IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

KOLOLEANA DEVELOPMENT COMPANY LIMITED
1st Claimant

AND:

JOHN PETI, WILSON MAEKERA, JACK PIZIKI, JAKE BAIZIKI, LEROY LIKO, GORDON NAQU, SCREWEN ROVE, MIKE GASI, JACK PABU & JOB LIKOTO (representing Epanga tribe)
2nd Claimant

AND:

DELTA TIMBER ENTERPRISES
3rd Claimant

AND:

JACKSON PIASI, DAVID LIVINGSTONE PIASI, OLIVER RIZU, REX NAQU, JOHNSON NAQU, VAENI SAEVE, LIKITI GHOTOKEA (representing themselves)
1st Defendants

AND:

LILY DURI
2nd Defendant

Mrs. N. Tongarutu for the 2nd Claimant/Applicant.
Mr. W. Rano for the 3rd Claimant.
Mr. P. Tegavota for the 1st Defendants/Respondents.
Mr. G. Faaitoa for the 2nd Defendant/Respondent.
Date of hearing: 22nd October 2013
Date of Judgment: 1st November 2013

RULING ON APPLICATION TO SET ASIDE ORDERS

Apaniai, PJ:

Introduction.

1.	By a writ and statement of claim filed on 9 May 2007, the Claimants (that is, Kololeana Development Company Ltd (trading as Viuru Forest Enterprises) ("1st Claimant"), John Peti, Wilson Maekera, Jack Piziki, Jake Baiziki, Leroy Liko, Gordon Naqu, Screwen Rove, Mike Gasi, Jack Pabu & Job Likoto ("2nd Claimants") and Delta Timber Ltd ("3rd Claimant")) have claimed against the Defendants, namely, Jackson Piasi, David Livingstone Piasi, Oliver Rizu, Rex Naqu, Johnson Naqu, Vaeni Saeve, Likiti Ghotokea and Lily Duri, permanent injunction restraining the Defendants from interfering with the Claimant's logging operations on Epanga customary land and other surrounding customary areas claimed by the 2nd Claimants to belong to Epanga clan and other clans of which they claimed membership. In addition, the Claimants also claim compensation for loss of business, damages for inducement of breach of agreement between the 1st, 2nd and 3rd Defendants and costs.

2.	There is no dispute that the 2nd Claimants and the Defendants are all members of the Epanga clan. There is also no dispute that the Epanga clan owns the Epanga customary land. Furthermore, there is no dispute that logging had been carried out by the Claimants within Epanga customary land.

3.	The only dispute is between Lily Duri, who is also a member of the Epanga clan, and the rest of the Defendants and the 2nd Claimant who are all members of the Epanga clan. That dispute, however, relates to the ownership of that part of Epanga land in which logging occurred. Mrs. Duri claims that that part is called Heribangara ridge ("Heribangara") which, she says, was validly transferred to her in accordance with custom by the then chief of the Epanga clan, the late Chief Nao Rovu, at a custom ceremony held at Minana village where a bakiha was given to the Chief in recognition of the customary transfer. She does not deny that before the transfer, Heribangara was part of the Epanga customary land. Her claim is that she is now the customary owner of the Heribangara and the compensation money payable for trespass in Heribangara should go to her and not to Epanga clan. This is an internal dispute among the members of the Epanga clan themselves as to the ownership of Heribangara.

4.	As a result of the internal dispute, Lily Duri has now separated herself from the rest of the Defendants and has become the 2nd Defendant while the rest of the Defendants now become the 1st Defendants.

5.	On 12 June 2007, the Defendants, while they were still together with Lily Duri, filed their joint defence alleging, amongst others, that no timber rights have been held by the Claimants over Epanga and other customary areas owned by the Defendants' clans and that the logging licence granted to the 1st Claimant did not cover Epanga and their other customary land areas. They claim that the logging operations within Epanga was illegal and amounted to trespass. They therefore filed a counter claim against the Claimants for trespass, conversion of trees and costs.

6.	Prior to the filing of the defence and counter claim, the Claimants have managed to obtain an ex parte order against the Defendants restraining them from interfering with the Claimant's logging operations on Epanga customary land and other surrounding customary areas covered by their license.

7.	In or about June 2007, the Defendants filed an application to discharge these interlocutory orders. The application came on for hearing on 29 June 2007 and orders were made discharging the ex parte orders. In its ruling, the Court also held that the Claimants' logging licence did not cover the Epanga land and other lands referred to in that ruling.

8.	On the basis of the ruling that the Claimants' licence did not cover Epanga and other areas owned by the Defendants' clans, the Defendants filed an application on the 6 February 2008 to strike out the claim on the grounds that it disclosed no cause of action, that it was frivolous and vexatious and that it was an abuse of the Court process. They also sought an order that, if the claim is struck out, that judgment be entered in their favour on their counter claim.

9.	The application was heard by Justice Faukona on the 15th July 2008. In his ruling dated 20 July 2008 ("July 2008 Ruling"), his Lordship granted the application and made certain orders. Those orders were perfected on 29 October 2008 ("October 2008 Orders"). By order 1 of the perfected orders, the Claimants' claim was struck out. By order 2, judgement was entered against the Claimants in terms of the Defendants' counter claim. By order 3, costs were awarded against the Claimants. By order 4, the Defendants' application under their counter claim was adjourned to a date to be fixed by the Registrar.

10.	Then on 1 December 2009, costs were awarded against the Claimants in the sum of $140,280.00 ("Costs Orders"). Immediately after that, Mr. Rano, who was the solicitor with Pacific Lawers who had carriage of the case and counsel for the 1st, 2nd and 3rd Claimants, had left Pacific Lawyers and had established his own law firm. The 3rd Claimant continued to retain him while the 1st and 2nd Claimants continued to retain Pacific Lawyers as their solicitors.

11.	On the 3 February 2010, Mr. Tegavota for the Defendants and Mr. Rano for the 3rd Claimants signed a consent order ("Consent Orders") on behalf of their clients apportioning the $140,280.00 costs equally between the 1st, 2nd and 3rd Claimants. The 1st and 2nd Claimants were not parties to the Consent Orders. According to the Consent Orders, each of the Claimants were to pay to the Defendants $46,760.00 each in costs. The 3rd Claimant had paid its share of the costs leaving the remaining $93,520.00 to be paid by the 1st and 2nd Claimants.

12.	The 1st and 2nd Claimants, having failed to settled the $93,520.00, the Registrar, on 22 March 2010, issued an enforcement order ("Enforcement Orders") against them in connection with the outstanding costs of $93,520.00.

This application.

13.	In this application, filed on 2 July 2010 (as amended by amended application filed on 12 July 2010 and re-amended by a re-amended application filed on 21 March 2013), the 2nd Claimant ("Applicants"), who have then engaged ANT Legal Services, now come to court seeking to set aside the July 2008 Ruling, the October 2008 Orders, the Costs Orders and the Consent Orders. The 1st Claimant seemed to have disappeared and has not been heard of since then.

14.	Apart from seeking to set aside the July 2008 Ruling, the October 2008 Orders, the Costs Orders and the Consent Orders, the 2nd Claimants have also sought an order to stay the Enforcement Orders. There is no dispute that none of these orders was appealed against by any of the Claimants.

15.	The application to set aside the July 2008 Ruling and the order of October 2008 Ruling is based on allegations of fraud as well as on the ground that the 2nd Claimants were not consulted by their then solicitor in relation to the application and were not afforded the opportunity to state their case.

16.	In relation to the application to set aside the Costs Orders and the Consent Orders, the ground relied on was that the Applicants were not consulted and had given no instructions to their then counsel to defend or concede those orders. As such, they argue that they should be regarded as not having being heard and therefore they should now be given the opportunity to be heard now that they have engaged a new solicitor.

17.	Counsel agreed that the July 2008 Ruling and the October 2008 Orders were one and the same thing (the October 2008 Orders being the perfected orders relating to the July 2008 Ruling). Counsel also agreed that the Costs Orders and the Consent Orders were consequential orders based on the October 2008 Orders and that if the October 2008 Orders are set aside then the Costs Orders and the Consent Orders must also go. On the other hand, if the Court refuses to set aside the July 2008 Ruling and the October 2008 Orders then the Costs Orders and the Consent Orders will also not be set aside.

18.	That being the case, I posed the question to counsel at the commencement of hearing whether, except for issue of stay of execution of the Enforcement Orders, I had the jurisdiction to entertain the application to set aside the July 2008 Ruling and the October 2008 Orders. I put it to counsel for the Applicants, Mrs. Tongarutu, that the first hurdle she must overcome is to satisfy me that the July 2008 Ruling and the October 2008 Orders were not final orders. 

19.	Mrs. Tongarutu's argument, as I understood it, is that the orders were not final but were interlocutory because they were made pursuant to an interlocutory application and therefore I have jurisdiction to set them aside.

20.	Furthermore, she argues that, despite the presence of Mr. Rano, the Applicants' then counsel, at the hearing, the orders should be regarded as having been made in the absence of the Applicants because they had not been consulted by Mr. Rano about the application to strike out the claim and had given no sworn statement in response to those filed by the Defendants supporting their application to strike out the claim.

21.	Mrs. Tongarutu's final argument regarding the finality issue is that fraud had been committed in relation to the July 2008 Ruling and the October 2008 Orders and therefore the Ruling and the Orders should be set aside. She alleged that the fraud is that Lily Duri had deliberately given false evidence by saying that Heribangara was validly transferred according to custom by the late Chief Nao Rovu at a custom ceremony held at Minana village in 2005 for that purpose whereas that ceremony was held, not to transfer Heribangara to Lily Duri but, amongst other purposes, to accept compensation for old coconut plantations and marking the end of long standing disputes between Lily Duri's uncle and nephew. She argues that fraud unravels everything and therefore the July 2008 Ruling and the October 2008 Orders should not be allowed to stand.

The issue of "finality".

22.	The law on the question of finality of judgments is well settled. When judgment has been given on the merits of the case and the orders relating thereto have been perfected, the judgment is final and can only be dislodged on appeal. A judgment is said to be on the merits when the judgment or order, as made, finally disposes of the rights of the parties to the action .

23.	In Suva'ahu v Omex Ltd, the Claimant had entered into a consent order requiring him to "expeditiously prosecute" his land dispute case before the appropriate forums for the determination of the parties' respective claims to the ownership, and the boundaries, of the disputed land. The Claimant failed to comply with that order and as a result, the Defendant applied to have the claim be struck out. On 5 October 2000, the Court ordered that the claim be struck out. The Claimant filed an application seeking to set aside the order. The court refused the application holding that the order was a final order, which could only be set aside on appeal.
24.	In its decision, the court adopted the following statement by Lord Alverstone C.J in Bozson v Altrinchan Urban District Council at page 548:

"It seems to me that the real test for determining this question to be this: 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 order; but if it does not it is then in my opinion, an, interlocutory order."

25.	That means where a judgment or order is final, it can only be set aside by way of appeal. The principle of "finality", and the basis for it, have been put succinctly by the learned author of Halsbury's Laws of England when he said:

"As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in afresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. "... The court has no power to amend or set aside its judgment or order where it has come to an erroneous decision of fact or law, or where new material evidence has come to light, or if it transpires that the judgment or order had been obtained by fraud or false evidence: in such cases, relief must be sought by way of appeal or, where appropriate, by separate action to set aside the judgment or order."

26.	The July 2008 Ruling was a judgment made on the merits of the application to strike out the claim. As such, the only way to dislodge the ruling and its perfected orders (that is, the October 2008 Orders) is by way of appeal. The same goes for the Costs Order. In the premises, the application to set aside the July 2008 Ruling, October 2008 Orders and the Costs Orders is dismissed.

27.	The same principle applies where fraud is alleged to have been committed to obtain a judgment or order. If a judgment or order is to be set aside on the ground that the judgment or order was obtained because fraud has been committed upon the court, a fresh case has to be commenced to set aside that judgment. That was made clear in the case of Flower v Lloyd where the court said:

"... in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there is still power, in the Courts of Law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say 'You obtained the judgment by fraud, and I will have a rehearing of the whole case' until that fraud is established. The thing must be tried as a distinct and positive issue; 'you ' the defendant or "you" the plaintiff obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of fraud." That would be tried like anything else by evidence properly taken and directed to that issue, and wholly free from and unembarrassed by any matters originally tried. That was the old course of the law, and there seems to be no reason why that should not be followed; and if it is true that there was a fraud practiced upon the court, by which the court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud."

28.	In this application, the Applicants are also seeking to have the July 2008 Ruling and the October 2008 Orders set aside on the ground of fraud. The application is made as part of the present claim.

29.	Unfortunately, the principle stated above has made it clear that the correct approach is to file a fresh action. It follows therefore that the application to set aside the July 2008 Ruling and the October 2008 Orders on the ground of fraud cannot be allowed to stand as it is a wrong approach.

Representation of the Applicants at the hearing of the application to strike out.

30.	Mrs. Tongarutu has also argued that the July 2008 Ruling and the October 2008 Orders should be set aside on the ground that the Applicants, who are the 2nd Claimants, were not consulted and had given no instructions to their then counsel to defend or concede those orders. She argued that in such situation, the Applicants should be regarded as not having being heard and therefore they should now be given the opportunity to be heard by setting aside these orders and allowing them to say what they want to say.

31.	However, they do not dispute the fact that Mr. Rano was the advocate for the 1st, 2nd and 3rd Claimants at that time and that he did attend the hearing of the application to strike out the claim which resulted in the July 2008 Ruling and the October 2008 Orders.

32.	In Nano v Lupa Development Company Ltd & another, it was held that the presence in court of the advocate for a party to a case when an order is read out in court is evidence that the party represented by that advocate had notice of the order. This is in line with the generally accepted notion that a party to a case acts by his or her advocate and that the manner in which the advocate deals with the case, including the manner in which the advocate presents the case in court, is in accordance with the instructions of his or her client or is in the best interest of the client. What is in the best interest of the client is a matter for the advocate to decide. Needless to say, if the advocate acts negligently or contrary to his or her client's instruction, that may amount to a cause of action against the advocate.

33.	 In this application, it is not the function of the court to investigate whether Mr. Rano acted negligently or without the instructions of the Applicants as alleged. That must wait for another day. Suffice to say that if the Applicants are not satisfied with the July 2008 Ruling and the October 2008 Orders for whatever reason, their remedy lies in an appeal or in taking a fresh action and not in making an application to set aside the Ruling or the Orders.

Ownership dispute relating to Heribangara.

34.	Mention has also been made about the dispute between Lily Duri and the rest of the members of the Epanga clan about the ownership of Heribangara. It is argued that the dispute is evidence that the ownership of Heribangara where the logging occurred had not yet been finally settled and that should also be a ground to set aside the above mentioned Ruling and Orders.

35.	Unfortunately, that dispute is an internal dispute between the members of the Epanga clan themselves. It does not affect the illegality of the logging operations within the Epanga land. Whether Heribangara is owned by Lily Duri or by the Epanga clan, the fact is Heribangara is part of Epanga land and it has been settled that the logging operations in Epanga land, including Heribangara, is illegal. That ground is rejected.

Stay of execution of Enforcement Order.

36.	The Applicants are also seeking dismissal or a stay of the Enforcement Order perfected on 22 March 2010. That Enforcement Order relates to costs not yet settled. Those costs are the costs ordered under the Costs Orders as apportioned under the Consent Orders. Unfortunately, the application to set aside those two orders were unsuccessful. I cannot therefore dismiss the Enforcement Orders for the Defendants are entitled to reap the fruits of their litigation. I do have discretion to stay execution of the Enforcement Orders but only if the Applicants can show that special circumstances exist to justify a stay. That has not been done.

37.	In any event, I am not satisfied that facts have arisen, or have been discovered, since the order was made to justify staying the Enforcement Orders as required under Rule 21.10. The Defendants are entitled to reap the fruits of their litigation. The application to stay execution of the Enforcement Orders is dismissed.

Orders.

38.	 The orders of the Court are therefore as follows:-

[1] The application by the Applicants filed on 2 July 2010 (as amended by amended application filed on 12 July 2010 and re-amended by a re-amended application filed on 21 March 2013) is therefore dismissed.

[2] The Applicants shall pay the costs of the 1st and 2nd Defendants on standard basis to be taxed if not agreed.

39.	It is not clear from Mr. Rano's submission, on behalf of the 3rd Claimant, whether it supports the Applicants' application or whether it opposes it. As such, the 3rd Claimant will bear its own costs of this application.

THE COURT

James Apaniai
Puisne Judge