Lae v Valahoana Company Intergrated Development [2001] SBHC 27; HC-CC 269 of 1999 (21 May 2001)

ass="MsoNormal" aal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 269 of 1999

LAWRENCE LAE AND WILLIE KAREJAMA

- v -

VALAHOANA COMPANY INTERGRATED DEVELOPMENT

AND OTHERS

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High Court of Solomon Islands

(F. O. KABUI), J)

Civil Case No: 269 of 1999

Hearing: 18^th M 2001

> Ruling: 21^st May, 2001

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Mr D. Hou for the Plaintiffs

Defendants not present

RULING

(Kabui, J): This is an ex parte Summons filed by t by the Plaintiffs on 17th May, 2001 seeking the following orders -

1. Leave to further amend the Amended Statement of Claim;

as class="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 2. An Order that the 1st to 6th Defendants pay into court the proceeds of sale of all logs felled on Sarangona Land together with a list of species of logs felled on Sarangona Land and their respective f.o.b. value which were exported and or shipped during the period from August to November 1999.

3. A Mareva injunction restraining the said 1st to 6th Defendants in paragraph 6 hereof by themselves their servants or agents or otherwise be restrained from: -

(i) Disposing of or dealing with any of their assets within the jurisdiction and in particular: -

(a) All Banks account holding credit balances in the ames of any of 1st to 6th D6th Defendants and/or jointly with each other in either of the following commercial banks; ANZ Bank, Westpac Bank and NBSI.

as class="MsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (ii) Disposing of or dealing with any of the 1st to 6th Defendants share or intr interest in the sum of SBD$102,976.07 currently held by the High Court pursuant to civil case 109 of 2000 between OMEX Ltd v Joseph Aleve Malanga and others until further order or trial of the Plaintiffs case.

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4. Further aer granting leave to the Plaintiff to give the 1^{st to 6th Defendants to the said Commercial Banks in Honiara with which the 1st to 6th Defendants or either of them conduct or conducts, any account or accounts by delivering to or leaving with some person apparently in its employ at its premises in any of the premises of the said Commercial Banks at Point Cruz, Honiara a copy of the Orders sought herein.}

p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 5. Other Orders deem fit by the Court.

7. Cost.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> This application is said to be urgent in view of the fact that the sum of 102,976.07 currently held held by the Court is the only remaining fund known to exist which the Plaintiffs are hoping to lay their hands upon as compensation for royalties foregone by them as a result of the Defendants ignoring their claim for the logs felled from Sarangona Land. The Defendants have not, for this reason, been served with copies of the ex parte Summons for fear of the remaining fund being taken out before the Plaintiffs are able to reach it in time. At the hearing, Counsel for the Plaintiffs, Mr. Hou, decided to withdrawn Order 2 in the Summons on the ground that events have overtaken it.

The Background

The Plaintiffs came to Court by filing an' Amended Statement of Clai1st October, 1999. The reli relief sought in that Statement of Claim were (I) a declaration that the 1st Defendant's logging licence did not cover Sarangona Land, (2) damages for trespass and conversion, (3) account of funds and (4) an injunction restraining the 1st Defendant from entering and removing timber from Sarangona Land plus interest on damages and costs. By Motion filed on 18th August, 1999, the Plaintiffs obtained an Order made on 20th August, 1999 directing that the 1st and 2nd Defendants pay into Court the proceeds of sale of all logs felled from Sarangona Land until further Order of the Court together with a list of species of logs felled on Sarangona Land and their fob value. The 1st and 2nd Defendants have failed to obey the Court Order of 20th August, 1999 to date. An attempt by the Plaintiffs to commit the Camp Manager and the Directors of the 1st Defendant for contempt of Court is still pending in the Court. The logging operation on Sarangona Land has now been completed but no royalties had been received from the 1st Defendant by the Plaintiffs in respect of three shipments of logs obtained from Sarangona Land. The royalties had all been exhausted and the Plaintiffs have missed out as a result. The Plaintiffs have now commenced action in the Marovo Council of Chiefs forum to determine the ownership of Sarangona Land. In the meantime, the Plaintiffs have learnt that the same 6th, Defendant Omex Limited is in dispute with Joseph Aleve Malanga in Civil Case No. 109 of 2000. A search carried out by Mr. Karejama the representative of the Plaintiffs on 17th April, 2001, has revealed that SBD$102,926.07 is currently in the custody of the Court pursuant to a Court Order in Civil Case No. 109 of 2000 above. The Plaintiffs are now seeking Orders to preserve SBD$102,926.07 for their benefit pending the resolution of ownership of Sarangona Land.

Thief Sought

The Plaintiffs are, amongst other things, seeking a Mareva injunction in the main. The other orders sought are supplementary in nature. Can Mareva injunction be granted in cases where the main dispute is over ownership of customary land? I think it can be done if the facts do warrant it. The original purpose of Mareva injunction in commercial cases has now been extended over the years to cover other cases in other areas of the law (see Allen & Others v Jambo Holdings Ltd & Others, Barclay Johnson v Yuill and Rahman (Prince Abdul) Bin Turki AL Sudairy v Abu - Taha & Another all cited in [ 1980] 1 WLR at 1252, 1258 and 1268 respectively. I applied that principle in John Osiramo v Mezach Aeounia Civil Case No. 020/2000. I also reiterated the ability of the High Court to aid the Chiefs, the Local Courts ad the Customary Appeal Courts in Nathan Kere v Paul Karana (Civil Case No. 258 of 2000). I would apply the same principle in this case. I am aware of the fact that the Plaintiffs only reported their case to the Chiefs on 8^th May, 2001. This is not their fault but of their Solicitor and the fact that Mr. Tegavota who was acting for the Defendant: had gone to reside in Gizo during the whole period of the recent ethnic tension. This was a contributing factor for the delay in this case. The claim of ownership of Sarangona Land now before the Marovo Council of Chiefs is obviously a triable issue before the Chiefs. The Plaintiffs would stand to lose much if the injunction sought is not granted. The trees are long gone and there might have been damage to the land. Damage to the Plaintiffs interest is beyond repair in that the trees are gone forever for which the Plaintiffs have not received any compensation in terms of royalties and other payments to which they might have been entitled. In terms of the balance of convenience, the balance is obviously in favour of the Plaintiffs. I would grant Order 3 in the Summons.

As regards the Order for leave to amend the Plaintiffs Amended Statement of Claim, I would also grant it for what it is worth. The hope is that if the Plaintiffs do establish ownership of Sarangona Land at the end of the day, that would entitle then to sue for trespass and conversion, if necessary. I grant no other Orders sought by the Plaintiffs. The Orders of the Court are therefore that -

1. Leave to amend the Amended Stateof Claim is granted;span>

2. Mareva injunction sought is grantedan>

3. Cost be in the cause.

Judge