Keke v Lam [2013] SBHC 60; HCSI-CC 275 of 2009 (3 June 2013)

IN THE HIGH OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 275 of 2009

BETWEEN :

STANLEY KEKE
Claimant

AND:

MICHAEL LAM
First Defendant

AND:

PACIFIC METRO LIMITED
Second Defendant

AND:

PACIFIC CREST ENTERPRISES
Third Defendant

Date of Decision: 3 June 2013

Mr. Tegavota for Claimant
Mr. Keniapisia for Defendants

DECISION

[1] Mr. Stanley Keke, "the Claimant" was a former employee of Pacific Metro Limited from August 2002 as a Land Coordinator. He was made redundant in June 2008. His conditions of service were: (1) a basic salary of $1,400.00 per month; (2) a housing allowance of 10% of his salary per month; and (3) log shipment incentive of 30cents per cubic metre. The Second Defendant did not dispute this pay package. His pay slip confirms that the Claimant was employed by the First and the Second Defendants as a Land Coordinator from 2002 to 2008.

[2] The Claimant filed a claim against the Defendants on 5 August 2009. He seeks: (1) payment of salaries in the sum of $28,000.00 for a period of 20 months from May to December 2004 and from January to December 2005 in the sum of $1,400.oo per month; (2) payment of log shipment incentives in the sum of USD56, 534.88 based on the total of export volume of 28,267 cubic meters at the rate of USD2.00 per cubic meter; (3) costs and (4) further order as the court deems fit. The Claimant asserts that these sums were due to him under a verbal agreement between the First Defendant and himself.

[3] His present claim is in relation to a verbal agreement referred to in paragraph 2 above. The Defendants engaged the Defendant between May 2004 and December 2005 under that agreement to secure logging concessions on Guadalcanal for the Defendants. He alleges that his payments due under that agreement would be a salary of $1,400.00 a month and a shipment bonus of USD2.00 a cubic meter. It is also the Claimant's case, that he was not paid for his bonus of USD2.00 a cubic meter for logs felled and exported by the Third Defendant from customary land on which he negotiated with customary land owners.

[4] On the contrary, the Defendants' case is that: (a) no oral agreement was ever made by the Claimant with them; (b) Valepelo and Rokina land concessions were not secured; (c) during the relevant period, the Claimant was employed by the First and Second Defendants; and (d) even if the Claimant had actually carried out all the work alleged under the oral agreement, any pay due to the Claimant had already been paid to him during the period as he was employed by the First and Second Defendants.

[5] The Claimant had actually carried out negotiations with customary landowners on whose lands Pacific Metro had extracted logs for export. This is confirmed by Exhibits "SK2" and "SK3".

[6] There is no dispute that the First Defendant is a shareholder of Pacific Crest Enterprises. Both the First Defendant and the Claimant confirm this position. But the Claimant says that his negotiation bonuses for Pacific Crest Enterprises was USD2.00 per cubic metre on lands which he held negotiation with customary Landowners. These bonuses were never paid to him. The Timber Licence holder for logging and the export of those logs belonged to Valepelo Development Company Ltd. (See Exhibits "SK5" to "SK11". Both Mr. Joe Denty and the Claimant himself confirmed that the Claimant had negotiated with the landowners in the areas which the Third Defendant had carried out its logging on (See Exhibits "SK4" and "SK12"). The Third Defendant made log exports from Marau Sound, Guadalcanal Province, utilizing Valepelo Development Company's Licence No. Tim 2/119.

[7] This oral contract was wholly made by word of mouth, and therefore its contents are matters of evidence for this court sitting as a jury. I infer from the evidence in paragraph (6) herein, that the Claimant negotiated with landowners for concession areas where Pacific Crest Enterprises felled logs for export under the Valepelo Development Company's Logging Licence.

[8] The main issue in this case is whether there was any verbal agreement entered into by the First Defendant with the Claimant to negotiate timber rights for the Defendants. The Claimant refers to Exhibits "SK1" to "SK13" to his sworn statement filed on 13 October 2010. It is clear from Exhibit "SK2" which shows that the Claimant earns a salary of $1,400 per month, receives a housing allowance of 10% per month and shipment incentive of $0.30 per cubic meter. But these payments were made when the Claimant was employed as the land co-ordinator for Pacific Metro Limited. It would be noted that the Claimant asserted that he was the Land Coordinator for negotiating land concessions between May 2004 and 2005 upon which the Second and the Third Defendants extracted logs for sale. The Defendants did not point to any specific evidence in support their assertion that the Claimant had already been paid as land coordinator of the Third Defendant. The pay slip referred above tells a different story. It clear from that pay slip that the Claimant was paid his 10% housing allowance and 30 cents log shipment allowance.

[9] The Claimant says the First Defendant had engaged the Third Defendant to log lands he negotiated concessions so as to avoid paying him the log shipment allowance of USD2.00 per cubic meter. There is no dispute that the Third Defendant exported a total volume of 28,267 cubic meters which would entitle the payment of USD56, 534.88 to the Claimant. The First Defendant employed the Claimant to work for the Second Defendant. It was during that period that the Claimant negotiated with Customary Landowners on lands which the Third Defendant subsequently carried out logging operations. The First Defendant is a Shareholder of the Third Defendant. The Claimant alleges that the First Defendant has yet to pay him for negotiation with landowners on lands logged by the Third Defendant. The First and the Third Defendants denied this and said that the Claimant had already been paid. The court will acceptance the Claimant's evidence that he was never paid any shipment bonus of USD2.00 for logs export by the Third Defendant. The logs were felled and exported under the Licence issued to Valepelo Development Company Ltd. The court has observed the demeanour of the Claimant when he gave his evidence in court. He appeared to be a credible witness even under intense cross examination by the solicitor for the Defendants. His evidence is corroborated by Denty that all shipment of logs made under Valepelo Development Company Ltd Licence were from lands negotiated by the Claimant. The court has no reason to doubt the evidence of both the Claimant and Joe Denty. The court found as fact that there is evidence that the Claimant had received his monthly salary of $1,400.00 when he was still an employer of the Second Defendant. But he had not received his shipment bonuses for logs felled and exported by the Third Defendant. The Second Defendant and the Third Defendants benefited from logs felled and exported from lands negotiated by the Claimant, notwithstanding that the Third Defendant was not an employee of the Third Defendant. The Third Defendant benefited from the sale of those logs. The Third Defendant accepted that the Claimant negotiated logs it sold overseas.

[10] In the circumstances, the First, the Second and Third Defendants are to pay USD$56,534.00, valued in Solomon Islands currency to the Claimant. Order accordingly.

THE COURT