Rose v Mavingbros Timber Company Ltd [1996] SBHC 71; HC-CC 317 of 1996 (10 December 1996)

HIGH COURT OF SOLOMON ISLAND

Civil Case No. 317 of 1996

ter">AUGUSTINE ROSE

-V-

MAVINGBROS TIMBER COMPANY LIMITED

font size="3">="3">Before: Palmer, J

Hearing: 10th December, 1996 - Rulingh December, 1996

Counsel: Applicant in Person; F. . Waleilia for the Respondent

PALMER J.:

On the 21st of November, 1996, this Court issued interim orders restraining the Respondent inter alia from entering Pavuvu Customary Land. The matter was then listed for an inter partes hearing today.

Mr Waleilia has raised as a preliminary issue the fact that this case had been improperly issued such that there is a fundamental error of law and that accordingly this court does not have any jurisdiction to entertain this application. In actual fact he submits that the interim orders issued should never have been issued in the first place. He points out that this case had been commenced only by way of a Notice of Motion (ex parte) filed on the 24th of October, 1996, which is improper. It should have been by way of Writ of Summons and Statement of Claim or some other originating process.

Having heard learned Counsels on this point, I am satisfied that the preliminary issue raised is a valid point. Order 2 Rule 1 of the High Court (Civil Procedure) Rules, 1964 states very clearly that:

"Every action in the Court shall be commenced by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action. "

The action in civil case 317 of 1996 clearly had not been commenced by Writ of Summons in accordance with Order 2 Rule 1.

Mr Rose however sought to argue that despite the fact that no Writ of Summons and Statement of Claim had been issued, that did not prohibit the Applicant from taking out a Notice of Motion (ex-parte) for purposes of obtaining restraining orders against the Respondent. He submitted that the interest of the Applicant is very clear on the Notice of Motion filed and the supporting affidavits filed also on the same date. That interest is in seeking to prevent the Respondent from constructing an access road through Pavuvu Customary Land, the ownership of which is in dispute and before the appropriate courts at this stage.

Whilst it is clear on the records what the relief is sought in the Notice of Motion, and what may have been the interests of the Applicant in the affidavit filed in support, it has been clearly established as law that the right to interim or interlocutory relief is not a cause of action in itself. In The Siskina [1979] A.C. 210 at 256, Lord Diplock made the position of law on this issue very clear.

"A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. "

This is where the Applicant has been misled with respect. Mr Rose takes the erroneous view that the Notice of Motion filed (ex-parte) seeking interim and interlocutory restraining orders as sufficient, without filing a cause of action setting out his client's rights in law or in equity. I do note that the affidavit filed in support does set out what the rights of the Applicant may have been, but that is not a cause of action duly commenced according to the Rules of the Court. Order 1 of the High Court (Civil Procedure) Rules sets out clearly the definition of the word 'cause' and 'action':

"cause" includes any action, suit or other original proceeding between the plaintiff and defendant;

"action" means a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court, . . . .

Clearly, the Notice of Motion and supporting affidavits cannot be described as a cause of action. It is dependent upon there being a cause of action having been filed and commenced in this court, and that would have to be by way of Writ of Summons and a Statement of Claim. That has not been done in this case and accordingly, this court has no jurisdiction to entertain this application.

It is possible that the Applicant may have been confused with Order 61 Rule 4 which allows an application to be made by way of notice of motion or summons but only after leave had been granted for an order for mandamus, prohibition or certiorari. I note that on the same date the application for interim orders was heard, leave was granted by this court in civil case 266 of 1996 for the tribes which Mr Rose represented in this application to apply for orders of certiorari in respect of the very same issues raised in this application. Had the notice of motion been issued in respect of that case, then there would have been no jurisdictional issue for this court to deal with such application. The proper orders of this court therefore is to have the application dismissed, and if the Applicant desires then he should re-commence the action properly by Writ of Summons.

The Court has been misled into issuing interim orders which obviously had learned Counsel for the Applicant been vigilant he would not have commenced the action in the manner that he did. The Respondent has incurred unnecessary costs to that extent and therefore must be compensated. To that extent, I allow costs on a Solicitor/Client basis.

="3">ORDERS OF THE COURT:

1. Order that the interim orders issued on 21vember, 1996 be discharged rged forthwith.

2. Dismiss the Notice of Motion (ex-parte).

3. Costs awarded in favour of the Respondent on Solicitor/Client basis.

ALBERT R. PALMER
The Court.