribes who claim customary ownership of Belanene and Belachacha.
8. In late March 2020 SIM and its logging contractor Metro Team Limited (the second defendant in CC 258 of 2020) commenced logging within Belanene and Belachacha. On 8 July 2020 Asabola & ors and Macolu obtained an interim injunction restraining them from conducting logging operations within those areas.
9. After an inter partes hearing on 18 November 2000, the High Court made orders on 1 February 2021 –
   • (a) continuing the injunction against Macolu and Asabola & ors in CC 597 of 2019, and
   • (b) discharging the injunction against SIM and Metro in CC 258 of 2020.
10. Abasola and Macolu appealed against the orders made on 1 February 2021.
11. When the appeal was heard on 20 April 2023 counsel for Macolu and Abasola conceded that SIM and Metro are not presently logging in the disputed area. Nevertheless, he sought to have the order discharging the injunction against them set aside and to have that injunction reinstated.
12. Counsel for Macolu and Abasola submitted that this Court should reinstate the injunction against SIM and Metro to protect his clients against the possibility that they might log in the disputed area – that is, on the basis that SIM and Metro are not presently logging in the disputed area, but they might do so in the future.
13. An injunction will be granted only where the conduct sought to be restrained is occurring or is likely to occur. An injunction will not be granted against a mere possibility that something might occur in the future. Similarly an injunction that has previously been discharged will be reinstated only where the impugned conduct is occurring or is likely to occur.
14. Because counsel for Macolu and Abasola conceded that SIM and Metro are neither logging in the disputed areas nor threatening to do so, there was no basis upon which this Court could reinstate the injunction against them.
15. Counsel for Macolu and Abasola did not ask this Court to discharge the injunction against his clients.
16. In these circumstances it is not necessary for this Court to rule on whether the High Court’s orders on 1 February 2021 ought to have been made.

Disposition

17. The appeal is dismissed. The appellants are ordered to pay the costs of all respondents of and incidental to the appeal on the standard basis.

GOLDSBROUGH P
HANSEN JA
WILSON JA