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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No.038 of 2001
FAREAST ENTERPRISES (SI) LIMITED
v
MARTIN TSUKI
High Court of Solomon Islands
Before: Kabui, J
Civil Case No. 038 of 2001
Hearing: 21st March 2001
Judgment: 22nd March 2001
Mrs M. Samuel for the Plaintiff
Defendant not present
RULING
(Kabui, J): The Plaintiff by an ex parte Summons filed on 21st March, 2001, sought the following orders -
1. That the Respondent and or his Agents, Associations and
Assignees be restrained from shipping the two containers of
timber referred to as container no. MLCU 2656141 and CRXU
2733160 respectively, which are the property of the Applicant.
2. That the Applicant be allowed to take possession of the said containers of timber and have them exported and or sold.
3. Any orders that this Court deems fit to make.
At the hearing of the ex parte Summons, Counsel for the Plaintiff, Mrs. Samuel, sought an amendment to the Summons by inserting an order requiring the proceeds of the sale of the timber be deposited into an interest bearing deposit account in any of the commercial banks in Honiara in her name as the Solicitor for the Plaintiff. Counsel also asked that the order for costs be costs in the cause. The Orders sought therefore became 1,2,3 and 4 as opposed to 1,2 and 3 above in the original ex parte Summons. I was told by Counsel for the Plaintiff. Mrs. Samuel, that the matter was urgent so that the Defendant who is in Gizo could not be served. In fact, the annexure to the affidavit filed by Mrs. Samuel on 21st March, 2001, did confirm that containers numbered MLCU 2656141 and CRXU 2733160 were due to be shipped on the Kokopo Chief in the afternoon of the date of the Plaintiff’s Application. The matter was indeed urgent. The ex parte Summons was filed on 21st March, 2001 at 10:45 am and so it would have been difficult to serve the Defendant at Gizo before lunchtime and the hearing of the Application at 1:30 pm. I granted the orders sought and said I would give my reasons today at 10:00 am. I do so now.
Facts
Under a contract signed by the Plaintiff and the Defendant on 2nd October 2000, the Plaintiff provided the fund with which the Defendant was to purchase timber in the Western Province. Upon being exported, the Plaintiff would recover its capital fund plus 20% of the profits. The balance of the profits would be shared between the Plaintiff and the Defendant on an agreed basis. In accordance with the terms of that Agreement, the Plaintiff provided to the Defendant the sum of $100,812.00 for the purchase of timbers. The Defendant did purchase timber from Swift Shipping Division in the Western Province and packed them in two containers and stored them at Noro awaiting shipment to Honiara for export. The Plaintiff paid $1,836.55 as storage charge at Noro. The total volume of timber packed in the two containers at Noro were 34.437 cubic meters of timber. On arrival at Honiara, the Plaintiff discovered that the total volume of timber in the two containers were 54.04 cubic meters. The two containers MLCU 2656141 and CRXU 2733160 are under the name of Willisman Nori and not the Defendant. The Plaintiff claims that the timber purchased with its fund is its property and the Defendant has no ownership rights to it.
This Application
The Plaintiff’s ex parte application was based upon a Writ of Summons together with a Statement of Claim filed on 21st March, 2001. I found that there is a triable issue between the Plaintiff and the Defendant. The Plaintiff also filed a written undertaking on 21st March, 2001 for damages in the event that the Court should rule in favour of the Defendant in the main dispute between the Plaintiff and the Defendant. In terms of balance of convenience, the Plaintiff stood to loose its money if I did not grant the orders sought in its ex parte Summons. The Plaintiff’s Application therefore succeeded. I granted the Plaintiff’s application accordingly. For the sake of convenience, the orders I made are these –
1. The respondent and or his Agents, Associates and Assignees are restrained from shipping and or removing and or moving and or transporting and or selling and or dealing with the containers of timber referred to as MLCU 2656141 and CRXU 2733160.
2. The Applicant be allowed to take possession of the above mentioned containers and have the timbers exported and or sold.
3. That the proceeds of the sale of the timber be deposited into an interest bearing deposit account with any of the commercial banks in Honiara in the Solicitor’s name.
4. Costs be in the cause
F. O. Kabui
Judge
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