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Pinnacle International Ltd v Rax Scrap Metal [2013] SBHC 56; HCSI-CC 11 of 2013 (23 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 11 of 2013

BETWEEN :

PINNACLE INTERNATIONAL LIMITED
First Claimant

AND:

ACME GLOBAL PTE LIMITED
Second Claimant

AND:

RAX SCRAP METAL AND MARINE
SERVICE LIMITED
First Defendant

AND:

BEN MAENU'U
Second Defendant

HEARING : 17 April 2013
RULING : 23 May 2013

P. Afeau for the Claimants
S. Pehu for the Defendants

RULING

1. This is an application by the Claimants filed on 3 April 2013 for the following orders: (1) That Mr. Ben Maenu'u the Second Defendant be committed to prison for contempt of court orders; (2) that Mr. Timothy Inifiri of the First and Second Defendants be committed to prison for contempt of court orders; (3) that Mr. Lawrence Bakale agent of the First and Second Defendants be committed to prison for contempt of court; (4) the sheriff of the High Court with the assistance of the Solomon Police Force remove all the machines, including the excavator, the weight machine, the 10 ton scale and the scrap metal in dispute into safe custody of the court until trial or further order of the court; Any other orders the court deem fit and (5) costs.
   
2. The Claimants allege that messrs Ben Maenu'u, Timothy Inifiri and Lawrence Bakale failed to comply with the orders issued by the court on 26 February 2013. These orders stipulate that (1) until trial or further order of the court, the First and Second Defendants their servant and agents (a) are restrained from removing any scrap metal containers CAXU-6899670, CAIU – 2030541 and CRXU – 1795573; (b) until trial the First and Second Defendants, their servants and agents, are restrained from selling or shipping from Solomon Islands to Malaysia or any other country any scrap metal including all scrap metals loaded and/or consigned in containers CAXU-6899670, CAIU-2030541 and CRXU-17795573; and (2) that the First and Second Defendants deliver all machineries, including the excavator, the weigh machine and the 10-ton scale, as well as all scrap metals in dispute in this action to the court for safe custody and that all these properties to remain in the possession of the court until trial or further orders of the court".
   
3. In his sworn statement filed on 30 April 2013, Mr. Shahid Ansari deposed that he served the Second Defendant with the orders of the court dated 26 April 2013 by leaving a copy thereof with the Second Defendants' clerk, John, to deliver it to the Second Defendant. The Second Defendant denied being served with the said order. Mr. Ansari deposed that he served Timothy Inifiri with that order by leaving a copy of the said order to Lyxton Kiko to deliver the same to Timothy Inifiri. Mr. Ansari deposed that he served the order of 26 April 2013 on Lawrence Bakale by delivering documents to him on 24 April 2013. This is not possible because the order of 26 April 2013 was only issued on 26 April 2013.
   
4. In relation to the Machines, which are the subject of this action, the Second Defendant says that Mr. Ansari left with all of them when he left the Second Defendants' scrap yard, and are in Mr. Ansari's possession at Mbaranamba, in East Honiara.
   
5. The Second Defendant says that the excavator in his yard belongs to him as he bought it in 2008, well before Mr. Ansari arrived in this country. The weigh machine which Mr. Ansari made reference to belongs to Mr. Kennel Sala which Mr. Ansari had already returned to its rightful owner. The 10-ton scale was left at the Second Defendant's scrap yard for Mr. Ansari to collect which he had not done. In relation to the scrap metals in dispute, there were none left when the order of 12 February 2013 was entered, as they were previously sold in early January 2013.
   
6. The Second Defendant admits that 7 containers were exported. However, he explains that the export was done on the advice of their previous solicitors, who advised that the court order of 12 February merely applied to three containers, not the 7 containers.
   
7. The Second Defendant went on to explain that Mr. Ansari misled the court when he referred to 3 containers. There were only two of them numbered CAIU20305431 and CAXU6899670 and not the third one numbered CRXU1779573. He had already returned container numbered CAXU6899670 to Tradco Shipping Ltd, while container numbered CAIU2030541 is still in his yard.
   
8. This is a civil contempt case. The burden of proof is that of the criminal standard. That is, the Applicant must prove the guilt of the respondents beyond reasonable doubt.
   
9. There is evidence adduced by the Second Defendant there is legal advice that the 7 containers could be exported, as they had not been affected by the court order of 26 February 2013. The Defendants followed that advice and the 7 containers were exported. Further, the metal scraps which were the subject of the dispute were exported prior to the order of 12 February 2013. There is doubt as to whether the Respondents could be lawful convicted of contempt of court regarding the export of the 7 containers which may have metal scraps which were not in dispute. I accordingly refuse the application. The Applicant is to pay the costs of the Defendants.
   

THE COURT