Esah Corporation Ltd v Attorney-General [1999] SBHC 122; HC-CC 132 of 1999 (23 December 1999)

ass="MsoNormal" aal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURTOLOMON ISLANDS
Civil Case No. 132 of 1999

ESAH CORPORATION LIMITED

v

THE ATTORNEY-GENERAL
(REPRESENTING THE COMPTROLLER OF CUSTOMS AND EXCISE)

High Court of Solomon Islands

(Palmer J.)

Civil Case No. 132 of 1999

Hearing: 25^th October 1999

Judgment: 23^rd December 1999

Counsel: C. Ashley for the Plaintiff

"> C. Tagaraniana for the Defendant

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PALM/span>.: This is an application by P by Plaintiff inter alia, to have Defence of Defendant filed 20 May 1999 struck out as disclosing no reasonable answer, or as being frivolous and vexatious and an abuse of process, under Order 27 Rule 4 of the High Court (Civil Procedure) Rules 1964, or, under the inherent jurisdiction of the Court. The claim of the Plaintiff in essence is for wrongful detention of various goods imported over a period of time between January and April 1999. These goods have been divided for convenience into three categories:

(1) gings codsignnd but but not ordered on or about 23rd January 1999 (referred to as "the Consigned Goods");

(2) &nnbsp;g ginds cods consignnsigned and ordered on or about 7 April 1999 (referred to as "the Declared Goods");

(3) &nnbsp;g ginds cods consignnsigned and ordered on d on or about 20 April 1999 (referred to as "the Disputed Goods").

Defendant filed defence on 20 May 1999. Defence pleaded raised three grounds. Firsthat the Consigned Go Goods were detained on grounds that they had been the subject of a joint Customs/Police investigations for possible breaches of the Customs and Excise Act [Cap. 121] (hereinafter referred to as "the Customs Act" - see paragraph 2 of the Statement of Defence). Secondly, that detention of the Declared Goods was made on grounds that Plaintiff had failed to pay proper duty demanded by the Comptroller of Customs and Excise (hereinafter referred to as "the Comptroller") (see paragraphs 7 and 8 of the Statement of Defence). Thirdly, that detention of the Disputed Goods was made on grounds the Plaintiff had also failed to pay all import duties and dues (see paragraphs 10 and 11 of the Statement of Defei>e). The issue for determination before this Court is whether those grounds disclosed any reasonable answers or not, and whether they are frivolous or vexatious and an aof process.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> As to ground (1) of the Defence, the Defendant rely on the evidence of Nathan Kama, Assistant Comptroller/Border Enforcement, adduced during the interlocutory hearing. Mr Kama confirmed the Consigned Goods were the subject of joint Customs and Police investigations with view to possible charges being drawn up against the Plaintiff for breaches of the Customs Act. This is supported by documentary evidence produced in court in relation to that joint investigation (see Exhibit 1). This in my respectful view raises an arguable case and discloses a reasonable answer. It raises the question whether the Comptroller in the course of his duty, having reason to suspect that an offence had been committed has power to seize and detain such goods in the course of investigation, and for how long. The Comptroller seems to think he has, in this particular instance, where undeclared goods (more accurately described as "uncustomed goods") had been imported. Evidence has been adduced which seems to indicate those Consigned Goods had been duly seized and detained in accordance with the provisions of the Customs Act. I am not satisfied accordingly it is correct to suggest the answers provided in the Statement of Defence did not disclose reasonable answer or that it was frivolous or vexatious and amounted to abuse of process.

As to the second ground of defence relied on, againnd this to be arguable in law. The Plaintiff takes thes the view the so-called proper duty calculated by the Comptroller was unfair, unjustified and unreasonable. That with respect is a matter best left for trial when all relevant matters can then be considered before determination is made.

Finally, the third ground relied on also raised the defence paid duty and dues as the rthe reason for the detention of the Disputed Goods. Again I find this to be an arguable matter. There is most definitely a dispute as to what the correct rate or amount of duty that should be paid in respect of those goods. That again is a matter best left for determination at trial after all the evidence and arguments had been heard by the Court.

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I am not satisfied therefore the Defence of the Defendant discloses no reasonable answer or that it is frivolous or vexatious and an abuse of process. The summons of the Plaintiff accordingly must be dismissed with costs. As to the question whether there should be an order for the request for further and better particulars of defence, it is my respectful view the Defendant should be given up until the first week of January 2000, within which to comply, failing which the Plaintiff may apply by summons for order to compel Defendant to comply. No order however will be made to that effect as the matter was not included as one of the orders sought in the Summons filed on 23rd September 1999 in the event the substantive order was denied.

ORDERS OF THE COURT.

1.  p; &nDsp; DIp; DISMISS SUMMONSMMONS OF THE PLAINTIFF FILED 23RD SEPTEMBER 1999 WITH COSTS.

THE COURT