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Omex Ltd v Aleve [2000] SBHC 1; HC-CC 008 of 2000 (24 January 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 008 of 2000

OMEX LIMITED

–v-

TIMOTHY ALEVE AND OTHERS

High Court of Solomon Islands
(F.O. KABUI), J)

Date of Hearing: 21 January 2000
Date of Judgment: 24 January 2000

L. Kwaiga for the Plaintiff
Defendant not Present

JUDGMENT

(Kabui, J): This is an ex parte application by Summons filed on 14^th January 2000 by Omex Limited (the Plaintiff) seeking the following Orders:-

1. The 24 feet aluminium Boat and 40 horse outboard motor Engine in the possession of the Defendant be surrendered to the custody of the court forthwith until further orders of this Court.
   
2. An order restraining the Defendant, his relatives, members of his Aleve tribe, his agents and associates from removing or moving any properties of the Plaintiff, and or disturbing the smooth operation of the Plaintiff and or entering the Plaintiff’s Nggepai Logging Camp.
   
3. Cost be in cause.
   
4. Any further orders the Court deems fit.
   

The Facts

The Plaintiff and VALAHOANA Company Integrated Development (the Licensee) signed a Logging and Marketing Agreement on 22 September 1998 for the felling, extraction and marketing of logs from the land covered by Licence No. TIM/2/117 issued by the Commissioner of Forest Resources on 21 September 1998. A Standard Logging Agreement had earlier been signed under which the Licensee would be responsible for landowner demands and claims arising from the logging operation. On or about 2 January 2000, the Defendant demanded from the Plaintiff in writing the payment of $15,000 for each shipment of logs as access fee for the use of Kasere Bay in New Georgia, Western Province. On or about the same date, the Defendant removed from the possession of the Plaintiff and without its permission a 24 aluminium canoe and a 40 horse power engine being the property of the Plaintiff at the Plaintiff’s logging camp at Nggepae. By letter dated 6 January 2000, the Defendant informed the Plaintiff that he would not release the canoe and the engine to the Plaintiff unless the Plaintiff paid $90,000 anchorage fee to the Defendant. A meeting held on 8 January 2000 between the Defendant and representatives of the Plaintiff did not resolve the issue of the return of the canoe and the engine to the Plaintiff. Members of the Defendant’s tribe had also threatened to cause disturbance at the Plaintiff’s Camp site and to remove further property if their demand for the payment of $90,000 was not met by the Plaintiff. The Plaintiff has now filed a Writ of Summons and a Statement of Claim in the High Court in order to recover the canoe and the engine physically or their value.

The Orders Sought

The first Order the Plaintiff seeks is the custody of the canoe and engine by the Court. Mr. Kwaiga cites rules 1 and 2(a) of Order 53 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) as his authority for seeking this Order for the custody of the canoe and engine by the Court. Rule 1 of Order 53 above states

“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 any order that the amount in dispute be brought into Court or otherwise secured.”

The underlying reasoning behind the text of Order 53 above is a stated at page 395 of Australian Civil Procedure by Bernard C. Cairns, 1981. That is

“The court does not stand by and allow the subject-matter of proceedings to be destroyed or dissipated by those who have control of it. In the case of perishable property the court may order a sale, and hold the proceeds pending the outcome of the action. A similar power also exists in regard to property in the possession of a party if it is likely that he will destroy or dispose of it. The court may order the property to be detained, preserved and inspected in preparation for pending proceedings. These orders may be made on an interlocutory application by one of the parties.”

Clearly, the Court does have the power to make orders for detention, preservation and inspection of property where it is proper to do so. However, in the context of rule 1 of Order 53 above, the Plaintiff must demonstrate a prima facie case of liability for breach of contract and the denial of liability by the defendant. The facts of this case do not however point to a prima facie case of liability under a contract situation for breach of contract and denial of liability by the Defendant. This is a case of determining who is the lawful owner of the canoe and engine in question having the right to possession. The Plaintiff has already filed its case in the High Court for the recovery of possession or at least the value of the canoe and engine. It is a case in detinue for the recovery of property in wrongful possession. Even if this were a case of contract within the ambit of rule 1 of Order 53 above, the Plaintiff has failed to produce any evidence of the need to protect the canoe and the engine. That is to say, there is nothing to show that the canoe and engine are in danger of being destroyed so that there is a need to preserve them pending the outcome of the main action to recover them from the Defendant. There is, in my view, no further need for the Plaintiff to do more than to prosecute its main action in detinue already filed in the High Court awaiting a hearing date. I would not grant this Order for the reasons stated above.

The second Order the Plaintiff seeks is an injunction against the Defendant, his relatives, members of his tribe, agents and associates preventing them from removing or moving any properties of the Plaintiff or causing disturbance to the smooth operation of the Plaintiff or entering the Plaintiff’s Camp site at Nggepae. I am a little concerned that this application is being made ex parte without notifying the Defendant to present his side of the case. There is no evidence to show that this application is an urgent one so that it can be heard without notice to the Defendant. The affidavits of Messrs Hoo sworn on 13 January 2000 and Aleve sworn on 17 January 2000 say nothing about the urgency of this application nor has it been addressed by Mr Kwaiga in his submission to the Court. In this context, I would adopt the remarks made by my brother Awich J in Andrew Kofela v Elisha Sanga, Stanley Beka (as representing the Sanga family) Civil Case No. 206/99 which sets out the rules of practice in making ex parte application for interim injunctions in general. At page 2 of Awich J’s judgement delivered on 24 June 1999, Awich J, amongst other things, said

“I have said before that the choice to come to Court ex parte is not made purely for the convenience of the applicant so as to gain undue advantage in the case nor is it made arbitrarily, and most importantly, not so as to deny the respondent opportunity to be heard”.

I would not grant this order on this basis. Even if I am wrong, I would still refuse this order on another ground. There is indeed a triable issue in this case being the determination of title to the canoe and the engine. But where does the balance of convenience lie in this case? If I refuse this Order in favour of the Defendant and the Plaintiff wins his case, would the Plaintiff be adequately compensated for his loss? If the answer to this question is that the Plaintiff does not suffer any loss then I need not grant this Order. If I grant this order on the undertaking that the Plaintiff would abide by any Order for damages, would the Defendant be adequately compensated. If the answer to this question is yes, then I would grant this Order. If I am in doubt then I must take into account all other factors bearing in mind the need to keep the status quo at the time of the Defendant’s conduct. If there is still doubt in my mind, then I must take into account the comparative strength of each of the parties' case on the evidence before me.

In this case, the Plaintiff’s application for this Order is based upon two grounds. First, the Plaintiff is fearful of a repeat of the Defendant’s conduct in removing further properties from the Plaintiff’s Camp site at Nggepae. Second, the Plaintiff is fearful of disturbance from the Defendant and members of his tribe in the future. These threats are deposed to by Messrs Hoo and Aleve in their respective affidavits already cited above. In my view, these alleged threats are general in nature for the Court to act upon in this case. I have considered Exhibit “JA1” attached to Mr Aleve’s affidavit cited above but feel it does not constitute a real threat to the Plaintiff, though potential it may be. I do not think by my refusing this Order, the Plaintiff would suffer any irreparable damage. Any further criminal activity by the Defendant and members of his tribe may be sanctioned by the criminal law or civil suit if further properties are removed without the Plaintiff’s permission.

It is also open to the Plaintiff to ask the Court to determine the ownership of the sea by custom per se or in terms of fishing rights whichever the case may be and make the Defendant a party to that case. This may resolve the problem of claim for anchorage fee by the Defendant. There may then be a need for an injunction against the Defendant and members of his tribe pending the resolution of the claim by them by the Court. In the end I do not think this is a case where I should grant the Order for injunction sought by the Plaintiff. The Plaintiff’s application is therefore refused. I make no order as to costs.

F.O. Kabui
Judge