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Solomon Motors Ltd v JQY Enterprises Ltd [2025] SBHC 64; HCSI-CC 347 of 2024 (4 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 347 of 2024

BETWEEN

SOLOMON MOTORS LIMITED
Claimant

AND:

JQY ENTERPRISE LIMITED
Defendant

Date of Hearing: 26 February 2025
Date of Ruling: 4 March 2025

Ms L Ramo for the Applicant/ Claimant
Mr W Kadi for the Respondent/Defendant

RULING

AULANGA, PJ:

1. The Claimant applies for an interim injunctive order to stop the Defendant from carrying out a proposed coastal reclamation activity on an uncancelled perpetual estate land registered as PE No. 191-082-9 (“PE-9”) situated in Tandai, West Honiara. The registration of PE-9 was cancelled and reverted to a customary land by the Court of Appeal in Attorney General v Solomon Motors Limited and Ors CAC No. 16 of 2020, a decision delivered on 6^th October 2023. At the hearing of the application, PE-9 is yet to be deregistered by the relevant authority despite the order from the Court of Appeal.
2. The Claimant is the registered owner of Fixed Term Estate No. 191-003-6 (“PN-6”). That land is also situated along the coast of Tandai. It has a common boundary with the Defendant’s registered land in FTE No. 191-003-197 (“PN-197”). Both properties have natural sea water front facing the Central Islands Province.
3. The Claimant operates on PN-6 a fuel station, retail stores, a café and rental accommodation. Customers using the accommodation would use the swimming pool and beach front, and other outdoor amenities on PN-6. Besides its commercial utility, the Claimant also built on PE-6 its residential home with, as described by the Claimant “a natural pristine seafront.”
4. PN-9 is located in front of PN-197 towards the sea. If it is developed through the proposed reclamation, the Claimant says it will significantly interfere with its quiet use and enjoyment of its property, particularly by obstructing its view of the ocean towards the Savo Island and Visale area of Guadalcanal Province. The Claimant also says that the purported reclamation will cause sediment runoffs pollution and other destructions to its surrounding environment which in turn will affect its tourism business on PN-6.
5. On 19^th August 2024, the Claimant received a Public Environment Report from the Director of Environment with a Form 4 Notice of Meeting pursuant to sections 22 and 24 of the Environment Act 1998. The Claimant then was informed that the Defendant had applied for the Development Consent and that a meeting would be convened on 2^nd September 2024 at the Defendant’s shop in White River. The meeting was convened; however, the Development Consent is yet to be given to the Defendant.
6. It is the fear that if the Defendant is granted permission to undertake the proposed reclamation activity on PE-9 that resulted in the Claimant brining this application for an interim order to restrain the Defendant, its agents, servants, employees and or contractors from constructing coastal reclamation on PE-6 until trial or further orders of the Court. The application was supported by a sworn statement of Peter Craig Day, filed on 30^th August 2024.
7. From the facts of this case, the Claimant’s case in its pursuit for the interim injunctive order when viewed objectively is clear in that it relies on the imminent threats from the proposed coastal reclamation of PN-9 to its quiet use and enjoyment of its properties on PN-6. Counsel for the Claimant relied on the case of American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 as adopted in Talasasa v Attorney [1995] SBHC 27 and submitted that the materials filed by the Claimant have satisfied those tests for the grant of the interlocutory injunction against the Defendant.
8. The Defendant relied on a sworn statement of Jiang Ying Qiang, filed on 8^th October 2024 for its case. The Defendant made a counter submission that the Development Consent is yet to be produced to the parties and so it is premature for the Claimant to seek the interlocutory injunctive order. Counsel submits that it is still uncertain whether the Defendant will be granted the Development Consent to under the proposed activity on PN-9. The proper recourse, as submitted by counsel Kadi, is for the Claimant to wait and challenge the Development Consent by following the procedure prescribed under the Environment Act 1998. The Defendant’s counsel further submits that the Defendant’s current development activities on PE-197 will be affected if the order sought is granted. Hence, as argued, the application should be refused.

Decision

9. The type of injunction sought by the Claimant in this case is quia timet or precautionary injunction. It is an injunction granted to restrain an apprehended threat or injury where the injury is certain or very imminent. A mere fear of the threatened harm or damage without more is not sufficient to warrant the granting of the injunction. As such, I do not think the principles of the American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 are relevant to this application. This same view was held in Arosi Vision Link Services v Mae [2003] SHC 51.
10. The evidence in the sworn statement of Peter Craig Day revealed his fear of the proposed coastal reclamation activity on PN-9, as described at paragraph 14, but it fails to show with certainty that the proposed activity will likely to occur since there is no Development Consent Report before the Court. The Development Consent is a formal disclosure of the authority or permission to undertake reclamation on PN-9. Besides, there is very little been produced to this Court to show that the proposed activity will certainly occur so that the grant of the interlocutory order, as sought by the Claimant, is of a necessity.
11. In Saki v Ross Mining (Solomon Islands) Ltd [1997] SBHC 97, the Court referred to the decision of Lord Dunedin in Attorney-General for Dominion of Canada v. Ritchie Contracting and Supply Co. Ltd. [1919] A.C 999, at page 1005, where his Lordship states:
    • “But no one can obtain a quia timet order by merely saying "Timeo"; he must aver and prove that what is going on is calculated to infringe his rights."
12. The Court in Saki v Ross Mining (Solomon Islands) Ltd (supra) when rejecting the submission for a quia timet injunction further referred to a passage in "Snell’s Equity", 29^th Edition, quoted by Mr Gyles, in emphasising the need for the Claimant to prove with cogent evidence of the imminent threat. In order to successfully obtain the order, the Claimant must able to (at page 651):
    • ". . . establish a strong case; "no one can obtain a quia timet order by merely saying ‘Timeo’." He must prove that there is an imminent danger of very substantial damage, or further damage, eg by showing that the threatened act is "attended with extreme Probability of irreparable Injury to the Property of the Plaintiffs, including also Danger to their existence".
13. In this present case, the best the evidence of the Peter Craig Day can give is his believe or personal assumption that the proposed reclamation will likely to take place on the purported PN-9 following his receipt of the Public Environment Report on the 19^th August 2024. However, since the Development Consent is yet to be given by the Ministry of Environment, Climate Change, Disaster Management and Meteorology or evidence that will show that the proposed reclamation is certain to occur, that renders his believe a mere assumption. Whilst the meeting required by the Form 4 Notice and the Public Environment Report had already convened on the 2^nd September 2024, without the evidence of any Development Consent, that has not shown to my satisfaction that there is absolute certainty the proposed reclamation will commence on PN-9. As rightly stated by the authors in Equity and Trusts in Australia and New Zealand by G E Dal Pont and D R C Chalmers, at page 594 (referred to by the Court in Saki v Ross Mining (Solomon Islands) Ltd)) (supra), the Claimant must show with strong probability of the likelihood of occurrence of the proposed activity that will cause imminent and substantial damage to its property or business:
    • "In a quia timet application, the plaintiff must show a strong probability that what the defendant proposes to do will cause imminent and substantial damage to the plaintiff’s property or business. The greater this apprehended damage, the more readily will the Court intervene despite uncertainties and deficiencies of proof. The plaintiff must demonstrate a causative connection between the allegedly wrongful behaviour of the defendant and the inevitability of the loss to the plaintiff if such action is not restrained forthwith. This onus will not be discharged where the fear existing in the plaintiff’s mind arises, not from anything done or threatened by the defendant, but from the plaintiff’s own view of her or his rights and disabilities."
14. In this case, there is little or no evidence from the materials relied on by the Claimant to show with strong probability the occurrence of the proposed coastal reclamation activity on PN-9 that will cause imminent and substantial damage to its property or business. The evidence is lacking to show any “causative connection between the allegedly wrongful behaviour of the defendant and the inevitability of the loss to the plaintiff”, to use the words in Equity and Trusts in Australia and New Zealand. Whilst there is fear shown by the Claimant of the proposed activity on PN-9, without the necessary evidence to prove that it will certainly take place in the future, that alone cannot ground a case for the granting of the interim injunctive order. As stated by Kabui. J, (as he then was) in Arosi Vision Link Services v Mae (supra), at page 2, that in order to secure a quia timet injunction, the applicant must “prove that the injury apprehended is of weighty concern and is imminent if not prevented.” In this case, the Claimant has failed to demonstrate in evidence that the proposed reclamation is imminent and bound to occur and it must follow that the Claimant’s application for the interim injunctive order is therefore refused, with costs of the application to be paid by the Claimant on standard basis, to be taxed if not agreed.

Orders of the Court

1. The Claimant’s application for the interim injunctive order is refused.
2. Costs of the application to be paid by the Claimant on standard basis, to be taxed if not agreed.

THE COURT
Hon. Justice Augustine Sylver Aulanga
PUISNE JUDGE