Alepitu v Kalena Timber Company Ltd [1994] SBHC 28; HC-CC 180 of 1994 (15 September 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 180 of 1994

N. ALEPITU, J. K. ALEPITU

-v-

KALENA TIMBER CO. LIMITED, M. LAMBERE, S. ROVE

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 18 August 1994 at Gizo
Judgment: 15 September 1994

P. Lavery for Plaintiffs
T. Kama for 1st Defendant
P. Tegavota for 2nd and 3rd Defendants

MURIA CJ: The plaintiffs apply for an interim order restraining the first defendant from entering Lumonara Land for any purpose whatsoever. They also seek an order restraining the first defendant from paying any royalty already accrued on timber extracted from the said land to the second and third defendants.

The plaintiffs further seek the order that the road already constructed through Lumonara Land may be continued to be used but not to be widened. They also seek an order that the logs already fell in the said area be extracted and sold and the proceeds be paid into court or an approved interest bearing account.

The plaintiffs case really depends on whether the first defendant had been carrying out logging operation in Lumonara Land. Also, if it did, whether that operation is still continuing on the same land.

Mr. Lavery had submitted that the first defendant entered and carried out logging in the plaintiffs' land. However he submitted further that even if the first defendant stopped operating in the said land, the court should still restrain the company from further activities on that land.

The defendant's case is that Lumonara Land consists of a registered and a customary land parts. The registered part is under lease and no logging occurred in that part. The customary land part of the land is only a small piece of land and is within the water catchment area and as such no logging had taken place in that area also.

It is accepted by the defendants that the road runs through Lumonara Land. They accepted that in the course of the construction of the road, trees were cut.

As far as the road is concerned, the Notice of Motion did not say that the plaintiffs objected to the construction of the road. However they only sought that it be not widened in any way. No doubt the plaintiffs know that in the course of the construction of the road, trees had to be cut down. But there is no evidence to support the suggestion that other trees had been felled in Lumonara Land other than those cut in the course of the road construction.

The plaintiffs bear the burden of satisfying the court that the injunction sought ought to be granted. For that they must show that there is a serious issue to be tried between the parties: Beti & Ors -v- Allardyce & Ors. CC 45.92. That may include showing that the plaintiffs' legal right to which they appeared to be entitled had been violated: Marle Aqorau -v- Terry Talasasa and Ollie Talasasa CC 90/94.

In this case, the evidence suggests clearly that the first defendant had been carrying out logging operation but on land outside Lumonara. The only matter that the first defendant had to do with Lumonara Land was the construction of the road through it.

Mr. Lavery however suggested that even if there is no longer any logging operation by the first defendant on Lumonara Land, the court must still make the order sought. Firstly, I must say that I am not satisfied on the evidence that the first defendant did carry out logging in Lumonara Land as alleged by the plaintiffs. Secondly, there is therefore no question of preventing the first defendant from "continuing to log" in the area concerned since the evidence failed to show that it did carry out logging in that area in the first place.

It is accepted that the Court has power to grant an injunction even though the plaintiff's legal rights have not been infringed as yet. This is what is called a quia timet injunction. Lord Upjohn had pointed this out in Redland Bricks Ltd -v- Morris [1970] A.C. 652; [1969] 2 WLR 1437; [1969] 2 All E.R. 576 where he said:

"to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong, though none has occurred at present."

However, quia timet orders must specifically say what it is to be done or not to be done by the defendants and it is of permanent nature.

In the present application the order sought is an interim one. There is no basis, at least in the present circumstances, for any apprehended legal wrong that may be done to the plaintiffs. The evidence have shown that the first defendant will not be going into Lumonara Land to carry out logging operation as the area is designated as a catchment area. As such I do not see any serious issue to be tried between the parties here and so there is no legal basis for the issue of the orders sought.

In any case the remedy sought is discretionary and the court should only grant it in a proper case depending essentially on the circumstances of a particular case.

I am satisfied that the present case is one that is not proper for the court to grant the orders sought by the plaintiffs. The application is therefore refused with costs.

(G.J.B. Muria)
CHIEF JUSTICE