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Fioru v Buluoli [2011] SBHC 152; HCSI-CC 459 of 2010 (14 December 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 459 of 2010

BETWEEN:

WILLIE FIORU
(Representing Aimarako Group)
Applicant

AND:

JOHN BULUOLI AND DANIEL
1st Defendant
TOLIFAESUDA
1st Respondent
(Representing the combined Fera Group)

AND:

GEORGE TAFISIFERA
(Representing the Lesiala Four Tribes)
2nd Defendant/ 2nd Respondent

AND:

MALAITA PROVINCIAL GOVERNMENT
3rd Defendant/ 3rd Respondent

Date of Hearing: 30 November 2011
Date of Ruling: 14 December 2011

P. Watts for Applicant
G. Fa'aitoa for 1st Respondent
D. Marahare for 2nd Respondent
R. Firigeni for 3rd Respondent

RULING

1. This is an application filed by the Second Defendant/Applicant ("Applicant") filed on 24 October 2011 for the following orders:
   
   • (1) Leave of the court to up lift and or discharge paragraph 4 of the order issued on the 5th day of September 2011 and perfected on 23rd day of September 2011.
     
   • (2) An order of the court that the Third Respondent make payment according to paragraph 2 of the order made on the 5th day of September 2011 and perfected on 23rd day of September 2011 to the two representatives of two groups Aimarako and Lesiala on equal share as agreed upon by the representatives of the Aimarako and Lesiala groups.
     
   • (3) Any other order deems fit to make.
     
   • (4) Costs
     
2. The Order of 5 September 2011 and perfected on 23 of September 2011 referred to in this application in paragraph 2 above is relevantly in the following terms:
   

"IT IS ORDERED as follows:

1. Application for joinder of Mr. Willie Fioru as Second Defendant and the Malaita Provincial Executive as Third Defendant is granted.
   
2. Upon written identity by Malaita Provincial Executive to abide any order relating to 20% of the sale price or any other funds to be paid to the group involved in the Magistrate Court decision (Aimarako & Lesiala Group). The Third Defendant be excused from inter-parte hearing.
   
3. That this matter is adjourned generally pending reference to Chiefs and or Local Court as to percentage (%) share of each party (Aimarako/Lesiala group).
   
4. That paragraph (1) of the order of 24th March 2011 shall remain in force and shall be abided to with Second Defendant".
   
3. There is no Order dated 24 March 2011 in the court file as stated in paragraph 4 of the above order of 5 September 2011. As clarified by counsel for the First Respondent, that order was made on 23 March and perfected on 29 March 2011.
   
4. Paragraph (1) of the Order dated 23 March 2011 States "1. The Second Defendant shall make no payment to the First Defendant on to the Claimants in respect of the Memorandum of Understanding signed on 14th May 2010 ("the M.O.U").
   

5. The submissions of the Attorney-General shows that he did not instruct the Third Respondent to release funds. This relates to the sum of $250,000.00 paid to the Applicant. The Attorney-General only became aware of this payment on 30 November 2011, in Court.

6. The First Respondent submits that the Court ought to refuse the application, inter alia:

(i) that there is a freezing order in place in respect of the goodwill monies held by the Third Respondent. This is clear from paragraph 1 of the Order dated 23 March 2011. (See paragraph 4 above).

(ii) Order 2 of the Said Order of 23 March 2011 also states:

"Any payment due to the First Defendant under the MOU shall be held by the Second Defendant entire and in fact until further order of this Court". The Second Defendant in this Order is now the Third Defendant/Respondent.

(iii) The above said Order of 23 March 2011 made it all the more clear that the monies held by the Third Defendant/Third Respondent ought to be held as a whole amount and intact. Clearly the First Defendant/Second Respondent has decided not only to defy this Court's Order but also acted in contempt of it.

7. This Court accepts the reasons advanced by the First Respondent as set out above. In view of those reasons, and submissions by the Attorney-General, the Court will refuse this application.

Order 1: Application refused and dismissed.

Order 2: The Applicant pay the First Respondent's costs.

Order accordingly.

THE COURT