Tahoria v Laumare Development Company [2013] SBHC 207; HCSI-CC 261 of 2008 (9 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 261 of 2008

BETWEEN:

ULALIA TAHORIA AND FRANCIS CHULUI
First Claimant

AND:

LAUMARE DEVELOPMENT
Second Claimant

AND:

LAUMARE DEVELOPMENT COMPANY
First Defendant

AND:

ELITE ENTERPRISES (SI) LIMITED
Second Defendant

AND:

ATTORNEY GENERAL (Represent the Commissioner of Forest)
Third Defendant

RULING : 9 September 2013

Mr. G K Suri for the Claimants
Mr. J Iroga for the First Defendant
Mr. W K Togamae for the Second Defendant
No appearance for the Third Defendant

RULING

1. [A] This is an application by the First Claimant filed on 25 May 2012 for the following initial orders:
   
   • (i) That leave be granted to revive and restore this proceeding under rule 9.70 (a) of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"), which had been discontinued.
     
   • (ii) That Mrs. Mary Corrine Habotu and Mr. Frank Habotu of Tasifarongo settlement, North West Guadalcanal, be joined as First Respondents to this proceeding.
     
   • (iii) That this proceeding be listed down for mention.
     

[B] Upon leave being granted for revival of this proceeding, the Applicant applies for the following orders:

(i) That the consent order made on 23 January 2012 be set aside.

(ii) (a) An order for the sum of SBD2,430,000.00 disbursed under the consent order be reimbursed by the parties and/or their respective counsels who received portions of the money, and that the money be paid into the court account.

(b) Alternatively, an order that the Second Defendant pay the full sum of SBD1,743,500.00 to the First named Claimant and to the estate of the licensee, namely, John Suga (Jr).

(iii) Further and other orders as the court deems meet.

(iv) Costs in the cause.

2. This claim was filed on 19 August 2008, by the First Claimant against the Defendants. The First Claimant are two grantors of Timber Rights over Vatughao Customary Land. The Second Claimant is the holder of Felling Licence No. A10401 over Chocho, Komibo and Vatughao customary lands. The First Defendant is a business name registered under the laws of Solomon Islands. The Second Defendant is a company incorporated in Solomon Islands and carries on the business of logging and the export of round logs. The Second Claimant was issued with a felling Licence No. A10401 on 28 October 2004. On that date the sole proprietor of the Second Claimant's business was vested on late John Suga (Senior). On 20 June 2007, John Suga (Junior) and his mother Ulalia Tahoria replaced late John Suga as the new proprietors in the Second Claimant's business. On 30 May 2012, the High Court granted letters of Administration to John Suga (Jr) to administer the estate of Late John Suga (Senior)
   
3. On 8 August 2007, Ulalia Tahoria executed a power of attorney. The Donee is her daughter, Mrs Mary Corrine Habotu, the wife of Frank Habotu. It was Frank Habotu who had earlier recommended to the Donor to draw up a power of Attorney and appoint Mrs Mary Corrine Habotu as the Donee in the power of Attorney. Ulalia Tahoria claims that she did not know about the nature of a power of Attorney but maintained that she intended the instrument to become effective after her death. But contrary to her view, the power of attorney became effective on the date she had signed it and that it was irrevocable. There is provision in it, which allows the Donee to settle or reach a compromise regarding this case in relation to Vatughao Customary Land and Laumare Development Company.
   
4. On 23 January 2012, a consent order was executed by Maelyn Bird of Crystal Lawyers for the First Claimant, Joseph Iroga for DNS Lawyers for the First Defendant, Whitlam K. Togamae of Togamae Lawyers for the Second Defendant and the Attorney General for the Third Defendant. This consent order was not dated but was signed by Registrar of the High Court. By this consent order, the First Claimant, among other things, had discontinued this case against the First and Second Defendants; that the $2,430,000.00 in the Join Solicitors Trust Account of Togamae Lawyers, Global Lawyers and A & A Legal Services with the Bank South Pacific is to be disbursed in the following manner: (i) $636,500.00 is to be paid to the First Claimant inclusive of their legal fees, disbursements and costs. (ii) the total balance standing in the Joint Solicitors Trust Account shall thereafter be paid to the Second Defendant, Elite Enterprises (SI) Limited, through its Solicitors Togamae Lawyers. The Claimants upon receipt of the payment shall afterwards file Notice of Discontinuance against the First, Second and Third Defendants in these proceedings.
   
5. On 18 May 2009, Ulalia Tahoria signed a statutory Declaration authorising Roselyn Dettke and John Suga (Jr) to deal with her case. This was due to numerous reasons. Some of them are as follows: funds to initiate proceedings in this case were obtained through Roselyn Dettke to be reimbursed; it was alleged that it became obvious later, that Mrs May Corrine Habotu and her husband Frank Habotu replaced the Solicitor for the Claimants, Makario Tagini, with Solicitor Ms Maelyn Bird to discontinue the case and disburse the royalties; that a deed of release and settlement signed on 17 January 2012 by Francis Chului and Mrs Mary Corrine Habotu witnessed by Ms Maelyn Bird; that Ulalia Tahoria maintained that her power of Attorney was to become operative after her death; that she did not instruct Ms Maelyn Bird to represent her and terminate this proceeding and therefore the power of Attorney should not have been use by Mrs Mary Corrine Habotu to negotiate and settle the case against the Defendants. It is evident from the settlement that the claim of $3,000,000.00 for damage to land had never been settled between the Claimants and the Defendants.
   
6. It was evident from the consent order that the sum of $686,500 be paid to the First Claimant and then $1,743,500.00 to be paid to Second Defendant. Ulalia Tahoria merely received $20,000 for timber royalties and John Suga (Jr) $20,000 for the estate of John Suga Senior.
   

The Donee did not account to Ulalia Toharia for the remaining sum of $842,500 due to First Claimant. This is a huge sum to cover legal fees, disbursements and costs. The deed of release did not mention the sum of the money paid to the Second Defendant. The proceeding was settled despite the fact that no damage was paid for damage to the land. The court is according of the view that there is fraud in the discontinuation, settlement and the distribution of funds in this case, and accordingly:

Order:

1. That leave is granted to the Claimant to revive the proceeding.

2. Mrs Mary Corrine Habotu and Frank Habotu are to be added as First Defendants in this proceeding.

3. The proceeding to be listed for mention.

4. Consent order of 23/1/2012 to be set aside.

5. The Second Defendant pays the full sum of SBD$1,743,500.00 to the First named Claimant and to the Deceased Estate of John Suga (Junior) the Licensee.

6. Costs in the cause

THE COURT