Sunway (SI) Ltd v Manu [2019] SBHC 45; HCSI-CC 476 of 2018 (30 April 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sunway (SI) Ltd v Manu
Citation:
Date of decision:	30 April 2019
Parties:	Sunway (SI) Limited, Bawest Holdings Limited v Richard Manu, Thomas Watairua, Ate kobaka and Ben Mahana
Date of hearing:	20 March 2019
Court file number(s):	CC 476 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	Claim dismissed First and second Claimants to pay the defendants cost to be taxed if not agreed
Representation:	Mr. J To’ofilu for the Claimants/Applicant Mr. A Ngaingeri for the Defendants/Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	MLS Import and Export Company Ltd v David Maure, American Cyanamid Company v Ethicon Ltd [1975] UKHL 1; [1975] AC 396

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 476 of 2018

SUNWAY SI LIMITED
First Claimant

BAWEST HOLDINGS LIMITED
Second Claimant

V
RICHARD MANU, THOMAS WATAIRUA, ATE KOBAKA AND BEN MAHANA
Defendants

Date of Hearing: 20 March 2019
Date of Ruling: 30 April 2019

Mr. J To’ofilu for the Claimants/Applicant
Mr. A Ngaingeri for Defendants/Respondents

RULING ON APPLICATION/CLAIM FOR INJUNCTION

KOUHOTA J

This claim was first filed as an urgent application for injunction seeking orders that;

1. The defendant, their agents, associates, invitees and friends from interfering or disturbing the claimants logging operations under Licence No. A 10213A.
2. The defendants, their agents, associates and invitees be restrained from interfering road blocking the claimants logging operations within Tawapuna customary land under the second claimant's licence.
3. Should orders 1 and 2 above are breached, police are authorised to arrest the defendants and made appropriate charges if necessary.
4. Cost against the defendants.

Background

The first claimants/Applicant is a company incorporated under the laws of Solomon Islands and is carrying out business of logging in a customary land they claim was Pwaranaisuku customary land, West Bauro, Makira Province. The second claimant/applicant is a company incorporated under the laws of Solomon Islands and holds a Felling Licence A10213A

The defendants are Solomon Islanders residing in West Makira and claim ownership of Wairaha customary land in West Makira.

The claimants alleged that the defendants, on the 27^th November 2018, carried out a roadblock on the access road within Pwaranaisuku customary land.

The matter, first, came to court by way of an urgent application for injunction orders to restrain the defendants, their agents, associates, invitees and friends from interfering with the claimants logging operation under Licence No.A10213A. The application was filed on 30^th November 2018 but was listed for inter-parte hearing as the court considered there was no urgency in the matter to proceed ex-parte. The inter-parte hearing was listed for 19^th January 2019, adjourn a number of times and finally concluded on 23^rd March 2019.

On the evidence and materials before the court, there was no dispute as to the alleged roadblock, nor was there any dispute as to the validity of the Claimant’s felling licence. The bulk of the evidence, however, shows that there was a dispute over the land on which the claimants had been operating and where the roadblock was made. The claimants claim that they were operating on Pwaranaisuku customary land whereas the defendants said that the claimants had engrossed into Wairaha customary land owned by the defendants. On the evidence, there is clearly a dispute as to the location of the boundaries of Wairaha and Pwaranaisuku customary land, unfortunately, these are issues which this court has no jurisdiction to determine.

The claimants filed their urgent application for injunctions without filing a substantive claim. The claimants finally filed the substantive claim on 15th March 2019 after the inter-parte hearing commences. The substantive claim is couched in exactly the same way as the urgent application thus what is before the court is an application and claim for injunctions. This issue was raised in the submission of counsel for the defendants and he urged the court refused the application. He refers the court to the case of MSL Import and Export Company Ltd v David Maure SBHC HC-CC 066 of 2001 in which his Lordship Palmer J as then was referred to the Siskina [1979] AC 210 where Lord Diplock at p.256 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 issues for consideration in determining whether to grant an injunction or not have been considered in this jurisdiction on numerous occasions based on the decision of the House of Lords in American Cyanamid Co. (No.1)v Ethicon Ltd [1975](1) HL 5 February [1975] UKHL 1; [1975], AC 396

They can be summarised as follows;

(1) Whether there are serious questions to be tried,
(2) If so, what is the ‘balance of convenience?
(3) Would damages be an adequate remedy for both parties;
(4) The relative strength of each party’s case; and
(5) Maintenance of the status quo.

In the present case, the evidence clearly shows there is a triable issue with regard to the boundary of Wairaha and Pwaranaisuku customary land but they are not issues before this court, hence, it is up to the parties to take those issues before the appropriate forums if they wish to have the issues resolved that is entirely up to them as the circumstances of this case does not warrant that I make such directions.

In the present case, the claimants alleged no other cause of action except seeking injunction. I believe just as in a case of interlocutory injunctions a claim for permanent injunction must also be based on a pre-existing cause of action against the defendants.

The defendants did not deny setting up a roadblocks but they claim the claimants have trespassed on to their customary land, the claimant were not able to show that the roadblocks are continuing or there was a threat of the defendants continuing the roadblocks moreover there was no evidence that the roadblock was done within the Pwaranaisuku customary land as such I believe the defendants have the right to use reasonable force to deter persons they reasonably consider as trespassers from entering their land. The onus is on the claimants to prove their asserted right, hence, the claimants must prove that the land on which the roadblock was staged is, land over which they have a valid felling licence to operate in order to establish any right or interest.

The claimants seem to rely on two Aorisi Local Court decision of 2003. I had read the decision and found the decision was in regard to the registered portion of the Pwaranaisuku land only, hence, the claimants cannot rely on the Local decisions as that is not where the defendants had set up the roadblock.

The claimants, nor the landowners, behind the claimants logging operation have shown any proof that the land where the roadblocks were staged is Pwaranaisuku customary land as no map used during the timber right hearing showing the boundaries of Pwaranaisuku and Wairaha customary lands was produced as evidence. In the absence of any such proof and in view of the manner in which the claim was couched there seem to be no cause of action upon which the injunctive orders sought could be based. This means the claimants have no pre-existing cause of action against the defendants on which the orders sought could be based. The claim is therefore dismissed with cost against the 1^st and the 2^nd claimants. I order as follows;
Orders

5. Claim is dismissed.
6. 1^st and 2^nd claimants to pay the defendants cost to be taxed if not agreed.

IRA.

THE COURT
Justice E Kouhota
Puisne Judge