Lepping v Hotomo [2020] SBHC 32; HCSI-CC 497 of 2015 (4 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Lepping v Hotomo
Citation:
Date of decision:	4 March 2020
Parties:	William George Lepping v Lawrence Hotomo and Morris Boch
Date of hearing:	5 November 2019
Court file number(s):	497 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	1. The application to set aside the ex-parte injunctive orders is dismiss forthwith. 2. That both Counsel representing parties to work together to include Chief Hotomo rights as determine by the Court. 3. That cost of this application shall be paid by the Applicant Mr Lepping payable to the Latter Applicant Chief Hotomo.
Representation:	Mr. J Taupongi for the Original Applicant Mr. William Lepping Mr. W Rano for the later Applicant Chief Hotomo
Catchwords:
Words and phrases:
Legislation cited:	Wills, Probate and Administration Act [cap 33]
Cases cited:	Takofilea v Agira [2013] SBHC 130, Wale v Governor General [2019] SBHC 43 John Clubs PTY Ltd v White City Tennis Club Ltd [2010] HCA 19 Aeounia v Osiramo [2008] SBCA 5, Solomon Import Export Ltd v Onika [2018] SBHC 44, Solovae v Egon Development Co. (SI) Ltd [1992] SBHC 40, R v Kensinta Income Tax Commissioner [1917] KB484, Mega Corporations Ltd Lotnite [2003] SBCA8, Ratusia v Attorney Gerena l (2016] SBHC 180, Majoria v Jino [2009] SBCA 4

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 497 of 2015

IN THE MATTER OF: THE PROBATE AND THE ADMINISTRATION ACT

BETWEEN

IN THE MATTER OF: An application by William George Lepping on behalf of the Children of late Sir George Lepping for a grant of letters of administration to administer the estate of JOHN BITIAI of Alenag Village, Shortland Islands.

AND

IN THE MATTER OF: An application by Chief Lawrence Hotomo of Nuhu Village and Chief Morris Boch of Nuhu both of Sialkaregana Tribe of Shortland Islands.

Date of Hearing: 5 November 2019
Date of Ruling: 4 March 2020

Mr. J Taupongi for the Original Applicant Mr. William Lepping
Mr. W Rano for the later Applicant Chief Hotomo

RULING ON APPLICATION TO SET ASIDE

Faukona, PJ: On 28^th September Mr. William George Lepping filed an application under the Wills, Probate and Administration Act (Cap. 33) for grant of letters of administration to administer the estate of the late Mr. Bitiai.

1. On 4^th November 2015 the Registrar of the High Court granted letters of administration sought to Mr. William Lepping. Five days after, Mr. William Lepping became a registered owner of the perpetual estate in parcel number 019-001-42 (PN 42) previously owned by the late Mr Bitiai through transmission.
2. On 2^nd December 2015, Chief Hotomo and Chief Boch filed a notice of Motion seeking an order to say the orders granted by the Registrar of the High Court and to replace or join Mr. William Lepping as administrators of the estate of the late Mr. Bitiai.
3. After being registered as the owner of (PN 42) Mr. William Lepping on 29^th March 2017 issued grant of profit to C & W Forestry Limited (CWL) over PN 42 which had been registered.
4. On 5^th May 2017, the Commissioner of Forests granted timber felling Licence No. A101713 to CWL over PN 42 based on the grant of profit. CWL therefore commenced logging operation by construction of road by August 2015.
5. On 24^th May 2018, the Court pronounced that Chief Hotomo was to jointly administer Parcel Number: 019-001-42 (PN 42) together with Mr. William Lepping on the grounds that the land was held as trust land, even previously. Unfortunately for Chief Hotomo the land had been administered solely by Mr. Willian Lepping since 9^th November 2015.

The core arguments:

6. The Central focus of argument pivoted on the scenario that having determined the substantive issue in this case between both applicants in which the Court included Chief Hotomo to join with Mr. William Lepping to administer PN: 019-001-42 which had been solely administered Mr. William Lepping. Unfortunately that order come too late the estate had been administered by Mr Lepping himself.
7. There was no appeal filed by Mr. Lepping and the records were not adjusted to reflect the order of the Court. In other words the orders were not complied with by Mr. Lepping characterizing a total refusal by him.
8. Despite some compliance with the orders, CWL carried out logging since August 2017 and made shipments since then – see Forestry records Exh. “LW1” attached to sworn statement of Chief Hotomo filed on 15^th August 2019.
9. Then came the execution of the Deed by Chief Hotomo on 26^th June 2018 after five shipments had been made. Graciously, Chief Hotomo had received some money on one occasion.
10. Nevertheless, the execution of the deed did not deter chief Hotomo from filing an application for restraining orders on 4^th July 2018, including C & W Forestry limited as a party. It would appear C&W Forestry limited was the contractor and One Link Brother was the Sub-contractor.
11. It is against the application for restraining orders and inclusion of none party to the original proceedings that Mr. Lepping filed this application to set aside.

Ground 1: CWL was wrongly added as a party:

12. The argument by the applicant on this issue is based on Rules 3.5 and 3.6. Rule 3.5 allows the Court to exercise its powers to order a person to become a party, if that person’s presence is necessary to enable the court make a decision fairly. Rule 3.6 allows a person affected by the proceeding to be applied to join as a party.
13. That argument is clear based on the rules which envisaged Court orders joining a party before pleading can be amended to add a new party. The Counsel for the Applicant refers to the case of Takofilea V Agira^[1]. The issue which Chief Hotomo had not complied with is service of an application under Rules 3.5 and 3.6. Unfortunately cannot imply that CWL’s name should automatically include as a party; it requires an order from the Court.
14. Therefore, in adding a party was nullity as chief Hotomo had no individual power to add a party. There should be a declaration that CWL as Defendant was never a party and should be removed by Rule 3.7.
15. On the other hand Mr. Rano pointed at that Rule 2.1, foot note provides; a claim shall be used to start an interlocutory order, before, during or after proceedings.
16. It was further submitted that Mr. Hotomo is seeking in interlocutory order during proceedings. In his application he chose to name CWL as third party. By Rule 3.1 a party is deemed a party if he is so named. The naming is sufficient to make a person becoming a party.
17. In normal practical circumstances additional party can be ordered by the Court before or during the proceedings. It is quite uncommon though such order is granted after trial.
18. For practical reasons, often application for leave is filed whether orally or in a formal manner. When an application to include third party is disputed then parties must provide evidence that it is necessary to enable the Court to make a decision fairly and effectively in the proceeding.
19. This basic process is the core of the Applicant’s case. Indeed the commonality of it is so familiar that further development or extension of it seems strange and astounded.
20. It ought to understand the fact of this case is apparently not the same as usual circumstances. It commences with a case of succession. However, the Court decided it’s a succession by trust to the property. The Court by its decisions fairly grants Chief Hotomo to achieve the status of Mr. Lepping as joint administrator.
21. The distinguishable difficulty is that when the Court appointed Chief Hotomo as a joint administrator to join with Mr. Lepping to administer the estate of Bitiai on 24^th May 2018, Mr. Lepping had already been registered as the owner of the estate on 9^th November 2015. And had registered the grant of profit to C & W Forestry Limited on 29^th March 2016 followed by issuant of felling License No. A101713 to CWL on 5^th May 2017. In August 2015 CWL commenced logging on PN 42.
22. As a joint administrator expectation would have been by consensus joint Mr. Lepping as trustees of the estate. That would mean personal ownership of the estate as Mr. Lepping had preferred should not prevail but must be adjusted to include Chief Hotomo. The same scenario could apply to the grant of profit to CWL.
23. Despite neglecting the Court order yet prompted by none compliance, Chief Hotomo became more figure head. The show of inactivation does not reflect well the attitude of Mr. Lepping. If he disagrees with the Court decision he should have appealed, there was no such appeal filed. Otherwise accept obligation ensuring Chief Hotomo participated equally in the legal process, right to the issuant of the felling licence and recipient of royalty moneys on behalf of their tribe.
24. In the midst of anxiety, Chief Hotomo had no option but to file application to include CWL who was contracted to operate logging activities.
25. I accepted Mr. Rano submissions that CWL carried out logging on a property subject to joint administration which Chief Hotomo had no part playing, or right of ownership of the trust land and the grant of profit to CWL.
26. Of course it is only relevant that CWL is named. If it was not named, it cannot subject to the orders, and logging would continue? Hence the order of Court will remain stagnant and futile without any opportunity to comply with. On the outset that supposed to be the first activity performed by Mr. Lepping. The change of task activity performed by Mr Lepping is a change of task and mindset which reflect no respect to the Court.
27. In the situation confronted here becoming a party for the purpose of injunction is crucial. In particular where the order of the Court was not complied with and implemented. In the case of Wale V Governor General^[2] CJ Sir Albert Palmer recorded the following;
    • “It is a trite law, a third party cannot be the subject of any orders of the Court unless he had been joined as a party and made subject to the jurisdiction (supervision and control) of the Court. The court has no power save as expressly provided by law to compel any one to abide by its orders, for in the event of failure to comply, the Court cannot enforce such orders.”
28. Quite mindful is the case of John Alexander Clubs Pty Limited V White City Tennis Club Limited^[3], where the Court of Appeal of Australia poses a profound passage which is most relevant in this case;
    • “The question is not whether any problem arising in the original proceedings could be resolved in separate proceedings, but, as explained above, whether that problem should have been resolved in the original proceedings without the need for separate proceedings.”
29. The problem in this case is that the order of the Court has yet to be resolved, should have been done, but was never done. Therefore in the midst of that there is no need to resume to another new proceeding. In fact the principle in this case is one of remedial conclusion. It would be in utterly dismay if a new problem is placed in addition to the problem in the original proceedings.
30. The proceeding which CWL was named as a party is the application for interlocutory orders. The argument now raises the issue of trial that there is no legal basis for directly inclusion of CWL as a party. That argument is now dismissed on the ground as set out above. I hereby make order that CWL be inclusive as a party.

Ex Parte Order against a non-Party.

31. The argument advance by the Applicant that CWL was never been a party to the original proceedings. By imposing injunction against it was wrong.
32. The Counsel refers to Rule 24.17 which concern making an order for costs against a person who is not a party, except in Rule 24.18. He argues that no order should be made against a non-party unless allowed by law. In doing no means he was never given the opportunity to be heard before the order was made.
33. Having ruled on arguments in ground one, it implies the context in ground two as a follow up. Realistically, the application for interlocutory orders contains the name of CWL as one of the parties.
34. Ex-parte orders were made because of the urgency circumstances, practically in the absence of a party. The reason for accepting the application, it was a continuation of the original proceedings as explained in ground one. The major and focal reason is that Mr. Lepping ignored the Court orders to implement for joint administration.
35. Ex-parte orders are instant orders to maintain the status quo in particular logging operations. They are orders to preserve the subject matter until circumstances changed. More importantly such applications are dealt with expeditiously on papers having regards to Chapter 7, especially Rules 7.11, 7.12 and 7.38. That may not require attendance by the Applicant.
36. If a judge is not satisfied of the matters required by the rules, he may appoint a time for Counsels to attend and argue the merit of the application. In this case attendance is not necessary and the Court grants the orders. I see there is nothing sinister about the injunctive orders granted.
37. Of course a party who aggrieved can apply to set aside and the court has the discretionary power to exercise by virtue of Rule 17.55 to set aside an order made in the absence of a party, including injunctive orders.
38. The issue of reasons for absence of a party or lawyer in an ex -parte application is not necessary until the papers were served and the party failed to appear on a returnable date. Therefore, explanation ought to be given. However, in the light of Rules 7.11, 7.12, and 7.38 attendance of a respondent party is not necessarily required unless the Court orders otherwise.
39. Therefore the facts in Aeounia V Osiramo^[4] may not bear the same similarity on the current case. Again the facts of this case are not the same as in the case of Solomon Import Export Ltd V Onika^[5]. The facts in Onika’s Case can be distinguished from this case in that in Onika’s case the Claimant and one of the Defendants negotiated a consent order which was materialized. Subsequently the Order had affected the second Defendant who was not a party to the negotiations which resulted in the consent order. In fact the orders are made in his absent.
40. In such situation the Court expanded on the application of Rule 17.55 at pages 43 and 44. The Consent order that was made was in the absence of another Defendant which is absolutely not the same as facts in this case. This case concern ordinary application for ex-parte injunctive relief. Should a party is adversely affected by the orders can apply to set aside or varied. He only needs to show the change of circumstance in order for the Court to exercise its discretion to set aside or varied. The consent order made in Onika’s case was one which affected the substantive issue unlike the current case.

Failure to make disclosure:

41. It is a trite law that failure by an applicant for injunctive relief to disclose material facts, is a ground to set aside an ex parte order. It is a duty required by the applicant to disclose material facts even if those be detrimental to his case.
42. The Counsel for Mr Lepping refers to the case of Solovae V Eagon Development Co (SI) Ltd,^[6] where Palmer J (as he was, then) confirmed the principle lay down by R V Kensingta Income Tax commissioner, ex parte Princess Edward de Polignac.^[7]
43. It is argued that when Chief Hotomo filed his application for injunctive orders on 28^th June 2018; had deliberately breach the principle in Solovae V Eagon. Clause 14.2 of the Deed specifically stated Chief Hotomo expressly allowed CWL’s operation on PN 42 to continue of which he gave consent and signed. The intention was that both parties were to share the royalties in the operation equally. From Mr. Lepping’s view that was an achievement which paved the way to implement the decision of 24^th May 2018.
44. Mr. Rano for Chief Hotomo argues otherwise. I noted from his submissions that the Deed was executed on 13^th July 2018 and not on 28^th June 2018 as Mr. Lepping embraced.
45. Unfortunately there was no copy of the Deed on file hence; the truth can be deduced from evidence by the parties.
46. Conceivably, Mr. Lepping’s date of 28^th June 2018 was not being truthful. It was the date the application for ex-parte orders was done. How would the Applicant expect to disclose material facts of the Deed when it was signed 15 days after the injunctive orders were granted?
47. In any event I cannot take for granted that Mr Lepping was truthful about the date of the Deed. A portion of his submission paragraphs 86 and 87 particularly para. 87 attempted to portray chief Hotomo has irrevocable consent for the logging to continue, royalties be shared equally, and agree to waive his right not to institute legal litigation against CWL in relation to matters covered by the Deed.
48. The mischief about that paragraph is the head on confrontation with Chief Hotomo’s sworn statement filed on 15^th August 2019. That on 26^th June 2018, he was in Honiara with his lawyers preparing his sworn statement to be sworn before Commissioner for Oath, in support of his applications for the interim orders which were granted on 4^th July 2018, see para 18.
49. At Pirumeri village on the date the Deed was endorsed, there was unchallenged evidence that Mr. Lepping made sure to display royalty money on the table for Chief Hotomo and other beneficiaries to see before he signed. That can be best described as duress and undue influence upon Chief Hotomo in signing the Deed. The story and attitude of Mr. Lepping is unacceptable and cannot be sustained.
50. If Mr. Lepping had in mind to comply with the Court orders then the first thing was to ensure Chief Hotomo was the second trustee for the land owned by the tribe. Of course Chief Hotomo should participate and executed the grant of profit to CWL together with Mr Lepping. Overally Mr. Lepping is perceived as an unwilling party to comply with the Court orders. Hence invented an option which benefitted him and the logging operation he invited to operate on the land. That is a clear show of selfishness and a bad law abiding citizen.

Abuse of process:

51. The applicant begins by outlining the background of this case. Despite whatever, seems to agree with the decision of this Court partially granted the application ordering chief Hotomo to join Mr. Lepping as joint administrator administering the estate of the late Bitiai including PN 42. The applicant agrees it is a final determination of the substantive matter, hence, brought those succession proceedings to an end.
52. The applicant refers to the case of Mega Corporation Ltd V Lotinte^[8], which the Court of Appeal dealt with a question whether an “unless order” was final order. The court concludes by asking, does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final orders, but if does not, it is then, in my opinion, an interlocutory order.
53. The leading provision which sets out when an interlocutory order is sought is Rule 2.1. The rule clearly states an application shall be used to seek an interlocutory order before, during or after proceeding. It appears to be so, that the application for ex-parte orders was made after the proceedings.
54. Earlier I stated that the Order of the Court was verily to determine the rights of the parties, but it did not dispose of the rights of Chief Hotomo fully.
55. It was not a case where express rectification of the title of PN 42 was sought. It was never being part and partial of the reliefs sought. Nor does it implicate chief Hotomo assumed he is a co-owner or merely interested in money. What could have been is that Chief Hotomo and Mr. Lepping could have come together to negotiate with the view that Mr. Lepping to accept voluntarily the input of Chief Hotomo as the co-trustee to hold the title on behalf of their tribe together with Mr. Lepping. Whether Mr. Lepping was a willing party or not, first he failed to appeal the Court decision, meant he is not a willing party to negotiate with Chief Hotomo, instead continue to log the land for the benefit of himself and the minority. The Deed of settlement he drafted was an elusive piece of document intended to unduly induce Chief Hotomo to endorse in the presence of cash. Therefore cannot be as valid because it was endorsed under duress.
56. An unchallenged scenario will dictate that interlocutory injunction is not a permanent order but interim pending trial and final judgment. To restraint a logging Company operation, the applicant is expected to file a claim for damages for trespass and conversion of tress. The applicant argues that in the absence of claim there will never be a trial to investigate any alleged trespass and Conversion. As such the ex-parte orders will likely to remain in perpetuity for no trial or judgment.
57. The above approach in my opinion supports a one way conclusion. It ought to acknowledge that Rule 2.1 affirms that an application for interlocutory orders can be made after the proceedings. In my opinion, that should implicate even after the substantive case was determined. Perhaps to maintain status qua until the orders were complied with.
58. The second scenario is where this Court can issue injunctive orders to enable the lower Courts determined an issue before it. So the issuant of interlocutory orders not only assist in one particular way but may be more. In the current case Mr. Lepping was involved in logging activities whilst the orders of the Court directed that Chief Hotomo should be part of the process as a joint administrator, as a trustee for the tribe in PN 42. He should also be formally named after the Court decision to be the second grant or in the grant of profit to C & W Forestry limited. The changes must be put in place to reflect the decision of the Court. The Deed of settlement cannot be viewed as implementing the court decision. If there was nothing and Mr. Lepping would continue his logging activities. That in my opinion warranted an issuant of the ex-parte orders which is expected to end when Chief Hotomo was formally included as an administrator of the estate with Mr. Lepping, including joint grantors of the grant of profit.
60. By not filling an appeal against the Court decision, Mr. Lepping had conceded to it and should be up front in ensuring the Court orders are complied with. He himself had failed though had the upper hand.
59. I couldn’t see that it was wrong to add CWL as a party. The fact is that logging is a continuous activity which Mr. Lepping and CWL were heavily indulged in. For convenient reasons, with legal support I alluded to earlier it was not an abuse of process at all and the application for ex-parte orders were never been misconceived.

Whether the test for injunction was satisfied:

60. The applicant relies on the case of Ratusia V Attorney General^[9]which sets out the issue whether to maintain Ex-parte orders or discharge. The notion as expressly stated can only arise when the question is put before the Court after the ex-parte orders had been granted. Of course it would be quite difficult to harness the test as enunciated by Majoria V Jino^[10] to Rule 7.11, 7.12 and Rule 7.38; which give the Court the power to hear applications in respect of injunctive reliefs.
61. Instructions given and where need arises, that Court can hear applications for injunctive reliefs on paper without physical parties attending. In such circumstances the range to conclude a determination defers from establishing the presence of a serious issue under interim injunctive order upon a party.
62. So it in therefore not a static rule to establish a serious issue to be heard at trial. With option available a Judge may choose to hear an application for interim injunctive orders on paper which require no argument at all and the presence of any Counsel representing the applicant.
63. Therefore I find there in nothing wrong with the application for injunctive orders made on the basis of facts and law available. I must therefore dismiss the application with costs.

Orders:

1. The application to set aside the ex-parte injunctive orders is dismiss forthwith.
2. That both Counsel representing parties to work together to include Chief Hotomo rights as determine by the Court.
3. That cost of this application shall be paid by the Applicant Mr Lepping payable to the Latter Applicant Chief Hotomo.

THE COURT.

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^[1] [2013] SBHC 130, HCSI –CC 124 (13 September 2013)
^[2] [2019] SBHC 43 (24 May 2019)
^[3] [2010] HCA 19 (26 May 2010)
^[4] [2008] SBCA 5; CA-CAC 29 of 2007 (18 July 2008) para 6.
^[5] [2018] SBHC 44; HCSI-CC 102 of 2014 (16 April 2018).
^[6] [1992] SBHC 40: HCSI – CC 207 of 1992 (19 October 1992)
^[7] [1917] 1 KB 486, at 509 per Warrington, LJ
^[8] [2003] SBCA Mr. J Taupongi for the Original Applicant Mr. William Lepping
Mr. W Rano for the later Applicant Chief Hotomo8; CA-CAC 6 o 2003 (14 July 2003)
^[9] [2016] SBHC 180; HCSI – CC 457 of 2015 (14 October 2016)
^[10] [2009] SBCA 4; CA-CAC 16 of 2008 (26 March 2009)