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New Ocean (SI) Ltd v Success Co Ltd [2021] SBCA 4; SICOA-CAC 28 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
New Ocean (SI) Ltd v Success Co. Ltd


Citation:


Decision date:
1 February 2021


Nature of Jurisdiction
Appeal from Judgment of the High Court of Solomon Islands (Kohata J)


Court File Number(s):
28 of 2019 / 29 of 2019


Parties:
New Ocean (SI) Limited v Success Company Limited
Success Company Limited v Commissioner of Forest, Attorney General, Taraha Augusto, Sarapidina Michael, USA Siriako, Mare Leonard, New Ocean (SI) Limited


Hearing date(s):
27 October 2020


Place of delivery:



Judge(s):
Goldsbrough P
Lunabek JA
Gavara-Nanu JA


Representation:
Rano W for Appellant
Cox E SC with Suri G for Respondent


Catchwords:
CPC Rule 5.34 amendment Interim relief


Words and phrases:


Legislation cited:
Civil Procedure Rule 2007 5.34 (a), (b), (c), 5.35, 5.36 (a), (b), (c)


Cases cited:
Success v Premier of Guadalcanal Province, Rima, Attorney-General [2011] SBCA 19


ExTempore/Reserved:
Both Reserved


Allowed/Dismissed:
CAC 28/2019 allowed partially
CAC 29/2019 allowed


Pages:
1-13

JUDGMENT OF THE COURT

  1. Following a request from the parties to CAC 28 of 2019 and CAC 29 of 2019 we heard both appeals together. In CAC 28 of 2019 New Ocean Ltd is the appellant and Success Company Ltd the respondent. In CAC 29 of 2019, the same Success Company Ltd is the appellant and the Commissioner of Forests and Ors the respondent. For convenience within this judgment, the Commissioner of Forest will be referred to as CoF. Both appeals arise from the same judgment of the High Court delivered on 26 June 2019.
  2. The appeals will be dealt with in this judgment in the same order as they were dealt with in the judgment appealed, that is to say, the decision to refuse an amendment to the claim which is still pending in the court below and then the decision to order a notice to show cause. That may well mean that we deal with CAC 29 before we turn to CAC 28 of 2019.
  3. At the start of this combined virtual hearing counsel raised the question as to leave to bring these appeals. On the face of the record, no leave had been sought for either appeal. Given that all parties to the appeal were prepared with their respective material, did not object to either being granted leave, that the hearing had been postponed on several occasions we determined that to the extent that leave was required to appeal it should be granted.
  4. The substantive matter in the court below is a claim for judicial review filed 29 January 2018. This is the second time for the claim to have reached this Court before it has even begun to be heard. After the first Court of Appeal hearing the matter was sent back to the High Court for hearing but before that took place an application was made to amend the claim. That application was heard and determined in the judgment appealed and the determination did not favour the appellants. The opposed application to amend was refused.
  5. The application to amend the claim was filed 18 October 2018 returnable in November 2018. It followed the original claim of 29 January 2018, defence filed 7 February 2018, amended defence and re-amended defence, and claimant’s reply to defence and counterclaim filed by the 3rd and 4th defendants. The proposed effect of the amendment is to add three paragraphs to the claim all of which related to a standard logging agreement the details of which were not known to the appellants at the time of the original claim.
  6. The additional paragraphs are:-
    1. 1 A Declaration order declaring that the standard logging agreement dated 29 January 2009 and stamped on 13 February 2009 signed between Tabilo Timber Sawmilling Limited and some purported landowners, had expired by 30 January 2010 by operation of clause 2 of the said agreement; and that there is no evidence of renewal of that agreement.
    2. 2 A Declaration order declaring that the log Felling Licence No. A10707 issued by the Commissioner of Forest for the period from 30/10/2017 to 30/10/2022 to Tabilo Sawmilling was issued without a standard Logging Agreement; and hence, the said log Felling Licence No. A10707 was null and void ab initio.
    3. 3 A Declaration order declaring that the Commissioner of Forests was negligent in the performance of his duties, and exceeded his statutory power, by
      1. Issuing the Felling Licence No. A10707 when the standard logging agreement dates 29 January 2009 relied upon by Tabilo Sawmilling Limited had expired by 30 January 2010.
      2. Issuing the Felling Licence No. A 10707 when Tim 2/38 was still extant.
  7. This amendment was requested in the context of a challenge within the original claim that Licence No TIM 2/38 should have priority over A10707 because both licences covered the same area of land and one was granted earlier in time, and that CoF did not possess any power to grant more than one licence over any area of land at a time. Consequent on the question over the licence, that trespass had taken place. Finally, that the licence found to have the lesser (or no) priority be quashed.
  8. The appellants submit that the amendment does nothing more than further identify the real issue such as to assist the court in determining the matter between the parties. The respondents submit in the court below and in this court that the amendment introduces a new cause of action outside of the relevant time limit and that the proposed amendment causes substantial prejudice. In addition, the respondent submits that the delay in seeking the amendment is such that it is unconscionable.
  9. Amendment of a claim is regulated, inter alia, by Chapter 5 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). Whereas a claim must specifically state the relief claimed by the claimant, a statement of case must set out all the relevant facts relied upon, but not the evidence, whilst at the same time being as brief as the nature of the claim permits. Rule 5.34 provides:-
  10. The claim as filed sought judicial review of the actions of CoF in issuing more than one licence over the same area of land, and preference to be given to the licence first in time. The amendment seeks to question the lawfulness of the grant of that same licence already challenged, albeit on different, additional, grounds. Rather than relying upon the notion that only one licence can be granted as a principle, and/or that the first licence in time take precedence, the amendment seeks to challenge the issue of the second licence through other technical grounds.
  11. That, in our view, does not amount to a new cause of action. The issue between the parties from the start concerns the validity of the licence A10707. The issue from the start has been whether the CoF acted within jurisdiction to issue that licence when another licence subsisted over the same area. The amendment seeks to introduce another reason why the licence A10707 should not have been granted, additional to the one licence rule alleged by the respondents.
  12. The amendment, in our view, goes to providing better facts about the issue, if not to better identify the issue which always was the validity of the second licence. In deciding whether to allow the amendment, the trial court that was obliged to consider whether the appellant would be prejudiced in a way that could not be remedied by the award of costs or an extension of time for anything to be done or an adjournment.
  13. The amendment reflected matters raised in the defences filed, as amended from time to time and allegedly filed without leave, which drew attention to a Standard Logging Agreement, the existence of which had previously been unknown to the respondents. A search of the file within the offices of CoF had been attempted by the respondents but to no avail. Unable to ascertain the existence of the Standard Logging Agreement by searching the official record, it is not unreasonable, in our view, that the respondents only become aware of it in the course of the pleadings. The next question is whether the respondents should have acted quicker in seeking an amendment.
  14. Given the matters required to be considering when considering whether to allow an amendment or not, it is difficult to find that the respondents did not act with sufficient speed. An amendment sought on the first day of a scheduled, contested hearing would no doubt be met with claims for wasted preparatory costs and an adjournment. This is not the case here. The amendment did come at a very late stage, indeed after the first Court of Appeal hearing which came about as a result of the earlier dismissal of the original claim, but not such as to jeopardize any scheduled trial in the High Court.
  15. It is not correct, as submitted by the appellants, that an amendment can only be allowed where another party is not prejudiced. An amendment may not be allowed if the prejudice to another party cannot be remedied by the award of costs, or extending the time for anything to be done or adjourning the proceedings.
  16. As we have determined that this proposed amendment does not amount to a further cause of action, the question raised by the appellants of an amendment outside of the relevant limitation period does not arise.
  17. Nor do we accept the submission made on behalf of the appellants in the court below repeated in this Court that the appellants seek to examine the validity of agreements to which they are not a party, thus contravening the law on privity. Firstly in that regard we note that the respondents repeatedly make submissions on the validity and continued existence of agreements to which they were not a party in submissions made against the appellants but more significantly, the submissions on the validity or otherwise of the Standard Logging Agreement do not go to the validity of that agreement between the parties but its effect on the CoF who himself is not a party to it. We further and most importantly note the decision of this Court in Success v Premier of Guadalcanal Province, Rima & AG SBCA 24 of 2011 wherein it was said:-
  18. Success v Rima (above) in this Court upheld the decision of Chetwynd J in HC Civil Case 80 of 2009 which appears in the bundle of authorities from the respondent (the Court of Appeal decision in the same matter appears in appellant’s bundle of authorities). In the decision of the High Court, Chetwynd examined the circumstances in which Success maintained that the renewal of its licence was a valid renewal, based on a Standard Logging Agreement which some said had lapsed. Significantly, he reminded the parties, and this Court did not disagree, that the real authority to log emanated not from the issuing of a Felling Licence by CoF but from agreement with landowners.
  19. Examination of the existence of an agreement to log with the landowners, and that agreements continued existence, thus becomes all the more significant in determining the issue before the court below in this matter.
  20. The respondents to this appeal successfully argued in the court below that the amendment seeking to examine the agreement to log with landowners, which CoF is obliged to rely on when considering the grant or renewal of a Felling Licence. In our view, that decision is in error. Examination of the agreement with landowners is essential to determine whether the subsequent actions of CoF are impeachable.
  21. Nor do we find that previous decisions concerning other parties should be allowed to influence the decision whether to amend. In Success v Rina the Felling Licence challenged was A10800. Whilst it is correct to say that the respondents rely upon the same licence TM 2/38 in this case as they did in Success v Rina, the case concerns a different agreement. Even if, as the appellants here suggest, the respondent’s case is doomed to fail for the same reasons as given in Success v Rima, that is not a reason for refusing the amendment. There has already been too much time spent on trying to bring these proceedings to an early end without trial of the actual issues and that needs to stop, particularly given the overreaching principle relied on by the respondents as set out in CPR, that the overriding objective of the rules is to enable the courts to deal with cases justly with minimum delay and expense.
  22. A further case relied upon by the trial judge appears to have been Civil Case 30 of 2019. It seems that the trial judge considered the amendment to lack any validity as the same issues had been decided, in his view, in that case. He says, at the final paragraph of page three of his ruling on the amendment:-
  23. Civil Case 30 of 2018 was between Timothy Papangu and Jimmy Osaka and the CoF, AG and ors. and judgment was delivered on 10 March 2019. The appellants were not a party to that case. The respondents were parties to the case. It is correct to say that the subject matter of the claim for judicial review concerned licences A10707 and TM 2/38. But the case did not go to trial. The reported decision is a decision made at the Chapter 15 Conference where a court is obliged to satisfy itself that:-
  24. The court at the Chapter 15 Conference found that the claimant had no arguable case. It follows that within those proceedings there could not have been a finding after trial of the issues that the issue of the validity of the relevant licence had been determined one way or another.
  25. What the closing remarks of the trial judge on the proposed amendment do demonstrate is that he may well already have a mind closed to the possibility that the respondents have a valid defence to the claim. We are certain that this is not the case in fact; but are equally alert to the possibility that it may be perceived as being the case. In those circumstances an apparent bias is as damaging as actual bias.
  26. The law now relating to agreements with landowners and the subsequent issue of a Felling licence by CoF is quite clear. The exposition from Chetwynd, approved by this Court in Success v Premier of Guadalcanal Province, Rima & AG SBCA 24 of 2011 can be thanked for that. What is now necessary in this case is for a competent tribunal to establish facts within which the law can be applied.
  27. The decision of the court below to refuse the amendment is set aside, for the reasons given above. The amendment is allowed, and the matter is to proceed in the High Court in the normal manner. We order that the matter return to a different judge in the High Court to avoid the possibility of apparent bias referred to above.
  28. The second appeal concerns the interim relief ordered by this Court when the matter came before it earlier. New Ocean Ltd. becomes the appellant in this matter with Success as the respondents. The question is a simple one.
  29. When last before this Court in October 2018, determining the appeal in favour of the present respondents, this Court made orders to preserve the position and the parties as had earlier been the case pending hearing of the appeal after Brown J had dismissed the claim and whilst the appeal was pending. Counsel were required to submit draft orders to that effect or, in the absence of agreement, to file submissions for further consideration by this Court. In the event, a consent order was filed.
  30. Regrettably, counsel are at odds as to the effect of that consent order. Submissions have been filed in an attempt to explain how the lack of understanding may have arisen, submissions which, at least of the part of the appellants, are virtually incomprehensible.
  31. The position of this Court, and of the High Court, is clear. The subject matter of this claim is the felling of logs. Until a final determination has been made, it is appropriate to preserve the value derived from the asset in dispute. The trees felled have been converted into logs which have been sold. The value achieved in that sale represents the asset under dispute. The trees can never be returned to the original state and so attention must turn to the realised asset.
  32. Over time what has been realised will change. Further log shipments may take place meaning that any injunctive order may become out of date or refer to less than the total shipments. The objective of the injunctive relief, though, always remains the same – whatever has been felled and sold from the dispute timber should be restrained. The objective is not and should not be restraint only of some shipments during some periods. That is how the appellants seek to divide the various periods when different orders were in force since the claim was originally filed. That approach, in our view, is wrong.
  33. The High Court was approached to enforce the orders made in this Court but before doing so was asked to resolve as between the parties quite what the orders covered. The appellants submit on this appeal that this approach was incorrect and that only the Court of Appeal should be involved in setting out what its orders mean. That, we agree, was an option open to the respondents. It may have been a preferable option, but it was not taken. The High Court went on to express a view as to what the injunctive orders meant and ordered accordingly that the appellants account for the total of logs felled by the appellants covered by this claim, not limited in time to particular shipments or under various earlier orders in force from time to time.
  34. The High Court effectively interpreted the order of this Court as we now do. It was never intended to be divided into periods and shipments but to preserve the position from start to finish. We do not consider the intervention of the High Court improper at the request of one party to proceedings before it indeed would note that once the High Court had begun to hear again the matter remitted to it by this Court, that High Court had all of the powers to vary or even discharge the interim relief as part of its own jurisdiction.
  35. We agree with the findings of the trial judge that to calculate the release of 40% of the proceeds of the sale of logs which the injunctive relief allowed, the appellants needed to file an account of the total volume of logs felled and exported or sold. To fail to do so amounts to contempt of the order as it is a necessary part of the order to ensure compliance. We are content for the High Court to continue as it has begun with the enforcement of the injunctive orders based on the understanding of the order that we have set out above. It was intended to extend to, and indeed does extend, to all proceeds.
  36. It is then, given our decision on the matter, important to recognize that the appellants may have acted in reliance upon a mistaken belief or even legal advice given in error as to what should have been lodged into a trust account and then released as 40% of proceeds to beneficiaries. In that regard, we consider it appropriate to permit a further opportunity for the appellants to comply with the injunctive order as they now understand it.
  37. The orders made by the learned judge in that regard are varied to the extent that may be necessary to ensure that the appellants file and serve an account of all logs felled and exported, that CoF verifies the account to the extent that is possible, and that thereafter account is given of the proceeds to verify that any distribution already made complies with the order as it is now understood and that the appellants be required to show cause if the accounts so filed indicate non-compliance, in the High Court as to why they should not be punished for contempt.
  38. When dealing with this aspect of the case the trial judge ordered that the appellants pay costs on an indemnity basis. He gave no reason for that costs order or for departing from the norm of standard costs and there appears no reason, save that the respondents asked for it, to make such an order for indemnity costs. That part of his order we set aside for an order that in the High Court the appellants pay the costs of the respondents on the standard basis.
  39. In the event Civil Appeal 29 of 2019 is allowed and the proposed amendment can be filed. Costs of and incidental to that appeal are to be paid by the respondents to that appeal. Civil appeal 28 of 2019, against enforcement, is allowed but only to the extent that is necessary to now vary the original orders of the High Court to put the enforcement proceedings back onto a proper basis. Costs in that appeal are to be paid by the appellants to the respondents, such costs to be agreed or taxed.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member

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