Solomon Fisheries Ltd v Church of Melanesia Trust Board Incorporated [2011] SBHC 180; HCSI-CC 371 of 2011 (17 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 371 of 2011

BETWEEN:

SOLOMON FISHERIES LIMITED
Claimant

AND:

CHURCH OF MELANESIA TRUST
BOARD INCORPORATED
First Defendant

AND:

MELANESIA HOLDINGS LIMITED
Second Defendant

Date of Hearing: 1 November 2011
Date of Ruling: 17 November 2011

B. Etomea for Claimant
A Radclyffe for Defendants

RULING

Mwanesalua J:

1. The Claimant filed a claim against the First and the Second Defendants on 19 September 2011. The claimant seeks damages, interest and costs.

2. The issue in contention between the Claimant and the Defendants at this point in time, is whether the Claimant is a legal entity on the date it filed its claim on 19 September 2011.

3. The case for the Claimant is that the legal status of the Claimant persisted when the claim was filed on 19 September 2011. Alternatively, as the court understands from the argument of counsel for the Claimant, that the legal status of the Claimant had been restored when it was re-registered on 26 September 2011. Counsel then submits that if this alternative argument is accepted by the court, it would then follow that the claim was restored on that date.

4. The Claimant was incorporated on 6 August 2004 under the Companies Act (Cap. 175). The Companies Act was amended by the Companies 2009 ("the Act"), which came to force on 1 July 2010. The Act requires that all companies incorporated in Solomon Islands be re-registered by midnight on 30 June 2011. The Claimant was not re-registered by this date and was removed from the Register of Solomon Islands Companies. The certificate of incorporation of the Claimant, marked as annexure I to the Sworn Statement of Mr. David Kwan, the Managing Director of the Claimant, shows that the Claimant was incorporated on 6 August 2004 and was re-registered on 26 September 2011.

5. The case for the Defendants is that the Claimant had lost its legal status as a legal entity when it failed to re-register by 30 June 2011. As a result, the Claimant had no locus standi to file its claim against the Defendants on 19 September 2011. They therefore submit that the court should strike out and dismiss the claim against the Defendants.

6. It is obvious that Companies may still be reinstated in the Register of Companies after 30 June 2011. The process is provided under Section 150 of the Act. This court holds the view that the Claimant was restored under this process.

7. There are two Sections of the Act which are relevant to the determination of the issues raised by the Claimant's application. They are Sections 8 and 150 of the Act. These sections are in these terms:

S.8 (1) A Company incorporated under this Act is a legal entity in its own right separate from its shareholders, and continues in existence until it is dissolved.

S.151 (1) ..............

(2) A company restored to the Solomon Islands Register is deemed to have continued in existence as if it had not been removed from the register.

8. (1) In this case, there is no evidence that the Claimant has ever been dissolved. It continues to exist as a legal entity. Its status as a legal entity was not affected by its removal from the company register.

(2) The claim filed against the Defendants is effective against the Defendants by virtue of section 151 (2) of the Act. The orders of the court are therefore as follows:

Order:

(1) The Claimant was a legal entity when it filled its claim on 19 August 2011.

(2) The Defendants to file their defence within 14 days.

(3) The Defendants to pay the Claimant's costs of this application.

Order accordingly.

THE COURT