Dausabea v Registrar of Titles [2014] SBHC 118; HCSI-CC 365 of 2009 (18 August 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 365 of 2009

BETWEEN:

RAMO DAUSABEA

Claimant

AND:

REGISTRAR OF TITLES

1st Defendant

AND:

PACIFIC ISLANDS TIMBER COMPANY LTD

2nd Defendant

AND:

BAKO CONSTRUCTION LTD

3rd Defendant

AND:

HAYNES MAETALA

4th Defendant

AND:

SIMON SODO

5th Defendant

AND:

FRED OTOINAO

6th Defendant

E. Garo for the claimant/applicant.
A. Radclyffe for the 2nd and 3rd defendants/respondents.
No appearance for the 1st, 4th, 5th and 6th defendants.

Date of hearing: 9 July 2014.
Date of Ruling: 18 August 2014.

RULING
Apaniai, PJ.

The application.

1. The applicant, Mr. Ramo Dausabea, has filed two applications against the respondents. The first application seeks an order to set aside a judgment delivered on the 8 November 2013, and perfected on 22 November 2013, on the ground that the judgment was obtained by fraud. The application is made under rule 17.55 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules").
   
2. In the second application, the applicant seeks to stay of the enforcement of the same judgment pending the ruling in the first application. Unfortunately, no order for stay was made at the end of the hearing of the application on 9 July 2014 so it is now not necessary to consider, or make any order pursuant to, the second application. The only issue now left to be decided on this application is whether or not to set aside the judgment delivered on the 8 November 2013.
   

The claim of fraud.

3. In regards to the first application, the applicant says that the fraud is found in the evidence given by Walter Jones ("Mr Jones") in the trial of this claim in October 2013. The fraud is said to be the evidence of Mr Jones which says that the applicant had signed the transfer document on 28 February 2001. The applicant says that this piece of evidence was false because the applicant was away in Australia from 25 February to 3 March 2001 and could not have signed the transfer on 28 February 2001. As such, the applicant says that fraud has been committed and therefore the judgment should not stand.
   

The issue.

4. So the issue here is whether the judgment was obtained by fraud. If it is, then the judgment must be set aside. The burden is on the applicant to prove that Mr Jones had committed fraud in stating that the applicant had signed the transfer document on 28 February 2001.
   

Legal principles relating to fraud.

5. To establish fraud, the applicant must show that Mr Jones had made a false representation knowingly or without belief in its truth or recklessly or was careless whether the statement be true or false[1]. In Assets Co. Ltd -v- Mere Roihi & Others[2], it was said that fraud means actual fraud or dishonesty of some sort. That means there must be some element of dishonesty in making the statement.
   

The evidence by Mr Jones.

6. Mr Jones had made a sworn statement in which he mentioned that a transfer of the land was signed by the parties. He did not say what date the transfer was signed. However, according to the hand-written court transcript, the only time he mentioned the transfer being signed on 28 February 2001 was in response to questions put to him by the court about the signing of the contract to sell the land and the signing of the transfer document. The transcript showed him saying in response to questions by the court:
   

"Contract signed on 7/9/2000 & transfer on 28/2/01. When transfer signed, Ramo, Hikimae, me and my wife were present. Hikimae took the transfer after we signed".

Discussion.

7. The transcript shows that counsel were given the opportunity to re-examine or cross examine Mr Jones on any matter arising from the questions by the court and Mr Jones' answers to those questions but failed to take advantage of that opportunity. If the date alleged by Mr Jones in regards to the signing of the transfer was an issue, the applicant and his then counsel had had the opportunity at that time to challenge to Mr Jones in regards to the fact that the applicant was not in Solomon Islands on 28 February 2001 and could not have signed the transfer document on that date. This could have provided Mr Jones an opportunity to explain whether he was sure the applicant had signed the transfer on 28 February 2001. Counsel did not cross examine Mr Jones in regards to the signing of the transfer on that date. I do not think they are entitled to re-open the case again to re-agitate an issue which they had had the opportunity to raise at trial but refused to take advantage of the opportunity.
   
8. Furthermore, the statement by Mr Jones that the transfer was signed on 28 February 2001 could have been the result of him seeing the date on the stamp duty at the top right-hand corner of the front page of the transfer, or, of him seeing the date Mr Pinita witnessed the signing of the transfer by the applicant as shown on page 3 of the transfer, or, it could have also been the result of Mr Jones having heard in court during the testimonies of the applicant's witnesses who were called before him that the transfer was signed or witnessed on 28 February 2001.
   
9. It is for the applicant to show that Mr Jones' statement was not the result of any of those scenarios but was a deliberate lie made with intention of influencing the court reach a decision different from that which it should have made.
   
10. As stated above, to establish fraud the applicant must not only prove that Mr Jones' statement was false but that Mr Jones had made the false statement knowing it was false and with intention to deceive the court.
    
11. While Mr Jones' statement that the transfer was signed on 28 February 2001 was false, I am far from convinced that in making that statement, Mr Jones had any motive of misleading the court. I am not satisfied that he even knew that the statement was false in as far as it referred to the 28 February 2001 as the date that the transfer was signed for there is no evidence that Mr Jones knew that the applicant was in Australia on 28 February 2001. What Mr Jones was certain of, and what the court accepted, is the fact that the applicant had signed the transfer in Mr Jones' office and that he and his wife, as well as Mr Hikimae and the applicant, were present when the document was signed.
    
12. In my view, although the evidence has established that the applicant was in Australia on 28 February 2001 and that Mr Jones may have made a false statement that the transfer was signed on 28 February 2001, there is no evidence that Mr Jones, in making that false statement, had intended to mislead the court. In any event, the judgment of the court was not based on the fact that the transfer was signed on 28 February 2001. Rather, it was based on the finding that the applicant had signed the transfer. That finding was based on the testimonies of the witnesses called by both the applicant and the defendants all of whom confirmed that the signature on the transfer document was that of the applicant. The date of signing the transfer document was never an issue at the trial. It follows that no fraud has been established and therefore the application should be dismissed.
    

Issue of "finality" of the judgment.

13. Having said that, there is also another issue which, though not addressed during submissions, must be considered in deciding whether or not to grant this application. That issue is the question whether or not the judgment sought to be impeached in this application is a final judgment. If it is a final judgement then the only way to dislodge it is by way of appeal.
    
14. Similarly, if it is alleged that the judgment was obtained by fraud then the proper procedure is to lodge a fresh case to set aside the judgment. These are well settled principles of law. It has been said that when judgment has been given on the merits of the case and the orders relating thereto have been perfected, the judgment is final[3] and can only be dislodged on appeal[4]. A judgment is said to be on the merits when the judgment or order, as made, finally disposes of the rights of the parties to the action [5]. The was the principle stated in Halsbury's Laws of England[6] ("Halsbury principle") where it was said:
    

"As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in afresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. "... The court has no power to amend or set aside its judgment or order where it has come to an erroneous decision of fact or law, or where new material evidence has come to light, or if it transpires that the judgment or order had been obtained by fraud or false evidence: in such cases, relief must be sought by way of appeal or, where appropriate, by separate action to set aside the judgment or order."

15. There can be no dispute that the judgment now sought to be impeached was a final judgment. It was final because it was a judgment made after hearing evidence and submissions on behalf of the parties to the case. In other words, it was a decision made on the merits of the case.
    
16. The applicant alleges that the judgment was obtained by fraud. If that is so then, in accordance with the Halsbury principle, the proper procedure is to file a fresh action to agitate the issue whether fraud has been committed in obtaining the judgment. This was not done. Instead, the applicant seeks to apply to have the issue of fraud decided as part of the same proceeding in which the judgment was obtained. The application must also be dismissed on this ground.
    

Decision and costs.

17. It follows therefore that this application is dismissed with costs against the applicant.
    
18. I have considered whether to award costs on standard or indemnity basis. Awarding of costs, whether on standard or indemnity basis, is discretionary. Generally, costs should be awarded on standard basis. However, costs may be awarded on indemnity basis where the conduct of a party to a proceeding is so improper, unreasonable or blameworthy that he should be so punished by such an order[7]. So the question here is whether the conduct of the applicant in making this application is so improper, unreasonable or blameworthy that he should be punished by making an order for costs on indemnity basis. I do not think so. I therefore order costs on standard basis.
    

Orders.

19. Orders:-
    

[1] The application by the applicant to set aside the judgment in this proceeding delivered on the 8 November 2013, and perfected on 22 November 2013, is dismissed.

[2] The application by the applicant to stay of the enforcement of the same judgment is also dismissed.

[3] The applicant shall pay the costs of the respondent on standard basis to be taxed if not agreed.

The Court.

James Apaniai
Puisne Judge.

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^[1] Derry v Peek (1889) 14 App. Cas. 337 at 374; see also R v Customary Land Appeal Court (Western) ex parte Pitakaka [1985] SBHC 27; [1985-86] SILR 69 (5 June 1985).
^[2] [1905] UKLawRpAC 11; [1905] AC 176; see also Waimiha Sawmilling Co. Ltd -v- Waione Timber Co. Ltd [1925] AC 101.
^[3] Liliau v Trading Company (Solomons) Ltd (No. 2) [1983] SBHC 31; [1983] SILR 40 (24 February 1983); Yee Bing Store Ltd v Yuen [2001] SBHC 66; HC-CC 012 of 1997 (14 September 2001); DBSI v Melanesian Communication Ltd [2003] SBHC 54; HC-CC 185 of 2003 (5 November 2003); Roni v Ross Mining (Solomons Islands) Ltd [1998] SBHC 144; HCSI-CC 60 of 1997 (1 April 1998).
^[4] Dika v Somana [1999] SBHC 11; HC-CC 242 of 1996 (15 February 1999); Roni v Ross Mining (Solomons Islands) Ltd [1998] SBHC 144; HCSI-CC 60 of 1997 (1 April 1998).
^[5] Bozson v Altrinchan Urban District Council [1903] UKLawRpKQB 44; [1903] 1 K.B. 547; Suva’ahu v Omex Ltd [2001] SBHC 36; HC-CC 173 of 2000 (19 June 2001).
^[6] Halsbury’s Laws of England, 4^th Ed at para. 556.
^[7] Workers Mutual Insurance (PNG) Ltd v Sivakumaran [2013] PNGNC 16; N4987 (29 January 2013).