Ado Solomons Corporation v Lagwaeano Sawmilling and Logging Company [2001] SBHC 176; HCSI-CC 103 of 2000 (2 February 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 103 of 2000

ADO SOLOMONS CORPORATION LIMITED

v

LAGWAEANO SAWMILLING & LOGGING CO. LIMITED,
JOSEPH TAEGA, PAUL RATU, CHANEL ANITA AMD SAMSON DAFE, SOLID WOOD LIMITED AND JOY ITAIA

Before: F. O. Kabui, J

Hearing: 1st February 2001
Ruling: 2nd February 2001

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

RULING

(Kabui, J): By Ex parte Summons filed on 1st February 2001 the Plaintiff seeks the following -

1. That the proceeds or part of the proceeds of sale of 1,200 cubic meters of round logs to be exported by the First, Second, Third and Fourth Defendants on or about the 26th day of January, 2001, valued at USD $96,000.00 or SBD $484,000.00 be not released to them but that such sum as the Court may order be paid into an interest bearing account to be held in the name of Solicitors until an inter-parties hearing between the parties when the said order could be varied/or new orders made by this Honourable Court.

2.That the Honourable Court through the Registrar of the High Court lists the hearing and that the necessary Court documents be served on the Defendants.

3. That the copies of the ex-parte summons together with the affidavit in support and the Court order be served on the Defendants.

4. That there be no order as to costs of this application.

The Facts

The Plaintiff filed a Writ of Summons on 4th April 2000 together with a Statement of Claim, claiming the breach of contract, specific performance and 50% of the balance of the export sales from the first shipment of logs and subsequent shipments of logs from the Lagwaeano Customary Land on Malaita plus costs. The Plaintiff on the same date of the Writ of Summons, obtained orders directing that the proceeds of sale of 2,000m3 (sic) of logs be paid into the Court until further orders of the Court and inter partes hearing of the case. The inter partes hearing was adjourned on 7th April 2000 because of the hope, amongst other things, that the matter would be settled out of Court. The Defendants filed their defence and counter-claim on 27th April 2000. By Summons filed on 26th April 2000, the Defendants challenged the Court orders of 4th April 2000 on a number of grounds. The inter partes hearing was adjourned again on 2nd May 2000 due to the non-attendance of Counsel for the Plaintiff, Mr. Teutao. On 16th May 2000, the Plaintiff filed its reply to defence and defence to the Defendants’ counter-claim. The Defendants reply to the Plaintiff’s defence to the Defendants’ counter claim was filed on 30th May 2000. By a consent order filed on 8th May 2000, the proceeds of the sale were distributed in the manner set out in the Consent Order. A & H Lawyers became the solicitors for the Plaintiff on 26th July 2000. By an Ex parte Summons filed on 31st July 2000 the Plaintiff sought an order directing the proceeds of 80m3 (sic) of logs to be paid into Court until further orders directing Court. The other order was to direct the Registrar of the High Court to list the Plaintiff’s case for hearing. I made my ruling on 1st August 2000 and granted the order sought. In the meantime, both parties asked me to endorse a Consent Order setting out the manner in which the proceeds of the sale of logs were to be distributed between the parties. I refused to endorse the Consent Order and directed the application be by Summons. I made this direction in Chambers on 14th August 2000. In the meantime, the Plaintiff filed a Notice of Motion on 19th September 2000, seeking leave for orders for contempt of Court against the Defendants. The Defendants cross-actioned and filed Summons seeking to vary the order I made on 1st August 2000 and direction that the Plaintiff prosecute its case against the Defendants within 7 days by setting down the matter for directions. I granted leave on 12th October 2000 and dismissed the Defendants’ cross-action. By Notice of Motion filed on 31st October 2000, the Plaintiff sought orders to attach the Defendants for contempt of Court. I refused the Plaintiffs application on 19th December 2000. The Plaintiff has now come back to Court to ask for the same kind of restraining order but this time in respect of the last shipment of 1,200m3 (sic) of logs from Lagwaeano Customary Land.

This Application

At the hearing, I raised the point that if I granted the orders sought, the Plaintiff would no longer be interested in prosecuting its case before the High Court since after this last shipment of logs, logging would cease on Lagwaeano Customary Land. Counsel for the Defendants, Mr. Ashley, took this point up and argued it in favour of the Defendants. I thought about this but came to the conclusion that I should not hold it against the Plaintiff. The delay in fixing the date for the inter partes hearing may not be the fault of the Plaintiff. I noticed on the Court File that there is an order for directions signed by the Registrar of the High Court as recently as on 14th December 2000. This order for directions was a consent order and I suppose the parties are already in the process of compliance. Certainly if I grant the order sought, the Plaintiff’s claim in (c) in the Statement of Claim would cease to exist as a live issue after the proceeds of the sale have been disbursed amongst the parties entitled to receive the proceeds. Issues (a) and (h) are still pending issues to be tried by the Court if necessary. As at the date of hearing, issue (c) is still a pending issue to be decided until it is spent by passage of time if I grant the order sought. On balancing the interests of the parties in terms of convenience and the other usual factors in this sort of cases, I am satisfied on the affidavit evidence that should exercise my discretion in favour of the Plaintiff. I accordingly grant orders 1 and 4 in the Ex parte Summons. I do not think it is necessary for me to make orders 2 and 3. I order accordingly.

F.O. Kabui
Judge