Bato v Boso [2022] SBHC 117; HCSI-CC 619 of 2005 (22 December 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bato v Boso
Citation:
Date of decision:	22 December 2022
Parties:	Donald Bato, Victor Paulsen, James Barley, Barney Paulsen, John Lamu, Collin Liva & Others v Richard Boso, Hopeful, Piosasa, Jetty Novah, Hadson Hivan, Bulacan Integrated Wood Industry (S.I) Limited
Date of hearing:	29 June 2022
Court file number(s):	619 of 2005
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona, DCJ
On appeal from:
Order:	(a) Application to set aside accepted in part but not affecting the amount of damages awarded. The apportioning of the sum of SBD$3,019,430.45 is assessed as follows: (a) Third Defendant to pay 60% of the above amount to the first Claimants by 19th January 2023. (b) First and second Defendants to pay 20% each, payable to the first Claimant by 19th January 2023. (b) Cost incidental to the hearing on 29th May 2020 be abide by all the Defendants on the percentage as awarded. (c) Cost incidental to this hearing be paid by the third Defendant to the first Claimants by 19th January 2023. (d) 5% interest per annum payable to the first Claimants, calculated from 13th July 2020 when the assessment of damages decision was read, to the date of settlement. Payments be done on the basis of same percentage as awarded.
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Representation:	Mr. J.S Pitabelama for the First Claimant No Appearance for the Second Claimant, Since Mr. M. Tagini was voted into Parliament Mr. Joseph R, And Mrs Kilua S. for the 3rd Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Konia v Public Service Commission [2014] SBHC 123, Ottway v Ones [1955] 2 ALL ER 985, Arounia Osiramo [2008] SBCA 5, Samlimsan v Toronto [2012] SMHC 91, Saru v Maelimani [2014] SBHC 99, Ramodua v Saefafia, Pacific Trade International Ltd v Waisime [2020] PNGSC 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 619 of 2005

BETWEEN

DONALD BATO, VICTOR PAULSEN, JAMES BARLEY, BARNEY PAULSEN
Claimant

AND:

JOHN LAMU, COLLIN LIVA & OTHERS
Second Claimants.

AND:

RICHARD BOSO, HOPEFUL, PIOSASA
First Defendants.

AND:

JETTY NOVAH, HADSON HIVAN
Second Defendant.

AND:

BULACAN INTERGRATED WOOD INDUSTRY (S.I) LIMITED.
Third Defendant

Date of Hearing: 29 June 2022
Date of Ruling: 22 December 2022

Mr. J. S Pitabelama for the first Claimant
No one for the Second Claimant, since Mr M Tagini was voted into Parliament
Mr. Joseph R, and Mrs Kilua S. for the 3^rd Defendant

RULING ON APPLICATION TO SET ASIDE

Faukona, DCJ:

1. This application was filed pursuant to Rule 17.55 of the Courts Civil Procedure Rules 2007.
2. Rule 17.55(a) states, the Court may set aside an order at any time if the order was obtained in the absence of a party.

Brief History:

3. A Summary judgment was awarded against all the Defendants on 24^th 2011, there was no appeal then.
4. The second Claimants because a party to this proceedings by an order of Court on 13^th August 2013. Order 2 of that set of orders directed the first and second Claimants to establish their identity in custom law as to which party will be entitled to the damages that will arise out of the assessment hearing.
5. Since the two blocks of land, (block 5 and 6) are customary lands located in Central Pararo, Vona Vona Lagoon, Western Province, both Claimants went through Roviana Chiefs hearing on 17^th July 2017, to determine the rightful owners.
6. The Chiefs determined that Mrs. Noda, the biological mother of the first named Claimant, owned the blocks. That decision corresponds with the decision made earlier on 29^th November 2007.
7. On that basis, and the fact that the assessment report by the Forestry Officer which the Defendants were aware of since then; being so, was the brief grounds for the award of assessment of damages against the Defendants in their absence, and the fact that they did not respond to notices of attendance issued by the Registrar to attend court on the date of hearing.
8. This application, is in the nature of setting aside the assessment of damages done by the Court on 13^th July 2020. It was filed on 13^th August 2020, after the orders were filed for enforcement on 4^th August 2020. In fact this application was filed nine days after the formalization of the orders.
9. The gist of this application is to set aside the orders on the basis that the assessment was done in the absence of the first, second, and third Defendants.
10. I noted and take heed of R17.55 which states that the court may set aside an order at any time if (a) the order was made in the absence of a party.
11. And R17.56 states, if the Court sets aside an order, it may also set aside any order made to enforce the order.

Absence from attending Court:

12. R17.55 (a), gives the Court the discretion to set aside an order, at any time if it was made in the absence of a party - See Konia V Public Service Commission^[1]. In the context of discretion it means discretion according to law by reason and justice^[2]. And any time means any time during the proceedings.
13. The Counsel for the applicant argues that there was not notice of hearing issued, hence, breached principle of natural justice.
14. It ought to be noted that Mr. Tegavota, Counsel for the Defendants, had since 2010 represented the Defendants, until a notice of change of advocate was filed by Rano and company on 13^th August 2020.
15. On 12^th March 2020 a notice was issued by the Registrar of the High Court to concern Counsels including Mr. Tegavota. The notice was for attendance of haring on 29^th may 2020, at 9:30am for assessment of damages. Mr. Tegavota did not attend including the 3^rd Defendant though service was done through Mr. Tegavota’s pigeonhole in the High Court registry.
16. At the bottom of the notice of hearing, last paragraph states, take further notice that failure to attend on the date and at the time stated hear in, either in person or by Counsel, may result in an order being made in your absence.
17. According to the Courts file the last time Mr. Tegavota present in court representing all the Defendant was on 8^th March 2018. From then on had absented himself. The 3^rd Defendant had done nothing even to decide to change Solicitor. The dates below are indicators reflective of Mr. Tegavota absence.
18. The following mention dates for direction orders reflect evidence of absenteeism of Mr. Tegavota; mention dates 10/5/18, 24/5/18, 31/5/18, 5/7/18, 26/7/18, 16/8/18, 1/10/18, 24/1/19, 14/2/19, 18/4/19, 16/5/19, 13/6/19, 1/8/19, 2/10/19, 12/3/20 and 29/5/20, at which Mr. Tegavota had absent himself. He even absent himself on 29^th May 2020, with third Defendant, on the date of hearing of the assessment of damages.
19. Indeed as one can note, Mr. Tegavota’ s absent on 29^th May 2020 was not a new discovery. He had been absenting all along; the record shows the reality of it.
20. In the statement of case of this application paragraph 6, Mr. Tegavota confirmed that he did not check his pigeonhole so he was unaware of the date of hearing. So what was his excuse, nothing at all tendered to the Court? There was no notice sent to the court. No explanation or reason for his none appearance. Therefore, the court proceeded and gave judgment against his clients.
21. Attached, or in support of this application is further sworn statement deposed by Mr. Clement Base and filed on 7^th June 2022. The sworn statement in paragraph 8 shows the proceeds from logs extracted from the disputed area was in the sum of $400,009.17. It was calculated on FOB value of shipment from blocks 5 and 6 amounted to $314,415.12. Add royalty to it totaled to $427, 898, 96, less payment to Kahaveli, the total balance is $400,009.17.
22. Attach to that particular sworn statement of Mr. Base are Exh. “CBI” and “CB2)”. “CB1” is a copy of the injunction royaltys breakdown by the first Claimants and “CB2” is a copy of the Summary of shipment proceeds in block 5 and 6 in red color. Those exhibits supports the calculations in paragraph 21 above.
23. What this new evidence fail to address, even to site, was the trespass and damages done to the 200 hectares of land which the third Defendant logged and exported. According to the report the Defendants had fully logged blocks 5 and 6, paragraph 12. The author also described it as evidentiary, “there was really a heavy operation, paragraph 11”.
24. What the new evidence show is merely a calculation of FOB value of shipment from the blocks. Nothing concerning trespass and damages which was implicated in the report.

Has 3rd Defendant an arguable defence.

25. On this particular issue the Counsel for the 3^rd Defendant make reference to the case of Arounia V Osiramo^[3]. The principle of law in the case is an arguable defense which the 3^rd Defendant sought to rely on.
26. I noted R9.48 when assessing damages it must be conducted as really as possible as if it is a trial, taken into account evidence and assessment of evidence. The Counsel further refers to the case of Samlimsun V Toronto^[4], which the Court held that an arguable case is one that is more than barely capable of serious argument and not more than 50% chance of success
27. In my opinion the Toronto case must be distinguished from this case. The hallmark of that case had its footing or paragraph 8 where the Court settled that the material evidence and submissions on the issue of ownership of the machineries are good arguable case to determine as a substantive issue.
28. The substantive issue is this case had been determined by summary judgment without any appeal. The issue of assessment of damages had been done without the presence of the 3^rd Defendant or its Solicitor. There was no reason given for the absenteeism by both.
29. That in my view cannot drag this case further into uncertainty in particular when the explanation of none appearance is based on fluid grounds.
30. Even in the case of Saru V Maelimani ^[5], the conclusion I would draw relates to the issue of ownership of una’abu customary land which was the basis upon which the substantive issues were decided.
31. In the current case the substantive issue had been determined. A report as to trespass and damages and unlawful extraction of logs had been compiled on 14^th July 2015. With no doubt Mr. Tegavota had laid his hands on the report and understood well the contents.
32. He did not respond in any way; he did no challenge the report until the date of assessment. Only in this application, filed on the eleventh hour that Rano and Company challenged the report on half basis. However, their challenge was minimized to the calculation of the value of FOB of the Shipments from the blocks and no more. I must assess that as a minimal approach with no effect should the 3^rd Defendant relies on it as an arguable case.
33. The basis of this ruling, admonishes that there is no reasonable explanation of non-appearance. As such it would be obvious the ratio in the case of Ramodua V Saefafia is in appropriate. That case refers to an application to strike out the claim.
34. This is not a case of late filing. That issue is minute and does not necessary require consideration or attract any intensive assessment.
35. However, in respect to the conduct by the third Defendant reference to Saefafia’s case does not assist. The principle in law functions when considering the client’s case must not be impropriety affected by the result of the conduct of its Counsel.
36. The weight and impact of each case depend on the circumstances surrounding each case. In this case, litigation commenced in 2005. Mr. Tegavota became the Counsel for the Defendants in 2010. Yet he absent himself sixteen consecutive times including the date of hearing of the assessment of damages (29^th May 2020).

Prospect of Succeed.

37. Paragraph 48 of the third Defendant’s submissions raised three issues which was stated in the sworn statement of Mr. Base; no particular date of filing stated. However, I noted the first issue was the sworn statement of Mr. Pitabelama Counsel for the first Claimant, tendered as evidence in court.
38. There is no proper particularization of the sworn statement, when was it filed, which part of the assessment of trespass and damages did the sworn statement supported. The Court for preciseness rely on the sworn statement of Mr. Robert Tura, Forestry office, filed on 14^th July 2015. That sworn statement featured a report from site visit conducted by the officer.
39. On the issue of $250,000.00, there is nothing more this Court will add. Paragraphs 6-8 had succinctly deal with that issue. The question to pause is was it part of any damages or royalty or any other means by way of FOB values? Indeed the judgment related to assessment of damages did not contain a paragraph in respect. This issue is an isolated one. It was a private agreement between the second Claimants and the third Defendant. The fist Claimants were not aware of it. Therefore should not have any impact of the assessment.
40. In reality the Court was not aware of it. The simple reasons is Mr. Tegavota had never attended court to inform and assist the Court in making it decision fairly and effectively. The matter goes back to the inactivation of Mr. Tegavota which conclusively the 3^rd Defendant had connived to. Should the 3^rd Defendant realize its Counsel’s conduct, a change of Counsel could have been pursued long before the assessment hearing was conducted.

No prejudice on successful party.

41. The Counsel for the 3^rd Defendant proportionally assessed that the 3^rd Defendant suffered the most in this case, because it was misled by the second Claimants and the misconduct of its Counsel.
42. That is absolutely a misconception of the entire case. This litigation was commenced by a writ filed on 6^th December 2005. A summary judgment was entered. Assessment of damages was done on 29^th May 2020. Since 2011, there was no appeal against the judgment. Assessment of damages was done on 29^th May 2020. Since 2011 until now the first Claimants have not yet enjoyed the fruit of their case which they won.
43. All the benefits of sales of log and perhaps royalties paid to wrong persons had been enjoyed by them who were not landowners, and not the landowners who gave consent. I must conclude the first Claimants suffered most though they were legally determined to be landowners.

Apportionment of damages.

44. Paragraphs 10 and 11 of the statement of case suggest if the Court do not accept the explanations and the arguments in the submissions, then the Court has to apportion to give the Defendants some certainty.
45. The same sentiment is expressed in paragraphs 60-63 of the submissions.
46. The tone of the Court as expressed in this ruling so far, culminated the refusal of the first part of the application. However, I noted the principle expounded in the PNG case of Pacific Trade International Ltd V Waisime^[6], that the court has wide discretion to apportion damages.
47. I considered two options reveal by the Counsel for the Defendant. And I apportioned in this manner;
    • (a) Third Defendant to pay 60%.
    • (b) First and second Defendants to pay 20% each.
48. The reason as I view is a similar apportionment benefited to parties as in the logging industry. The only exception here is nothing payable to the Government. All payments be made to the first Claimant.

Orders:

1. Application to set aside accepted in part but not affecting the amount of damages awarded. The apportioning of the sum of SBD$3,019,430.45 is assessed as follows:
   • (a) Third Defendant to pay 60% of the above amount to the first Claimants by 19^th January 2023.
   • (b) First and second Defendants to pay 20% each, payable to the first Claimant by 19^th January 2023.
2. Cost incidental to the hearing on 29^th May 2020 be abide by all the Defendants on the percentage as awarded.
3. Cost incidental to this hearing be paid by the third Defendant to the first Claimants by 19^th January 2023.
4. 5% interest per annum payable to the first Claimants, calculated from 13^th July 2020 when the assessment of damages decision was read, to the date of settlement. Payments be done on the basis of same percentage as awarded.

The Court.
Justice Rex Faukona
DEPUTY CHIEF JUSTICE

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^[1] [2014] SBHC 123: HCSI-CC 493 of 2011 (15 September 2014).
^[2] Ottway V ones (1955) 2 ALL ER 985,
^[3] [2008] SBCA 5: (18 July 2008).
^[4] [2012] SMHC 91; HCSI-CC 442 of 2011 (21 August 2012).
^[5] [2014] SBHC 99; HCSI-CC 369 of 2011 (8 July 2014).
^[6] [2020] PNGSC 20; SC1935 (31 March 2020).