Smith-Loretz Enterprises Ltd v Saikile Development Company Ltd [1996] SBHC 107; HCSI-CC 213 of 1994 (18 October 1996)

CC, 213, 94.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.213 of 1994

SMITH-LORETZ ENTERPRISES LIMITED and
ATHOL SMITH-LORETZ AND VERITY SMITH-LORETZ

-v-

SAIKILE DEVELOPMENT COMPANY LIMITED and
DHORA SAWMILLING COMPANY LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 213 of 1994

Hearing: 11th and 12th April 1996
Judgment: 18th October 1996

A. RadcJyffe for the Plaintiffs
G. Suri for first Defendant

MURIA CJ: The plaintiffs’ claim is for rescission of contract and damages for fraudulent misrepresentation and/or breach of contract in the alternative. The first defendant denies any fraudulent misrepresentation and/or breach of contract.

Brief background

The first plaintiff is a limited company incorporated in New Zealand and owned by the second plaintiffs. The first defendant is a company incorporated in Solomon Islands and owned by members of the Saikile Tribe.

In or about April 1990, the second plaintiffs received a letter from the representatives of the first defendant seeking business assistance. Following that letter, the second plaintiffs invited the representatives of the second defendant to New Zealand to look at their machines and their operation. The two representatives of the first defendants who went over to New Zealand were David Kera and Philip Bennett.

The plaintiffs had also been briefed on the first defendant’s operation as well as the Saikile Community organisation (Exhibit 15).

Having looked at the plaintiffs’ operation and touring around the North Island of New Zealand discussions then took place between the plaintiffs and visiting representatives of first defendant during which it was verbally agreed that a joint venture between the parties be set up to do sawmilling.

For the purpose of the sawmilling joint venture, the first plaintiff and first defendant entered into a joint venture agreement to mill timber on Dhora Island. Consequently the second defendant (Dhora Sawmilling Co. Ltd) was incorporated in Solomon Islands to carry out the terms of the joint venture agreement. Dhora Sawmilling is owned by first plaintiff and first defendant on a 50.50 per cent basis.

On the 14th September 1990 an Agreement (Exhibit 4) was entered into between the plaintiffs and second defendant where by the plaintiffs were to provide the necessary machinery for the operation and the second defendant was to guarantee monthly payments of the costs of those machinery. On the same day also on an Agreement (Exhibit 5) was signed between the first defendant and second defendant whereby it was stipulated that the second defendant was to be hired by the first defendant so and to enter and carry out timber felling and processing operations on Dhora Island and on Mare.

The joint venture operation under the second defendant got underway and was making profits especially in 1993. The operation, however, came to a complete halt in June 1994, one month after company production stopped.

The plaintiffs’ claim

The plaintiffs’ claim consists of a number of categories. Firstly the plaintiffs want the contract be rescinded. Then there is the claim for loss of value of shares in the second defendant including future loss of 50% share of profits; for breach of contract whereby the second defendant failed to pay for the machinery; failure to obtain timber rights agreement; failure to disclose existing customary land disputes over Dhora Islands; and failure to properly ensure that the joint venture operation succeed.

The claim can be conveniently placed into two main categories, namely misrepresentation and breach of contract, although breach of contract is only pleaded in the alternative.

The argument for the plaintiffs

On behalf of the plaintiffs, Mr. Radclyffe argued that David Kera and Philip Bennett who represented the first defendant went to New Zealand and had discussions with the second plaintiffs. It was during those discussions that the parties verbally agreed that a joint venture operation be established between them. In the course of those discussions, Exhibit 15, headed “A BRIEF FOR ATHOL SMITH: BY DAVID KERA” had been presented to the second plaintiffs. That Brief, argued Counsel, gave assurance that the proposed joint venture would not be adversely affected by customary land disputes as the Saikile community “is now rest assured that no one can dispute them again” since ownership of the land had already been tested in the Court. Mr. Radclyffe submitted that the assurance was not true as land disputes were still hovering over the land on Dhora Island.

In addition, Mr Radclyffe argued that assurance of a valid timber milling licence was also given under the Agreement, Exhibit 5. The assurance was not true, argued Counsel. The plaintiffs relied on the assurance to their detriment.

Having relied on those assurances, the plaintiffs entered into joint venture operation providing the expertise, finance and machinery and equipment for the operation. The machinery had to be obtained from New Zealand at the cost of SBD555, 286.00 which amount the plaintiffs had to obtain by way of a bank loan secured on their residential properties in New Zealand.

At the closure of the joint venture operation the plaintiffs said that they stood to lose not only the cost of the machinery but also the value of their properties in New Zealand which had been sold by the bank to whom they still owe about NZ$120,000.00 (about SBD300,000.00). In addition, the plaintiffs argued that they suffered loss of value of their shares which was estimated to be around SBD422, 096.00 and other consequential losses to the value of SBD28, 772.65.

The argument for the defendants

The defendants did not deny the existence of the two Agreements referred to by the plaintiffs (Exhibits 4 and 5) nor did they deny the existence and the presentation of the Brief (Exhibit 15) to the second plaintiffs. There is also no dispute that the parties herein had entered into the joint venture of timber milling on Dhora Island to be carried out by the second defendant.

The first defendant strongly contended, however, that there has never been any fraudulent misrepresentation in this case nor has there been a breach of contract on the part of the defendants. The statement that the first defendant had a valid and duly issued timber rights permit was not false, argued counsel, as it clearly had a valid Milling Licence (No TIM 3/12). That position was however no longer the case in 1994 after the Mahlon Ali case (HC) Civil Case No.1 of 1994 by which time the High Court ruled that a Milling Licence did not authorise felling of trees and removal of timber for export or sawmilling purposes.

It is submitted that the statement contained in Recital “A” of Exhibit 5 was based on the fact that there existed at the time a valid Timber Milling Licence, TIM 3/12. It was after the Mahlon Ali case that the legal position of a Milling Licence issued in Solomon Islands became clarified. As such it could not have been said to be a misrepresentation, argued counsel.

As to the representation that the customary land concerned was assuredly free from dispute, the first defendant said that there was no misrepresentation in that assurance at all. The assurance was true in that no body from outside the Saikile. Community would successfully challenge the Community’s rights in the land concerned. The assurance did not relate to disputes from within the Community itself, such as the one between John Rasi and the Chiefs.

The plaintiff also raised the concern over non-disclosure of Exhibit 8 which is a letter objecting to the first defendant’s application for acquiring timber rights on Dhora Island. The first defendant argued that Exhibit 8 was immaterial and could not have had any impact on the nature of the land tenure system in the Saikile community. The non-disclosure of Exhibit 8 therefore, says counsel, is of no effect in this case.

The issues

The bone of contentions in the present case comes to this: Was the Joint venture operation carried out by the second defendant with the expertise and financial backing from the plaintiffs failed due to misrepresentation and non-disclosure of material facts which adversely affected the operation? In addition was the first defendant in breach of the agreement or joint venture understanding in this case?

Was there fraudulent misrepresentations?

It is the plaintiffs’ case that the first defendant, its servants or agents fraudulently misrepresented to them (1) that it had a valid and duly issued timber rights permits to fell, saw and deal in timber products on Dhora Island; (2) that the first defendant had entered into timber rights agreement with the timber rights owners of Dhora Island, and (3) that there were no customary land disputes over the land on Dhora Islands prior to 14 September 1990 of which the first defendant was aware.

Generally a party to an action alleging fraud must raised it in his pleading with sufficient particulars. This is so in order to enable his opponent to know exactly what the point in dispute is and to enable him to prepare his defence. In this case the plaintiffs pleads fraudulent misrepresentations in paragraph 11 of his Statement of Claim, the particulars of which are set out in paragraphs 8 - 10 also in his Statement of Claim. I consider the plaintiffs to have complied with the pleading rules in this regard. The next matter to consider however is whether the allegations are made out or not.

As I have already referred to, the three matters which the plaintiffs said that the 1^st defendants had represented to them fraudulently are that first defendant had a valid and duly issued timber rights permit, that the first defendant had signed timber rights agreement with the timber rights owners of Dhora Island and that there was no customary land dispute over Saikile Land existing prior to 14 September 1990. The onus is on the plaintiffs to prove the allegations they made on clear and cogent evidence since fraud is a serious matter which if proved would vitiate “judgments, contracts and all transactions whatsoever” as stated by Lord Denning in Lazarus Estates Ltd -v- Beasley [1956] 1 All ER 341 and applied in R-v-CLAC (Western) ex parte SIMI PITAKA (1985-1986) SILR 69. What constitutes ‘fraud’ had long been established and it is this, as described by Lord Denning, in Barclays Bank Ltd-v-Cole [1966] 3 All R 948:

“‘Fraud’ in ordinary speech means the using of false representations to obtain an unjust advantage: see the definition in the Shorter Oxford English Dictionary. Likewise in law ‘fraud’ is proved when it is shown that a false representation has been made knowingly or without belief in its truth, or recklessly, careless whether it be true or false.”

Lord Denning’s definition of ‘fraud’ hand also been applied in R-v-CLAC (Western) ex parte SIMI PITAKAKA cited above. See also Derry-v-Peek (1889) 14 App. Cas. 337 which is the leading authority on the question of fraudulent of misrepresentation; and Robert Victor Emery & John Sullivan-v-Taisol Investment Corporation (SI) Ltd and Toshio Hashimoto and David Hayward CC 119 of 1993
(HC).

Timber Rights Permit

In the light of the principles set out in the cases referred to, I turn now to consider the facts as they relate to the allegation that the first defendant fraudulently misrepresented to the plaintiffs that it had a valid and duly issued timber rights permit. It has not been suggested that the first defendant did not have a valid Milling Licence, TIM3/12 over Dhora Island.

Again it has not been contended otherwise by the plaintiffs that prior to the Mahlon Ali case in 1994, holders of Milling Licences, including the first defendant, had been felling and extracting trees for sawmilling. Indeed that was the case here until in or about May 1994. Mr. David Kera confirmed this in Court as he said he understood then that it was only in licence “to log for round logs that needs timber rights agreement to fell trees but not in licence to mill.”

The two Agreements, Exhibits 4 and 5 were entered into and signed on 14th September 1990 at the time when the first defendant still had a valid and duly issued Milling Licence (TIM 3/12). These two Agreements undoubtedly came into being after consultation and obtaining legal advice from solicitors. Although Mr. Athol Smith-Loretz said that he could not recall raising with Mr. Nori on 14th September 1999 matters relating to the Milling Licence, I am sure he and Mr. Kera did because in his evidence. Mr. Smith-Loretz referred to Recital A in Exhibit 5 which speaks of “felling” timber whereas Clause (1) of Exhibit 4 speaks of “milling” and then went on to add what he thought would be the effect of those words by saying that “you must have to fell trees before milling them.”

Likewise, Mr. Kera also regarded the position to be as that expressed by Mr. Smith-Loretz. Mr. Kera confirmed that before executing Exhibit 5 in Mr. Nori’s Office, he and Mr. Smith-Loretz sought clarification from Mr. Nori with regard to the word “fell”. The legal advice given to them was, in effect, that one would have to fell trees before logs can be extracted and milled. We are not concerned here with the correctness of that advice since that had been resolved in the 1994 Mahlon Ali case. But I have no doubt whatsoever that Mr. Smith-Loretz and Mr. Kera had had Exhibits 4 and 5 explained to them by legally qualified lawyers before they signed them. Not only that the plaintiffs but also the defendants believed the legal position to be as that explained to them. Whatever the correct legal position as found by the Court later in 1994 of a Milling Licence in the Mahlon Ali case, in my view, it did not alter what the parties in this case believed it to be the position at the time they signed the Agreements.

The plaintiffs’ argument is that they relied on Recital A in Exhibit 5 but as it turned out in the 1994 Mahlon Ali case, the licence could not have been validly issued. This they said was the result of the failure by the first defendant to comply with the timber rights procedure under the Forest Resources & Timber Utilisation Act. I feel it is incorrect to view the Milling Licence, TIM3/12, in this way. That licence was a valid milling licence. It was only that it did not authorise the felling of trees. There can be no doubt, however, that in view of the Mahlon Ali case, the first defendant would to have timber rights permit if it wished to carry out felling of trees for milling purposes. Clearly the first defendant had not complied with that requirement of acquiring timber rights in this case. The plaintiffs’ case, however, does not depend only on the non-compliance by the first defendant of the requirement referred to but must rest in the main on proof that the first defendant made “false representation to them (plaintiffs) knowingly and without belief in its truth or recklessly or careless whether it be true or false.” This the plaintiffs must show on the evidence before the Court.

True no Court will allow a person to keep an advantage which he has obtained by fraudulent means. The evidence in this case, however, does not in my judgment show that the first defendant falsely represented to the plaintiffs knowingly or without belief in its truth, or recklessly, careless whether it be true or false that it had a valid and duly issued timber rights agreement over Dhora Island. Nevertheless it is open to the Court to find, and I do so, that there was a misrepresentation by the first defendant in this case as to the validity of a timber rights permits being issued, although not fraudulently.

Associated to the claim of fraudulent misrepresentation as to the validity of the timber rights permit is the claim that the first defendant fraudulently misrepresented to the plaintiffs that it had signed a timber rights agreement with the timber rights owners of Dhora Island. Apart from what I have already said regarding the timber rights permit, there is no evidence to show that the first defendant specifically represented to the plaintiffs that it had signed a timber rights agreement with the timber rights owners of Dhora Islands. The closest one comes to on the evidence is that of Mr Smith-Loretz himself who said that there was no timber rights agreement over the island. This allegation however, must be considered together with the claim based on misinterpretation as to the valid timber rights permits being issued.

The third allegation based on the claim fraudulent misrepresentation relates to customary land disputes. The claim is that the first defendant through Messrs David Kera and Philip Bennett fraudulently misrepresented to plaintiffs by assuring them that Dhora Island was free from land disputes. Based on that assurance, the plaintiffs said they bought machinery for the joint-venture operation and mortgaged their properties in New Zealand to secure funds for the purchases of those machinery. The joint-venture operation ceased in May 1994 and part of the reasons for that, said the plaintiffs, was that there were land disputes over the areas of land where the operation was. The result of all these was that the plaintiffs incurred expenses to their detriment.

In support of their claim the plaintiffs relied on the Brief (Exhibit 15) which David Kera and Philip Bennett presented to them while visiting them in New Zealand in addition to verbal assurance also from David Kera and Philip Bennett. That part of the Brief upon which the plaintiffs now rely states as follows:-

“The ownership of the four (4) distinct areas of land referred to above have already been tested in Courts over the past 35 years and the community is now rest assured no one can dispute them again.”

The four areas of land mentioned are-Chuvilana (Aroroso-Kaka), Koqukalena or Hoeze (Sakabare - Rorosi), Maepu (Rorosi-Koquruga) and Tagosage (Koquruga - Manuvusu).

It is not denied by the first defendant that the part of the Brief just quoted represented an assurance to the plaintiffs that the Saikile Community had already resolved all disputes over the land where the joint venture operation was to cover.

Mr Suri, however, submitted that there was no falsity in that representation as it refers to disputes between the Saikile Community and others outside of the Saikile Community. The assurance, submitted counsel, is therefore true in so far as it relates to claims by any outside disputant and it is not an assurance that there would be no dispute among the members of the Saikile Community themselves.

In support of his argument Mr Suri also sought to distinguish the words “community” and “them” as used in the paragraph in the Brief quoted. With respect, I feel the first defendant is attempting to be very refined with words in order to justify its stand on this aspect of the matter. Reading the Brief as a whole, I can see no justification for the contention by counsel for the first defendant that the assurance only applied to disputes with claimants from outside Saikile Community. The reference to “no one can dispute them again” is too wide to justify the suggestion that it did not apply to anyone within or among the members of the Saikile Community or any member of the tribes who claimed to own land in the area.

In addition to the legal implications to be considered arising out of the arrangements between the parties in this matter one cannot ignore the realities of business and the relationship which they were attempting to create through their proposed joint business operation. Here is the case where the first defendant sought assistance from the plaintiffs who were foreign investors. In order to secure that assistance, the first defendant assured them that it was in possession of a valid timber rights permit and that it had land free from disputes. Mr Smith-Loretz was of course well aware of the effect of customary land disputes, from his experience in Papua New Guinea, on investment. He said so in his evidence. In the light of the assurances, the plaintiffs entered into the joint-venture with the first defendant in this case.

It is not uncommon in Solomon Islands to expect disputes over customary land to emerge, particularly where there is logging or similar operation. The first defendant clearly have had some experience in this area and as they have said, they have settled those disputes over ownership of the land under their control. Consequently the social structure of their community has established the machinery for resolving disputes in the community including land disputes. (See Exhibit 15). In reality therefore, the assurance contained in the Brief was really an expression by the first defendant that no land dispute will stand in the way of their proposed economic development with the plaintiffs, whether or not such disputes were from outside or within the Saikile Community. I am mindful that I ought not to lightly make a finding that a party to a civil case such as this has been guilty fraud unless there is clearly evidence to justify it so and that fraud cannot be assumed (see Vadasz-v-Pioneer Concrete (SA) Pty Limited (1995) 184 CLR 102. While I cannot be sure that any fraud necessarily flows from such a representation, I am satisfied nevertheless that the assurance relating to disputes over the land concerned was not true anymore as it turned out. Customary land disputes in the area including that brought by one John Rasi had undoubtedly affected the joint-venture operation in this case.

To return to the question I posed earlier I come to the conclusion, in the light of the facts and circumstances presented to the Court, that there was no fraudulent misrepresentation in this case. However, there is in my judgement misrepresentation by the first defendant, its servants or agents of the matters mentioned in paragraph 10 of the Statement of Claim.

Effect of the misrepresentation.

It must be noted that a misrepresentation is no ground for relief unless it induces the making of a contract: Cheshire and Fifoot, Law of Contract, 3rd Australian Edition, J. G Starke and P.F.P. Higgins, Butterworths (1974), page 295. There can be no doubt that the parties in this case had entered into a contract as a result of which a joint-venture operation had been carried out on Dhora Island. It may be asked: were the representations the cause or one of the causes that induced the contract in this case? I have considered the evidence and I am satisfied that they did. One only needs to look at Exhibits 4 and 5 to ascertain this. Indeed on the facts as canvassed in Court there is clearly misrepresentation (although not fraudulent) by the first defendant and that the misrepresentations were the cause or one of the causes inducing the contract between the parties in this case.

At common law the plaintiffs would not be entitled to claim damages for misrepresentation unless such representation has been embodied in the contract: Heilbut, Symons and Company-v-Buckleton [1913] A.C. 30. On the other hand, a party induced to enter into a contract by misrepresentation which is fraudulent, may elect to rescind the contract and sue for damages whether or not the representation is embodied as a term of the contract: Cheshire and Fifoot, Law of Contract, 3rd Australian Edition, J.G. Starke and P.F.P. Higgins, Butterworths (1974) p.283.

In this case, one of the representations which I accept as material and did in fact induced the plaintiffs to enter into the joint-venture business with the first defendant was the representation that the first defendant had,

“a valid and duly issued timber rights permit issued by the Ministry of Natural Resources to fell, saw and deal in timber products from that area of customary land in the Western Province known as Dhora Island.”

That representation was incorporated into the Agreement (Exhibit 5). It will be noted that Exhibit 5 is the Agreement between first defendant and second defendant which is the joint-venture company between the first plaintiff and first defendant. Exhibit 4 is the Agreement between first plaintiff and second defendant in which the parties have agreed that the first plaintiff should provide the necessary machinery for the project and that the second defendant to guarantee monthly repayments towards the costs of the machinery to be provided. Also under that Agreement the first defendant and first plaintiff agreed to enter into the joint venture operation.

I would have thought that in the light of the material representation mentioned which not only induced the plaintiffs to enter into a joint-venture operation with the first defendant but also to secure the supply of the necessary machinery for the operation, the plaintiffs are entitled to have the contract rescinded and claim damages. There is evidence to show that the representation which was not true in fact was incorporated into the contract between the parties in this cases. In those circumstances I hold that the plaintiffs are entitled to bring their claim for rescission and damages for misrepresentation in this case.

As to the other representation regarding the land being assuredly free from disputes, I find that representation also to be material in that it gave confidence and assurance to the plaintiffs who are foreign investors to enter into the joint-venture business with the first defendant and provided the necessary capital expenses for the joint-venture operation. I have already found this representation to be false, (thought not fraudulent) and pre-contractual. It was not embodied in the contract but it was certainly embodied in the Brief (Exhibit·15) and one upon which the plaintiffs placed their confidence in view of their past experience in Papua New Guinea when it comes to investing in businesses carried out on customary land. The common law would regrettably withhold remedies from the plaintiffs in such a situation. Fortunately this Court also exercises jurisdiction in equity and would come to aid of the plaintiffs in such a case. This was the stand taken by the Court of Equity in the middle of the nineteenth century when it established that, whether the representation was fraudulent or not the representee was entitled to have the contract set aside: Cooper-v-Joel [1859] EngR 1102; (1859) 45 E.R. 350 and if it was in writing, to have it delivered up for cancellation. Later the Court of Chancery decided in Newbigging -v- Adam and Adam (1887) 34Ch.D. 582 that if a party is induced into a contract by an innocent misrepresentation he is entitled to rescind the contract and to recover whatever sum representing the capital he had brought into the business. As the Court of equity could not grant damages, the sum to be recovered by the plaintiff in such a case is not an award of damage but a sum such which is the proper consequence in equity for setting aside the contract. That was what happened in Newbigging and thereafter it was the form of intervention the Courts of equity ultimately took.

The plaintiffs in the present case entered into the joint venture operation with the first defendant upon having confidence in the assurances made to them by the servants or agents of the first defendant. Mr Smith-Loretz’s evidence on oath was that he would not have signed the two agreements and enter into the joint-venture operation if he knew the first defendant had no timber rights agreement. He further stated on oath that had he seen Exhibit 9 (letter dated 8/10/90 to the Permanent Secretary, Ministry of Natural Resources, objecting to the proposed operation of the second defendant on Dhora Island) he would not have gone ahead with the operation. The plaintiffs have clearly shown on the evidence that they are entitled to the remedies they seek in this case.

Each case of this nature must be decided on its own facts so long as “the Court can achieve practical justice between the parties” as was pointed out in O’Sullivan -v- Management Agency & Music Ltd [1985] 3 WLR 448, at 466 per Dunn L.J. What is ‘practically just’ had been considered by Lord Blackburn in Erlanger-v-New Sombrero Phosphate Co. (1878) 3 App. Cas. 1218 where his Lordship, after contrasting the relief available in law and in equity when a contract had been rescinded said at page 1278-1279:

“And I think the practice has always been for a Court of Equity to give relief whenever, by the exercise of its powers, it can do what is practically just, though it cannot restore the parties precisely to the state they were in before the contract.”

Doing the best I can in the circumstances of this case, I feel practical justice can be achieved to both parties if the contract, as evinced by the two agreements (Exhibits 4 and 5), be rescinded coupled with a monetary order as is the proper consequence in equity for the rescission of the contract: Newbigging -v- Adam and Adam (supra). In doing so, I bear in mind the principle that equity follows the law which requires restitution as a condition of rescission where the contract had been wholly or partly executed. Equity, however, allows some flexibility in this area and do not require complete restitution of the position which existed before the contract but allowed its remedies, particularly an order for monetary accounts, to be utilised to achieve practical restitution and justice: Vadasz-v-Pioneer (SA) Pty Ltd (supra). See also Alati-v-Kruger (1955) 94 CLR 21.

As to the proper consequential orders following rescission of the contract, if it is so ordered, Counsel for the first defendant submitted that no damages should be ordered. The joint-venture contract should be declared void ab initio or is discharged by frustration (a consequence of the Mahlon Ali case), argued Counsel. In any event submitted Counsel, the plaintiffs are wholly responsible for any damages they suffered. In other words the first defendant seeks to be relieved completely and unconditionally from all liability, leaving the plaintiffs without either their machinery or any payment for them.

I have given anxious consideration to the matters raised on behalf of the first defendant but I have come to the firm conclusion that the court must find for the plaintiffs in this case in respect of their claim based on misrepresentation which is the case heavily relied upon by the plaintiffs. In view of the conclusion I have reached in this case I feel it unnecessary to deal with the claim for breach of contract which is really an alternative claim. But even if I have to consider it, in my view, the result would not make much of a difference.

In the circumstances of this case and doing the best I can, I give judgement to the plaintiffs and order that the contract entered into between the parties be rescinded. The plaintiffs are to be paid the sum of $300,000 which is the amount still outstanding on the loan they took out for the purpose of purchasing the machinery for the joint-venture operation and for which they should be indemnified plus $150,000 being part of their further contribution to injecting further capital into the business plus the sum of $28,772.65 for consequential losses, making it a total of $478,772.65.

In addition I order the machinery listed in paragraph 6 of the Statement of Claim and set out hereunder be returned to the plaintiffs. Failure to do so, the sum of $555,286.00 or the amount representing such items not returned be added to the amount of $478,772.65. The following are the machinery referred to:

Coltart Electric Twin Saw

Breast Bench

Welder

Grinder

Docking Saw

D7G Caterpillar

645 B Fiat Allis Loader

100 KVA Generator

Neale 4 Headed Planer

Treatment Plant

Saws for Breast Bench

Anvil

Diesel Motor for Forestmill

Hand Gullitor

Sorting Table and Conveyor Chain

I further order that interest at the rate of 5% be added to the judgement sum awarded in this case effective from the date of judgement.

I so order.

(GJB Muria)
CHIEF JUSTICE