Green Enterprises Ltd v Kevisi Milling Company Ltd [2005] SBHC 102; HCSI-CC 400 of 2004 (29 November 2005)

HIGH COURT OF SOLOMON ISLANDS
HC-S1 CC No: 400 OF 2004

GREEN ENTERPRISES LIMITED

-v-

KEVISI MILLING COMPANY LIMITED AND RONALD KEVISI

Civil Case No: 400 of 2004

Hearing: 215th May 2005
Ruling: 29Th November 2005

P. Lavery for the Plaintiff
C. Hapa for the Defendant

RULING

Mwanesalua, J: This is an inter parte application filed on 14th February 2005 by Green Enterprises Limned (the Plaintiff) seeking the following orders:-

1. The property referred to In the schedule annexed to the statement of claim herein filed on 27th August 2004 be removed forthwith from the premises of the Defendants at Engarano, Munda or from any other place subject to their control and detained and preserved in guarded commercial premises to be nominated by the Plaintiff pending resolution of any dispute as to ownership of title to or right of possession of the said property as between the parties.

2. Such other consequential orders as may be necessary to preserve the sold property or otherwise as the court deems just.

3. The costs of and incidental to this application be paid by the Defendants in any event.

Facts

The Plaintiff carries on business of Saw Milling, timber purchasing and timber export in Solomon Islands, The First Defendant also carries on similar business as the Plaintiff in Solomon Islands. The second Defendant is a businessman and the Managing Director of the First Defendant. In April 2002, the Plaintiff and First Defendant entered into an agreement to purchase, harvest and export sawn timber. The parties to this agreement have distinct responsibilities. The Plaintiff provided the machinery and equipment in the schedule to the statement of claim (the Property). On the other hand, the First Defendant was responsible for the procurement of relevant licences, the purchase of sawn timber from private suppliers, the milling and transportation of sawn timber from the Second Defendant's concession area and the daily operations of the business.

The Property

This is the property in the Schedule to the Statement of Claim:

1.	One 6 wheel drive International/Acco Truck Chassis
	No AD1= 6 x 62612 Engine no. 6w 5000 24733701 -	$140,000.00
2.	1 Hydraulic Truck/Crane Damage.
3.	3 x 25 hip Lucas saw Mills Complete with Frames access	$210,000.00
4.	1 x 27 hp Lucas saw mill Complete with Frames access	$85,000.00
5.	1 x 20 foot Aluminum Heavy Duty Barge	$50,000.00
6.	1 Outboard Yamaha 75 Hp no 692 x 805514	$15,000.00
7.	2 x 070 Stihl Chainsaws	$16,000.00
8.	1 x 090 Stihl Chainsaws	$9,000.00
9.	Parts for Sawmills and Chainsaws	$30,000.00
10.	Tools, socket sets, Ring spanners Open end Spanners
	Battery Charger, Power leads and other	$ 20,000.00
11.	Timber Harvesting Equipment Tackle and Blocks
	Fuel Drums, Fuel pump and Ropes	$10,000.00
12.	Refrigerator	$5,000.00
13.	1 x 4 slice Toaster	$300.00
14.	1 carton 2 Inch Water Pipe Connections	$1,500.00
15.	Makita Drop saw.	$500.00
16.	Tarpaulins	$2,000.00
	Total	$594,300.00

The Plaintiffs Case

The Plaintiff seeks orders of the court to remove the property from the premises of the Defendants at Engarano, Munda, and to be detained and preserved in guarded commercial premises pending the resolution of the action.

The Defendant's Case

The Defendants opposed the application. They allege that they have authority to have custody and control over the property.

Decision

The evidence by Thodorus Van De Pitte shows that the action in this case is to recover the property of the Plaintiff being held on spurious grounds by the Defendant. But the evidence adduced by the Second Defendant clearly shows that the Second Defendant was authorized by the Plaintiff to have custody and control of the property. (See the letter of the only sole Director of the Plaintiff then, Alister Morton, attached to the affidavit of the Second Defendant filed on 25th May 2005, marked Exhibit No. "RKS"). That evidence is that "Ronald Kevisi, proprietor of Kevisi Milling Industries, Engarano via Munda, to be the rightful, legally appointed custodian, on behalf Green Enterprises Ltd. Of the tree-felling, sawmilling, transport and maintenance plant and equipment, and spare parts placed into his care, for the purposes of conducting KM1's Milling business and producing sawn timber for the export market." (See para 1 of Exhibit "RKS"). The nature of the equipment is listed in para 2 of Exhibit "RK5" The property can only be released by the Second Defendant if (directed by Mr. Ian Bernard Thomas (see para 3 of Exhibit "RK5").

There was theft of a Lucas Saw Mill model No. 203-3112 from the workshop of the Second defendant on 13th December 2004. The offence was reported to the Police for investigation in the usual way. I do not think it would be fair to lay any blame on the Second Defendant for the theft of the Saw Mill. The Lucas Saw Mill was locked up in a workshop. The thieves broke and entered the workshop to remove the Saw Mill. They were in the wrong and not the Second Defendant.

It was Ian Bernard Thomas who secured money from various companies in Australia to purchase the property for the production of export sawn timber by KM 1, the First Defendant (See Exhibit "RKS" para 3). There is no evidence to show that Ian Bernard Thomas had directed the release of the property from the custody and control of the Second Defendant.

I have considered the provisions of order 53, r 4 of the High Court (Civil Procedure) Rules 1964. My view is that, this is a case where the person who secured the funds to purchase the property for the use of the First Defendant had made special arrangement with the support of the Plaintiff for the property to be placed under the custody and control of the Second Defendant. That arrangement should continue pending trial of this case.

The Plaintiffs applications is refused. I make no order as to costs.

The Court