MSL Import and Export Company Ltd v Maure [2001] SBHC 122; HC-CC 066 of 2001 (9 July 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 66 of 2001

MSL IMPORT AND EXPORT COMPANY LIMITED

-V-

DAVID MAURE

High Court Solomon Islands
(Palmer J.)

Hearing: 5th July 2001
Interlocutory Judgment: 9th July 2001

A & H Lawyers for the Applicant/Defendant
P.T Legal Services for the Respondent/Plaintiff

PALMER J.: The Respondent/Plaintiff (“the Plaintiff”) obtained interim orders against the Applicant/Defendant (“the Defendant”) on 24th May 2001 inter alia, to restrain the Applicant from interfering with the logging operations of the Plaintiff being carried out on Central Barora Ite customary land (“CBI Land”). The Plaintiff relied on a timber rights agreement dated 21st February 2001 (“the TRA”) (copy annexed as Exhibit “TRA” to the affidavit of Ofoniel Vato Tabo filed 2nd May 2001) entered into with the purported customary landowners of CBI Land and a timber licence Number A10005 (“the Timber Licence”) (copy annexed as Exhibit “B” to affidavit of Mok Tak Kee filed 2nd May 2001) issued on 8th March 2001 by the Commissioner of Forest Resources (“the Commissioner”).

The Plaintiff commenced logging operations on or about 22nd April 2001 when it landed its logging machineries and equipment at Letasi log pond. On said date the Defendant with a group of people confronted the persons accompanying the logging machineries. Present at the said time was Ofoniel Vato Tabo one of the Landowner/Trustees who had signed the TRA with the Plaintiff. The Defendant deposes in his affidavit filed 18th June 2001 at paragraph 10 that despite his protests the Plaintiff landed its machineries and commenced logging operations immediately. The Defendant however took no further action to protect his so-called rights in custom over the said land until he was served with court papers obtained by the Plaintiff at the ex parte hearing on 24th May 2001. It is significant that it is the Plaintiff who had run to Court to protect its rights against the Defendant when threatened and not vice versa. I would have expected Defendant to be the first one to run to Court for relief when he saw the Plaintiff landing its machineries on what he asserts to be his customary land. If the matter had been so urgent Defendant would have run to Court, not lingered around. Not only that, but he had been expressly told by Ofoniel Vato Tabo (see paragraph 10 of the affidavit of David Maure filed 18th June 2001) that they would not stop the operations unless ordered by the Court. It is obvious the Defendant had been sleeping on his rights: vigilantibus non dormientibus jura subvenient - a plaintiff should not sleep on his rights. In this instance, the Defendant should have taken a proactive approach and initiated case in this Court as a plaintiff for relief against the Plaintiff. He did not do that. Had the Plaintiff not initiated this action it seems the Defendant would not have taken any further action against the Plaintiff. In my respectful view a mere protest is not enough. A reasonable person would have taken the first plane or ship to Honiara or given instructions to any relative in town to get legal advice. The delay here does not assist the Defendant in this application.

Defendant entered appearance on 11th June and now seeks inter alia, injunctive orders against the Plaintiff from continuing with its logging operations in CBI Land. There are two matters for consideration before this Court. One relates to the interim orders obtained on 24th May 2001, the other pertains to the injunctive orders of the Defendant.

Restraining relief sought by the Defendant

The principles of law governing the issue of interlocutory orders in this jurisdiction have been widely canvassed. It is trite law that the right to interlocutory relief is not a cause of action in itself. In The Siskina [1979] A.C. 210 at 256, Lord Diplock said:

“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.”

The same comments equally apply to the Defendants application in this matter. Apart from the Memorandum of Appearance filed on 11th June 2001, Summons filed 18th June and Amended Summons filed 19th June 2001, there is no material before this Court to show that the Defendant has cause of action on which to base his application for interlocutory orders. The Plaintiff initiated this case and not the Defendant. What this meant is that even if the claim of the Plaintiff in this action should be dismissed, that would have been the end of the matter. The Defendant would not have been entitled to any other order, as there is no basis in law for this Court to grant any such orders, even if there might be some reason for it. And so even if there might be reason to grant the orders sought, there is no basis in law whereby this Court can grant such orders at this point of time.

Interlocutory orders of the Plaintiff.

Are there serious issues to be tried? The Plaintiff relies on the TRA and Timber Licence in its possession for the logging activities carried out over CBI Land. Defendant responds by filing two affidavits in support of its contention that the interim orders granted should not be continued. In his affidavit filed 18th June 2001, the Defendant seeks to show to this Court that he had been taking steps as far back as 1992 to protect his rights in custom over CBI Land. At paragraphs 4 - 6 he refers to various incidents in which certain persons had sought to carry out logging operations over CBI Land and which he objected to. At paragraphs 7 - 8 he refers to a court case between him and Wilson Sagevaka and Nelson Bako over East and West Barora Ite Island. In his affidavit the Defendant deposes that he disputed the whole of Barora Ite Island. The Isabel Local Court however declined to consider Central Barora Ite on the grounds that it had not been through a Chief’s hearing as required by section 12 of the Local Courts Act [Cap. 19] (see copy of the Isabel Local Court’s decision annexed as Exhibit “DM 5” in the affidavit of David Maure filed 18th June 2001). Instead it merely considered East and West Barora Ite. It ruled that West Barora Ite belonged to the Defendant and East Barora Ite to Wilson Sagevaka. Apart from those court cases and incidents deposed to in his affidavit no litigation had been initiated between the Defendant and the Landowners purporting to grant timber rights to the Plaintiff over CBI Land.

Is there a serious issue over CBI Land in custom? Whilst recognizing that this is a matter solely for the Chiefs, Local Court and Customary Land Court to address, a cursory glance at the claims submitted does indicate some dispute in custom hovers over the said land. On one hand four representatives, Ofoniel Vato Tabo, Peter Mcpherson, Dr. Obed Alemaena and Luke Eta claim to be the representatives of persons entitled to grant timber rights over CBI Land and have executed a timber rights agreement (“the TRA”) with the Plaintiff. On the other hand, the Defendant asserts vehemently that his tribe is the rightful owner in custom over CBI Land. His affidavit does show to some extent that he had taken measures to protect his so-called customary rights over Barora Ite land. Exhibit “C” annexed to the affidavit of Luke Eta and Dr. Obed Alemaena does indicate that it seems that his tribe might have some rights over a part of CBI Land. He has not initiated any claim in custom however said land under the Local Courts Act.

There are however clear serious issues over the question of validity of the TRA and the Timber Licence. The Defendant has raised issues in law in the affidavit of John Hauirae filed 18th June 2001 which might go to show that the TRA and Timber Licence were unlawfully issued and therefore null and void. Those however are matters, which either can be raised in trial or by way of hearing under Order 27 Rule 2.

On the question of adequacy of damages, this in my respectful view must be answered in the affirmative. All the Plaintiff seeks in its Statement of Claim is for permanent restraining orders. I am satisfied damages would be an adequate remedy even if no injunction is granted and the Plaintiff should win its case at the end of the day. On the other hand, I am satisfied the Plaintiff can compensate the Defendant in damages for any injuries it might incur if the injunction is continued.

On the issue of strength of the party’s case, the materials filed to date tip the scale slightly in favour of the Defendant. Accordingly I rule that the interim orders issued by this Court on 24th May 2001 be discharged forthwith.

ORDERS OF THE COURT:

1. Refuse orders sought in Summons filed 18th June 2001.
   
2. Grant order sought in Summons filed 19th June 2001 and order that the Order of this Court dated 24th May 2001 be discharged forthwith.
   
3. Costs in the cause.
   

THE COURT.