The Defendant's
Reply
The defendants have considerably narrowed the issues. In the affidavit filed
on their behalf, they have admitted the following:
That the first defendant
and those he represents were not selected trustees, but that because of
disagreement among the
people of Bava tribe as to who should be trustees,
the first defendant and those he represents have been authorised to hold
the
land parcel in trust while the tribe decides on who should be trustees. That
they have conducted logging operations
through the second and third
defendants, and have distributed money and benefits. They contended,
however, that they
distributed the money and benefits only to the rightful
beneficiaries and that all that they have done had been authorised
at
meetings held by the tribe. They have also contended that the plaintiff has
no interest in the land because he does
not belong to Bava tribe.
Requirements for Interlocutory Injunction
<
For an interlocutory injunction to be ordered, there must be a cause of
action in the case, the plaintiff applicant must,
by affidavit, establish
triable issue or issues of facts and law or of law only if the facts are
common ground. He must
also show why it is necessary to have interlocutory
injunction. The purpose of interlocutory injunction order is to keep matters
in status quo while the case proceeds to determination. It is an
order to preserve the subject matter of the case while the case proceeds.
In
this jurisdiction several cases have been considered and several have been
decided on the question as to when interlocutory
injunction may be ordered.
We have accepted and adopted the rules as stated in the American Cyanamid
Co. -v- Ethicon Ltd [1975] UKHL 1; [1975] AC 396 [1975] 2 MR 316 see the judgment of my
learned brother, Sir John Muria CJ, in the High Court case, John Wesley
Talasasa -v- Attorney General and Others, High Court Civil Case No. 35
of 1995. At pages 6 and 7 Sir John Muria stated:
"test in Beecham Group Ltup Ltd -v- Bristol Laboratories Pty Ltd
[1968] HCA 1; [1968] 118 CLR 618 that the plaintiff has to show that there is probability
that at the end of the trial of the action lie will be entitled to
relief is
inapplicable to the circumstances of Solomon Islands and should not be
applied ..........
In the American Cyan Cyanamid case, Lord Diplock rejected the use of
expressions such as 'probability of success', 'strong prima facie
case' because such expressions lead to confusions."
The Beecham rejected by Sir John Muria CJ was decided on appeal
to the High Court of Australia. Other well known cases in this jurisdiction
are: Allardyce Lumber Company Ltd and Others -v- Nelson Anjo Court of
Appeal Civil Appeal No. 8 of 1998, Gandly Simbe -v- East Choiseul Area
Council and Others, Court of Appeal Civil Appeal No. 8 of 1997, and
Hitukera -v- Hyundai Timber Company Ltd and Maepeza, High Court Civil
Case No. 132 of 1992. It is not necessary that the Court should be satisfied
that if the case went
to trial only on the facts as presented for the
application, the plaintiff applicant would be "entitled to relief."
That old
view expressed in
Preston -v- Luck
[1884] 27 Ch D497 is no longer the guiding rule. It is also no longer the
rule that the Court is required to find that
a prima facie case has been
established by the plaintiff applicant - see Smith -v- Grieve [1924]
1 KB 655 criticised in the judgment of Lord Diplock in the American
Cyanamid case [1975] 2 WLR at page 322. What is required is that on the
affidavits before Court, serious triable issue is disclosed.
Of course that
requires some amount of plausible evidence. Affidavits filed by the
applicant must provide the evidence.
Determination
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
While the defendants by their forthright affidavit have considerably reduced
the contentious issues of fact, I do not
accept that they have eliminated
them altogether. Issues still remain as to whether the plaintiff is entitled
to appointment
as trustee or agent of some sort, in which case there would
be no need for temporary custodians who the first defendant and
those he
represents say they are. I think that is a question of how, in custom, a
person may be appointed to take care
of tribal assets. Further inquiry into
that through trial is called for. The plaintiff has not specifically
mentioned
the importance of customary manner of appointing trustee or
representative, and whether that was the way he was appointed,
nevertheless
he has raised the issue that the tribe appointed him and those he represents
to be trustees of the interest
of the tribe in the land, parcel No.
0790-006-4. Issues also remain as to the manner in which the money of the
trust
is to be distributed and whether the plaintiff is entitled to receive
any. Those remain issues even if I were to accept the
evidence of the
defendants that the first defendant did not breach the instruction given to
them by some of the members
of the tribe at meetings held. The defendants
may consider that their evidence against that of the plaintiff is
overwhelming,
but I think some issues remain proper to be referred to full
trial, so as to resolve some of the lingering uncertainties before
such an
important conclusion is reached. It is to be remembered that evidence at
this stage is by affidavit, it is incomplete
and untested by
cross-examination as would otherwise be the case at trial.
[1979] FSR 466 at Page 474. The
words of Megarry VC quoted are:
"The prospects of the plaintiff's success arss are to be investigated to a
limited extent, but they are not to be
weighed against his prospects of
failure. All that has to be seen is whether the plaintiff has prospects of
success which,
in substance and reality, exist. Odds against success no
longer defeat the plaintiff, unless they are so long that the plaintiff
can
have no success, but only a hope. If his prospects of success are so small
that they lack substance and reality,
then the plaintiff fails, for he can
point to no question to be tried which can be called 'serious' and no
prospect of
success which can be called 'real'."
The Order Granted
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In my vihe plaintiff has succeeded in establishing some triable isse issues
sufficient to warrant an order for the preservation
of the assets of the
tribe while the case proceeds to final determination. 1 also consider that
there is no evidence
before me from which I may conclude that compensation
will at the end of the trial be adequate remedy for the plaintiff in
the
event that he is successful in his claim, in which case 1 would exercise
discretion and refuse to order interlocutory
injunction. On the contrary,
there is some. evidence that suggests that monetary relief may riot be
adequate redress
because it remains a real question as to whether there will
be money available in the hands of the defendants to meet any monetary
relief in the event of such an order being made at the end of the trial. The
plaintiff and the defendants do not disagree
as to whether logging should
proceed, they disagree only as to whether the plaintiff or the defendants
should be in charge
and as to how much he is to share in the proceeds or at
all.
I
have considered another factor in the case. Even if the plaintiff succeeds
in the end, he and those he represents will
be entitled to only part of the
proceeds of the logging business. From the affidavit of Mr.
Litigate, even if it is still to withstand the test of full trial, it
appears that there are many other tribes - people
of Bava tribe who are
happy with the way the money from the logging operation is being applied. It
is therefore fair
that any injunction I order should only affect part of the
money of the tribe.
During the hearing I asked the defendants whether theyd give
undertaking tong to hold some money until determination of
the case, the
defendants offered undertaking to hold 5% of the 45% due to the tribe. 1
then asked the plaintiff whether
he would accept the undertaking given by
the defendants. Counsel for the plaintiff was not able to take instruction
on
the matter immediately. Today before delivering this judgment 1 inquired
about the position of the plaintiff, unfortunately
both the plaintiff and
his solicitor were not in attendance in Court. If the plaintiff accepted the
undertaking offered
by the defendants, I would not proceed to order
interlocutory injunction, but would hold the defendants to their
undertaking.
I now proceed on the basis that the plaintiff did not accept
the undertaking offered and I now order interlocutory injunction
requiring
the first and second defendants to pay into interest bearing trust account
of the solicitors for both sides,
sums equal to 7% (seven-percent) of the
gross proceeds of the 45% receivable by the first and second defendants for
the
benefit of the tribe. The 7% is to be retained from each payment made.
The order I have made does not stop the defendants from
continuing to apply
some of the proceeds accruing to the tribe in the normal honest way expected
of the defendants by
the tribe. There is no injunction as to 93% of the 45%
receivable by the first and second defendants.
The rest of the orders applied for by the plaintiff are misconceived, most
of them such as rendering records for inspection,
and account of trees
felled so far, are matters for pleading in the normal course. The
application succeeds only partly.
The ex parte order of 6.7.1999 have
of course expired and the orders I made on 4.8.1999 are now replaced by the
orders in this judgment.
Costs are to follow event in the full trial.
The question of security for damages that the defendants may suffer in the
event that the plaintiff loses his case in
the end, was not raised, but I
considered it. In the circumstances of this case it is unlikely that the
injunction order
I have made will occasion losses to the defendants. I make
no order as to security or undertaking for damages.
.
Nori, learned counsel for the defendants respondents presented written
submissions complete with case authorities that
he considered are
applicable. Mr.
Bravery, learned counsel for the plaintiff applicant asked the Court to
disregard them, he said, because the authorities
were not for consideration
at this stage. He did not present written submissions on his part. Far from
what Mr.
Bravery said, Mr.
Nori's
submissions were very much relevant. In the submissions, Mr.
Nori pointed out that the Court was to consider whether on the facts before
it the plaintiff had, in his case, disclosed
cause of action, and in his
affidavit sufficiently raised contentious issues of facts to warrant the
conclusion that
there are real triable issues which could lead to
determination of the plaintiff's right to relief. Then he proceeded to
submit that nothing of a triable issue was left of the plaintiff's case. Mr.
Nori's submissions were good examples, especially to newer members of the
bar, as to what learned and good submissions
expected of counsel are. It is
of course a different matter as to whether counsel succeeds or not on the
submissions;
one thing is certain though, such good submissions are of great
assistance to Court. I am grateful to Mr.
Nori for his effort.
Sam Lungole-Awich
Judge
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