Philip v Maeke [1996] SBHC 2; HC-CC 391 of 1995 (26 January 1996)

HIGH COURT OF THE SOLOMON ISLANDS

Civil Case No. 391 of 1995

WILLIAM MARTIN PHILIP
(Trading as Plantation Lumber and Pd)

v

ALFRED MAEKE
(Trading as Alsean Timber Products)

AND FORWARD COMPANY LIMITED

Before: Palmer, J

Hearing: 26 January 1996 - Ruling: 26 January 1996

Counsel: Mr. T. Kama for Plaintiff - Mr. C. Ashley for Defendant

PALMER J:

The issue before this Court as articulated by Mr. Kama from the Bar table is for Mr. Ashley to issue an undertaking that the Bill of Lading which had been the subject of the Court Order dated 30 December, 1995, be surrendered to the Court forthwith, on the ground that he had been served with a copy of that order as shown on the affidavit of service of Mr. Thomas T. Kama filed on 4 January, 1996 at paragraph 2.

Paragraph 1 of that Order stated that there should be no dealings in that Bill of Lading and paragraph 2 provided that the Bill of Lading be cancelled and a new Bill of Lading be issued endorsing the Plaintiff as the consignee. Mr. Kama takes the view that in view of Mr. Ashley's action in delivering that Bill of Lading to Mr. Leslie Graham Rose, that he had acted in a prejudicial manner to his client's interests but also contrary to the Court's order and that therefore it would be proper in the circumstances to require an undertaking from him.

Mr. Ashley says that he had obtained instructions from Mr. Rose to have the orders set aside. Unfortunately, his actions in delivering the Bill of Lading to Mr. Rose, contrary to the Court's Order. What he could and should have done in the circumstances to have the orders set aside would have been to apply ex parte to the Court there and then to have the orders stayed pending determination of his client's claim that he was entitled to those timbers.

The primary concern of the Plaintiff and I think also the defendants and including Mr. Rose would be the preservation of those timbers and taking all possible cost cutting means for the preservation of those timber pending determination of the issues on merit raised before this Court. In that respect, I see no justifiable basis on which Mr. Rose should hold on to those Bill of Lading in the absence of any satisfactory arrangements and undertakings for the safe-keeping of those timber. I think it is also an issue that both Mr. Philip and Mr. Rose are equally interested in those timbers and not merely the proceeds. They equally claim the right to possess and sell those timbers. In that respect, all that should be done at this point of time is to have those timbers preserved. Mr. Philip has undertaken to do that and this Court is satisfied with the arrangements to date.

ORDER

1. That an undertaking be given by Mr. Ashley for the surrender of that Bill of Sale forthwith to Tradco for purposes of cancellation and issue of a new Bill of Sale in favour of the Plaintiff. In default then the Plaintiff is at liberty to make further application to the Court.

2. Direct that the summons of Leslie Graham Rose be issued with a hearing date for Thursday 1st February 1996 at 9.30 a.m.

3. Direct that the summons filed on 26/1/96 be re-issued for 1^st February 1996 at 9.30 am. as well. The second Defendant to be served.

4. Costs to be reserved.

5. Liberty to apply on 2 days notice.

ALBERT R. PALMER,
JUDGE