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Russel Islands Plantation Ltd v Fera Baita'a (The Ship) [2013] SBHC 96; HCSI-CC 4 of 2013 (29 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 4 of 2013

BETWEEN:

RUSSELL ISLANDS PLANTATION LIMITED
First Claimant

AND:

LEVER SOLOMONS LIMITED
Second Claimant

AND:

THE SHIP "FERA BAITA'A"
First Defendant

AND:

THE SHIP "ANGI TANGI FERA"
Second Defendant

AND:

REX FERA
Third Defendant

AND THE PARTIES ARE JOINED FOR INJUNCTION PURPOSE DAILY

AND:

THE ATTORNEY GENERAL
(for and on behalf of the Police)

Date of Hearing : 7 June 2013
Date of Ruling : 29 July 2013

Mr. Nimepo for the Claimants
Mr. Marahare for the First, Second and Third Defendants
Ms. Soma for the Fourth Defendant

RULING

1. This is an Amended Application filed by the First, Second and Third Defendants on 30 April 2013 for the following relief: (1) An order that the Amended Claim (Category A) filed on 7 March 2013 be struck out pursuant to rule 9.75 of the Court (Civil Procedure) Rules 2007, on the basis that no reasonable cause of action is disclosed and that the proceeding is an abuse of the process of the court; (2) Consequence upon order 1 hereof, an order setting aside the interlocutory orders made, sealed and perfected on 17 January 2013; (3) Consequent upon orders 1 and 2 hereof an order for damages, to be assessed resulting from the adverse effects of the injunction imposed in the proceeding; (4) Costs of and incidental to this application and the proceedings generally; (5) such further and other orders as this Honourable Court thinks fit.
   
2. The Claimants seek the following relief in their Amended Claim: (1) A permanent injunction to restrain the First, Second and Third Defendants from travelling to Yandina and to other parts of Russell Islands owned by the Second Claimant and managed by the First Claimant and from loading and transporting Copra and Cocoa to Honiara or to other market centres for sale; (2) A permanent injunction to restrain the Third Defendant from organising or arranging by himself or through any other persons any harvesting, producing, purchasing, shipping and selling of Copra and Cocoa produced from the Claimants' Plantations in the Russell Islands; (3) Damages for unlawfully receiving, selling and profiting from the Claimants' copra and cocoa on Russell Islands; (4) The Fourth Defendant shall do everything in his power to ensure that all the police officers under his commend shall not obstruct the First and Second Claimants' fundamental rights to the protection of the law and shall not discriminate against the First and Second Claimants by refusing to accept and act on Criminal Complaints made by the First and Second Claimants against the First, Second and Third Defendants and by other persons and any other persons carrying out unlawful and criminal acts against the First and Second Claimants; and costs.
   
3. There is evidence that on 5 November, Mr. Tatau saw a heap of Copra bags at the Yandina Wharf being loaded into the Second Defendant's ship. This witness also gave evidence of threats from knives, bows and arrows from hostile group at Yandina. If these threats are true, then, the effective way to deal with them is to report them to Commissioner of Police to direct the Head of CID to carry out investigations rather than initiating a civil claim as in this case. It is the duty of these law enforcement officers to act accordingly, as the allegations regarding the incident are serious.
   
4. The imposition of permanent injunctions on the Defendants would breach their rights to freedom of movement while they have not been sentenced to custodial sentences for any criminal offence.
   
5. The interlocutory restraining orders being imposed over the property cover copra and cocoa harvested from plantations owned by village farmers. It should be set aside so that the farmers could remove them for sale. The owners of the copra bags, which Mr. Tatau saw being loaded into the ship were not identified.
   
6. This claim is frivolous, vexatious and discloses no cause of action. It is accordingly struck out.
   

Order: (1) The interlocutory orders perfected on 17 of January 2013 are set aside.

(2) This claim is struck out as it is frivolous and vexatious, and discloses no cause of action.

(3) This case is adjourned to 18 August 2013 at 9.30am for mention.

THE COURT