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Amiki v Ashley [2009] SBHC 73; HCSI-CC 131 of 2009 (22 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 131 of 2009

BETWEEN:

OLUPATU AMIKI
(On behalf of himself and Claimant, ten other defendants in cc 83/1998) of Boboe Village)
Claimant

AND:

CHARLES ASHLEY
Defendant

Date of Hearing: 15th May 2009
Date of Ruling: 22nd May 2009

For Claimant: Mr. J. Apaniai
For Defendant: Mr. C. Ashley

RULING

Naqiolevu J:

This is a preliminary application by counsel for the Claimant under Rule 7.15 - 21 of the Civil Procedures Rule 2008 to freeze the assets the subject of the claim under these proceedings.

1. Counsel for the Claimant submit that in order for the court to grant the order sought the court need only be satisfied of the following:

1. the applicant has a good and arguable case, and
   
2. the judgment in the case will involve the assets, and
   

c) the assets will be removed from the country or that it is necessary that any dealing with the property should be restrained.

2. Counsel submit the above requirements have been satisfied in that:
   

2.1. The applicants seeks judgment against the Defendant for the sum of $1,193,967.41 which, he claims is money that has been received on behalf of the Claimant by the Defendant in his capacity as solicitor for the Claimant.

2.2 The Claimant says that the money is sitting somewhere in the bank accounts of the defendant.

2.3 The Claimant has requested the Defendant to release the money to them but the Defendant had only released $265,399.39 of that money and is refusing to release the rest of it, which is $1,193,967.41.

2.4 That $1,193,967.41 is the subject of this claim and the purpose of this application is to freeze that amount until this claim has been tried.

3. Counsel submit the Claimant have a good and arguable case, and the claimant has made out his case, and the court is urged to grant the freezing order sought.

4. Mr. Ashley who is the Defendant representing himself in this matter, submit that Freezing Orders are by their nature injunctive in that affected party is restrained from dealing with his or her assets before liability is established, as such the party applying for such orders must satisfy the court of the following:

1. That there are triable issues between the parties, and
   
2. The balance of convenience for issuing Freezing Orders, and
   

100. Relative strengths of each parties case, and
     

4. Whether damages would be an adequate remedy.
   

5. Counsel submit the main issue to be tried is in relation to the disbursement of the judgment sums in CC 83/98 and CC 324/06.

6. The Claimant claims that all these money should be paid to him as trustee for all the defendants in CC 83/08. The defendant however says that all the defendants in CC 83/08 are indebted to the defendant and all parties agreed that the proceeds in CC 324/06 should be applied towards the defendants cost in the first instance. These are the issue that must proceed to trial and evidence called by each side to the dispute.

7. Counsel further submit that on the balance of convenience, the freezing order should not be issued when liability is yet to be established, this is clear under rule 7.17.

8. The second element is that a judgment or order in the matter is likely to involve the assets, or enforcement may involve assets. The claimant is seeking to restrain the Defendant from using his business and personal cheque account, and it is most inconvenient for the defendant if such order is made.

9. Counsel further claim on the issue of the asset is likely to be removed from Solomon Islands or dealing with them should be restrained. The likelihood of the business and personal accounts of the Defendant being removed from Solomon Islands is non existent.

10. The defendant is a citizen of Solomon Islands and lives and works here. If liability is established against the Defendant and judgment entered, the Defendant will and must pay. It is therefore inconvenient for the court to issue freezing order at this stage of proceedings.

11. Counsel claim that damages will be adequate remedy for the claimant if he wins his case after trial, on the other hand. If freezing orders are made, the defendant may not be able to use his business and personal account with ANZ Bank and damages may not be adequate remedy for the defendant.

12. On the Claimant's undertaking, there is no evidence that the claimant will be in a position to satisfy the undertaking should his case is dismissed and order made against him.

CIVIL PROCEDURE RULE 2008 RULE 7. 17 - 21 – FREEZING ORDER

13. The courts power to grant a freezing order is provided under Rule 7, 17-21 of the Civil Procedures Rule 2008.

Rule 7.15

The High Court may make an order (a "freezing order") restraining a person from removing assets from Solomon Islands or dealing with assets in or outside Solomon Islands.

and more particularly state:

Rule 7.17

The court may make the order if:-

1. ........................
   
2. the court is satisfied that:-
   
   1. the applicant has a good and arguable case, and,
      
   2. a judgment or order in the matter is likely to involve assets, or enforcement of a judgment or order may involve assets, and
      
   3. the assets are likely to be removed from Solomon Islands or dealing with them should be restrained.
      

14. The court is of the view that in order for the freezing order to be granted, the court must be satisfied of all the above. Rule 7.17 sub rule (b) (i) (ii) (iii) must be read together. In other words the applicant "has a good and arguable case", and "the judgment or order in the matter is likely to involve assets", or "its enforcement may involve assets", and "the assets are likely to be removed from the Solomon Islands" or "dealing with them should be restrained".

15. Clearly the Claimant have satisfied the court that he has a good and arguable case, and indeed the judgment or order is likely to involve assets. However on the issue of whether the assets are likely to be removed from the Solomon Islands, or indeed whether dealing with them should be retrained is of utmost importance.

16. The court in considering whether dealing with the assets the subject of the claim should be restrained, given it might dissipate. Further counsel for the Claimants contention that based on the fact that the Defendant has refused to provide the total funds to the Claimant, is sufficient reason to grant the order.

17. The court is of the view that the Claimant has not, through his counsel or indeed the sworn statement shown objective facts from which it may be inferred that the defendant is likely to remove the funds from Solomon Islands or indeed dissipate them .

18. The Claimant in his sworn statement of the 17th April 2009, stated that he had approached a bank officer who said that he remembered a couple of days earlier assisted the defendant to fill in an application form for a term deposit, "but did not confirm whether he actually made a deposit".

19. The Claimant further in his sworn statement said, "I fear that the defendant might have been using our money on himself for his personal interests and the fact that he is refusing to pay us in full is giving rise to suspicion that our money may have been squandered".

20. The court is of the view that the claimant must demonstrate the real likelihood of the funds being applied for other purposes by the Defendant is real and not based on suspicion or fear. Further it consider unsupported statements or expression of fear that the funds will dissipate simply have little weight. See([1])The Annual Practice "The plaintiff should depose in his affidavit to objective facts from which it may be inferred that the defendant is likely to move assets abroad or dissipate them, unsupported statements or expressions of fear have little weight".

21. The court must take into consideration the defendant in his sworn statement stated that the likelihood of business and personal accounts being removed from Solomon Islands is non existent as he is a citizen and lives and works here. If liability is established against the Defendant and judgment entered, the Defendant must comply with the order.

22. The court has further taken into consideration the Defendant has demonstrated there are triable issue that must be determined by the court and further while the claimant has filed an undertaking to damages, he may not, and indeed as admitted by his counsel, not be in a position to satisfy the undertaking, should his case is dismissed and order made against him.

23. The court in all circumstances after carefully considering the application, and the submission by counsel for the claimant in support. The court having considered the sworn statements by the Claimant, and the sworn statement filed by the Defendant and the submission in support. The court is of the view that the Claimant have not satisfied all the requirements of Rules 7.17 (b) (i) (ii) (iii) to enable it to grant the order sought.

The application to freeze the assets currently held under the Defendant's bank account is hereby refused.

THE COURT

^[1] The Annual Practice 1996, Sweet & Maxwell P. 189