Solomon Taiyo Ltd v Ta'as Marketing Ltd [2000] SBHC 11; HC-CC 044 of 2000 (17 March 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 44 of 2000

SOLOMON TAIYO LIMITED

–v-

TA’AS MARKETING LIMITED

High Court of Solomon Islands
(F.O. KABUI), J)

Date of Hearing: 10th March 2000
Date of Judgment: 17th March 2000

C. Hapa for the Plaintiff
No appearance for the Defendant

JUDGMENT

(Kabui, J): The Plaintiff filed a Writ of Summons and a Statement of Claim on 16^th February 2000 against the Defendant. The claim was indorsed for $360,000 being the value of 4,000 cartons of Solomon Blue tinned product of the Plaintiff being the property of the Plaintiff. The Defendant took possession of the 4,000 cartons of Solomon Blue tinned product after purchase. The Defendant purchased the product from the Plaintiff on 15^th December 1999 and 16^th December 1999 respectively. The Defendant paid for the product by issuing two cheques numbered 501311 and 501313 respectively. When these two cheques were presented at the National Bank of Solomon Islands (NBSI) on 17^th December 1999 they were dishonoured by the NBSI for the reason that the Defendant did not have sufficient funds to meet payment for the product in full. Attempts by the Plaintiff to reach mutual agreement out of Court with the Defendant for the purchase of the Plaintiff’s product failed. In the meantime, the Plaintiff sought from this court the following interim orders in an Ex parte Summons filed on 10^th March 2000 under Order 53 of the High Court (Civil Procedure) Rules (the High Court Rules):-

1. that all stocks of ‘Solomon Blue Taiyo’ canned tuna in possession of the Defendant in its commercial properties in Solomon Islands be repossessed and delivered up to the Plaintiff forthwith whilst awaiting further orders of the Court;
   
2. that the Royal Solomon Islands Police Force to render assistance to the Plaintiff to repossess the stocks of ‘Solomon Blue Taiyo’ canned tuna in said properties of the Defendant throughout Solomon Islands;
   
3. such further orders as the Honourable Court may deem fit, and
   
4. that the costs of and incidental to this application be costs in the cause.
   

Mr. Hapa, Counsel for the Plaintiff, relied upon rules 1 and 4 of Order 53 of the High Court Rules in support of his case for the interim orders. Rules 1 and 4 are in the following terms

“1. When by any contract a prima facie case of liability is established, and there is alleged as matter of defence a right to be relieved wholly or partially from such liability, the Court may make an order for the preservation or interim custody of the subject-matter of the litigation, or may order that the amount in dispute be brought into Court or otherwise secured.

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4. It shall be lawful for the Court upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.
   
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I do not think rule 1 applies to this case. As I said in Omex Limited v Timothy Aleve and Others (Civil Case No. 008/2000), to invoke the application of rule 1 of Order 53 of the High Court Rules, the Plaintiff must show a prima facie case of liability against the Defendant for breach of contract and the denial of liability by the Defendant. In this case, the Defendant had not yet stated its position by the time the Plaintiff commenced proceedings for the interim orders. In fact, 14 days as required by Order 12 of the High Court Rules for the filing of appearance had not yet lapsed as service of the Writ of Summons and Statement of Claim was only effected upon the Defendant on 3^rd March 2000. There is therefore no evidence of denial of liability for breach of contract by the Defendant as required by rule 1 of Order 53 of the High Court Rules. In fact, Mr. Hapa conceded this point. There is a further point however. In my view, this is not a case of a contract being breached by the Defendant. There was no contract in place between the Plaintiff and the Defendant. The reason being that there was no consideration. There was no promise moving from the Plaintiff that it would part with its product for nothing. There was no bargain situation in existence.

The Defendant simply retained the possession of the Plaintiff’s product without having paid for them. I would therefore reject Mr. Hapa’s argument under rule 1 of Order 53 of the High Court Rules. I do not also think that Order 53, rule 4 of the High Court Rules would apply to the Plaintiff’s case. Again, as I said in Omex Limited v Timothy Aleve & Others (cited above), the reason for detention or preservation orders under Order 53 of the High Court Rules was to protect the property, being the subject matter of litigation, from being destroyed or dissipated pending the outcome of the litigation between the parties to the dispute. In this case, there is no evidence that the Plaintiff’s product would be destroyed or dissipated. What the Plaintiff is interested in is the return of its product or the payment of its value on the basis of the product being its property. The title to the product never passed to the Defendant because it never paid for it. The appropriate cause of action lies in detinue. I would therefore reject Mr. Hapa’s argument under rule 4 of Order 53 of the High Court Rules. The Plaintiff’s application is refused. There will be cost in the cause.

F.O. Kabui
Judge