Ali v Leua [1996] SBHC 73; HC-CC 324 of 1996 (18 December 1996)

HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 324 of 1996

MAHLON ALI
(Trading as Hovah Hardwood Enterprises)

vGORb>GORDON LEUA
(Trading as Paripao Enterprises)

Before: MuJ
Hearing: 12 Decem9er 1996
Judgment:ecember 1996

Counsel: P Tegavota fe the PlainPlaintiff;
Gabriel Suri for the Defendant
INTUTORY JURY JUDGMENT

MURIA CJ:

By p>By his amended summons filed on 13th December 1996, the plaintiff comes to thurt seeking an order from the court, namely:

1. That That the defendant, his servants, agents, or persons authorised by the defendant be restrained by an interim injunction from disposing of the sum of USD245,000.00 or part thereof or its equivalent amount in Solomon dollars and which amount the defendant has derived from sales proceeds of his recent log shipment and whether such amount is kept in any bank account or not until further orders of this court.

2. That the court to grant such other or further orders as the court sees fit.

The plaintiff's claim arise in this way, Sometime in February 1994 or March an oral agreement was alleged to have been made between the plaintiff and defendant to fell, extract and sell logs from land in the Paripao, Ward under the defendant's licence. It was alleged that the plaintiff was to be responsible for the operation and other associated work while the defendant was to be responsible for resolving all land disputes arising in the lands where the operation was to take place. The plaintiff alleges that due to land disputes the operation was hampered in late 1994 as a result of which the plaintiff claims that he suffered loss to the value of USD245,000.00.

From the affidavit materials before the court, the defendant did not deny that there was a verbal agreement between him and the plaintiff made sometime in March 1994. The defendant deposed that the said agreement (management agreement) came to an end in November 1994, largely due to the withdrawal of the machineries by the plaintiff to be sent to the Western Province. The plaintiff deposed that the operation ceased because the landowners had been helping themselves to sell logs which were stock-piled at the Tetere log pond.

The differences in the issues raised will be resolved at the trial of the main action. But I refer to those aspects of the case between the plaintiff and defendant so as to appreciate some of the background circumstances between the parties in this dispute.

Now we come to the present claim by the plaintiff. His claim is to restrain the defendant from disposing the sum of USD245,000.00 which amount the plaintiff says the defendant has derived from the sale of logs at a recent shipment. According to Pastor Joseph Douglas, he deposed that at the recent shipment on 25th November 1996 the defendant exported USD384,200.00 worth of logs which amount is equivalent SBD1,377,06.93. It is out of that sum that the plaintiff claims USD245,000.00 for his part in the 1994 verbal agreement between himself and defendant.

It is important to note that the plaintiff's claim in the main action is for damages in the sum of USD245,000.00 for breach of contract. He now claims an entitlement to USD245,000.00 out of the proceeds of the logs exported last month by the defendant under his own operation. The plaintiff had said that he feared he would not be adequately compensated if he wins his case against the defendant. As such he asks the court to restrain the defendant from disposing the sum of USD245,000 out of the USD384,200.00.

This is the same as saying that because the plaintiff has now sued the defendant for damages for breach of contract arising of an alleged 1994 contract which had ceased in late 1994, the defendant should be restrained from dealing with his monies now derived from his other operations which are unconnected with the alleged breach of contract. The plaintiff's claim of restraining the defendant from disposing the sum of USD245,000.00 also amounts to a claim that he should have priority over the proceeds of the recent sale of logs regardless of whether the defendant has any genuine debts or expenses which are required to be settled.

I regret to say that I find the plaintiff's claim for restraining order and the reasons for seeking such an order in this case to be lacking in substance. The only connection I find on the affidavit evidence between the plaintiff and defendant is that at one stage in 1994 they were in logging business together. But I see nothing whatsoever that connects the plaintiff's claim for breach of the 1994 verbal contract and the proceeds of the logs exported by the defendant on 25th November 1996. It would be grossly unfair and unjust to the defendant if this court were to tie-in the proceeds or part of the proceeds of the sale of logs on 25th November 1996 with the claim for damages for breach of contract brought by the plaintiff against the defendant arising out of an alleged verbal contract.

Like all business ventures, genuine debts and other expenses have to be settled and the defendant must be allowed to settle such expenditures, particularly those incurred in connection with his operations as well as his other genuine debts. A restraining order should not be used to prevent a person from meeting his genuine debts as pointed out in Rolland Masa and Others -v- Kololeana Development Company Limited and Others (HC) cc361 of 1995.

It must also be observed that the purpose of an interlocutory injunction is to prevent abuse. But to prevent the defendant from having access to his money which he needs to discharge his other lawful business commitments and obligations Would be to stretch the purpose of an interlocutory injunction beyond its original purpose so that instead of preventing abuse, it would rather prevent businessmen conducting their businesses as they are entitled to do so. Again this is also pointed out in Rolland Masa and Others -v- Kololeana Development Company Limited and Others.

Again, as I had pointed out at the hearing, the plaintiff's claim is for damages for breach of contract, as such the amount of damages to which he is entitled should he succeeds will be assessed at the trial of the main action. There is no evidence to show that the defendant does not have the financial capacity to pay such damages should the plaintiff succeeds at the trial. But until that is done it is wrong to penalise the defendant by way of restraining order in advance of the plaintiff proving his case.

In the circumstances and for the above reasons the plaintiffs application restraining order must be refused.

As to costs, I feel it must follow the outcome of this application. This is clearly an unmeritorious application for an injunction and as such the defendant is entitled to his costs. There will be an order for the defendant's costs in any event.
Order:

GJB Muria
CHIEF JUSTICE