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Apaniai v Sunway (SI) Ltd [2025] SBHC 62; HCSI-CC 572 of 2017 (14 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 572 of 2017

BETWEEN:

JAMES APANIAI AND ALPONSE WAITARA
(Representing Paunemonemo tribe East AreAre)
Claimants/Respondent

AND:

SUNWAY (SI) LIMITED
First Defendant

AND:

SILVERIO PAINA AND JOHN WATEPURU
(Representing Taaiwara Association Company)
Second Defendants

AND:

JOHN SUNIMA
(Representing the Warumanihura’ao tribe) of East AreAre
Third Defendants

Date of Hearing: 24 August 2023
Date of Ruling: 14 May 2025

Mr J Apaniai for the Claimant
Mr M Pitakaka for the Defendant

RULING ON APPLICATION OF THE DEFENDANTS TO SET ASIDE JUDGMENTS AND STAY EXTENSION

Kouhota PJ

This is an application by the First and Second Defendants pursuant to rule 17.55, 17.77 and 17.78 of the CPR. The Defendants are seeking the following orders:

1. The judgment or orders made by Brown J on 6/6/18, be set aside pursuant to rule 17.55 (a) and (b) of the CPR 2007.
2. Judgment or orders made by Brown J on 6/6/18, be set aside pursuant to rule 17.77 and 17.78 of the CPR 2007.
3. The judgment or orders made by Faukona J on 21/11/19, be stayed pursuant to rule 17.77 and 17.78 of the CPR 2007.
4. Cost in the cause
5. Any further orders as the Court see fit.

The Defendant/Applicant in support of their application relied on the sworn statements and documents listed at paragraph B of the submission of counsel for the applicants.

This is a case of trespass to customary land, in which the Claimant alleged against the First, Second and Third Defendant of their logging, operation from February 2016 to June 2016 on Maniasiroto Land (“Maniasiroto”) of East Are Are, Malaita Province. The history of the case are as follows;

1. Maniasiroto is a sub-tribal land of Warumanihura’aro.
2. The Second Defendant is the holder of the Timber Felling Licence N0. A101241.
3. Timber Felling Licence N0. A101241 covers Maniasiroto.
4. The First Defendant is the logging contractor of the logging operation in Maniasiroto.
5. The Third Defendant is the person determined under Section 8 of the Forest Resources and Timber Utilisation Act [Cap 41] as the person representing persons entitle to grant timber rights of Maniasiroto.
6. The Claim in this proceeding was filed 24/11/17, 18 months after the Defendants completed logging operation in Maniasiroto.
7. On 6/6/18, Justice Brown grant Summary Judgment against First and Second Defendants and default judgment against the Third Defendant.
8. Makario Tagini of Counsel of Merrs. Global Lawyers represents the Defendants at the material time when Summary Judgment was granted against the First and Second Defendant and default judgment against the Third Defendant.
9. Mr Tagini was not present in Court when the Court granted the Summary and default judgment.
10. Mr Tagini did not attend Court because he was on compassionate leave.
11. The compassionate leave of Mr Tagini was communicated to the Court and the Court has notice of it.
12. The Court proceeded to hear the application for Summary Judgment and Default judgment in the absence of Mr Tagini.
13. On 2/8/19, Justice Faukona gave judgment on the assessment of damage on 2/8/19.

The Defendant are now seeking the following orders to aside;

1. The judgment or orders made by Brown J on 6/6/18 be set aside pursuant to rule 17.55 (a) and (b) of the CPR 2007.
2. Judgment or orders made by Brown J on 6/6/18 be set aside pursuant to rule 17.77 and 17.78 of the CPR 2007.
3. The judgment or orders made by Faukona J on 21/11/19, be stayed pursuant to rule 17.77 and 17.78 of the CPR 2007.

There is no question that the Applicant had the right to file this application under rule 17.77.

I think it is important to consider in rule 17.78, which states “In an application made under rule 17.77 the Court may

Grant the application for the duration of any appeal period (including any period relating to leave to appeal) and in any appeal...”

The reasons for this application are stated by the Defendant their application and submission, they are;

1. Makario Tagini of Counsel of Merrs. Global Lawyers represents the Defendants at the material time when Summary Judgment was granted against the First and Second Defendant and default judgment against the Third Defendant.
2. Mr Tagini was not present in Court when the Court granted the Summary and default judgment.
3. Mr Tagini did not attend Court because he was on compassionate leave.
4. The compassionate leave of Mr Tagini was communicated to the Court and the Court has notice of it.

Considerations of the application

The Court proceeded to hear the application for Summary Judgment and Default judgment in the absence of Mr Tagini. The default judgment and the summary judgments against the Defendants were on 16/6/2018 and assessment of damages judgment on 21/11/2019. It is surprising that counsel for the Defendant did not turn up for both hearings. The Defendant stated that Mr Tagini was on compassionate leave and did not attend the hearings. I do not consider this is a good excuse because there are other lawyers working with Mr. Tagini at Global lawyer’s law firm and he should instruct another lawyer to appear on his behalf to proceed with the hearing or seek an adjournment until Mr Tagini is available. That has not been done.

With regard to the application to set aside the summary judgment, I accept the submission of counsel Apaniai that summary judgment are granted on merit of the case, and as such they are final judgments and the only way to challenge them is by way of appeal. The Defendant had not file any appeal against the summary judgment. The Defendant had run out of time to do that. On that basis, the application to set aside summary judgment is refused and dismissed.

With regard to the issue of fraud alleged by the Defendant, counsel Apaniai for the Defendants submitted that the application has not specially pleaded the particulars of fraud alleged. In his submission, Counsel Apaniai submitted, that paragraph 28 of the sworn statement of Silverio Paina filed in support of the application by the First and Second Defendants alleged fraud. However, counsel submitted that it is not clear from the sworn statement as to who has committed the fraud or what fraud had been committed. I had viewed the sworn statements and while Mr Paina alleged fraud against Mr. John Sunima, what he alleged as fraud, in my view did not amount to fraud.

Counsel Apaniai cited the case of R V Customary Land Appeal Court (Western) ex-parte Simi Pitakaka [1985-1986] SILR where the Court said in regard to the manner of proving fraud as follows “The Court must be careful not to find fraud unless it is distinctly pleaded and proved...” Where fraud has been alleged, in a civil case such as this, it is on the party alleging it who must prove it clearly to the entire satisfaction of the Court. It must be shown that the representation was false together with following namely;

1. That it was knowingly’ or
2. Without belief in its truth or
3. Recklessly, careless whether it be true or false. Thus the plaintiff in the present case bears the burden of establishing these elements of allegation”

Counsel Apaniai submit that a fraud allegation requires to be proved by filing a separate claim and where fraud is alleged after judgment has been obtained, a separate proceeding must be initiated to prove the fraud. Thus in Pitakaka case referred to above, the Court said,

“As a general rule, except by way of appeal, no Court, judge or master has power to rehear, review, alter or vary a judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but is subject to a number of exceptions”

I had consider Mr Apaniai’s submissions and since the applicants had not challenge the points raised in counsel’s submissions I find counsel Apaniai’s submission convincing and must accept those submissions.

Rule 9.53 says “The application

(a) must set out the reasons why the Defendant did not defend the claim and
(b) must, if application is made more than three months after the judgment was entered, explain the delay and the Court shall not set the judgment aside unless it is satisfied that in the interests of justice so to do an end.

In view of rule 9.53, even without the reasons, for which I had dismissed some of the issues raised in the application, such as fraud and summary judgments, I had consider that this application is very late because while the default and summary judgments were made on 16/6/2018 and assessment of damages judgment on 21/9/2019 respectively, the application to set aside the judgements was only filed on 03/12/2021. The Applicant had not submit any good reasons why the application was file so late and out of time. Thus, even for the reason of delay alone, this application is doomed to fail.

Having consider the application and submissions of counsel in this application and the provision of rule 9.53 (b) CPR, I order that the application be dismissed with cost for the Claimants/Respondents to be taxed if not agreed.

THE COURT
Justice Emmanuel Kouhota
Puisne Judge