HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 248 of 2002

DANNY KENNEDY

–V-

THOMAS L RIDENOUR

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 30th January 2003
Date of Judgment: 30th January 2003

Mr A Radclyffe for the Appellant
No appearance for the Respondent

MURIA, CJ; On the 30th January 2003, the Court allowed the appeal and said that reasons for allowing the appeal would be published later. This I now do so. This is an appeal against the order of injunction granted by the learned Principal Magistrate Gizo. Principally the reason for allowing the appeal is that the Magistrates Court was wrong to grant an injunction order to a party in the absence of a cause of action first placed before the Court. I think this is crucial in this appeal. In the absence of a cause of action first filed before the Court, injunctive relief should not be granted. This is because the right to interim or interlocutory injunction is not a cause of action but only incidental to a pre-existing cause of action. His Lordship, Palmer J, clearly set this out in Augustine Rose –v- Marvingbros Timber Company Limited , applying the principles of law as laid down in Siskina (Cargo Owners) –v- Distos Compania Naviera S.A. (“The Siskina”). Lord Diplock said in the latter case:

“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 amendable 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 the position under our rules here also. Order 53 of the High Court (Civil Procedure) Rules, provides the Court with power to grant interim injunctive relief where it is “just and convenient” to do so. The application for such relief may only be made after the issue of the Writ of Summons. In the Magistrate’s Court, the power to grant injunctive relief is exercisable in “any suit instituted in the Magistrate’s Court.” In other words, it is dependent upon there being a pre-existing cause of action against the defendant.

In this case, there was no cause of action first filed in the Magistrate’s Court against the defendant. The only material relied upon was an affidavit by the plaintiff sworn on 17th October 2002 and his letter dated 16th October 2002. I respectfully agree with what His Lordship, Palmer J said in Rose –v- Marvingbros regarding the use of affidavit to support an application for interlocutory relief. His Lordship pointed out that an affidavit, though it may set out what the rights of the applicant are, is not a cause of action and cannot be described as such. The learned Principal Magistrate in this case, clearly, should not have proceeded with the application by the Plaintiff for interim injunction without there being a cause of action first filed in the Court. This was a fundamental error in this case and is fatal to the Plaintiff’s case. All the other grounds raised in the appeal, in my view, are incidental to this main ground that I have discussed and so I need not deal with them.

In addition, on a jurisdictional point of view, a claim for interim injunction is not itself sufficient to confer jurisdiction in the Court in the absence of a cause of action first filed. On this limb, however, principles of private international law have worked modification into it, for practical purposes, to enable the Court to grant the interim relief where proceedings in a convention state have been or about to be commenced. A modification very much applicable more in mareva injunction.

In this case, it is clear the defendant’s appeal must succeed. The appeal is allowed. The interim order granted by the Magistrates’ Court at Gizo on 17th October 2002 is revoked in its entirety.

(Sir John B. Muria)
Chief Justice