Ado Solomons Corporation Ltd v Lagwaeano Sawmilling and Logging Company Ltd [2000] SBHC 58; HC-CC 103 of 2000 (19 December 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 103 of 2000

ADO SOLOMONS CORPORATION LTD

-V-

LAGWAEANO SAWMILLING & LOGGING COMPANY LTD,
JOSEPH TAEGA & OTHERS AND JOY ITAIA (trading as OCEANIA TRADING)

High Court of Solomon Islands
(Kabui, J)

Date of Hearing: 14th December, 2000
Date of Judgment: 19th December, 2000

Mr J. Hauirae for the Plaintiff
Mr C. Ashley for the Defendants

JUDGMENT

(KABUI, J): This is a Notice of Motion filed by the Plaintiff on 31^st October 2000 against the 1^st, 2^nd, 3^rd and 4^th Defendants (the Defendants) asking for the following orders to be made against the Defendants –

1. That the Defendants be adjudged for contempt of Court;
   
2. That the Defendants pay into Court the sum of $420,000.00 as ordered by the Court forthwith; and
   
3. The Defendants pays for the costs of this application.
   

On 1^st August 2000, I ruled in favour of the Plaintiff and ordered that the proceeds of the sale of 800m³ of round logs of the species pometia exported by the Defendants on 22^nd July 2000 in the sum of US$81,000 or SBD420,000 be paid into court forthwith until further order of the Court. This Order was sought by the Plaintiff in an ex parte Summons filed on 31^st July 2000. The hearing was however inter partes because the Defendants were served with a copy of the ex parte summons at 2:30 pm that same day and they appeared in Court through their Counsel, Mr. Ashley.

The Brief Background

About 7 days later after I made the ruling on 1^st August 2000, a Consent Order was filed in the High Court seeking the Court’s endorsement. The Consent Order was signed by the solicitor for the Plaintiff and the solicitor for the Defendants. I declined to endorse the Consent Order because it was not consistent with the Order I made on 1^st August 2000. I directed that the Order I made be discharged or at least be varied so that the Court File could reflect the true position correctly. The parties appeared before me on 14^th August 2000 and I adjourned the matter. The Plaintiffs Solicitor promised to file an application for variation of my Order. In the meantime, the Plaintiff sought leave of the Court to commence contempt of Courts proceedings against the Defendants for failing to comply with my Order of 1^st August 2000. In answer to the Plaintiff’s action in proceeding for contempt of Court against the Defendants, the Defendants filed a Summons on 9^th October 2000, requesting the variation of my order and for an order that the main case be prosecuted within 7 days by setting the matter down for directions. I heard the Plaintiff’s application for leave and the Defendants’ Summons in objection to the Plaintiff’s application for leave on 12^th October 2000. At the end of that hearing, I granted leave as requested by the Plaintiff and dismissed the Defendants’ Summons.

Non-Compliance with Court Order by the Defendants

The procedure for applications for attachment for contempt of court is set out in Order 61, rule 21 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). This Rule states -

“21. (1) The procedure in applications for attachment for contempt of court in the cases to which this Rule applies shall be the same as in applications for an order of mandamus and Rules 2, 4, 5 and 6 of this Order shall apply accordingly to applications for attachment, so far as they are applicable:

Provided that the issue of the writ of attachment shall not be ordered by a Judge in Chambers, and the notice of motion shall be personally served unless the Court dispenses with such service.

(2) This Rule applies to cases where the contempt is committed –

• (a) in connection with proceedings to which this Order relates;
  
• (b) in connection with any proceedings in Court, except where the contempt is committed in facie curiae or consists of disobedience to an order of the Court;
  
• (c) in connection with proceedings in an inferior court.”
  

Whilst the Plaintiff has complied with this procedure, there is still more to it if the Plaintiff is to succeed in obtaining a contempt of court order from the Court. In this case, whilst I gave my ruling on 1^st August 2000, it was not perfected until some days later. That is to say, it was ready for distribution some days later. I also I did not sign a Court Order as a separate document to be served on the Defendants pending the perfection of my ruling for the purpose of distribution. The usual practice in this jurisdiction as I understand it is for the Counsel applying to be ready with the draft order for signing if the Court rules in favour of the Counsel applying for the order. This practice is particularly useful in interlocutory matters or in other applications where the Court Order is expected to be served on the other party straight away. In this case, as I have said, no draft order was ready for me to sign in favour of the Plaintiff. Counsel for the Plaintiff, Mr. Hauirae, had not prepared one. So, the Plaintiff had to go by my formal ruling which, as I have said, was not perfected until days later for distribution. There is no doubt that the Defendants did not comply with the Order I made on 1^st August 2000.

Was Service of the Order effected by the Plaintiff

Order 9, rule 14 of the High Court Rules states –

“(1) Service of a notice, summons, order or other document, shall wherever it is practicable, be effected personally on the person to be served and service thereof shall be completely effected by the delivery of a duplicate or attested copy of any such notice, summons, order or document without the exhibition of any original:

Provided that where service as aforesaid cannot be effected the provisions of Rule 2 of this Order as to substituted service shall, mutatis mutandis, apply.

(2) Service on the advocate or recognised agent of the person to be served shall be deemed to be effective service on such person.”

The Plaintiff did not seem to have complied with rule 14 above. There is no evidence before me that my formal ruling was served on the Defendants personally or otherwise by the Plaintiff. This is important. The Defendants may well say, “we were not served with any Court Order telling us to pay money into Court”. It is for the Plaintiff to say that the Defendants are wrong in saying this. Nowhere in the affidavit filed on 19^th September 2000 by Mr. Hauirae, Counsel for the Plaintiff, does it say that the Court Order upon which he was relying had been served upon the Defendants by the Plaintiff. There is also no evidence to confirm that Mr. Ashley as the advocate for the Defendants had been served with the Court ruling being relied on by the Plaintiff. The fact that Mr. Ashley was in Court when I made the ruling and subsequently, I assume, received a copy of my formal ruling cannot be said to represent proper service within the meaning of rule 14 above. He must be served formally in the same manner as if the Defendants themselves were served personally. Although the Defendants did not take this point up, it remains a crucial point for the success or otherwise of the Plaintiff’s application (See Hampden v Wallis [1884] UKLawRpCh 140; (1884) 26 Ch. D. 746 and Gordon v Gordon (1946) 1 A.E.R. 247). It also goes without saying that in this case, time was of essence because the Plaintiff wanted the Defendants to pay money into Court as soon that money came into their possession in order to protect the Plaintiffs interest. This apparently did not happen because the Plaintiff itself did not serve the Order upon the Defendants or their Solicitor whichever was the case.

What Happened Instead

According to Ashley’s affidavit filed on 9^th October 2000, (Solicitor for the Defendants), he and the Plaintiff’s Solicitor, Mr. Hauirae discussed my Order and in that discussion, it was revealed by the Defendant’s Solicitor to the Plaintiff’s Solicitor that out of $420,000 fob, export duty would have already be deducted as Government revenue. On this basis, the Plaintiff’s Solicitor agreed that a variation order would be agreed to by his client, the Plaintiff. The result was that a variation order was prepared and signed by the Solicitors of both parties on 9^th August 2000. In the meantime, the Plaintiff refused to receive the sum of $19,198.26 from the Defendants representing 50% of the money to be shared by the parties after all expenses had been met. The Plaintiff at that point in time was no longer interested in any variation order and had not instructed his solicitor to vary my order of 1^st August 2000. The Plaintiff is now turning around and enforcing my order against the Defendants by saying that they had not paid money into Court and must be attached for this failure to obey my Court Order.

Decision

Obviously, the Plaintiff was at first prepared to compromise my Order and its Solicitor did counter-sign a Consent Order on 9^th August 2000 to that effect. After the brief appearance of the parties before me on 14^th August 2000, the Plaintiff’s Solicitor, as I have said, promised that he would file an application for the variation of my order to pave the way for my endorsement of the Consent Order. The Plaintiff’s Solicitor never came back apparently because the Plaintiff had changed its mind and instructed his solicitor to that effect. The Plaintiff obviously was not sure of what really it wanted to do. The Court cannot be used by the Plaintiff to resolve its doubts, confusion and stubbornness in choosing what it wants. In the process of making up its mind as to what to do, the Plaintiff has failed or forgotten to serve the Defendants with my Order. It cannot now point a finger at the Defendants and say “You are guilty of contempt of Court”. That cannot be the case. The Plaintiff has weakened its own position by failing to serve the Defendants with a copy of my Order. The Plaintiff’s application is therefore ill-conceived and must fail. On this basis, I refuse the Plaintiff’s application and dismissed it with costs.

F.O. Kabui
Judge