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Lotoala v Sopoaga [2022] TVHC 10; Civil Case 14 of 2021 (9 March 2022)

IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE 14/21

BETWEEN

PENIELI LOTOALA
JUDGMENT CREDITOR

AND

ENELE SOPOAGA
MAATIA TOAFA
MONISE LAAFAI
TAUKELINA FINIKASO
JUDGMENT DEBTORS

Before Hon Judge Sir John Muria

Hearing 2^nd March 2022

Ms T.L Drecala for Judgment Creditor
Mr T Finikaso for Judgment Debtors

J U D G E M E N T

Muria J: Relying on the principle of promissory estopped as established in Central London Property Trust Limited –v- High Trees House Limited [1946] EWHC KB 1; [1947] 1 K.B 130 at 136, the Judgment Debtor in the present case says that it would be inequitable and wrong to allow the Judgment Creditor to now enforce her claim which she had withdrawn, discontinued and pardoned against the Judgment Debtors, pursuant to her letter dated 24^th January 2018 written on her behalf by her Counsel. The Judgment Debtors now asks this Court to determine that Judgment Creditor’s letter amounts to promissory estopped.

Brief Background

2. The case started as a defamation case brought by the Plaintiff /Judgment Creditor against the Defendants/Judgment Debtors in the High Court. The plaintiff succeeded in the High Court both on liability on 21^st January 2012 and damages on 21^st December 2021. The High Court ordered the defendants, jointly and severally to pay $35,000 in general damages and $15,000 for aggravated damages. The Defendants/Judgment Debtors appealed to the Court of Appeal, which affirmed the High Court’s decision both on liability and quantum of damages in Civil Appeal No. 1 of 2013
   
3. Garnishee proceedings were then issued in March 2015. On 1^st February 2016 the High Court made a Garnishee Order in respect of the Judgment Debtors’ fund held at the National Bank of Tuvalu. At the request of the Judgment Debtors, the execution of the Garnishee Order was stayed until 26^th February 2016. After refusing a stay of execution, the High Court ordered the Garnishee Order to be enforced on 4^th March 2016.
   
4. The Judgment Debtors appealed against the refusal of a stay of execution of the Garnishee Order in Civil Appeal No. 001/16. The Court of Appeal, on 23^rd February 2017, ordered that the High Court’s Order made on 1^st February 2016 staying execution of the Garnishee order be struck out and dismissed, the Judgment Debtor’s appeal be also dismissed and that the High Court’s judgment ordering the judgment debtors jointly and severally to pay damages to the Judgment Creditor be executed and paid in instalments as set out in the Consent Order of the Court of Appeal as follows:
   

“CONSENT ORDER OF THE COURT OF APPEAL
DATED 23 FEBRUARY 2017
BEFORE JUDGES OF APPEAL PATERSON JA, HON JUSTICE
DAME POTTER JA, FAIRE JA

TAKE NOTICE that after hearing Counsel for the Appellant Ms Losaline Teo and after hearing Counsel for the Respondent Mr Filimoni Vosarogo, the parties agree to the following consent orders to be made AND FURTHER TAKE NOTICE the following orders ARE HEREBY GRANTED:

1. THAT the Order made by Justice Millhouse QC on the 1^st day of February 2016 in High Court Civil Case No 004/2016 is hereby struck out and dismissed; and
   
2. THAT this Appeal is Dismissed;
   
3. THAT the judgment sum in High Court Civil Case No. 003/2011 is to be paid in instalments by the Appellants jointly and severally in the following manner.
   
   1. $4,167.00 per month
   2. 1^st payment is to be made by Wednesday, the 1^st of March 2017 and payable on the 1^st day of every month thereafter
   3. Final Payment to be made by Thursday, the 1^st of February 2018.
      
4. THAT the payment of $31,055.77 will be made to Mrs Penieli Lotoala Metia first an then the National Bank of Tuvalu thereafter, with its attendant interest rates.
   
5. THAT the Respondent is at liberty to apply for leave for enforcement pursuant to Order 45 Civil Procedure Rules 1964 in the event of non payment.
   

DATED AT FUNAFUTI this 23^rd day of February 2017

MS LOSALINE TEO MR FILIMONI VOSAROGO

COUNSEL FOR THE APPELANTS COUNSEL FOR THE RESPONDENT

HON JUSTICE BARRY PATERSON

JUDGE OF THE COURT OF APPEAL OF TUVALU

HON JUSTICE DAME JUDITH MARJORIE POTTER

JUDGE OF THE COURT OF APPEAL OF TUVALU

JUSTICE JOHN ANTHONY FAIRE

JUDGE OF THE COURT OF APPEAL OF TUVALU”

5. The Court record (Affidavit of Siose Penitala Teo, General Manager of the National Bank of Tuvalu dated 4^th June 2021) shows that some payments of the judgment sum have been made. However, there is still outstanding balance owing to the judgment creditor in the sum of $9,162.37 as shown in the affidavit of Siose Penitala. That is the amount, which the judgment creditor is still seeking to enforce in this case by way of Garnishee Order.
   
6. The judgment sum as adjudged by the High Court has been affirmed and ordered by the Court of Appeal to be enforced without remitting any part of the case to the High Court. I do not, therefore, have any power to do anything else, in so far as the judgment sum is concerned. The matter that is now presented to this Court by the Judgment Debtors is to determine whether the Judgment Creditor is estopped from enforcing her judgment in the light of her letter dated 24^th January 2018 written on her behalf by her then Counsel.
   

Letter to Withdraw, Discontinue and Pardon

7. The argument for the judgment debtors is that by her letter dated 24^th January 2018 written on her behalf by her lawyer, the Judgment Creditor has promised to withdraw and discontinue her claim against the Judgment Debtors, and to pardon them from further payment of the judgment debt. That letter states as follows:
   

“24^th January 2018

To: Hon Enele Sosene Sopoaga

Maatia Toafa

Monise Laafai

Taukelina Finikaso

Fauoa Maani

Namoliki Sualiki

Vete Sakaio

Talofa,

WITHDRAWAL OF CLAIM

1. We have received instruction from our client, Penieli Lotoala, to withdraw her claims against you in regards to the Order made by the Court of Appeal on the 23^rd February 2017.
   
2. Therefore, we write to formally notify you of our client’s decision to discontinue her case, as well as her desire to pardon you from paying the rest of the pecuniary penalty.
   

Faafetai Lasi,

.............................

Baniani Nakala Nia

Assistant People’s Lawyer”

8. The above letter seeks to do two things namely that the plaintiff to withdraw and discontinue her claims against the Judgment Debtors and secondly, to forgive the Judgment Debtor’s from further payments of the judgment debt as ordered by the Court of Appeal. In either case, the effect of the two proposed actions suggested in the letter would be the same, that is, it will have the effect of altering the Consent Order made by the Court of Appeal.
   
9. The question therefore, for this Court to determine is not whether the plaintiff’s letter of 24^th January 2018 amount to a promissory estopped, but rather whether this High Court has the power to do what the letter purportedly seeks to do and which undoubtedly will have an altered effect on the Order of the Court of Appeal. I cannot even begin to consider the effect of the letter until I determine whether I have jurisdiction to consider it at all.
   

Jurisdiction

10. As it can be seen from the brief background of the case, the Plaintiff/Judgment Creditor brought the case against the Defendants/Judgment Debtors in the High Court. The Judgments Debtors took the matter to the Court of Appeal in Civil Appeal No.1/13, which affirmed the judgment of the High Court. In another subsequent appeal against stay of execution, the Court of Appeal in Civil Appeal 01/16 again affirmed the High Court judgment, but at this time, the Court of Appeal ordered enforcement of the High Court judgment in specific terms as contained in the Consent Order of the Court of Appeal dated 23^rd February 2017.
    
11. It must be noted that the Court of Appeal did not remit the case to the High Court to enforce its judgment, The Court of Appeal retains jurisdiction over the whole case, including the enforcement jurisdiction over the plaintiff’s judgment. The High Court, therefore no longer possesses jurisdiction over the whole of the case.
    
12. On the question of being dispossessed of jurisdiction, the case in point is Governor General –v- Hilly [1994] SBCA 12; CA – CAC 10 of 1994 (29^th October 1994) where following his refusal to step down as Prime Minister after being removed by the Governor General, the Plaintiff/Respondent issued an Originating Summons against the Governor General and Leader of Opposition in the High Court, seeking determinations of questions and declaration relating to Governor General’s power to remove him from Office of Prime Minister. Under section 14 of the Court of Appeal Act, the High Court referred the case to the Court of Appeal. The questions were considered and determined by the Court of Appeal and declined to make the declaration sought on the validity of the removal of the Prime Minister by the Governor General since there was a workable solution provided by the Constitution. The High Court then made a declaration that the Plaintiff/Respondent was still Prime Minister until voted out on a motion of no confidence. The Court of Appeal held that:
    

“ The High Court can under section 14 of the Court of Appeal Act refer a question in a matter before it to the Court of Appeal, retaining jurisdiction over the rest of the case. But when the Court of Appeal has the whole of the matter referred to it, and that is this case, no jurisdiction remains in the High Court to determine any part of it.”

13. In our present case, the whole case was before the Court of Appeal on appeal. No part of it was retained by the High Court nor did the Court of Appeal remit any part of the case to the High Court. The Court of Appeal retained and still retains jurisdiction over the whole of the case, including the enforcement of the High Court judgment by the Consent Order of the Court of Appeal dated 23^rd February 2017. As such, any attempt by this Court to consider and determine the effect of the Judgment Creditor’s letter and issues therein which would have the consequence of altering, amending or otherwise changing the Consent Order of the Court of Appeal would be doing so without jurisdiction.
    
14. I need only mention another point, which is that the Order of the 23^rd February 2017 is a Consent Order. While a Consent Order can be changed, but once signed by the Court it can only be changed by sanction of the Court which issued the Consent Order. A party in the case cannot unilaterally change the Consent Order.
    
15. The last point I make is that even if I were sitting as a Single Judge of the Court of Appeal exercising the power of the Court under section 10 of the Superior Courts Act, I would have no power to alter, amend or otherwise change the order of the duly constituted Court of Appeal. The only power that I have as a Single Judge of the Court of Appeal would be to ensure that the Order of the Court as issued is enforced as it is, but not to change it in anyway at all.
    

Conclusion

16. I have concluded that the issues raised in the Judgment Creditor’s letter dated 24^th January 2018, if and when determined, would most likely have an altered effect on the Consent Order of the Court of Appeal made on 23^rd February 2017. Those issues will have to be determined by the Court of Appeal, since the High Court no longer has jurisdiction to consider and determine those issues in the present case.
    
17. It follows that the question as to whether the Judgment Creditor’s Letter of 24^th January 2018 constitute promissory estopped is an issue properly belonging to the Court of Appeal to determine. For now the Consent Order of the Court of Appeal made on 23^rd February 2017 remains enforceable as ordered by the Court of Appeal.
    

Dated on the 9^th day of March 2022.

Sir John Muria
Judge