Douglas v Ziru [1996] SBHC 37; HC-CC 148 of 1996 (22 July 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 148 of 1996

JOSEPH DOUGLAS & JOYCE ALAMU

v

RONALD ZIRU

Before: Sam Lungole Awich: Puisne Judge

Hearing: 18 July 1996

Judgment: 22 July 1996

p style="margin-tgin-tgin-top: 1; margin-bottom: 1">Counsel: P. Tegavota for Plaintiffs;

C. Ashleythe Defe Defendant

INTERLOCUTORY JUDGMENT

SAM AWICH: J.

This is inter partes hearing arising from the ex parte application by the plaintiffs heard on 18,7.1996. That ex parte application was successful; the plaintiffs obtained interim injunction restraining the defendant from collecting the proceeds of letter of credit opened in favour of the defendant for the shipment of timber logs being loaded at the time of the application. The date for inter partes hearing was 1.8.1996 but, the defendant was given liberty to anticipate the return date on giving two days notice. He has exercised that liberty and so the matter was heard today. Although the writ and subsequent papers filed by the plaintiffs described them as plaintiff, there are actually two plaintiffs. Submission by their counsel also referred to more than one plaintiffs.

The ex parte application of the plaintiffs was made after they had filed and had writ of summons issued on 28.5.1996. It was served on 30.5.1996 but, the defendant, through its solicitor, filed memorandum of appearance late, only on 27.6.1996 and that was after the plaintiffs had on 26.5.1996, filed motion application for judgment seeking hearing on 1.8.1996. The defendant was required to file its defence in 14 days anyway, but, upto 18.7.1996 when the ex parte application was made, defence had not been filed and remains unfiled.

When the ex parte application came before this court, there were before court, only the writ of summons, a late memorandum of appearance, application for judgment and of course the ex parte application supported by a very brief affidavit of learned counsel Mr. Tegavota for plaintiffs. That affidavit dwelt only on one point, namely that the defendant had failed to file his defence after having filed memorandum of appearance late. At inter partes hearing today a large number of important relevant facts were laid before court. They included the fact that one of the plaintiffs, Joyce Alamu, had applied for injunction to the High Court under a different case file, No CC 103/96 and had failed in that application. There had also been a related application in case No CC 89/96 seeking injunction against the defendant. That application had failed.

It is a well established rule in application for interim injunction, made ex parte that the applicant is under obligation to disclose all material facts. It might be practically impossible to disclose all the minute details but, everyone can tell what important relevant facts having bearing on a case ought not to be omitted. The duty to disclose material facts extends to disclosure of facts which might even lead to the court refusing the interim relief on ex parte application see THEMAX LTD v SCHOT INDUSTRIAL GLASS LTD (1980). The court will normally refuse the application or discharge the interim order if the full facts have not been disclosed. In this application, the plaintiffs ought to have disclosed the fact that two applications for injunctions had been made against the defendant and that in one of the applications, one of the applicants then is now one of the plaintiffs. On that rule alone I am bound to discontinue interim orders granted on 18.7.1996. The interim order made on Friday 18.7.1996 is discharged.

It is opportune for me to mention here that although in most applications, the founding affidavit may be sworn by applicant or by someone with knowledge of the facts and circumstances upon which the application is based, great advantage is achieved by the applicant himself swearing to the facts and circumstances if he has personal knowledge of them. Moreover, solicitors would do well avoiding swearing affidavits about facts upon which their client's case is based if it appears that those facts are likely to be disputed. The obvious reason is that the court may order that, the evidence be given viva voce with the result that there may be cross examination.

This is a case where the plaintiffs are temporary occupying licencees on land parcel lot 75 of LR 395/2. Their temporary occupation licence includes right to extract logs but, does not state that they are given exclusively to the plaintiffs. Extraction of timber logs is of course a subject that requires additional licence from the Commissioner of Forests. It was said from the bar that the plaintiffs have made application. The fact is that they have not been granted the licence as yet. The defendants also hold temporary occupation licence to occupy the same parcel of land; in addition they have a licence to extract timber. The plaintiffs challenge the licence and found their suit and application for injunction on that challenge. The land is vested in the Commissioner of Lands. He has not so far filed any suit against the defendant nor has he made application to restrain any activity of the defendant. Today the Commissioner of Lands was in court, he sought to be joined in the suit. It was my view that his application to be joined be adjourned to allow him to file the necessary application papers and to have them served on the parties. Should he feel there is urgency, he may seek urgent hearing. I however, advise that it might be wise for him to consult with the Attorney General so that his application, if made, will be done properly. The Attorney General might decide that the commissioner files his own case, if he wishes to sue, other than jump onto the band wagon of feuding members of the public. I adjourn his application to be joined, he may seek listing from the Office Manager. It is directed that this judgment be sent to the Attorney General in view of the likelihood that the Commissioner of Lands and the Commissioner of Forests might take different positions in the case.

yle="margin-tgin-top: 1; margin-bottom: 1">On the fact and submissions made, I think that restraining activities of the defendant by people who are not registered title holded who at most are temporary licencees together with the defendants, and whose licence does not give them exclusive right in logging nor give them right to rank before the defendants, is unjustified especially when they come to court without any offer of security for damages that may arise. It appears to me that if the activity of the defendant on the land is to be restrained by injunction the right person would be the Commissioner of Lands. If I were to consider interlocutory injunction on the facts before court I would refuse to exercise discretion to grant it.

I have considered the question of costs, and the fact that the plaintiffs having failed in their appion, should normally pay the costs of the defendanendants arising from the application. I concluded that I should deny the defendants the costs of the application. The reason being that the ex parte application was to a large extent motivated by the defendant's lack of prompt response to the writ of summons served on him on 30.5.1996. He filed memorandum of appearance late and has up to today not filed defence.

That may have led the plaintiffs to believe that they have a strong case. The defendant is denied costs of the application.

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Dated this Monday 22nd day of July, 1996, at Honiara.

Sam Awich
Puisne Judge