Horoi v Owa [2009] SBHC 72; HCSI-CC 456 of 2007 (9 March 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

TIMOTHY HOROI
Claimant

AND:

ELIJAH OWA
First Defendant

AND:

MINHO INVESTMENT LTD
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 2 March 2009
Date of Decision: 9 March 2009

Mr. Kingmele for Second Defendant
Mr. Muria for Attorney General
Ms Bird for First Defendant
Mr. D. Hou for Claimant.

DECISION ON APPLICATION TO VARY INTERIM ORDERS TO RELEASE PORTION OF FUNDS TO SECOND DEFENDANT

Cameron PJ:

1. The second defendant, the logging company involved in this dispute, seeks an order that it be paid its 60 percent entitlement to the net proceeds of sale of certain logs. Funds otherwise due to the first and second defendants are being held in a joint trust account pursuant to previous interim orders of this Court, because they represent the proceeds of sale of logs alleged to have been illegally felled from land owned by the claimant. It is from this fund that the second defendant wishes the Court to order payment.

2. The second defendant's argument is that not to release the funds would have the effect of securing a fund in favour of the claimant pending the outcome of the litigation, which it says should not occur except in special circumstances. It says that those circumstances do not exist here.

3. The Solomon Islands Court of Appeal decision in Tropical Forestry Ltd v. Pou [2007] SBCA 18 is relied on in support of the proposition that there will not normally be an order securing a fund pending the outcome of litigation unless special circumstances require that course to be taken. While the Court undoubtedly stated that, it went on to elaborate on that proposition. In particular, it stated that while the existence of property or a fund is not by itself a sufficient reason for such order, the risk of dissipation or destruction is an important factor to be considered. It also stressed the importance of the existence of property or a fund the right to which is in question.

4. In this case, the fund represents the proceeds of sale of logs alleged to have been illegally logged. In other words, the right to that fund is in question. In addition, if the funds do not continue to be secured, it would seem that the claimant will have little chance of successfully enforcing any damages awarded against the defendants. The first defendant is said to be a businessman carrying on business in various parts of the Solomon Islands under the name Southern Enterprises Sawmilling. It is unclear whether Southern Enterprises Ltd is a registered company or simply a trading name of the first defendant. In any event, no sworn statements have been filed by or on behalf of the first defendant, and there is no financial information relating to him or to Southern Enterprises Sawmilling. The second defendant logging company is no longer operating in Malaita, where the claimant is based and the felling took place. I am advised by its counsel that its logging machinery has been moved to Isabel Province. From the records held by the Registrar of Companies in Solomon Islands it appears that:

a. The second defendant, while incorporated in Honiara, has no recorded registered office in Solomon Islands.

b. The total number of shares of the second defendant company is 20, with a total share capital of $20.

c. The directors and secretary of the company are all Malaysians with addresses in Sarawak, Malaysia, but no recorded addresses in Solomon Islands.

5. In my view continuing to secure the funds is necessary to preserve any realistic chance of the claimant enforcing a judgment in his favour. I note the amount sought by way of compensatory damages by the claimant exceeds the amount held in the joint trust account.

6. I also point out in making this application for release of funds the second defendant portrays this dispute as between the claimant and the first defendant licence holder alone; however, the second defendant's actions in allegedly illegally felling trees remains very much a part of this dispute, and of course its claim to funds can be no better than that of the first defendant from whom it derived its rights.

7. The orders sought are declined. The matter will be relisted for mention at 9.30 am on 2 April 2009.

BY THE COURT