Nano v Lupa Development Company Ltd [2004] SBHC 9; HC-CC 021 of 1997 (5 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 21 of 1997

SIMEON NANO

V.

LUPA DEVELOPMENT COMPANY LIMITED
AND SILVANIA PRODUCTS LIMITED

High Court of Solomon Islands
(Palmer C.J)

Hearing: 5^th February 2004
Ruling: 5^th February 2004

P. Tegavota for the Applicant/Plaintiff
P. Watts for the first Respondent/ first Defendant
J. Katahanas for the second Respondent/second Defendant

Palmer CJ.: The application of the Applicant/Plaintiff (“Plaintiff”) by summons filed 4^th December 2003 for leave to apply for writ of attachment against the first Respondent/first Defendant (“first Defendant”) issued by the High Court Registry on Friday 27^th February 2004 and listed for hearing today was objected to by Mr. Katahanas on behalf of the second Respondent/second Defendant (“second Defendant”) on a number of grounds. The first ground relied on was defective service on the first Defendant and its directors Timi Berry Stephen, Timi Brick Stephen, Ranoley Riringi, Watson Kule and Sendere Veloso.

Order 33 rule 22 of the High Court (Civil Procedure) Rules, 1964 (“the Rules”) provides that service of an order to found an application for an attachment made against any party may be sufficient service if made on his advocate. Has service of the Court Orders dated 16^th June 1997 and 25^th May 2001 been effected on the first Defendant? In his summons filed 4^th December 2003 Mr. Tegavota relied on the affidavit of Jerry Tekapo filed in Civil Case Number 301 of 2003. I have had the opportunity to peruse that affidavit as well as copies of the judgements in which the orders were issued. Though nothing was said in that affidavit regarding service of the orders of the court, it is clear the first Defendant was represented in the first instance by Mr. Waleilia and in the second judgement of 25^th May 2001, by Mrs. Maelyn Samuel. Their presence in court on the dates judgement was issued is evidence of notice. By virtue of that, the first Defendant is deemed by law to have had notice of those orders.

What about the directors? Has service of the orders been effected on each of them personally? Mr. Tegavota conceded in court that he was not aware that personal service on the directors had been effected. The first Defendant is a separate legal entity, and therefore any service on it cannot be deemed to be service on the directors in their personal capacity. Where it is intended to attach the directors then the orders of the court must be served on them personally - Redwing, Ltd v. Redwing Forest Products, Ltd^[1]. During the hearing I pointed out that in view of this defect either the matter is withdrawn as against them or it would be struck out. Learned Counsel Mr. Tegavota opted for withdrawal which was granted by the court.

The second objection raised by Mr. Katahanas to the summons of the Plaintiff pertained to the question whether the appropriate remedy was sought in this matter. In Callow v. Young^[2] the difference between a committal and a writ of attachment was pointed out as follows:

“Committal was the proper remedy for doing a prohibited act, and attachment was the proper remedy for neglecting to do some act ordered to be done”.

It follows in this case that where it is alleged a contempt has been committed for the breach of certain restraining orders by the first Defendant, then the appropriate remedy would be to apply for committal of the first Defendant. In the same case Callow v. Young (ibid), the plaintiff who had moved for leave to issue a writ of attachment against a defendant for his contempt, committed in breach of an undertaking given in an action not to carry on certain business, was allowed to amend his notice of motion by asking for committal as well as attachment.

Unfortunately, an amendment to proceed for an order for committal would still be flawed in this application. It is clear that the intention of the Plaintiff in this application was to apply for leave to commit the directors of the first Defendant for contempt. To allow the application for attachment or committal to proceed against the first Defendant as a limited liability company would not be proper as it cannot be committed for contempt^[3]. The proper course of action to pursue in this instance would be by motion that the company should attend to answer in respect of its contempt^[4].

In the circumstances the Summons for leave to apply for Writ of Attachment should be dismissed with costs.

The Court.

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^[1] (1947) 177 L.T. 387
^[2] (1887) 56 L.T. 147 [see The Supreme Court Practice 1954 at 798]
^[3] Re Hooley (1899) 79 L.T. 706
^[4] R. v. Freeman’s Journal [1902] 2 Ir. R. 82