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Bintan Mining SI Ltd v World Link Resources Ltd [2019] SBCA 18; SICOA-CAC 39 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. On 20 September, 2018, the appellant issued a Claim bearing High Court Civil Case No. 336 of 2018. In that Claim, the appellant was the Claimant and the Respondent was the defendant.
2. In the Claim the appellant, apart from seeking damages and costs, sought orders that the respondent its servants or agents be restrained from entering or accessing the land described as Parcel Number 291-001-002 (land) until the expiry or sooner lawful determination of the appellant’s lease of the land.
3. Further, that the respondent, its servants, contractors or agents be restrained from using the land for mineral production, storage, processing and export or associated activities, including receiving, storing and processing minerals, transporting minerals, loading minerals, offloading, storing, maintaining, handling and transporting machinery, equipment and supplies associated with mining activities in any place and all associated activities including office and storage facilities until the expiry or sooner lawful determination of its (appellant) lease of the land and harassing or threatening the appellant, or its servants.
4. The appellant also sought permanent retraining orders against the respondent, its servants, contractors or agents from interfering with, obstructing, intimidating, harassing, or threatening the appellant, or its servants, contractors, agents or invitees.
5. The subject land is situated in Rennell Island, Rennell Province, Solomon Islands, where both parties are engaged in mining operations.
6. In the Statement of case, the appellant claimed it had a lease with the Premier of Rennell and Bellona Province to lease the land for 25 years commencing 26 July, 2018 and that the Commissioner of Lands had given his consent to the lease and the lease was registered in the lease register under the Land and Titles Act, 1996. The appellant claimed the respondent was already doing things for which the above restraining orders were being sought. The appellant claimed that in in a letter dated 23 August, 2018, its lawyers advised the respondent that it was not permitted to be on the land and carry on mining operations and was advised to cease its mining operations and remove all its machinery from the land but it refused.
7. On 21 September, 2018, pursuant to Rule 7.38 of the Solomon Islands Civil Procedure Rules 2007, the appellant filed an urgent application for interlocutory injunction against the respondent. The application was argued inter partes on 10 October, 2018. The application among others sought an injunction restraining the respondent, its servants, contractors or agents from entering upon or accessing the land, pending the determination or resolution of the proceedings. The application sought to injunct the respondent from carrying out mining related activities.
8. On 12 October, 2018, the Court delivered its decision, in which it restrained both the appellant and the respondent, their servants, contractors, or agents from engaging in mining activities pending final determination of the matter, or until further notice. All properties for both parties may still remain on the land for safe keeping and not for mining. Both parties were allowed access to the land for purposes of safe keeping their properties. The Court ordered that should any of the parties be affected by decision, the learned trial judge would deal with them at short notice.
9. In his reasons for decision, the learned trial judge among others said:
   • ’’Having read the materials, there are two (2) serious issues that justified making the above orders.
   • First issue is the allegation that development consents of both parties have either expired and or suspended; especially defendant party’s development consent. Secondly ETH, a company who claim to hold a lease over PN 291-001-002 and with whom defendant is partnering in mining related activities over the said land is already de-registered. ETH is the alleged lease holder. Defendant is its mining contractor. Likewise it is alleged against claimant party, the lease granted to APID is already expired and or terminated. Claimant is APID’s contractor. Therefore claimant has no right to operate on the said land. Main issue for trial is which party has a valid lease over PN 291-001-002? Prudent if I can do a Rule 12.11 hearing on this preliminary issue of law.
   • In view of these serious allegations it is just and convenient that both parties be restrained. And that the matter shall proceed to trial quickly on the allegations raised.
   • Accordingly, the orders of this court are as already perfected on 12/10/2018”.
10. The appellant raises 11 grounds of appeal in which it in principle claims the decision of the learned judge miscarried because restraining orders were sought against the respondent. It is trite law that the purpose of an injunction is to preserve and protect the interest, including any property in dispute, to maintain the status quo to maintain a state of affairs which is on the balance of convenience appropriate to be maintained until the dispute is resolved one way or another. Applying this principle, in this case the restraining orders should have been granted only against the respondent, in favour of the appellant.
11. The learned primary judge granted the interim relief which were not before him, as there was no application to restrain the appellant. The Court had no power to grant the relief it granted. The appellant was seeking interim injunctive relief against the respondent to protect its rights. In Siskina (Cargo Owners) v. Distos SA [1979] AC 210, at p. 256 Lord Diplock echoed this principle:
    • “The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction."
12. Grant of an interim injunction is an equitable relief which is discretionary, the exercise of discretion by a judge must be based on proper principles. In this case there was no basis at all for the learned primary judge to grant the relief he granted. The decision of learned trial judge therefore miscarried.
13. The appeal is therefore allowed with costs to follow the event.
14. Consequently, the Orders of the Court are as follows:
    1. The appeal is allowed.
    2. The orders of the High Court are set aside to the extent that they restrain the activities of the appellant.
    3. Costs will follow the event.

Goldsbrough P
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member