IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 136 of 1998

ALFRED UIGA & ALICK SARERE

-v-

WILSON HABO

High Court of Solomon Islands 
Kabui J.
Civil Case No. 136 of 1998 

Hearing: 20th August 1998 & 1st September 1998 
Ruling: 2nd September 1998 

Mrs. Jean Gordon for the Plaintiffs 
Mr. John Katahanas for the Defendant 

RULING

KABUI J: The Plaintiffs applied in Chambers before me for a preservation order for property alleged to be the subject-matter of oral contracts made between the Plaintiffs and the Defendant sometime in October, 1997. This was an exparte application and so the Defendant was not notified of the hearing of this application. The writ of summons together with a statement of claim in the case of Mr. Alick Sarere, the First Plaintiff, was filed in the High Court on 14th August, 1998. During the course of making the application, Counsel for the First Plaintiff, Mrs. Samuel, applied under order 30 of the High Court (Civil Procedure) Rules (“the Rules”) to amend the writ of summons to include Mr. Alfred Uiga, as the Second Plaintiff, as his complaint against the Defendant was exactly the same. I granted this application and an amended writ of summons was handed up to the Court. Two affidavits were also filed in the Court. Mr. Alick Sarere’s affidavit, the First Plaintiff, was filed on 14th August, 1997 whilst Mr. Alfred Uiga’s affidavit, the Second Plaintiff, was handed up to the Court by Counsel after the Court had granted Counsel’s application to amend the writ of summons. On the strength of the amended writ of summons, the statement of claim and the affidavits, there was clearly a prima facie of breach of contract by the Defendant. That is to say, there was a triable issue between the Plaintiffs and the Defendant. Each Plaintiff deposed that the Defendant had agreed to sell to him a Toyota-4 doors station wagon for the sum of $14,000 which sum had been allegedly paid by each of the Plaintiffs. Each Plaintiff also deposed that the Defendant had recently brought in vehicles into the country from Japan but failed to deliver the two vehicles he had promised to deliver. Each Plaintiff did believe that the Defendant wanted to sell the vehicles registered as A7304 and A7305 before each could recover his money from the Defendant. As a result of this exparte application, I made a preservation order on 20th August, 1998 in these terms -

1. That the Defendant deliver both of the vehicles A7304 and A7305 to the Officer-Incharge, Central Police Station for its preservation until the matter is heard and settled. 

2. That all keys to the said vehicles be placed in the custody of the Registrar of the High Court. 

3. That the matter is adjourned to the 1st day of September, 1998 at 9.30 a.m. for interpartes hearing. 

When this matter came up for hearing interpartes pursuant to paragraph 3 of the above Court order, Mr. Katahanas for the Defendant stood up and applied for an adjournment on the ground that he only saw the Court papers the previous day. He also applied to the Court for the above order to be discharged forthwith. His submissions were two-fold. Firstly, he said, the Plaintiffs’ claim was a money claim and their remedy would lie in damages. He said there was no evidence of proprietary rights of the Plaintiffs in vehicles registered A7304 and A7305. He said Order 53, rule 4 did not assist the Plaintiffs because their claim was a money claim. I think what Mr. Katahanas meant here was that there was no evidence to link vehicles registered A7304 and A7305 with the Toyota-4 doors station wagons allegedly to be ordered and delivered by the Defendant. In other words, the Plaintiffs were fishing for temporary relief and must not be allowed to do so under Order 53 rule 4. He said the Plaintiffs were abusing the Court process to get a temporary relief to which they were not entitled on the facts of this case. Rule 4 of Order 53 is as follows - 

“4. It shall be lawful for the Court upon the application of any  party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence”.

The second submission by Mr. Katahanas was that the preservation order had the hallmarks of an injunction and so the principles applicable to applications for injunctions must apply. I was referred to the case of Gandly Simbe -v- East Choiseul Area Council & Others (Civil Case No. 33 of 1997) as an authority for cases dealing with injunctions. That is to say, generally, an injunction would be refused if damages were shown to be adequate remedy far the injury caused to the Plaintiff. Also, an injunction could be refused in the absence of an undertaking by the Plaintiff (though not necessarily so) in appropriate cases. The point being that, if in this case, the preservation order should stand, the Plaintiffs must undertake to pay damages should they fail in their claim at the end of the day. If not, there could be a counter-claim by the Defendant against the Plaintiffs. Counsel for the Plaintiffs opposed the application in general terms. 

In exparte applications, the judge does not always have the benefit of hearing the other side. The judge decides the case upon evidence by affidavits. In this case, Counsel for the Plaintiffs, Mrs. Samuel, made her application far a preservation order under Order 53 rule 1 as read with rule 8 of the Order. Rule 1 of Order 53 is as follows - 

“1. When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the Court, may make an order for the preservation or interim custody; of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured.” 

In contrast, Mr. Katahanas made his submissions under rule 4 of the same order above. What is the difference, if any? The difference is that any application under rule 4 of Order 53 other than application far an order of mandamus or for an injunction or the appointment of a receiver, must be made by notice (see rule 7 of Order 53). Rule 8 of Order 53 does not however stipulate the method of application for relief under rule 1. 

In the absence of such stipulation of the method of application, applications under rule 1 must be guided by the practice in England by virtue of Order 71 of the Rules. That is to say that the Plaintiffs should have sought the preservation order by way of summons in the absence of summons far directions or by way of notice. In this way, the Court would have been in the position to know what the Defendant had to say about such application. By coming to Court on an exparte summons, the Plaintiffs were duty bound to reveal to the Court all the facts known to them including facts that were against them as well. (See Percy Elima -v- Everbright Commercial Enterprises Pty Ltd, Civil Case No. 125 of 1998). This practice is more fully set out at pages 407-408 in Australian Civil Procedure C. by Bernard Cairns, Third Edition, 1992 thus in respect of exparte applications for injunctions: 

In all applications for ex parte injunctions, the applicant must make a full disclosure of all relevant facts to the court. This means disclosure of the facts that are unfavourable to the applicant as well as of those that support the application. All the facts which are material to the application must be brought to the attention of the court. Once again equitable remedies are discretionary and accordingly the court must be apprised of all matters that are relevant to the exercise of its discretion. When the court acts in the absence of a party the burden on the moving party to fully and accurately apprise the court of the true position is increased. Facts must not be withheld, nor may the court be in any way misled, either in what is said in support of the application or as to what is left unsaid.

The consequences of a misleading application are serious. Normally the court dissolves the injunction on the day fixed for the further hearing, or the return date as it is often called, if it becomes obvious that because of a failure to disclose material facts the applicant was given an injunction to which that applicant was not entitled. But still the line has to be drawn somewhere between facts that are material to the application and those that are not. There is no need for the applicant to disclose remote facts which may in certain unlikely events become relevant. If there is a clear nexus between the facts and the relief sought, then the facts must be disclosed. The court will, not dissolve the injunction unless by suppression of facts or by misleading statements a different case has been put from what actually exists.” 

In my view, this practice equally applies to exparte applications for orders for preservation of property etc. In this case, the Plaintiffs did not reveal whether or not the vehicles registered A7304 and A7305 were the vehicles ordered for them by the Defendant and for which they had paid money. 

In other words, there was no evidence of ownership link between the Plaintiffs and these two vehicles. It may be that the Defendant had not ordered any vehicles at all or had ordered them but have not yet arrived. The Plaintiffs can not therefore claim any proprietary interest in A7304 and A7305. Their remedy lies in damages for breach of contract or specific performance as the case may be. The application by Mr. Katahanas is granted and the preservation order I made on 20th August, 1998 is discharged forthwith. I order that vehicles A7304 and A7305 be released and returned to the Defendant immediately together with the keys in the possession the Registrar of the High Court. 

Order accordingly. 

F.O.KABUI
JUDGE