Lever Solomons Ltd v Attorney General [2014] SBHC 117; HCSI-CC 150 of 2008 (30 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

LEVERS SOLOMONS LTD

Claimant/Respondent

AND:

ATTORNEY GENERAL

1st Defendant

AND:

TIGI SIKELE

2nd Defendant/Applicant

Date of hearing: 14 May 2014

Date of Judgment: 30 June 2014

For the Claimant/Respondent: A. Radclyffe.

For the 2nd Defendant/Applicant: D. Marahare.

No appearance for the 1st Defendant.

RULING
Apaniai, PJ:

1. On 21st July 2010, the claimant, Levers Solomons Ltd, ("Respondent") obtained a judgment against the Attorney General as 1st defendant and the Applicant as 2nd defendant in the following terms:-
   

[1] That the Registrar of Titles rectify the fixed term estate register for Parcel No. 192-004-513 to reflect the ownership of the said Parcel in the name of the Claimant;

[2] That the 2nd defendant, his relatives and other occupants of Parcel No. 192-004-513 vacate the land immediately and be restrained from re-entering the same;

[3] That the buildings erected on Parcel No. 192-004-513 belong to the claimant;

[4] Costs of these proceedings be paid by the 1st and 2nd defendants in equal shares.

2. The perfected orders following the judgment were served on the Applicant on 23 July 2010. There was no appeal against that judgment.
   
3. On 3 August 2010, the court issued enforcement orders which were valid for 12 months. Attempts by the sheriff to enforce the orders were unsuccessful due to resistance by the Applicant and his agents. The Rapid Response Unit of the Solomon Island Police was on site at that time but the sheriff had decided not to proceed with the enforcement due to the tense situation. Nothing further happened due mainly to the reluctance of the police to assist as a result of the resistance by the Applicant and his agents.
   
4. On 12 March 2014, the Sheriff applied ex parte for Penal Notice to be attached to the enforcement orders to ensure compliance by the Applicant. An order for penal notice was granted on 21 March 2014. In a report by the Sheriff dated 12 May 2014 relating to his attempts to enforce the orders with the penal notice, the Sheriff stated that on 1 May 2014, the Sheriff and a police officer attended the property and found the Applicant's relatives and agents in the house. On being told to vacate the house they responded that they would die leaving the property.
   
5. In this application, the Applicant now comes to court seeking the enforcement orders, including the order for penal notice, to be suspended. I understand this to mean that he is seeking stay of execution of the enforcement orders. Such application is governed by Rule17.77 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules").
   
6. He says that he had just discovered facts which are relevant and which might have a direct bearing on the enforcement order and the entire proceedings as a whole. Those facts are as follows.
   
7. First, the Applicant has just come across an order called the Commodities Export Marketing Authority (Russell Islands Plantation Estate Ltd (Incorporation) Order ("LN 15/1995") which came into force on 20 February 1995 and which authorised the Commodities Export Marketing Authority ("CEMA") to hold shares in Russell Islands Plantation Estate Ltd ("RIPEL"). The Applicant says that RIPEL is a company incorporated with the purpose of taking over the ownership of the Respondent. He says that it is possible the status of the Respondent might have already been affected by the Order and that the existence of the Respondent might have already ceased. Unfortunately, the Applicant has not produced any evidence to confirm that the Respondent has indeed being dissolved and that the title to Parcel No. 192-004-513 has been transferred to RIPEL. The burden is on him to do so. He has not done so. It must therefore be assumed that the Respondent's registration as a company is still on foot and that it still holds the title to Parcel No. 192-004-513.
   
8. The second set of fact claimed to have just been recently discovered by the Applicant relates to Civil Case No. 18 of 2013. He says that case is similar to the present case in that the Respondent is also seeking in that case possession of properties registered in its name which are also located in the same area as Parcel No. 192-004-513. He says that the defence filed by the defendants in that case has raised the issue regarding the existence of the Respondent in the light of the Order in LN 15/1995. He says that if the defence is decided in favour of the defendants, it will mean that the Respondent did not own the properties which are the subject matter of Civil Case No. 18 of 2013 as well as Parcel No. 192-004-513. For that reason, he seeks suspension of the enforcement order against him pending the trial of Civil Case 18 of 2013.
   
9. There is no dispute that the court has discretion whether or not to grant such application. However, the discretion must be exercised upon established principles.
   
10. It is a well settled principle of law that a successful party is entitled to the fruit of his litigation[1] and that to grant a stay, the applicant must show the existence of special circumstances[2]. According to Burnet v Francis Industries plc[3] ("Burnet"), special circumstances include the nature of the claimant's claim, the extent of the identity between the defendant and other party, the inter-relationship of the respective claims by the claimant against the defendant and by the other party against the claimant, the strength of the other party's claim, the size of the other party's claim relative to the claimant's claim, the likely delay before the merits of the other party's claim against the claimant would be decided, the extent of the prejudice to the claimant if he was denied the fruits of his judgment until the other party's claim was determined, and, the risk of prejudice to the other party if the defendant were to make payment to the claimant under the judgment.
    
11. The issue in this application, therefore, is whether the reasons advanced by the Applicant as stated in paragraphs 7 and 8 above amount to special circumstances justifying a stay of the execution of the enforcement orders.
    
12. I have already touched on the reason advanced in paragraph 7 above. That reason is the assumption that Levers might have already ceased to exist as a result of LN 15/1995 and therefore the title to the properties, including Parcel No. 192-004-513, might have already been transferred to RIPEL. That is an assumption. There is no evidence to prove that assumption and I reject it. It does not amount to a special circumstance justifying a stay of the enforcement orders. A simple search of the Company haus website should reveal that Levers Solomons Limited still exists.
    
13. I also reject the reason stated in paragraph 8. I see nothing in the ground advanced in paragraph 8 above as falling within any of the circumstances outlined in Burnet.
    
14. In any event, the granting of a stay is, as stated earlier, a matter for the discretion of the court. The Applicant cannot expect a favourable exercise of the court's discretion when he and those who live with him on the property have, for the last four years, shown little respect for the court orders made against him to vacate the property. The rule is "he who seeks equity must come with clean hands"[4].
    
15. It follows that the application is dismissed and the Applicant shall pay the costs of the Respondent of, and in connection with, this application on standard basis.
    
16. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] Wells v Knott (1910) 20 Man. R 146; Kanna v National Fisheries Development Ltd [2001] SBHC 159; HCSI-CC 033 of 2000 & HCSI 055 of 1999 (18 January 2001); The Annot Lyle [1886] 11 PD 114.
^[2] Kololeana Development Company Ltd & Mega Corporation Ltd v Olupatu Amiki & Others [2003] SBHC 77; HC-CC 083 of 1998 (5 November 2003); Eastern Development Enterprises Ltd v Isabel Timber Company Ltd [1999] SBHC 78; HC-CAC 005 of 1999 (12 August 1999).
^[3] [1987] 2 All ER 323.
^[4] Roni v Ross Mining (Solomon Islands) Ltd [1997] SBHC 71; HC-CC 060 of 1997 (4 September 1997).