Takolu Timbers Ltd v Koqu Dugore Enterprises (SI) Co. Ltd [2022] SBHC 51; HCSI-CC 156 of 2020 (23 August 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Takolu Timbers Ltd v Koqu Dugore Enterprises (SI) Co. Ltd
Citation:
Date of decision:	23 August 2022
Parties:	Takolu Timbers limited, Fred Toal, Anthony Limanisara, Commence Kauli and Serah Tumu v Koqu Dugore Enterprises (SI) Company Limited. New Ocean Limited, Attorney General
Date of hearing:	1 August 2022
Court file number(s):	156 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. Application to set aside orders dated 13th September and perfected on 7th October 2021, is hereby dismissed. 2. Cost of this hearing is to be paid by the 1st Third Party to the 1st 2nd Defendants on standard basis if not agreed.
Representation:	Mr. C Fakari’i for the First Third Party Mr. A. Ngaingeri for the 1st and 2nd Claimants Mrs. S. Kilua for the 1st and 2nd Defendants The Attorney General does not involve in the application
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007, r17.55 (a)
Cases cited:	Poa v Attorney General [2011] SBHC 110, Emery v Hashimol [1995] SBHC 114, Trading Corp v Credit Suise [1980] 3 All ER 72 at 753, Romodue v Saefafia [2015] SBHC 10

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 156 of 2020

BETWEEN]

TAKOLU TIMBERS LIMITED
First claimant

AND:

FRED TOAL, ANTHONY LIMANISARA, COMMENCE KAULI AND SERAH TUMU
Second Claimants

AND:

KOQU DUGORE ENTERPRISES (SI) COMPANY LIMITED
First Defendant

AND:

NEW OCEAN LIMITED
Second defendant

AND:

ATTORNEY GENERAL
(Representing the Minister and the Commissioner of Forests)
Third Defendant

Date of Hearing: 1 August 2022
Date of Ruling: 23 August 2022

Mr. C Fakari’i for the First Third Party
Mr. A. Ngaingeri for the 1st and 2nd Claimants
Mrs. S. Kilua for the 1st and 2nd Defendants
The Attorney General does not involve in the application

RULING ON APPLICATION TO SET ASIDE ORDERS

Faukona DCJ: This is an application by the First Third Party filed on 31^st March 2022, to set aside the orders of the Court perfected on 5^th October 2021.

2. In the application the First Third Party sought that the Orders by this Court on 13^th September 2021 and signed and sealed on 7^th October 2021, be set aside pursuant to Rule 7.55 of Solomon Islands Courts (Civil Procedure) Rules 2007.
3. On 17^th May 2021, a court hearing was conducted into a claim for costs following consequential orders which was granted in favour of the Defendants against the Claimants. The ruling was delivered on 13^th September 2021.
4. The following orders were made and read by the Court;
   • 4.1 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 Voyage, 2001 is awarded to the 1^st and 2^nd Defendants.
   • 4.2 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 the 1^st and 2^nd Defendants on indemnity basis to be assessed.
   • 4.3 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.
   • 4.4 The costs of proceedings conducted before His Lordship Higgins is payable by the Claimants (1) and (2) to the 1^st and 2^nd Defendants or indemnity basis.
   • 4.5 That cost of this hearing is to be paid to the 1^st and 2^nd Defendants by the Claimants (1) and (2).
5. Those are the orders made by this Court on 13^th September 2021 after the hearing and assessing the consequential and costs orders.
6. On 5^th October 2021, Counsel for the 1^st and 2^nd Defendants filed the orders following the ruling for perfection. One 17^th October this Court signed and perfected the orders in the following terms.
   • 6.1 Takolu Timbers Limited having failed to re-register as required by section 250 for the Companies Act had ceased to exist.
   • 6.2 The 1^st Claimant having recently registered on 25^th September 2019, is not the same as Takolu Timbers Ltd and therefore not the holder of the Felling Licence No. A10800.
   • 6.3 Having failed to ratify the 23^rd July Standard Logging Agreement when Takolu Timbers Ltd was incorporated on 14^th October 2008, the Agreement is ineffective.
   • 6.4 Consequentially Felling License No. A10800 is void.
   • 6.5 In the light of the decision of the Saholu House of Chiefs dated 27^th July 2020, which was accepted by the 2^nd Claimants, the 1^st Defendant had lawfully acquired the timber rights from the persons who are entitled to grant timber rights over Takolu customary land.
   • 6.6 The 1^st Defendant’s License No. A10707 was lawfully issued and is valid.
   • 6.7 Consequentially, all proceeds of export via MV. Sea Wise Voyage 2001, in the sum of $3,319,599.58 held in the joint Trust Account of Mr. Rano and Mr. Kwaiga in Civil Case No. 156 of 2020, be released and paid to the 2^nd Defendant.
   • 6.8 Damages suffered by the 1^st and 2^nd Defendants during injunction orders issued on 1^st April 2020 up to the time of dismissal of the proceedings by Justice Higgins is assessed at SBD$1,841,419.56 to be paid to the 1s and 2^nd Defendants.
   • 6.9 Cost of the proceedings before Justice Higgins is be paid by the 1^st and 2^nd Claimants on indemnity basis, to be assessed if not agreed.
   • 6.10 Cost of this application is to be paid by the 1^st and 2^nd Claimants on standard basis.

And it further adjudge that;

6.11 There is unchallenged evidence that Grace Logging Limited and Ngu Brothers (SI) Ltd have financially supported the 1^st and 2^nd Claimants in this proceeding and have done acts to secure benefits of the proceeds and are therefore guilty of unlawful maintenance and champerty.
6.12 The 1^st and 2^nd Defendants’ claim, therefore, that Grace Logging Limited and Ngu Brothers (SI) Limited are liable for damages and costs together with the Claimants jointly and severally, stands.

7. The only orders that concerns the Applicant, Grace Logging Limited are orders 6.12 and 6.13 as above, that it was guilty of unlawful maintenance and champerty. Therefore, is liable for damages and costs with the Claimants jointly and severally.
8. From that perspective, all other orders of the Court are not challenged by the Applicant hence, must be untouched for time being. I will return to this issue later.

Representation.

9. In the sworn statement deposed by Principle of L and L. Lawyers Mr. Kwaiga denied representing the Applicant in this particular proceeding. However, agreed that L and L. Lawyers did represent it in other cases.
10. To support this contention the Counsel for the Defendants (1) and (2) make reference to the case of Poa V Attorney General^[1], which the Counsel highlighted paragraph nine (9).
10. I have read the three paragraphs quoted including paragraph 9. My view is that; in normal acceptable practice where a party is represented by Counsel, that party is deemed to be present in Court. In normal and usual case, that law applies. However, there is difference where someone is not a party but included liability under the order.
11. The facts of that case may different from the current. The Applicant had never been a party to this proceeding right from the beginning. If it was not a party how would it be served with the documents and who is the party responsible to serve them. In r6.1 it states plainly that a party who filed the document is responsible for ensuring the document is served.
12. The question to pause is, has the Defendants (1) and (2) served the application for cost and damages as to undertaking upon the first third Party. The answer is no. There is no sworn statement filed as to poof of service on record.
13. Therefore it is logic and prudent that the Applicant was not needed to appear in Court, it was not a party. It is not a question of defunct professionalism, but it is a legal necessity under the rules. Hence, the application brought under R 17.55 (a) is no doubt proper. I am satisfied the Applicant was not represented in the hearing on 17^th May 2021. And he did not have opportunity to be heard when the order was made. Therefore, the Applicant is not barred from filing the present application. Since it was not a party all along, hence, no client of any Counsel. It may have some interest in the result of the case. However, that will be discussed later.

What is maintenance and champerty?

14. Order 12 of the set of Orders finalized by Mr. Rano and Company of which the Court had perfected and seal on 7^th October 2021. It clearly stated that Grace Logging Ltd and Ngu Brothers (SI) Limited were guilty of unlawful maintenance and champerty, because they had financially supported the 1^st and 2^nd Claimants in this case.
15. In other words they were interested parties who stood behind the Claimants in support with the motive that should the Claimants won the case at the end of the day; they would benefit out of it.
16. So what is maintenance and champerty? The Counsel for the first Third Party make reference to the case of Emery V Hashimol ^[2] which further reference was made to Winfield and Jolonicz on Tort (9^th Edition). Maintenance means improper stirring up of litigation by giving aid to one party to bring a claim without just cause or excuse. Champerty is the particular form of maintenance which exist when a person maintaining the litigation is to be rewarded out of the proceed.
17. The same case had attested to the fact that to defeat a claim for maintenance and champerty the accused party has to show that there is genuine commercial interest or ongoing genuine financial interest.
18. The case further stated that a genuine commercial interest was sufficient to enable an assigned of cause of action to enforce.
19. In the case of Trading Corp V Credit Suisse^[3], which the Energy case referred to, Oliver LT held, that maintenance would be justifiable whenever the maintainer has a genuine-existing financial interest in maintaining the solvency of the person close action he maintains.
20. The first question to pause is, has the 1^st third Party financial interest in this case? According to evidentiary documents the 1^st third Party was the Contractor to conduct logging activities under Claimant (1)’s felling License No. A10800. Of course there is a relationship between 1^st Claimant and the 1^st Third Party bound by a technology agreement which both had endorsed, see paragraph 9 of my decision dated 13^th September 2021.
21. Paragraphs 11 to 14 of my decision dated 13^th September 2021, showed Ngu Brothers involvement in this case. Paragraph 14 clearly demonstrated that Ngu Brothers had paid anniversary fees for the first Claimant Licence No. 10800 up until 2021. Derek Ngu’s letter dated 4^th December 2019 affirmed Ngu Brother’s involvement in this case.
22. The evidence related to those incidents was not challenged by the 1^st Third party and 2^nd Third Party. They indeed seriously implicated both were behind this case and were expected to benefit as a reward from the result, should it goes the Claimants’ way.
23. 24. Thus therefore raises the issue, the 1^st Third Party, as a contractor is bound by an agreement, it shows a genuine commercial interest or an ongoing genuine financial interest. None of them has provided evidence to disprove maintenance and champerty. Not even to justify that both has a genuine pre-existing financial interest in maintaining the solvency of the Claimants whose actin they maintain.
24. In furtherance, it is necessary to note that felling license of the second Defendant covered a block of customary land named Takiga. Therefore, both licence holders were grave rivalries from the start which subsequently hatched into this case. Now emerge in a dispute for trespass which had been dealt with.
25. It therefore, pause no question if the contractors of the two licenses support their licensees. No one should question such assistance or backing up by the two Third Parties. After all they hold a genuine commercial interest.
26. Sadly the third Parties are quite reluctant to admit because they could be dragged into liability as the orders show.
27. In respect to undertaking as to damages it was one of the pre-requisites among others, to be filed by the applicant in order to secure the restraining orders sought.
29. The 1^st and 2^nd Defendants and been a successful parties therefore the giver of the undertaking, the Claimants are liable and order 6.9 had catered for that remedy.
28. To succeed in setting aside the orders, there must be good reasons and there must be merit in the application, see Romodue V Saefafia^[4].
29. With the narratives I have expounded above and the reasons attached to, I have found there is no reason convincing to set aside the orders. As such it must be succumbed to lack of merit. I must therefore dismiss the application with costs.

Orders:

1. Application to set aside orders dated 13^th September and perfected on 7^th October 2021, is hereby dismissed.
2. Cost of this hearing is to be paid by the 1^st Third Party to the 1^st 2^nd Defendants on standard basis if not agreed.

THE COURT.
Faukona Rex.
DEPUTY CHIEF JUSTICE.

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^[1] [2011] SBHC 110 (27^th June 2011).
^[2] [1995] SBTHC 114; [1995] 2 LRC 674 (26^th May 1995).
^[3] [1980] 3 All ER 721 at 753.
[1980] QB 629 of 668.
^[4] [2015] SBHC 10; HCSI CC 4 of 2012 (1 April 2015).