Chengs Construction Ltd v KCM Properties Ltd [2016] SBHC 189; HCSI-CC 191 of 2003 (20 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 191 OF 2003

IN THE MATTER OF PARCEL NUMBER 191 – 023 – 136
AND:
IN THE MATTER OF SECTION 299 OF THE LAND AND TITLES ACT (CAP 133)

BETWEEN:
CHENGS CONSTRUCTION LTD
Claimant

AND:
KCM PROPERTIES LIMITED
First Defendant

AND:
GUADALCANAL PROVINCIAL ASSEMBLY
Second Defendant

AND:
ATTORNEY-GENERAL
Third Defendant
(Representing the Commissioner of Lands & the
Registrar of Titles)

Date of Hearing: 7^th October 2016.
Date of Ruling: 20^th October 2016.

Mr. E. Toifai for the Claimant.
Mrs. K. Ziru for the First Defendant.
No appearances for the Second and Third Defendants.

KENIAPISIA; PJ:

RULING ON APPLICATION TO STAY

Introduction and Back ground

1. This is a 2003 case. Amended Claim was filed in 2009. It has been 13 years since filing of this case. Something is wrong, somewhere, for a case to take this long. From perusal of the file, trial in this matter concluded on or around 14/12/2010.
   
2. It transpired that on the 14/12/2010, Justice Goldsbrough dismissed the Amended Claim, after trial and awarded damages to the first defendant on its Counter Claim, to be assessed. From the order dismissing the Amended Claim, there was no appearance for the second and third defendants. From the order it seemed trial in the matter took place on 7^th and 13^th December, 2010.
3. The order was perfected on 23/12/2010 by Justice Goldsbrough. Although the Amended Claim was dismissed after trial, there is no formal written judgment with Court’s reasoning and determinations on the issues, facts, evidence and law presented before the trial judge.
   
4. Anyone familiar with Court proceedings can tell that an oral judgment was pronounced on 14/12/2010 (ex-tempore). Oral judgment was not followed by a written judgment. Nevertheless the orders made ex-tempore were engrossed by SOL-Law – Solicitors for the first defendant and perfected on 23/12/2010.
   
5. File record also shows that claimant’s solicitor had written to the Registrar requesting a written judgment with reasons to enable him make an appeal. Nothing positive had come about. From submissions, claimant is still waiting for a written judgment to this day.
   
6. Claimant could not file appeal in the absence of a written judgment. Claimant did not apply to the Court for a written judgment. Claimant got stacked and did not do anything. Claimant is still waiting for a written judgment, to be able to construct an appeal.
   
7. Whilst first defendant is wanting to move to assessment of damages, claimant is asking for a stay of assessment on two grounds.
   
8. First ground is, this case relates to another case (civil case 427/2011), the outcome of which will affect this case. Second ground is that claimant wants to appeal against the order by the Court, perfected on 23/12/2010, but cannot do so, unless there is a written judgment, containing the reasons.
   

Stay on second ground

9. Claimant is still waiting for a written judgment. There is a perfected order. There was oral judgment. There are records on file disclosing the reason for dismissing the Amended Claim. If claimant’s Counsel was attentive, he should have noted the reasons given verbally, because judgment was delivered in open Court. It seems lawyer for the first defendant did exactly that. This is evidenced from their filing of the perfected order.
   
10. Court considers that the important fact is that a judgment was delivered and the condensed orders perfected. The fact that no written judgment was delivered is immaterial, because no application for a written judgment is on file.
    
11. Furthermore, no appeal has been lodged in any event. In spite of no written judgment, claimant could have lodged an appeal in reference to the perfected order. Amended Claim was seeking the relief of “rectification of PN 192 -023-136 and allocation of half of it to the claimant against KCM properties, Guadalcanal Provincial Assembly and Commissioner of Lands (“COL”) on the ground of mistake”.
    
12. First defendant denies the allegations of mistake and made a counter-claim, seeking the relief of “damages from stoppage, delay of construction and interference resulting from claimant’s actions in this case”.
    
13. When the Court dismissed the Amended Claim and found for the first defendant on its Counter-claim, the reasons should be fairly clear to the claimant. The reasons, if I may state, should go something like: “Court dismiss the allegations of mistake in the Amended Claim and instead found in favour of the first defendant’s counter-claim seeking the relief of damages: meaning claimant did not proof mistake, as alleged”.
    
14. Claimant could have used the perfected order plus Amended Claim, defence and counter claim by first defendant, parties written submissions and counsel’s notes at trial to file an appeal. Appeal is governed by Part II of the Court of Appeal (Cap 6). The fact that there is no written judgment, make the claimant’s appeal case stronger.
    

Stay on first ground

15. Claimant submits that there should be a stay because, this case relates to another civil case pending before this Court – Civil Case 424 of 2011. Claimant submitted that the outcome of Civil Case: 424/2011 will affect the first defendant herein, because if claimants in Civil Case: 424/2011 succeeds, it means claimants in Civil Case: 424/2011 become the shareholders and owners of the first defendant company herein.

Law on stay

16. Court agree with the claimant’s submission on the law as it relates to stay. Grateful to Counsel Toifai for the authorities cited. That is to say Court can order stay if it is “just and reasonable to do so in the circumstances”.

Circumstances of this case

17. Court can reason that should money be awarded to first defendant herein for damages, first defendant will become rich. And if claimants in Civil Case: 424/2011 take back ownership of first defendant herein, they are likely to reap financial gains. That is an outcome welcoming and beneficial to the claimants in Civil Case: 424/2011. Claimants in Civil Case: 424/2011 may apply to halt money paid to first defendant herein pending resolution of Civil Case: 424/2011. They can apply to halt all transactions in the first defendant’s accounts. But they cannot stay the assessment of damages.
    
18. The assessment of damages should proceed to a hearing. The stay order is unavailable because it is reasonable and just that assessment of damages proceeds. Claimant may apply for Court to restrain funds, if any money is paid to the first defendant in damages from assessment.
    
19. The stay order is not available to the High Court, since the judge’s decision may be treated as final and conclusive between these parties and creates an estoppel by judgment. The judgment should be followed (in the absence of an appeal after 6 years) by hearing the damages assessment.
    
20. Claimant in the meantime may appeal by using Section 9 (1) and (2) of the Court of Appeal (Cap 6). Then he may consider applying for stay. In view of the circumstances, of the case, any application for leave to appeal appears strong. Court is part of the difficulty claimant faced.
    
21. Orders of the Court are:
    
    • 21.1 Application for Stay refused.
      
    • 21.2 No order on cost.
      
    • 21.3 Registrar to list the assessment of damages hearing.
      

THE COURT

--------------------
JOHN A KENIAPISIA
PUISNE JUDGE