Nogha v Sunway SI Ltd [2016] SBHC 63; HCSI-CC 436 of 2015 (13 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 436 of 2015

BETWEEN:

ISAKE NOGHA, KIKO NOGHA and ALASTAIR ALEVE
Claimants

AND:

SUNWAY SI LIMITED
Defendant

Date of Hearing: 13 May 2016
Bird. M for the Claimants
Global Lawyers for the Defendant

BROWN J:

RULINGS AND ORDERS

The Judgment debt was given by the Registrar in favour of the Claimants on the 5 February 2016 in the sum of $736,894.73 plus interest and costs. This sum was the balance of the original claim for $886, 894.73 for trees felled to that value. The difference, some $150,000 was paid by the 1^st Defendant, whereupon the proceedings were discontinued against that Defendant, [the licence-holder to log], on the 23 November 2015.

No defence has been filed by the 2^nd Defendant but prior to the entry of Judgement, the 1^st Defendant had filed a defence joining issue with the Claimants with respect to material matters, especially that in para 1. of the claim which asserts the Claimants are representatives of the respective tribes, owners of Tavadi Land. The 1^st Defendant pleaded the Arovo tribe of Marovo as owners.

Further the Defendant admitted going onto the customary land but denied trespass.

The last paragraph of the defence stated;

“That on the 15^th June 2015 the Claimants initiated a settlement out of court between the claimants and the first defendant in which the claimants have accepted $150,000 as compensation in full satisfaction. The 1^st defendant made the payment not in admission of trespass but to have the matter settled between the parties so as to not disrupt the operation of Voge Timber Export Ltd. The 1^st defendant have experienced that any disruption of its licence would affect its logging operation generally not only in respect of Tavadi customary land but also Arovo and Gae customary land.”

Sunways [SI] is the contractor for Voge Timber Export Ltd, carrying out the logging on Voge’s behalf.

Consequently the sum accepted was paid by the 1^st Defendant and the proceedings discontinued against the 1^st defendant.

The Claimant now seeks to recover the balance of the money from the 2^nd Defendant. The settlement was said to have been initiated on the 15 June 2015, “so as not to disrupt the operations of Voge Timber Export Ltd”

The Claims were served on the 3September by a police officer on the 2^nd defendant at their office at Ranadi, Honiara.

Mr. Tagini says that the proceedings have not been served and in any event, the 2^nd Defendant paid the sum of K150K in full satisfaction of any claim. I have no way of knowing whether the office at Ranadi is a registered address or a place where Sunway carries on business or whether [the papers were served on Jason Yee], the person served was an officer or employee of the company.

But what is apparent is that, when I read the annexure to Mr Yu Yuebo, the Managing Director of the 2^nd Defendant company, it is plain that Isacc Nogha of the Nogha family and representatives of the other families, set down on the paper, and appointed Pastor Karejama, Alestair Elive and Brady Gebe to represent them on behalf of the NACA tribe concerning the Tavadai land matters. This dated on the 24 May 2015.

On the 7 July, from the statements of Yu Yuebo, and Taylor Fang [an officer of Sunways] it is claimed the sum of $150K represented a settlement with the respective land owners and was paid by Sunway SI Ltd to Voge as evidenced by payment voucher although the sum of $100K was drawn as cash.

The 2^nd Defendant was the grantor of the money and relied upon a document, a copy of which is annexed to Mr. Fang’s statement signed by Christian Karejova the appointed representative (above) where the representative agreed to settle dispute for $150,000 by way of cash. He said;

“On the same note, no further additional claim is to be made by either parties regarding this matter”.

I am satisfied the Defendant Sunway has raised very good reasons why no defence was filed after the money was paid and acknowledged by the Claimants by way of discontinuance against the 1^st Defendant. On the basis of that acknowledgement, the Licencee, the 1^st Defendant was bound by its terms on the face of the document, and a presumption arise that the payment by the 2^nd Defendant carried with it the implied assurance that no further disputation over the land was to be contemplated against Sunway since it had paid the money to enable Voge to carry on logging without disruption.

This contractor’s rights are no stronger than the licensee’s; the licencee has accepted the contractors payment for the purpose of the agreement with Pastor Karejava acting on behalf of the Tavadai landowners and the licencee may plead the agreement with Pastor Karejava in bar against any claim by the landowners. Hence discontinuance against the original 1^st defendant.

The 2^nd Defendant is entitled to have its orders sought for prima facie the Claimants appear to have refuted the authority of the Pastor to settle for $150,000 the implied agreement to settle the claim affecting Tavadai land evidenced by the document of the 4 June 2015.

I am not satisfied Sunways understood that after it had paid the money used by Voge to settle the Tavadai land dispute, in spite of making plain to Voge that no more moneys would be paid, that the proceedings against it had not been discontinued. It would be inequitable to allow the judgment to stand when moneys flowed from Sunways at the behest of Voge.

I make orders in terms of para’s 1, 2 & 3 of the application.

I also order the respondents to this application to pay the cost of this application.

The proceedings will be listed for trial once a defence has been filed.

BY THE COURT