HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 173 of 1999
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STANLEY /span>
v
COMMISSIONER OF FOREST
RESOURCES &
MAVING BROS TIMBER COMPANY
LTD
High Court of Solomon Islands
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Before: Lungole Awich, J
Civil Case No: 173 of 1999
Date of Hearing: 21/5/99
Date of Judgment: 21/5/99
J Hauirae for the Plaintiff
P Tegavota for the 2nd
Defendant
Judgment: Ex tempore
JUDGMENT
(LUNGOLEAWICH, J):
Mr. Philip Tegavota, learned counsel for thor the second respondent, Mavingbros
Timber Company Limited, has raised two
preliminary points as reasons for
which today’s proceedings should not be allowed to proceed. Today’s
proceedings are
two applications; one by summons, the other by Notice of
Motion, both dated 12.5.1999 and filed on 13.5.1999. The summons application
asks for order of certiorari to quash decision of the
Commissioner of Forests, the second respondent, the decision by which
licence was granted to
Mavingbros Timber Company Limited to carry out
logging operation on Pavuvu land in the Central Province. The summons
application goes on further to ask for interlocutory injunction to stop the
logging operation now until the case is finally
determined, and that
Mavingbros Company Ltd pay monies received, into a trust account, it file
report of the logging
operation and other orders as the Court deems just.
The notice of motion application also asks for injunction order to stop
the
logging operation now, possibly as an interlocutory order, and such orders
as the Court deems just. I was puzzled
by the obvious duplicity in the two
applications and by the way application for certiorari was commenced,
I asked learned counsel, Mr. John Hauirae for clarification. Mr. Tegavota
then rose to raise preliminary
objections.
Preary Objection
Mr. Tegavota’s preliminary
objections are that: 1. If the applicant has come to Court asking for order
of certiorari, he has first to obtain leave under Order 61 rule 2 of
the High Court (Civil Procedure) Rules, 1964, certiorari applications
cannot be directly made. 2. That interlocutory injunction and the other
orders being asked for cannot be
granted when no process to commence case
has been filed. In this case, Mr. Tegavota submitted that a writ of action,
detailing the Respondent’s claim, should have been filed first.
Reply of Plaintiff e
Objection
Mr. J Hauirae replied that he
would ask Court to exercise discretion and allow his applics to
proceed. He humb humbly
requested Court to note as personal circumstances that
his presence in Court today is his first time in Court as a private
practitioner.
I appreciate the courtesy with
which Mr. Hauirae put his personacumstances. Court can assisassist with
direction orders
and may exercise discretion when appropriate, but care must
be taken to ensure that no prejudice is occasioned to any party
in the case.
Determination (Certiorari)
The fioint of objection
raised by Mr. Tegavota is valid, it is an important point of the lahe law of
practice. What is
required does not involve much on the part of the
applicant. He simply applies, ex parte, that is, without having given
notice to the respondent/defendant. At the hearing, the applicant usually
appears alone,
but the respondent and or any interested party may attend
Court and apply for leave to be heard. The purpose of the hearing
is for the
applicant to persuade Court that he has a good case and good reason to ask
for certiorari order. If the applicant is successful in the
application, he files his case asking for certiorari order. If he
fails, that is not the end of his case. He can still commence his
substantive case by other process such
as writ of summons which in this case
seems to be appropriate, given the apparent dispute on facts. I accept Mr.
Tegavota’s
objection and strike out the application by summons to the extent
that it asks for order of certiorari.
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The applicant is asked to note
that ceari is a discretionary order, it is available only when when
other reliefs are not available. It does not seem suitable in this
case when
the licence issued can be challenged purely on the provisions of the
Forests and Timber Utilisation Act, Chapter 40 of the Laws of Solomon
Islands.
Requirement that Substantive
Case be Filed/b>
The second point of objection
is also a valid one. The applicant is asking for interlocutory injunction
order and other
related interlocutory orders. The purpose of interlocutory
injunction is merely to maintain the status quo (things as they are)
while the case proceeds in Court. It is an order to preserve. He must first
have a case filed in
Court based on specified cause of action. If the need
for interim or interlocutory injunction is immediate, and it is not possible
to file the substantive case in time, the applicant must at least give
undertaking to file the case at the earliest possible
time. Then to succeed
in application for interlocutory injunction the applicant must demonstrate
that he has serious
triable issue in the main case he will have filed or
undertaken to file see John Wesley Talasasa. v Attorney General, Solomon
Taiyo and Others, HCCC No. 35 of 1995 and American Cyanamid v
Ethicon Company [1975] UKHL 1; [1975] AC 396; [1975] 1 All ER 504; [1975] 2 WCR 316.
Without there being substantive case, application cannot be made for
interim or interlocutory orders see the case of: Owners of the Cargo
Lately Laden on Board the Vessel Siskina and Others v Distos Compania
Naviena SA, The Siskina [1979] AC 210 [1979] 3All ER 803, the case cited
by Mr. Tegavota, in particular the speech of Lord Diplock. In the case,
application for interlocutory
injunction in England to hold money due on
insurance claim of shipowners failed because the applicants, the owners of
lost cargoes, could not sue for the loss of their cargoes in England, Courts
in England had no jurisdiction in the cause of
action, the applicants had no
substantive case in Court. The objection succeeds and both applications for
interlocutory
injunction orders are struck out.
In view of Mr. Hauirae’s plea,
I direct that if he intends to proceed further, he may file a writ of
summons stating the
facts of the claim and reliefs sought. He then can bring
summons application for interlocutory injunction and the other interlocutory
orders. He may even file the writ of summons and the application the same
time. In the circumstances, it will be advisable
to serve both the writ of
summons and the summons application on the defendants at least two days
before the date of
hearing the application. There is urgency in the intended
application, but may be the application is not so urgent as to warrant
waiver of the requirement to give two days notice.
Costsn>
It is only correct that costs
of today be given to the second defendant who attended Court. I allow costs
of today only,
to the second defendant.
Delivered this Friday the 21st
day of May 1999
&nb
<
Sam LungoleAwich
Judge
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