Tausuli v Kikile [2013] SBHC 139; HCSI-CC 431 of 2007, 334 of 2011 (28 October 2013)

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

Civil Case No 431 of 2007 and Civil Case No. 334 of 2011.

BETWEEN:

JOSEPH TAUSULI and NIKASIO LOHO
First Claimants
(For and on behalf of the Lakuili Tina Tribe,
West Guadalcanal,Guadalcanal Province).

AND:

MATHEW HENO and KALANI PEROLE
Second Claimants
(For and on behalf of Haibata Tribe,
West Guadalcanal,Guadalcanal Province).

AND:

ABDON PARAI, JOSEPH KESALE and
MEMORIO TANGISIKAVI
(For and on behalf of Kidipale Tribe,
West Guadalcanal, Guadalcanal Province).
Third Claimants

AND:

DANIEL KIKILE and JACK HANIGARO
(For and on behalf of the Laukili Valimauvo
Sub tribe, West Guadalcanal, Guadalcanal
Province).
Defendants

Date of Hearing: 8th October, 2013.
Date of Ruling: 28th October, 2013.

Ms E. Garo for the Claimants 1-3 in CC.No 334 of 2011.
Mr M. Tagini for the Defendants in CC No 334 of 2011 and
for Claimants in CC No 431 of 2007.
Mr E. Soma for Defendant 1 and 2 in CC No. 431 of 2007.
Mr D. Damilea for Defendant 3 in CC No. 431 of 2007.

DECISION ON APPLICATION FOR CONSOLIDATION AND STAY OF ENFORCEMENT.

Faukona J: This is an application for consolidation of CC No. 431 of 2007 and this case pursuant to Rule 3.10 (a) or (b); and stay of execution of enforcement order in CC No. 431 of 2007, pursuant to Rules 17.77 (b) and 17.78 (b), to await the outcome of this case. Counsel for the Claimants thought it necessary that the decision in this case has the prospect of impeaching the orders obtained in CC No. 431 of 2007 if granted. In support of this application, Counsel for the Claimants relies on a number of sworn statements.

Major Chronological events:

Civil Case No. 431 of 2007:

2. The parties to that case are; Daniel Kikile and Jack Hanigaro as Claimants and Kalahaki Timber Limited as 1st Defendant and Organic Earth Company as 2nd Defendant. The Attorney General was the 3rd Defendant.

3. The claim, which was filed on 16th November, 2007, was basically for permanent restraining orders, damages for trespass, conversion of trees, destruction of environment and loss of future earnings. That was in relation to 15 blocks of land within talalu 1, 2 and 3 (disputed blocks).

4. On 20th November 2007, ex-parte interim orders were obtained. On 20th march 2008, and inter-parte hearing was held and the Court affirmed the orders granted ex-parte.

5. On 5th December 2008, an unless order was made that the 1st and 2nd Defendants filed and served sworn statement of records of all logs, species, volume and value extracted from talalu land (disputed area) and served the Claimants on 8th December 2008. By the same order, to pay into joint trust account held by Bank South Pacific proceeds of logs extracted from the disputed area by 8th December, 2008. Should the Defendants failed the defence be struck out and judgment be entered for the Claimants.

6. On 12th March 2009, the 1st and 2nd Defendants had failed to comply with the unless orders. The Court therefore entered a default Judgment against the Defendants. There was an application filed on 15th September 2009, to set aside the default judgment and the judgment to revive dated 8th May, 2009, on a joint ground of fraud.

7. That application was heard on 29th March, 2010 and was dismissed on 15th April, 2010. An application for extension of time to file notice of appeal was heard by the Court of Appeal on 15th February, 2011, and subsequently dismissed the application.

8. On 31st August 2011, assessment of damages were finally made and perfected on 5th September, 2011, following the judgment in default against the 1st and 2nd Defendants on 12th March, 2009. An appeal to the Court of Appeal was filed but eventually was dismissed.

9. On 28th September, 2011, an application for enforcement orders was filed, and the enforcement orders were made on 29th September, 2011, and were renewed on 19th December, 2012.

Civil Case No. 334 of 2011:

10. This case was commenced by filing of a claim in category A filed on 23rd August, 2011, and then amended on 3rd November, 2011. The Claim was basically for an order that the Defendants are not entitled to relief sought in CC no. 431 of 2007; for damages for unlawful interference with the operation of the Defendants to be assessed and damages for loss and interests. The Claimants also seek four declaratory orders, two subsequent orders and one prohibited order.

11. The rationale as I would perceive from the tone of the declaratory reliefs sought, is to declare the chiefs hearing on 26th June, 1984, and the timber rights determination by the Area Counsel on 16th November, 1994, as being succumbed by fraud, misrepresentation and therefore illegal. It appears from the current Claimants view, that those materials were advanced by the Defendants to achieve judgment in Civil Case No. 431 of 2007.

Preliminary matters:

12. I consider critically important to point out two issues, as preliminary matters on the outset. Firstly, in all timber right cases, in particular where the Defendants are licence holders and operators, it is more important that grantors of timber rights be joined as parties in a civil litigation. More so and more appropriate where a licence holder is not a landowner. In civil case, No. 431 of 2007 it is amazing that the grantors were not a party to that civil litigation. Secondly, with due respect; decisions by chiefs made before the inception of Local Court (Amendment) Act 1985, are valid and are accepted by the Courts. One grandeur example is in the case of Harvea Majoria v Oliver Bikomore Jino[1]. In that case, the Claimant refers to a decision by a single Chief, the late Ngatu of Marovo Lagoon, who decided the ownership of rodo customary land was given to his grandfather. Ngatu's decision was given long before 1985.

13. The reference in the above case settles the impasse that only chief's determination after the inception of the amendment Act is valid and subject to consideration; is an argument unsubstantiated and a misconception of the fine applicability of the law. Lastly, it is important to point out that the doors to the local court is still open to the parties to file a referral case in respect to the issue of land ownership after the two chief's hearing and decisions had been made.

The rational for the application:

14. It is submitted apart from the process of pleadings, the Claimants come to Court, being not barred by any legal obstacle, to prosecute a cause of action alleging fraud, is more than enough to justify granting of consolidation order, and order to stay enforcement in Civil Case No. 431 of 2007. Quite apart from that, the Claimants allude that they are not parties to the proceedings in High Court CC No. 431 of 2007 and their presentation in Court now as a fresh party not bound by the judgment in CC No. 431 of 2007.

The issue of fraud:

15. The issue of fraud is a beacon argument the Claimants rely on to advance their case to achieve the reliefs they sought. On the outset, it is appropriate to say that the issue and the substance of it are best being left to be dealt with at trial. Suffice to ask a question whether this is the right forum to entertain the issue as it had been raised already in CC No. 431 of 2007. This question will be answered later.

16. As is put to Court, the allegation of fraud is alleged to have been protruding in two previous instances. First that the Savulei and Sagalu Chiefs determination on 26th June, 1984 was a falsified document (that has to be proved at trial), and secondly that the Geana Area Council determination on 16th November, 1994, was not a final determination because it was quashed by the Guadalcanal Customary Land Appeal Court in Civil Case No. 6 of 1994. Evidence to proof CLAC determination was filed and attached to sworn statement of Joseph Tausuli filed on 20th September, 2013.

17. It was alleged and argued that the current Defendants capitalise on the two determinations in their application for revival of their claim, which was discontinued, and an application for default judgment, which was granted. Actually, the issue of fraud was raised in two instances. At first instance, the application was heard on 15th March 2010 of which the application was dismissed on 15th April 2010. Again was raised on 1st August, 2011 in what supposedly appear to be assessment of damages. What transpired is that those arguments ought not to have been repeated if there was clarity and understanding.

18. At this juncture, I feel obliged, not in a legal sense, but to clear some doubt, as a presiding judge sitting in the application for default judgment on 12th March, 2009. In that proceeding, what the application ought to proof is the non-compliance with the term of the previous orders. It was not necessary at all, or a persuasive legal obligation to rely on or even to tender a copy of the Chiefs and Area Council determination to influence and to convince the court to grant the default judgment orders. The nature of such application is simple and does not require those two determinations to have a bearing on the judgment. Counsels with broad understanding who absorb the Rules and the processes well should be comfortable with what had been done.

19. If one should appreciate the work of the Courts, at that very time when the applications were moved before Court, the question whether the Claimants rely upon false decisions or not, is not a matter arise at the time of default, but as Goldsborough imparted in his decision on 15th April, 2010, that such issue would only arise or litigated on a trial on merits. Has time being fulfilled, or come to past for the issues of law and fact including fraud to be heard by this Court. Is this Court a proper avenue to re-raise the same issues again which had been previously raised, and judgments had been entered to that effect, though not on merit.

20. There is no issue that the same question is involved in both cases, in particular the two determinations. There is no dispute that the Claimants utilise those two determinations to advance their claim in CC No. 431 of 2007. What remains now is that, has this Court jurisdiction to entertain the cause of action, which had already being determined. Mr Tagini argues in a mild sense, to raise the same issue again is re-judicate. He does not progress further in his submissions on this point.

21. I have read the case authorities tendered in Court in search for assistance. I could not able to find the best that could apply to the facts of this case. However in the Court of Appeal case of Emco Pacific (SI) Ltd v Anita Emmet[2], in dismissing the appeal by Emco (the appellant), the Court of Appeal made reference and paraphrased what Mwanesalua J state in the High Court in paragraph 15;

" ... the claim was an abuse of process because it was effectively another attempted route to involve Emco in the matrimonial property proceedings, a claim which had previously being rejected by Chetwynd J. It was an attempt by Emco and Ron Emmet to curtail the matrimonial property proceedings".

22. The Court of appeal seem to approve that statement in paragraph 24 of its judgment and by paragraph 18, last sentence, it said,

"It is entirely inappropriate for there to be an order in another action interfering with the conduct of the matrimonial proceedings".

Again an paragraph 20, it stated;

"The Court of 46 of 2008 made an order that until further order the proceeds of the sale of MV Buccaneer be held in trust. It would be wrong for the High Court in some other proceeding to make orders affecting the trust. Mr Ron Emmett as defendant in 46 of 2008 may apply to have the trust varied or discharged and would be in a position, if necessary, to call evidence from Emco relevant to any such application"

And further the Court stated in paragraph 21,

"No Court could make such an order affecting an order made by a Court in other proceedings or affecting the right of a party to make submissions in those other proceedings".

Lastly the Court said in paragraph 24;

"For those reasons, it is clear that essentially the action is an attempt to curtail the matrimonial proceedings"

23. Another authority, which cast some enlightenment to the issue, in this case is the case of Micha V Thao[3]. This case concern two logging licenses covering the same customary land. The first licence was issued to Pacific Timbers and the second was acquired by Aola Timbers. The issue of fraud as claimed was that Aola Timbers falsely represent to the President of Area Counsel to convene a timber rights hearing that they had obtained consent from Pacific Timbers. The argument by the plaintiff was that any timber rights agreement purportedly entered over sobolonga land was fraudulently obtained. Therefore challenged the validity of that timber agreement and the extension of felling licence Tim 2/45 on the basis of illegality and fraud.

24. In His judgment Palmer ACJ, as he was, stated in paragraph 3, page 5;

"But for the allegation of fraud, the doctrine of res-judicata would have applied to Micha's case. The ground of fraud was never raised in Earthmover's case. It is always open therefore to clear case authorities (Wyatt V Palmer [1889] 2 QB 106; Jonesco V Board [1930] AC 298; Charles Bright & Co. Ltd v seller [1904] 1 KM6) for Earthmovers to take up fresh action even if that would entail impeaching a completed judgment obtained by Aola Timbers in CC 184 of 1998. This is not a case of seeking to rehear the matters raised in CC 184 of 1998. Fraud was not raised in CC 184 of 1998. It is a fresh action and it has been said that fraud if successful unravels everything".

25. In one of his orders His Lordship, grant order to have Writ of Fieri Facias issued for execution in CC No. 184 of 1998, stayed pending determination of CC. No. 18 of 2002.

26. The two cases reflect two perception of approach. Nevertheless, they culminate to promote one and logic conclusion. In Emco case, the principle in law is that an order in another action cannot interfere with the conduct of other proceedings. In the case of Micha the Court concluded that since fraud was not raised in the previous case it was permitted to be litigated in the on-going cause of action. And in doing so an order to stay was granted to halt execution of the enforcement order in the previous case.

27. Applying the principal to this case, it appears the factual situation is not the same. The issue of fraud was previously raised in CC 431 of 2007 as well as in the current case. The only difference is that in the previous case the issue of fraud was not determined on merit. The question now, should it be raised again? If this Court would allow the Claimants to re-litigate again does it have any legal consequence on the judgment in default obtained in CC 431 of 2007? These are legal questions, which contemplate a legal answer to them. Perhaps issues can be considered in substantive trial and an answer given.

28. Meanwhile, suffice to say that should the answer be in the affirmative, in both questions, then what would be the effect. The effect of fraud being proved is a quashing order. See R v Western Customary Land Appeal Court[4].

29. The question whether the issue of fraud is re-raised and re-litigated, should it be permitted, of course will have an impact on whether to grant application for consolidation and stay. I do not intend to venture into depth dealing with the substantive issues of this case, but briefly and superficially assessing the prospect of succeeding in the substantive case.

Consolidation:

30. I accept the definition of consolidation of action alluded by Ms Garo in her submissions; an extract from Oxford Law Dictionary which mean, a procedure in civil cases by which two or more cases may be amalgamated. It is generally necessary to show that same common question of law or fact arises in all cases. The same sentiment is shared by Rule 3.10 (a) and (b) which states that the same question is shared in each proceedings and the decision in one proceeding will affect the other. In that circumstance, it would be most appropriate that the cases be heard together.

31. The final effect is, if the outcome of this case that the reliefs sought are granted, it has the prospect of impeaching the orders obtained in CC No. 431 of 2007. The fact is that the whole entire case, premises on the allegation of fraud against the Defendants in this case.

32. From my respectable view, there is no issue that both cases have commonality in question of law and facts, and they are contentious issues. There is issue of ownership of customary land, the boundaries, and the actual locations, and the issue of fraud. The problem here, which seems quite unmeasurable, is that in CC No. 431 of 2007, a final determination of the cause of action or point, though not on merit, had been decided and had reached the enforcement stage, whilst this case is still contemplating a determination.

33. The difficulty encountered is that there is lack of authority available which will either relief or ease the puzzle. The bulk of authorities receive concern fraud and stay of proceedings. In any event, I am of the view, that the two cases cannot be merged or consolidated and be heard simultaneously, because of the imbalance stages they reach in the proceedings. In CC No. 431 of 2007, there is no issue pending for determination though the issues have arisen from the same set of source. To grant the orders for consolidation would defeat the ends of justice. No Court in any justice system works to jeopardise justice, instead must uphold in all circumstances. I find comfort that the balance has been reached after critically assessing the two cases I quote above. I therefore refuse to grant order for consolidation of the two cases.

Stay of enforcement orders in CC No. 431 of 2007:

34. By far the only issue the Claimants ought to proof is whether the House of Chiefs determination in 20th June, 1984 is a falsified document. Apart from that are issues, some of which the Court lacks jurisdiction to entertain, as issue of customary land ownership. That issue of falsification has to be litigated some-how at trial.

35. The general rule applicable for stay of proceeding is enunciated in the case of Paia V Golden Spring International (SI) Co Ltd[5]. From that determination, it cannot be said that is the only circumstances that the law applies. It also applies to a wider spectrum of other situations and not limited in nature where the Court can grant the application. One situation is in the case of Micha where enforcement orders made to allow the Plaintiff to prosecute his case premises on the new evidence of fraud adduced. Another classical example is in the case of Hatanga Ltd v KCM Properties Ltd, where application for stay of proceeding was refused, on the ground that the tort felony rule was not part of the law of Solomon Islands, and that there was no sufficient evidence to support the application for a stay.

36. Having assessed the issues in this case, I come to note that the issue of fraud plays a pivoted role in both cases. Justice Goldsborough did not close the rights of the Claimants absolutely, but the issue of fraud is open for litigation at trial. The question is, has time arrived for the issue to be tried and the proper avenue is in this Court. I have noticed that the statement of claim in this case is one reason, which prompted me to think, it could be. The second reason is that, though the Claimants were not a party to CC No. 431 of 2007, six of them had made sworn statements supporting the Defendants case. And as agreed, the issue in two cases are the same. Will that occur that the current Claimants are privies to the Defendants in CC No. 431 of 2011, therefore is barred by the principle of res-judicate to re-raise the issues again?

37. The principle of res-judicate is not vigorously advanced in particular by the Council for the Defendants. No reason is given but perhaps may appear unnecessary because it does not have any effect to the case. Adversely thinking in my opinion, at least some reliance on the principle would attract serious consideration. Viewing the case in a wider perception, I am urged to make reference to principle of issue estoppel now commonly used in modern terminology because of its widening application. In the familiar case of Talasasa V Paia and Bisili[6], His Lordship Daly outlined the principle on page 5, paragraph 3,

"... that in judgments inter parties for the doctrine to operate there must be (a) earlier case which the cause of action or point in dispute was the same (b) final determination of that cause of action or point on its merits (c) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privies".

38. Chief Justice Daly had made it clear that the doctrine applies to customary land cases which all Courts must refuse to entertain an action, which endeavours to reopen matters already decided by a final judgment.

39. In measuring the facts off this case to the doctrine as define, it reflects that the issues in the two cases are the same. At the same time, it appears that some of the Claimants about six who had filed sworn statements supporting the Defendants in CC No. 431 of 2007 are the privies. But it does not end there, the fact is that the judgment in CC No. 431 of 2007 though final, was not made on its merits, and not a judgment inter parties. Hence, the Claimants are entitled to come to Court even to re-raise the issue of fraud again and other issue as well. I feel it is justifiable in the circumstance that the application for stay of enforcement orders in CC No. 431 of 2007 be granted. That which the Claimants seek to rely on has some prospect of success.

Orders.

1. Application for consolidation of CC No. 431 of 2007, and 334 of 2011, refused.
2. Application for stay of enforcement orders in CC no. 431 of 2007 granted.
3. Cost in the cause.

The Court.

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^[1] (2005) HCSI CC No. 255 of 2005.
^[2] (2011) CA. CC No. 45 of 2011 (23 March 2012)
^[3] [2002] SMHC 14; HC-CC 018 of 2002 [8 April 2002].
^[4][1985 – 1986] SILR 69 (5 June 1985).
^[5] [1998] SBHC 128: HCSI-CC 149 of 1997 [27 October 1998].
^[6] 13^th October, 1980.