Beldon v Qanaku Development Company Ltd [2016] SBHC 59; HCSI-CC 20 of 2012 (10 May 2016)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, DCJ)

Civil Case No. 20 of 2012

BETWEEN:

MATHA BELDON AND CARL BELDON
(Representing the majority shareholders and
Directors of the First Defendant prior to registration)-
Applicants

AND :

QANAKU DEVELOPMENT COMPANY LIMITED
First Defendant

AND :

EDDYE FAGA
Second Defendant

AND :

SIMON GARIURUHA
Third Defendant

AND :

EDWARD KAKANA
Fourth Defendant

AND :

ELLA KANAFUGE
Fifth Defendant

AND :

JOSEPH KEKEFAGA
Sixth Defendant

AND :

BUTTER KUPER
Seventh Defendant

AND :

BEN MAHANA
Eighth Defendant

AND :

EDDIE MARAI
Ninth Defendant

AND :

DAVID SITAI
Tenth Defendant

AND :

MATHIAS TARAHA
Eleventh Defendant

AND :

ROBERT WAIWAIRIKI
Twelfth Defendant

AND :

PETER WARIMAUANA
Thirtieth Defendant

AND :

THOMAS BEA
Fourteenth Defendant

AND :

REGISTRAR OF COMPANIES
Fifteenth Defendant

Date of hearing: 16 November 2012
Date of Ruling: 10 May 2016

Mr. Menepo for the Applicant
Mr. Firigeni for the Registrar of Companies

RULING

This is an application by the Applicants for the following orders:

1. An order for the rectification of the Company Register in respect of Qanaka Development Company Limited.
   
2. A declaration that the re-registration of Qanaku Development Company Limited by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Defendants on March 2, 2011 was unauthorized and invalid.
   
3. A declaration that the re-registration of Qanaku Company Limited does not affect the ownership status of those vessels MV Kaona and MV Christie Leigh in anywhere whatsoever and that ownership claims by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Thirteenth Defendants was null and void.
   
4. A permanent injunction restraining the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and Fourteenth Defendants from entering into the premises and assets of Qanaku Development Company Limited either in Honiara or elsewhere or from interfering with the Applicants’ operation of Qanaku Development Company Limited.
   
5. An order that the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth and fourteenth Defendants do deliver up to the Applicants or the Applicants’ accountants all the records, books, bank statements, inland revenue receipts and/or any other equipment the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Thirteenth, Fourteenth and Defendants have in their possession at the time of re-registration.
   
6. Alternatively, in the event that this Honourable court fails to grant the orders herein, the Applicants seek that the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, tenth, Eleventh, Twelfth and Thirteenth Defendants to repay the sum of $702,088.39 being monies paid from the Applicants’ personal funds to the Inland Revenue Department on behalf of Qanaku Development Company Limited on May 27, 2011.
   
7. Such further or other relief as the courts thinks fit.
   
8. Costs.
   
9. The First Defendant was incorporated in Solomon Islands in 1998. It is a limited liability company with 10,000 shares. The Applicants Martha Beldon and Carl Beldon (the Applicants represent the Majority Shareholders and Directors of the Defendant prior to registration.
   
10. The Sixth, Ninth, Twelfth and Thirteenth Defendants were the only original shareholders of the First Defendant each having 13 shares, 10 shares and 12 shares respectively.
    
11. The Fourteenth Defendant was the previous company Secretary for the First Defendant and had since resigned from that position since December 2004 with the other previous directors, except the fourteenth Defendant who has now listed himself as the Company Secretary for the First Defendant upon re-registration on 2 March 2011.
    
12. On or about 2 March 2011, the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Defendants without the knowledge, authorisation, and or approval of the Applicants (who held the majority shares and are directors) re-registered the First Defendant.
    
13. The Applicants did not authorise the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth Defendants to register the First Defendant or to adopt the model rules under the Companies Act 2009 (“the Act”) to replace the existing memorandum and articles of association.
    
14. The Eight Defendant’s response to the Claimant’s application for interlocutory remedies is that he does not know about the remedy sought in paragraph 1; In relation to paragraph 2, he says that the re-registration of the First Defendant was valid and duly authorised by the Board of Directors. In relation to paragraph 3, he says that First the Defendant remains the owner of the MV Kaona, through the unauthorised conduct of the Claimants is now subject of a Lien claim before the High Court of Vanuata; the remedy in paragraph 4 is final remedy and not interlocutory; In relation to paragraph 5, he says that the records, books and equipment of the First Defendant are with the Applicants who put it’s only asset the MV Kaona to trouble at Vanuatu; In relation paragraph 6, he says that the Applicants need to disclose the revenue earned by the First Defendant in Solomon Islands and Vanuatu since they took over the First Defendant.
    
15. The Eight Defendant’s Response to the Statement of Case is that he denied that there were 9,900 shares issued to the Applicants; Admits paragraphs 2 and 3 but say that the 100 shares issued were held in trust by the responsible persons of each community who bought MV Kaona; Denied paragraph 4 and say that they were simply told by Mr. Patrick Lavery and the Applicants that they are finished as directors. There was no such extra-ordinary meeting, and there were no resolutions as all on any ceasing or resignation of the said Directors. There are no such records. Any changes done to the company register likely to done by fraud; Admit paragraph 5, 6, and 7 but say that they were properly included as directors and shares allotted in accordance with shareholders meeting dated 25 February 2011, which resolutions were passed proper; Denied paragraph 8; Admits paragraph 9 but say it is not necessary. After all, MV Kaona then was already arrested pursuant to Lien claim and other illegalities before the relevant authorities in Vanuatu; Admits paragraphs 10, and 11, to the extent that the Applicants were not informed but denied the rest of the paragraphs, Repeats that the re-registration was properly and validly done; Admits paragraph 12; Admits paragraph 13 to the extent that the names of directors and shareholders as reflected before the company register. Deny their being falsely described as directors and shareholders; Admits paragraph 14 but say that the Applicants were never shareholders and directors of the First Defendant; He does not know and cannot plead to paragraph 15; paragraph 16 says that the Applicants’ concern is baseless as there are no asserts at all with the Defendants. MV Kaona their only asset is still being held up by authorities in Port Vila, Vanuatu; Denies paragraph 16 and repeats paragraph 17; and on paragraph 18 and 19, he repeats paragraph 17 above and says that the Applicants, concern is baseless; and on paragraph 20 he says that the Applicants do not come to court with clean hands and their application should therefore be dismissed.
    
16. The Registrar of Companies is the Fifteenth Defendant in this case. He denies that the Claimants are entitled to the rectification sought and or any declaration or relief at all. He has no records relating to the acquisition of shares with the company. He says that the Defendants were previous directors, but does not know whether they have resigned or not, as there were no records kept or received. He confirmed that the company was registered on 2 March 2011 on adoption of the new model rules. A company extract of the First Defendant shows the names of the shareholders and the directors of the First Defendant. The company extract does not include the Applicants as Director or shareholders.
    
17. The vessel Kaona and Chriestie Leigh were arrested and detained at Port Vila by the authorities in Vanuatu. This was due to the breach of relevant laws of Vanuatu.
    
18. There are issues in this case which require full hearing to decide them. This application is therefore refused. It is accordingly dismissed with costs to the Defendants.
    

THE COURT