Takolu Timbers Ltd v Toai [2021] SBHC 77; HCSI-CC 156 of 2020 (13 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Takolu Timbers Ltd v Toai
Citation:
Date of decision:	13 September 2021
Parties:	Takolu Timbers Limited v Fred Toai, Anthony Limanisara Commence Kauli and Saerah, Koqo Dugoru Enterprises, Attorney General
Date of hearing:	17 May 2021
Court file number(s):	156 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. That all Consequential orders as sought in the counter-claim from (a) to (h) including $3,319,599.58 represent proceeds of logs exported on MV Sea Wise Voy. 2001 is awarded to the 1st and 2nd Defendants. 2. That order for damages for unlawful interference, and damages arising from undertaking as to damages secured by the Claimants (1) and (2) is awarded to 1st and 2nd Defendants on indemnity basis to be assessed. 3. That the sum of $1,841,419.56 for loss incurred by the 1st and 2nd Defendants because of the injunctive orders is to be paid by the Claimants (1) and (2) to the 1st and 2nd Defendants. 4. The costs of proceedings conducted before his Lordship Judge Higgins payable by the Claimants (1) and (2) to the 1st and 2nd Defendants on indemnity basis. 5. That cost of this hearing is to be paid to the 1st and 2nd Defendants by the Claimants (1) and (2) on standard basis. The Court.
Representation:	Mr W. Rano for 1st and 2nd Defendants Mr Ngaingeri for the Claimants (1) and (2) No one for the 3rd Defendant
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IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 156 of 2020

BETWEEN

TAKOLU TIMBER LIMITED
First Claimant

AND:

FRED TOAI, ANTHONY LIMANISARA, COMMENCE KAULI AND SERAH
Second Claimant

AND:

KOQU DUGORE ENTERPRISES
First Defendant

AND:

ATTORNEY GENERAL

Date of Hearing: 17 May 2021
Date of Decision: 13 September 2021

Mr W. Rano for1st and 2^nd Defendants
Mr. Ngaingari for the Claimants (1) and (2)
No one for the 3^rd Defendant

DECISION ON CONSEQUENTIAL ORDERS AND FOR COSTS

Faukona, (DCJ): On 24^th July 2020 this Court delivered its judgment dismissing the Claimants’ claim. The outstanding issue now is a pray sought for consequential orders and for costs. There are relevant and beneficial items due to a successful party at the end of a civil litigation.

2. The consequential orders expectantly derived from the very fact that on 1^st April 2020 ex-parte orders were issued and granted against the 1^st and 2nd Defendants, almost simultaneously when the claim was filed on 31^st April 2020. Because of the orders, consequently the Defendants deserted the logging operation and claimed incurring substantive amount of losses.
3. Immediately after filing the claim the Claimants sought restraining injunctive orders, which was granted. This was probably done after the ownership issue had been determined in favour of the landowners who granted the timber rights.
4. When the parties appeared before the Court, of whom a judgment was granted, the issue of assessment of damages and costs were not dealt with. Prevalently that was expected. After delivering the judgment the judge left this country for health reasons, and since then has never return.
5. Consequential orders normally follow where the decision goes. In this case the judgment was in favour of 1^st and 2^nd Defendants, therefore entitled to all the consequential orders as specified in the counter-claim from (a) to (j). I must award all those orders to the Defendants forthwith.
6. Damages for unlawful interference, pursuant to the undertaking as to damages secured by the 1^st Claimants, is also to be awarded to the 1^st and 2^nd Defendants to be assessed.
7. The sum of $1,841,419.56 being damages the 1^st and 2^nd Defendant claimed being suffered because of the ex-parte injunctive orders is also awarded to them.
8. This claim is being substantiated by the evidence of Mr Wong in his sworn statement filed on 8^th April 2020. There are documents as Exhibits “JJ1”, “JJ2” and “JJ3” available on the file. The total amount is explicitly shown as grand total which is the figure.

Who is actually liable to pay for damages.

9. The Claimants are the principal party of this case whom the judgment was against. Secondly others who supported them in their case, in particular the contractor who undertook the logging operation under the Claimant’s felling license No. 10800.
10. In spite of some evidence the Defendants aver that Ngu Brothers and Grace Logging Company were Claimants’ associates. They were the main forces behind the Claimants.
11. To substantiate the Defendants’ point there are others also liable. Basically refer paragraphs 8 and 9 above. As such I refer to the sworn statement of Samuel Tohini filed on 26^th August 2020, that on 19^th August 2020 he went to attend a meeting to discuss outstanding royalty. He was accompanied by Chief Remi and Mr Ngiola. Both men told him, of which he believed to be true, that Mr Derek from the Ngu Brothers had funded the move to sign for the Ngu Brothers.
12. During the meeting Mr Tohini was pressurised to revoke the judgment on 24^th July 2020, so that they will obtain the royalties from New Ocean Ltd.
13. Again on 21^st August 2021 Mr Tohini attended another meeting with Derek at Ngu Brothers Office at Cross Road, Henderson. Two Police Officers were present. Again royalties was the agenda of the day.
14. In a letter dated 4^th December 2019, carrying Official letter Head of Ngu Brothers, it stated inter alia, the anniversary fee for Takolu Timber Logging Company License No. A10800 had already been paid to 2021.
15. In the final submissions by Mr Ngaingeri during hearing on 17^th May 2021, he affirmed that the sworn statement was served upon Grace Logging Company and Ngu Brothers in relation to the issue of damages and costs. However there were no challenges to the content. Therefore the claim by the Defendants (1) and (2) stands. It is crystalline clear that Grace Logging and Ngu Brother actually supported the Claimants.

Would cost be in indemnity basis?

16. In the judgment by Justice Higgins the Claimant is not entitled to the felling licence. At that time when the licence was issued there was no legal entity by the name Takolu Timbers Limited existed. The Court concluded that the 1^st Claimant should not have commenced the proceedings at the first place. Therefore it is prudent that costs be awarded on indemnity basis. Noted that there were two sets of costs. One incurred by the hearing on 20^th July 2020 and the other by this hearing in this case. On both proceedings cost was on indemnity basis and is hereby awarded to the 1^st and 2^nd Defendants.

Orders:

1. That all Consequential orders as sought in the counter-claim from (a) to (h) including $3,319,599.58 represent proceeds of logs exported on MV Sea Wise Voy. 2001 is awarded to the 1^st and 2^nd Defendants.
2. That order for damages for unlawful interference, and damages arising from undertaking as to damages secured by the Claimants (1) and (2) is awarded to 1^st and 2^nd Defendants on indemnity basis to be assessed.
3. That the sum of $1,841,419.56 for loss incurred by the 1^st and 2^nd Defendants because of the injunctive orders is to be paid by the Claimants (1) and (2) to the 1^st and 2^nd Defendants.
4. The costs of proceedings conducted before his Lordship Judge Higgins payable by the Claimants (1) and (2) to the 1^st and 2^nd Defendants on indemnity basis.
5. That cost of this hearing is to be paid to the 1^st and 2^nd Defendants by the Claimants (1) and (2) on standard basis.

The Court.