Fareast Enterprises (SI) Ltd v Tsuki [2001] SBHC 14; HC-CC 038 of 2001 (22 March 2001)

HIGH COURT OF SOLOMON IS

Civil Case No.038 of 2001

v

<

MARTIN TSUKI

High Court of Solomon Islands
Before: Kabui, J
Civie No. 038 of 2001

Hearing: 21^st March 2001
Judgment: 22^nd March 2001

Defendant not present

RULING

(Kabui, J): The Plaintiff by an ex parte Summons filed on 21^st March, 2001, sou the following orders -

ote>

1. That thp Resntnded oand or his Agents, Associations and

&nbssp;&nnbsp;;&nbssp;&nnbsp; <Assignees be restrained from shipping the two containers of

&nnbsp;;&nspp;&nsp; &nsp; laan="EN-US" -US" style="font-size: 12.0pt">timber referred to as containe MLCU 265and CRXU

&nbbsp; 2733160 respectively, which are the propertthe Appli

ass="rmal" style="text-indent: -14.2-14.2pt; mpt; marginargin-left-left: 14.: 14.2pt; 2pt; margimargin-top: 1; margin-bottom: 1">

2. ;&nbssp;&nnbsp;&bsp;&nsp;&nsp; That the Applicant be alle allowed to take possession of the said containers of timber and e theorted and or sold.

<

3. &nbssp; &nsp; Any ordeas this Cour Court deems fit to make.

/p> > <

At the hearing of the ex parte Summons, Counsel for the Plaintiff, Mrs. Samuel, sought an amendment to the Summons by inserting an order requiring the proceeds of the sale of the timber be deposited into an interest bearing deposit account in any of the commercial banks in Honiara in her name as the Solicitor for the Plaintiff. Counsel also asked that the order for costs be costs in the cause. The Orders sought therefore became 1,2,3 and 4 as opposed to 1,2 and 3 above in the original ex parte Summons. I was told by Counsel for the Plaintiff. Mrs. Samuel, that the matter was urgent so that the Defendant who is in Gizo could not be served. In fact, the annexure to the affidavit filed by Mrs. Samuel on 21^st March, 2001, did confirm that containers numbered MLCU 2656141 and CRXU 2733160 were due to be shipped on the Kokopo Chief in the afternoon of the date of the Plaintiff’s Application. The matter was indeed urgent. The ex parte Summons was filed on 21^st March, 2001 at 10:45 am and so it would have been difficult to serve the Defendant at Gizo before lunchtime and the hearing of the Application at 1:30 pm. I granted the orders sought and said I would give my reasons today at 10:00 am. I do so now.

Facts

Undeontract signed by the Plaintiff and the Defendant on 2^nd October 2000, the, the Plaintiff provided the fund with which the Defendant was to purchase timber in the Western Province. Upon being exported, the Plaintiff would recover its capital fund plus 20% of the profits. The balance of the profits would be shared between the Plaintiff and the Defendant on an agreed basis. In accordance with the terms of that Agreement, the Plaintiff provided to the Defendant the sum of $100,812.00 for the purchase of timbers. The Defendant did purchase timber from Swift Shipping Division in the Western Province and packed them in two containers and stored them at Noro awaiting shipment to Honiara for export. The Plaintiff paid $1,836.55 as storage charge at Noro. The total volume of timber packed in the two containers at Noro were 34.437 cubic meters of timber. On arrival at Honiara, the Plaintiff discovered that the total volume of timber in the two containers were 54.04 cubic meters. The two containers MLCU 2656141 and CRXU 2733160 are under the name of Willisman Nori and not the Defendant. The Plaintiff claims that the timber purchased with its fund is its property and the Defendant has no ownership rights to it.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> This Application

The Plaintiff’s ex parte application was based upon a Writ of Summons together with a Statement of Claim filed on 21^st March, 2001. I found that there is a triable issue between the Plaintiff and the Defendant. The Plaintiff also filed a written undertaking on 21^st March, 2001 for damages in the event that the Court should rule in favour of the Defendant in the main dispute between the Plaintiff and the Defendant. In terms of balance of convenience, the Plaintiff stood to loose its money if I did not grant the orders sought in its ex parte Summons. The Plaintiff’s Application therefore succeeded. I granted the Plaintiff’s application accordingly. For the sake of convenience, the orders I made are these –

1.  p;&nbbsp;&nsp; &nsp; The respondent and or his Agents, Associates and Assi are ained shipping anng and or removing and or moving andg and or transporting and or selling and or dealing with the containers of timber referred to as MLCU 2656141 and CRXU 2733160. &nbp>

2. &nbssp;&nnbsp;&nsp; &nsp; The Applibe allowed owed to take possession of the above mentioned containers and have the timbers exported and or sold.

3. &nnbsp; nbsp; The proceeroceeds s of the sale of the timber be deposited into an interest bearing deposit account with any of the commercial banks in Honiara in the Solicitor’s name.

4. & p; bsp; Costs be in the cause

&nbsp

p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> F. Oui

Judge