Kofela v Sanga [1999] SBHC 133; HC-CC 206 of 1999 (24 June 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 206 of 1999

ANDREW KOFELA

-V-

ELISHA SANGA, STANLEY BEKA
(as representing Sanga family)

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 24 June 1999
Date of Judgment: 24 June 1999

L Kwaiga for the plaintiff

Ex Tempore Judgment

JUDGMENT

(LUNGOLE-AWICH, J): The Application and the Substantive Case. The applicant, Andrew Kofela, is the plaintiff. On 4.6.1999 he filed a writ of summons in which he claimed, as the major claim, the eviction of the respondent/defendant from land parcel No. 191-038-15, at Fishing Village, Honiara. Filed together with the writ of summons was an ex parte application for an order restraining the defendant from entering or remaining on the land, and from, “removing,....and or destroying or damaging any property,.....until further order.” I take it that the order intended is an interim or interlocutory injunction order.

The statement of claim endorsed on the writ was very brief; it is necessary to quote it here. It states:

“STATEMENT OF CLAIM

1. The plaintiff holds a Fixed Term Estate over Parcel Number 191-038-15 hereinafter referred to as “the land” and situated at Fishing Village, Honiara.
   
2. The defendants represents the Sanga family. Before the registration of the Fixed Term Estate to the Plaintiff, the Defendants late father had previously occupied the land.
   
3. The Defendants had a mistaken belief that because their late father had occupied the land the said land belongs to their family.
   
4. It is alleged by the plaintiff that the Defendants had no claim in law over Parcel Number 191-038-15.
   
5. It is further alleged that despite the above, the Defendants families, their relatives and or agents have continued to occupy the land thereby hindering the Plaintiff his right of occupation, use and enjoyment of the land.
   

AND the plaintiff claims the following orders.

(i) Eviction of the defendants, their families, relatives and agents.

(ii) Restraining order.

(iii) Any further orders that this Court deems fit to make.

(iv) Costs.”

The affidavit in support of the ex parte application simply repeated the averments in the statement of claim with no real addition, except that the affidavit was more wordy.

Requirement for Ex Parte Application

The first question I put to learn counsel Mr Kwaiga for the applicant, was why it was necessary to make the application ex parte. The supporting affidavit of Mr Andrew Kofela, the applicant, was silent on the point. The second question was about the absence of a statement about security for damages or undertaking as to damages. Mr Kwaiga was unable to provide explanations for both questions, he said that he only stood in for his colleague.

I have said before that the choice to come to court ex parte is not made purely for the convenience of the applicant so as to gain undue advantage in the case nor is it made arbitrarily, and most importantly, not so as to deny the respondent opportunity to be heard. I know of only four occasions on which application may be made ex parte. There may be more, I am yet to come across them; if there are any more they would be very rare. The first occasion for interlocutory application to be made ex parte is when the High Court (Civil Procedure) Rules or any other legislation states so or implies. Examples are, application for substituted service, service outside jurisdiction and application under the Companies Act. The second is when it is not desirable to let the respondent know about the application because he is likely to act to defeat the purpose of the application. Examples are when the respondent may skip the country, send off shipment of logs outside the jurisdiction of Court, dispose of or destroy goods or withdraw money from the bank and sometimes in insolvency or winding up of companies cases. The third occasion is when the urgency of the case requires that application be made immediately and it is not possible to give notice to the respondent before the application is made, because delay will defeat the purpose of the application. Examples are when the subject matter of the case are perishable goods, when the goods may be destroyed or otherwise lost, and the respondent is far away or his address or place of service is not known. The fourth occasion is when there is no other party to serve notice on in the case, for example in an application for voluntary winding up of a company. On all the four occasions, if the interlocutory application is made ex parte for an order to preserve the status quo or to restrain the respondent as in Mareva or Anton Pilla orders, urgency is of the essence. The old English cases generally show that interlocutory injunction were granted ex parte only in cases of emergency - see London and County Banking Co. -v- Lewis [1882] UKLawRpCh 191; [1883] 21 Ch. D 490. A recent case is Bates -v- Lord Hailsham of Marylebone [1972] 3 All ER 1019. The facts of the urgency must be stated in the affidavit founding the application, the habit of counsel stating the urgency for the first time from the bar table is unsatisfactory. Affidavit is evidence, statement made by counsel is not. Moreover the application must be made promptly, delay will result in it being refused.

It is appropriate for me to mention that it is not in all cases of urgency that applications for interim or interlocutory injunction orders may be made ex parte, the urgency must be such that it warrants the application to be made ex parte. Even in urgent cases, if there are no circumstances that warrant the applicant being heard ex parte, notice should be given to the respondent, such notice may of course be shorter than the 2 days required under the Rules if the urgency in the case warrants.

In this application there are no facts in the affidavit that made it so urgent so as to warrant coming to Court ex parte. It is also doubtful that the applicant acted promptly. Moreover, it is not clear from the affidavit whether the injunction is intended to preserve the status quo while the case proceeds to trial. It appears that the intended interlocutory injunction is desired simply to achieve the main relief of ejectment beforehand, but in the guise of an interlocutory order, while the case proceeds. That would be misuse of interim or interlocutory injunction order. An interim injunction order made ex parte is provisional in nature, usually lasting only for a few days or a few weeks leading to the application being heard inter partes when interlocutory injunction order may be made - see Wea Records Ltd -v- Vision Channel 4 Ltd [1983] 2 All ER 589.

Non Disclosure of Material Facts

The greatest difficulty in the application was in the fact that from the statement of claim and the affidavit, the impression is created that full account of the transactions between the applicant and the respondent, and possibly others, have not been laid before the Court. The background transaction which led to the applicant being registered as the holder of the fixed term estate has not been outlined. How the defendants came to occupy or to be in possession of the land has not been stated, the background to what has been described as the, “mistaken belief,” of the defendants that, “the land belongs to them,” has not been stated. From the information so far given, it is impossible to tell how many transactions are in issue, and their nature, but one can say that there are several because there are too many gaps in the account given.

The transactions could well be pledge, outright sale or inheritance from deceased estate. In an ex parte application the full material facts are to be disclosed, nothing is to be suppressed, - see the English case of R -v- Kensington Tax Commissioners of Taxes [1917] 1 KB 504.

The circumstances of the lack of disclosure in this case are very similar to those in yet two other English cases; Ali & Fahd Shobokshi Group Ltd -v- Moneim and Others [1989] 1 All ER 404 and Behbehani and Others -v- Salem and Others [1989] 1 All ER 143.

In the Ali and Fahd case, the plaintiff, a company owned by two Saudi brothers, sued the defendant, the Financial Manager, in England alleging misappropriation. The plaintiff then applied ex parte for Mareva injunction order restraining the defendant from removing or dealing with his assets except to the extent that the assets exceeded £250,000. Affidavit supporting the application specified 3 instances of irregularities. The Mareva injunction was granted, the order was to last for over 4 weeks from 21.9.1998 to 19.10.1998. The plaintiff subsequently applied on notice (inter partes) for order extending the Mareva order until final judgment. It asked for the order to cover £621,904. The defendant opposed the application, alleging that over the years, a series of complicated accounting transactions had taken place, if an account was taken, it might well show that the plaintiff and the two brothers owed money to the defendant. He contended that it was misleading for the plaintiff to allege ex parte, three isolated instances of fraud without reference to the context in which they had taken place. The Court held that where an applicant had obtained Mareva injunction ex parte without proper disclosure of material facts, the Court would refuse to order continuation of the injunction if the non-disclosure was not innocent and the injunction would not have been granted (by the trial judge) if the facts had been disclosed. The Court said, the plaintiff had failed to disclose that it had engaged in complex financial dealings, the injunction would have not been granted had the disclosure been made. The injunction was not continued.

In the Behbehani and Salem case, on 9.4.1987 a wealthy Kuwaiti and two companies that he controlled sued the first defendant and five others in England for acting fraudulently and making secret profits on an estate agency contract between the plaintiffs and the defendants. The claim was for £17 million. On the same day the plaintiff applied ex parte for Mareva injunction order, which is of course an interim order, he obtained it. Unknown to the Court, the first defendant in the English Court and others had brought claim in court in Spain against the first plaintiff in the English Court, who in turn had counterclaimed against co-plaintiffs in the case in Spain. Both sides in the case in Spain had obtained the Spanish Court order of embargo preventivo, the equivalent of Mareva order or attachment ad confirmandam jurisdictionem in Roman Dutch jurisdictions. The plaintiffs in the English Court did not disclose the existence of the proceedings in the Spanish Court when they made the application for Mareva order. The defendants in the English Court applied for order discharging the Mareva injunction order on the grounds that there had been material non disclosure, namely, failure to disclose the existence of the proceedings in the Spanish Court, that there had been agreement between parties for part settlement and that the defendants had counterclaim exceeding £3.2 million. The judge discharged the injunction, but on a renewed application made by the plaintiffs, immediately regranted substantially the same injunction against the defendants. On appeal the defendants succeeded in having the injunction lifted. The failure to disclose the existence of the proceedings in the Spanish Court and the part settlement was sufficiently serious for a fresh injunction not to be granted, especially when the defendants were prepared to give undertaking not to dispose of property within the jurisdiction without giving 28 days notice to the plaintiffs.

A more recent English case is Tate Access Floors -v- Boswell [1990] 3 All ER 303.

In the cases that I have related, the courts dealt with the question as to whether the injunctions granted on ex parte applications could be discontinued when there had been non-disclosure. The present case is about whether the Court should refuse to grant interim injunction order ex parte. There is no reason why Court should not refuse ex parte application in the first place when it has become apparent that material facts that could lead to failure of the application have not been disclosed as it has been the case here. The transactions that are the background to the applicant obtaining registration of the fixed term estate are important facts which have been withheld. They may for instance reveal that the applicant has only a reversionary interest in the fixed term estate, that there has been failure of consideration or that there has been mistake or fraud which are grounds for cancellation of registration. The result would be to weaken the applicant’s grounds in establishing serious triable issue which is the foundation of granting interlocutory injunction. Underpinning an interlocutory injunction order must always be a good cause of action, disclosing serious triable issue.

Security for Damages or Undertaking

The issue of lack of providing security for damages or undertaking as to damages was simply not paid attention to. Had I found that a case for interim injunction had been made, I would most likely have asked that the applicant provide security or satisfactory undertaking as to damages.

Decision

The application is dismissed. No one other than the plaintiff attended court when the application was made ex parte, no order as to costs is made.

Dated this Thursday the 24th day of June 1999
At the High Court
Honiara

Sam Lungole-Awich
Judge