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Bako v Kolly [2024] SBHC 85; HCSI-CC 390 of 2020 (23 August 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 390 of 2020

BETWEEN

JAMES BAKO AND FRANCIS SESI
First Claimant

AND:

SUCCESS COMPANY LIMITED
Second Claimant

AND:

DERRICK KOLLY AND JAMES MANEFORU
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant

Date of Hearing: 19 October 2021
Date of Decision: 23 August 2024

Mr J Iroga for the First Claimant
Mr G Suri for the Second Claimant
Mr D Marahare for the First Defendant
Mr B Pitry for the Second Defendant

Lawry; PJ

RULING

Background

1. In 2002 the First Claimants engaged the Second Claimant to undertake logging on land in Isabel Province. The First Defendants claimed the logging was undertaken on land that belonged to their tribe and not the First Claimants’ tribe. Those proceedings were commenced in the High Court in civil case number 287 of 2002. That claim alleged trespass and claimed damages.
2. In February 2003 the East Bugotu Chiefs heard a dispute between the First Claimants and the First Defendant Derrick Kolly regarding Garanga and Kasera customary lands. The chiefs determined that the First Defendants’ tribe owned those two customary lands. A referral was then made to the Isabel Local Court. The Local Court heard the dispute on 23, 24 and 25 July 2007. They reserved their decision and on 28 July 2007 they told the parties that the decision would be written in Honiara then distributed to the parties. The written decision subsequently distributed quashed the decision of the East Bugotu Chiefs and awarded Garanga customary land to Vihuvanagi tribe (the tribe of the First Claimants) and Kasera customary land to Posomogo tribe (the tribe of the First Defendants).
3. The First Defendants allege that information later came to light that the order in the Local Court was not in fact the decision of the Justices who heard the case. Those Justices filed sworn statements in the High Court civil case 287 of 2002 consistent with that information. They said that the record of the ruling was not in fact the ruling they made. The Court then directed that the issue relating to the decision of the Local Court be dealt with by judicial review which led to High Court civil case number 455 of 2009 being commenced.
4. The hearing of the judicial review came before Chetwynd PJ. He heard evidence including cross examination from the Justices who were available to give evidence. He also heard from an observer who claimed he was present. Chetwynd PJ recorded that he accepted what the justices had to say in both their written and oral evidence and made a finding that the decision dated 28 July 2007 was not in fact the decision of the Isabel Local Court. He directed that the case be referred back to a differently constituted Local Court to be heard de novo. He determined that the case need not be referred to the Chiefs as the Local Court had “immediate jurisdiction to hear the case”.
5. An appeal had previously been filed with the Isabel Customary Land Appeal Court. As he had quashed the decision of the Local Court Chetwynd PJ considered the appeal must be abandoned and the fees and papers returned to the persons who lodged them.
6. The Local Court has since re-heard the case and in their decision dated 26 July 2013 confirmed that the original owners of both Garanga and Kesera customary lands are the Posomogo tribe being the ancestors of the First Defendants. They said that any development of those lands required the consent of the original owners.
7. The Claimants appealed that decision to the Isabel Customary Land Appeal Court [‘ICLAC’] which delivered its decision on 24 April 2014. The decision of the ICLAC recorded that the appeal was dismissed. It recorded that the decision of the Isabel Local Court dated 26 July 2013 was upheld and that Posomoga (spelt Posomonga’) tribe were the rightful owners of Garanga/Kesera customary lands.

Proceedings in 390 of 2020

8. On 10 August 2020 the First and Second Claimants filed a claim in the High Court seeking a declaration that the actions of the First and Second Defendants amount to fraud. The particulars of the fraud alleged are set out at paragraph 10 of the claim, and listed as paragraphs (h) to (m) inclusive, as follows:
9. As a result they seek an order that the issue of ownership of Garanga and Kasera customary lands be referred to the appropriate forum. I understand that to be seeking a fresh hearing in the Local Court.
10. On 11 March 2021 the Second Claimants filed notice of change of advocate and on 27 April 2021 filed an amended claim on behalf of the Second Claimants. In the amended claim an order is sought declaring that the quashing orders obtained in Kolly & Maneforu v Bako, Meredi, Sesi, Success Company Limited and Attorney General in civil case 455 of 2009 delivered on 26 November 2010 were obtained by fraud on the Court.
11. The Second Claimants’ amended claim then seeks consequential orders declaring that the rehearing by the Isabel Local Court and its decision dated 28 July 2013 is null and void ab initio. A further order is sought declaring that the valid Local Court decision is that delivered in Land case number 3 of 2003 dated 28 July 2007. Finally the amended claim seeks an order that the judgments in Kolly and Maneforu v Bako and Sesi CLAC No 36 of 2013 delivered on 24 April 2014, Bako and Sesi v Kolly and Maneforu CC 230 of 2014 delivered on 23 August 2019 and Derrick Kolly & James Maneforu v Meridi, Sesi and Success Company Ltd Civil Case 287 of 2002 be set aside on the ground of fraud on the Court.
12. On 13 May 2021 the First Defendant filed an application to strike out both the claim and the Second Claimants’ amended claim.
13. The Court has received detailed submissions from all counsel. This has been helpful given the protracted nature of the dispute and the number of proceedings that have resulted from the dispute. The Court has also received sworn statements filed on behalf of the First Claimants, the First Defendant and the Second Defendant. At the hearing of the application the Court heard evidence from Fredrick Pado Kana who was one of the Justices who heard the dispute when it came before the Local Court in 2007 being Local Court case 3 of 2003.
14. Fredrick Pado Kana and other Justices from the Local Court were called to give evidence in the High Court in civil case 455 of 2009. They each gave evidence that the decision recorded in the Local Court was not the decision they made. In reliance on their evidence the Judge in the High Court sent the case back to the Local Court to be heard again before a differently constituted Court. Now the Justices are alleging that the evidence given in the High Court was not true. This is the basis for the claim alleging fraud. Other evidence before the Court shows conduct on the part of both the Claimants and Defendants that, if true, can only be understood as a deliberate undermining of the Court processes.
15. The application relies on rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007. That rule provides as follows:
    • “Frivolous and vexatious proceedings
    • 9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
    • (a) the proceedings are frivolous or vexatious; or
    • (b) no reasonable cause of action is disclosed; or
    • (c) the proceedings are an abuse of the process of the court;
    • The court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”
16. The Court of Appeal has provided assistance in applying this rule in Noro v Saki [2016] SBCA 16 where at paragraph 10 the Court said:
    • “As the Judge identified on an application to strike out based on an allegation that the claim revealed no cause of action, the Judge must assume the claim can be proved. The Judge must then ask – assuming the Claimants can prove all of these allegations, does the Claimants have a sustainable cause of action? With these facts proved could the Claimants succeed? If the answer is yes, the claim cannot be struck out.”
17. The first declaration sought in the amended claim is that the order in CC 455 of 2009 was obtained by fraud. If the evidence put forward at the hearing is true then there is clear evidence of fraud which resulted in the High Court making the quashing orders. However what follows if such a declaration is made is an issue for this Court. The reason for this is that on the evidence of Fredrick Pado Kana, on which the Claimants relies, those who heard the case in 2007 have had so little regard for a just result that they committed perjury before the High Court and were influenced by others. Fredrick Pado Kana for example said he decided to follow James Maneforu because he was a policeman. Before me he acknowledged that what he said before Chetwynd PJ was not true. However when asked what was the true decision of the Justices in the Local Court in July 2007, he did not know. Frankly no weight at all can be placed on his evidence. However that is not the issue relevant to the present application.

Power to set aside the 2010 decision in 455 of 2009

18. A great deal of common law jurisprudence has been referred to me. I find the New Zealand Court of Appeal decision Shannon v Shannon [2005] NZCA 83 relied on by the Second Defendant as helpful in reviewing the common law position. Counsel for the Second Defendant submitted that the provisions of the Limitation Act applied and that with due diligence the evidence of fraud, if there was any, was discoverable once the Justices swore their statements relied on before Chetwynd PJ. He submitted that there was no sufficient particularisation of fraud and no new evidence that could justify interfering with the decision of Chetwynd PJ. He noted that there had been no appeal filed against the decision of Chetwynd PJ.
19. It is clear from the review of the authorities that at common law there is a power to set aside a judgment where there is evidence of the judgment being procured by fraud. At paragraph [116] of Shannon the New Zealand Court of Appeal adopted the principles set out by Kirby P in Wentworth v Rogers (No 5)[1986] 6 NSWLR 534 (NSW CA). In relation to an allegation of perjury he had said:
    • “Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation or proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment”.
20. It must be borne in mind what followed from the finding of Chetwynd PJ. He referred the case back to the Local Court for the matter to be heard de novo. As a result the pending appeal before the ICLAC could not proceed. A differently constituted Local Court heard the referral from the Chiefs. That Court found in favour of the First Defendant. There is no suggestion that the finding was tainted. The decision of the Local Court on 26 July 2013 was upheld on appeal to the ICLAC on 24 April 2014. That decision was then challenged in the High Court. On 23 August 2019 the Deputy Chief Justice considered all the grounds of appeal and found that “the appeal must be dismissed in its entirety”.
21. The Second Defendant has submitted that the decision of Chetwynd PJ should be set aside and that the written decision of the Local Court in 2007 should prevail. Such a position is untenable. The Second Defendant is in effect asking this Court to affirm a decision of the Local Court where the Justices have said on oath that the written ruling was not their decision, then they retracted that evidence and some eleven years later have said that in doing so they gave false evidence before the High Court. In these circumstances the Court could not possibly now affirm the 2007 Local Court decision. The effect of that would be that Kesera customary land would be confirmed as belonging to the First Defendant and Garanga customary land as belonging to the First Claimants. That is at odds with what is sought by the First Claimants. It would be giving weight to a decision of Justices that have given conflicting evidence about that decision.
22. In these circumstances it would be contrary to the interests of justice and the principle of finality of judgments to set aside the ruling of Chetwynd PJ.

Limitation Act

23. Counsel for the First Defendant has submitted the claim is out of time. The Limitation Act at sections 5 and 9(2) provides as follows:
    • “5.Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of six years from the date on which the cause of action accrued.”
    • “9. (2) No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person:”

Section 9(2) has a proviso that does not apply to the circumstances of this case.

24. Counsel for the First Defendants submitted that the claim needed to be brought within 6 years. The reason for this is that the claim is not for the recovery of land but for the quashing of the High Court ruling and consequential orders. He relies on section 5 of the Limitation Act.
25. He submits that the action was required to be commenced within six years on the ruling in CC 455 of 2009 which was delivered on 26 November 2010. The claim however is in reality for the recovery of land and the process relied on to recover that land is to challenge how the ruling of the Local Court was quashed. The First Defendants submit that section 32 of the Limitation Act cannot assist the Second Claimants because the First Defendants allege that there was no fraud. That would require a finding of credibility which is not appropriate for the application before this Court. Whether there was fraud is still to be determined. Section 32 of the Limitation Act however provides:
    • 32. (1) In this section, “fraud” means a false representation made knowingly, or without honest belief in its truth, or recklessly without care whether it be true or false, and includes such unconscionable or blameworthy act or omission as amounts to fraud in equity.
    • (2) Subject to subsection (4)-
    • where a claim in an action or arbitration is based on fraud of the defendant; or
    • (a) where a claim in an action or arbitration is based on any fact relevant to the plaintiff’s cause of action which has been deliberately concealed from him by the defendant, or
    • (b) where a claim in an action or arbitration is based on a relief from the consequences of a mistake,
    • the prescribed period for such action or arbitration, as the case may be, shall not begin to run until the plaintiff has discovered such fraud, concealment or mistake, or could with reasonable diligence have discovered it.”
26. Counsel for the Second Claimant submits that the allegation is clearly fraud because in his submission the Justices in the Local Court gave perjured evidence in the High Court in 2010. If the claim is not for the recovery of land the First and Second Claimants then had 6 years to file the claim from the time the alleged fraud could with reasonable diligence have been discovered. It is clear that the parties had received the sworn statements prior to the hearing before Chetwynd PJ. By the time of the hearing they were clearly on notice and could have made further enquiries. It is not sufficient to allege that that the discovery was only made years later. Any claim seeking a declaration of fraud was required to have been filed by 2017. If what is alleged is that the Justices committed perjury in the High Court they were on notice to commence enquiries at that time.
27. What the First Claimants are really concerned with is the ruling that Garanga customary land and Kesera customary land is owned by the First Defendants. The Local Court ruling in 2007 had confirmed that Kesera customary land was owned by the First Defendants as had the Chiefs in 2003. If the ruling of Chetwynd J is set aside as having been obtained by fraud then the issue for the First Claimants is a claim for the return of Garanga customary land. That would bring into play section 9(2) of the Limitation Act. The Claimants would have 12 years to commence such proceedings from the ruling of Chetwynd PJ. They have done that by filing the claim on 10 August 2020. The Second Claimant’s sole interest in the land is as a logger contracted to undertake logging. As the subject matter of the claim is in fact the ownership of Garanga and Kesera customary lands the claim is brought within time. The claim for a declaration of fraud is out of time.

Standing to bring the claim

28. The Second Claimant has no legal interest in either the Kesera customary land or the Garanga customary land. The Second Claimant is merely the contractor engaged to carry out logging activities. The Second Claimant has no standing to challenge the findings of ownership in the courts of custom. Those who do have standing are those who claim ownership in custom. The First Claimants certainly have standing to bring the claim but the Second Claimant does not.
29. For these reasons even if I considered it was appropriate to set aside the ruling of Chetwynd PJ, and I do not, the Second Claimants cannot succeed with the amended claim which must be struck out as the Second Claimant has no standing to bring a claim concerning the ownership of Kesera customary land or of Garanga customary land. In terms of rule 9.75 the proceedings are an abuse of process.
30. The position of the First Claimants is different. They do have standing to bring a claim. The principal remedy that they seek is to order that the issue of ownership of Garanga and Kesera customary lands be referred to the appropriate forum (Paragraph 2 of the relief sought). The First Claimants have by the ruling of Chetwynd PJ received exactly what is sought. The case was referred to the Local Court. The Local Court’s decision has been affirmed on appeal.
31. What the First Claimants are seeking is a back door attempt to re-litigate a matter that has already been clearly determined. When the claim was filed the First Claimants already knew that the Local Court decision in 2013 was not in their favour. They know that the ICLAC had upheld the Local Court decision and that the appeal from the ICLAC was dismissed.
32. In these circumstances the claim is squarely caught by rule 9.75. It is clearly an abuse of process. The claim could also be said to be frivolous and vexatious. The claim must be dismissed.

Orders

1. The application to strike out both the claim and the amended claim of the Second Defendant is granted, both the claim and the amended claim are dismissed in accordance with Rule 9.75.
2. The First Claimants and the Second Claimants are to pay the costs of the First and Second Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge