Guo Feng Li v Simukahi [2010] SBHC 118; HCSI-CC 262 of 2008 (31 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J)

Civil case No. 262 of 2008.

BETWEEN:

GUO FENG LI
Claimant

AND:

MATHAIS SIMUKAHI
First Defendant

AND:

RABIN GUO
Second Defendant

AND:

REGISTRAR OF TITLE
Third Defendant

AND:

SOLOMON ISLANDS BREWERIES LTD
Fourth Respondent

Date of Hearing: 26th August 2011.

Date of Ruling: 31st August 2011.

Mr M Tagini for the Applicant
Mr Levi for the First and Second Respondents
Mr Kingmele for the Fourth Respondent

RULING

Faukona, J: This is an application by the Claimant filed on the 22nd August 2011, pursuant to Rule 7.22. The Orders sought are:

1. A variation order varying order 2 of the orders dated 12th August 2011 made by His Lordship Justice Mwanesalua in the following terms;

"Freezing Order for the sale of Parcel Number 207 to remain in force until trial," or

(1). That the Claimant file and serve amended claim on the Defendants 14 days thereafter.

(2). That Order 4 is discharged or set aside.

(3).Cost in the cause.

2. On 6th November 2008 a permanent freezing orders were made by this Court to secure the property in Parcel Number 192-010-207, in case the first Defendant deals with it contrary to the requirements under Rule 7.17. On 12th August 2011, an application for joinder as party by the 4th Defendant was granted on the ground that it seeks to establish a claim of right in the property described as Parcel Number 192-010-207, a property which it has an equitable claim.

3. Mr Tagini argues denying pleading a claim of right over the property. There is no reason to include the 4th Defendant in this proceeding. Discharging the freezing orders will mean the right to the fixed term estate in Parcel Number 192-010-207 can now be transferred to the 4th Defendant. Contrary to that, paragraph 3 of the statement of case in the certificate of urgency states that transfer of the parcel number to the 4th Defendant will affect the Claimant's interest.

4. That is a self-inflicted contradictory assertion. It would appear what the Claimant is saying is that the 4th Defendant can have the land, but in doing so, would affect his interest. If that is the view, then it would be in the best interest of justice that the 4th Defendant must remain as a party. There is a live issue and a cause of action which the court must decide.

5. Further Mr Tagini submits that the order for costs granted by Justice Mwanesalua based on indemnity was improper. There was no reason given for such indemnity order. Order to cost should be based on standard cost. Therefore, order as to indemnity costs is be set aside as well.

6. Mr Levi submits that there is no freezing order on foot. Therefore render this application to set aside, or vary freezing order, is ineffective and must be dismissed for abuse of process, and also dismissed for disclosing no reasonable cause of action. Mr Levi further submits that Rule 7.22 does not confer power upon this Court to vary or set aside a freezing order that has been discharged, neither has power to resurrect it and assume power to consider setting aside or vary freezing order that has been discharged by this Court. The proper forum to hear this application is the Court of Appeal by way of appeal.

7. Mr Kingmele shares the same sentiments submitted by Mr Levi. He refers to the sworn statement of Mr Hewson filed on 12 July 2011, to affirm that his client (4th Defendant) has a cause of action to pursue. The registration process of Parcel Number 207 had been near completion. It appears that the 4th Defendant according to document marked "AHI" contemplates discharging of the freezing orders so that the registration process be completed. The orders had been made and the 4th Defendant is entitled to pursue.

8. In respond Mr Tagini reiterates this application is not to set aside or vary a freezing order but to set aside the orders made on 17th of August discharging the freezing orders, so as to allow the property concern to continue under freezing orders until trial is competed.

9. My interpretation of Rule 7.2 is more in line with Mr Tagini's submissions. I agree at that time of the application to discharge the freezing orders, there were freezing orders current, but which had been discharged by the order of this Court on 12th August 2011. On this application the Claimant prays for orders setting aside the orders made on 12th August 2011. By Rule 7.2 which states that a party may apply for an interlocutory order (a) at any time and paragraph (ii) says during a proceeding. This means before final determination, any party can apply for an interlocutory order at any time. Application to set aside or vary a freezing order is an interlocutory application.

10. With no rules demarcating the number of times allocated for such application, it will still move forward and backward according to the parties wish.

11. In this case the orders of 12th August 2011 which the Claimants wish to set aside, were made after an inter parte submissions. Mr Kingmele makes it clear that some of the issues raised on 12th August 2011 are also raised at this application. Inter parte hearing is where Counsels have the privilege to argue their client's case. I tend to belief that was exactly what happened on 12th August 2011. All the Counsels representing parties who involved in this case did appear. And I presume on the application by the 4th Defendant, Counsel for the Claimant had presented a well constructive case to substantiate and maintain his stand. He could have vigorously objected to the 4th Defendant's application at that time. To leave it until now after the orders had been made can be perceived as repeating the same application. The only difference is that it was lodged by two different Counsels, but the merit of it is the same.

12. At the end of the day the Court has made an order. Quite clear from the orders His Lordship had taken the liberty to read all the necessary and relevant statements before those orders were made.

13. To apply now whilst privilege had already been granted on 12th August 2011 is an absolute duplication of the process and I agree on this point, this is an abuse of process and I would not allow such to advance forward. I am not surprised, no wonder the same issues raised on 12th August 2011 is also raised in this Court. This application must therefore be dismissed.

14. On the question of costs awarded to successful party in any case, in my view, is a final order. It is a cost for attendance of the proceeding. Should an aggrieved party question the reason for such order, he has the liberty to appeal, but cannot come back to the same court and file an application to set aside.

Orders.

1. All the orders the Claimant pray for in this application is dismissed.

2. Orders of this Court delivered on 12th August remain in force.

3.Costs is borne by the Claimant and be paid to the Defendants on standard basis. .

The Court.