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Carlos v Uziah [2022] SBCA 14; SICOA-CAC 30 of 2019 (12 August 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The proceedings that gave rise to this appeal were filed as long as 17 September 2014. They have an unnecessarily tortured procedural history. Throughout we refer to the Second Respondent as Bulacan. As we explain later it is the wrong company as the Commissioner of Forests appointed Bulacan International (SI) limited as his agent to sell tubi logs. (However, nothing turns on this as whether under the correct or incorrect name Bulacan has never been joined in the proceedings despite the dogged attempts of the Appellants to get them to pay sums they were not indebted to the Appellants for).
2. On 17 September 2014 the first respondents (as claimants) filed a claim (Category C) alleging that the First and Second Defendants (now the Appellant and Third Respondent) had trespassed onto to Goe land and had felled and extracted tubi and other log species, for sale by the First and Second Defendants. Logging of tubi trees was banned in the Solomon Islands. (We note it appears that Southern Pacific Woods Limited, the Third Respondent, has played relatively little part in these proceedings from their instigation. They were not present at the hearing that gave rise to this appeal). The claim alleged the logging of Tubi trees was in contravention of the Forest Resources and Timber Utilisation Act. The First Respondents sought that the Appellant and the Third Respondent pay to the claimants:
   1. the total export or market value of all the tubi logs and other species illegally felled, extracted, and sold out of Goe land,
   2. damages for trespass on Goe Land to be assessed,
   100. damages caused to the environment on Goe Land to be assessed,
   4. interest on the judgment sum from the date of fling [sic] this cause of actions, and
   5. costs
3. At the same time, a Certificate of Urgency was filed, along with the usual undertaking for damages and ex parte injunction.
4. On 3 October 2014 that year, Mr Tegavota appeared before Maina J and obtained an ex parte injunction against the defendants in what could be described as the normal terms.
5. It is clear that the Commissioner of Forests came to know of the alleged illegal logging of the tubi trees, and he issued a seizure notice over the logs the subject of the dispute in this case on 13 February 2015. It was not until after that, on 16 February 2015, that Mr Togamae filed an application to stay the ex parte orders, with an undertaking for damages and a supporting sworn statement. From our perusal of the file nothing appears to have happened to advance this application until it was brought on for mention on 22 October 2015. That Application has been called a number of times for mention, but it appears never to have been argued and decided.
6. In March 2015, the Appellants, and the First Respondents, (described as “Representing the Landowners of San Jorge Island, Isabel Province”) combined to lodge an appeal against the seizure in the Magistrate’s Court (Civil Case 22 of 2015).
7. On 21 April 2015 Bulacan International (SI) Company Limited was appointed by the Commissioner of Forests as agent for the Crown to sell the tubi logs. It was the only company issued with licence/permission to export tubi logs, and ultimately 1818 logs were sold, valued at SBD1, 999,657 and exported via the MV Fortune.
8. Case 307 of 2014 was listed for an inter-party hearing on 30 April 2015, but it is recorded the matter was not called, and a new Notice of Hearing was issued for 16 October 2015.
9. On 13 May 2015 Mr Tegavota filed an Amended Appeal in the Magistrate’s Court seeking the proceeds of the tubi logs sold by Bulacan International (SI) Company Limited for the figure mentioned above was to be distributed amongst the Appellants to the Magistrates Court Appeal, the government and Bulacan.
10. On 18 June 2015 the First Respondents and the present Appellants, (who were the combined Appellants in CMC-CC 22-2015) and the Attorney General, filed a Consent Order that led to SB$500,400 being paid to the Government and the rest of the proceeds were distributed to the First Respondents and the Appellants (as combined Appellants in the Magistrate Court) and Bulacan International (SI) Limited to meet their operational costs on the sale and export of logs on the MV Ocean Fortune Voyage 1501. Although a recipient of payments Bulacan International (SI) Limited was not a party to the Magistrates Court proceedings.
11. On 16 October 2015, the inter-party hearing before Maina J was vacated, and a new date was set for 22 October 2015.
12. On 22 October 2015, when the matter come on for mention before Maina J, Mr Togamae agreed to adjourn the application. Mr Tegavota submitted the Commissioner of Forests had seized the logs, and Mr Togamae made an oral application, which was granted, to join the Commissioner. However, no orders were taken out and no claims were bought against the Commissioner. (We can only assume that the parties at that stage realised that the seizure of illegal tubi logs by the Commissioner, coupled with the Consent Order in the Magistrate’s Court was an end to the matter. Unfortunately, in relation to the Appellants that proved not to be the case).
13. Again, on the 5 November 2105 there was a mention before Maina J and was further adjourned until 26 November 2015. Mr Togamae did not attend but Mr Tegavota advised the Court that the logs were sold, money disbursed already and that he would speak to Mr Togamae about this.
14. The records show the Court issued a notice of hearing for 17 November 2015, but no attempt was taken to serve Bulacan, though it was clear their interest was potentially going to be affected.
15. On 26 November 2015, the matter was called for mention but there is no record of the proceedings.
16. On the 18 January 2016, the First Respondents discontinued the proceedings.
17. On 21 January 2016 there was a mention before Faukona J. Mr Tegavota advised the proceedings had been discontinued. Mr Togamae did not attend. 8 months later on 14 September 2016 Mr Togamae wrote to the Registrar of the High Court attempting to strike out the claim for want of prosecution. He obviously had not searched the Court file. On 12 October 2016, the registrar wrote to Mr Togamae that the matter had been discontinued on 18 January 2016. Notwithstanding this Mr Togamae then sought to restrain funds and to enforce and assess damages against the First Respondents pursuant to their undertaking for damages.
18. On 17 November 2016, the matter was mentioned before Faukona J when both Mr Tegavota and Mr Togamae attended. Mr Tegavota said he appeared for the First Respondents, and Mr Togamae said he appeared for the Appellants and submitted that the second defendants did not wish to pursue the application. Notwithstanding this concession by Mr Togamae, surprisingly, an order was made that the proceeds from the tubi logs seized were to be paid to Mr Togamae’s trust account. This again was at a time when both Mr Tegavota and Mr Togamae knew the proceeds were disbursed between the parties and Bulacan. The records do not show that counsel informed the Court that the proceeds were disbursed 16 months earlier. This notwithstanding that Mr Tegavota had informed the Court on 5 and 20 November 2015 that the proceeds had been disbursed.
19. The issued Order was said to be based on the sworn statements of Mr Lau and the Appellants. However, there are no sworn statements of the Appellants on file at that time. There is a Sworn Statement of a Mr Lau, on behalf of the Third Respondent, that shows he was aware of the Discontinuance and the Consent Order in the Magistrate’s Court, and the sum mentioned therein Further the Order made mentions a sum of SB$3,876,032.38 which comes from the Application to Export not the actual sales invoice that correctly recorded the amount of timber and the price it was sold for i.e. SB$1, 999657.00. Neither counsel appeared to bother to advise the judge of this or correct the figure.
20. On 18 November 2016 Mr Togamae sent a letter to Bulacan demanding payment into his account. No application was made to join Bulacan, and there is no third-party notice in the Court file, and nothing was served on Bulacan.
21. On 22 November 2016 Mr Kuli swore a Statement deposing to service of the Order. On 13 December 2016 Mr Togamae filed an Enforcement Order, which was signed on 14 December. There is no evidence of any service of the Enforcement Order between this period, until 23 January 2017 when Bulacan sought the aid of Mr Tegavota, who wrote and disputed the enforcement office. (We note there is some criticism of Mr Tegavota acting for Bulacan. We think that to be a red herring. It is explained in Mr Sy’s Sworn Statement that he was instructed to act because he knew about the proceedings and given Bulacan were never a party he could quickly resolve it. When it became apparent his efforts just made matters worse Mr Rano was engaged to represent Bulacan).
22. On 23 February 2017 Mr Togamae filed an Enforcement Order for Redirection of Debt against Bulacan, and on 8 February 2017 Mr Tegavota, on behalf of Bulacan, filed an Application to Set Aside Redirection of Debt Order. This was then given a hearing on 27 April 2017. On that date there was a hearing of the Application to set the order aside, and on 28 April the order was perfected. Directions given on the Order was for the Enforcement Order to be set aside and the matter fixed for mention on 11 May.
23. Notwithstanding the Order of 27 April 2017 Setting Aside the Enforcement Order on 3 May 2017, the Registrar purported to sign another enforcement order, but there are no records an Enforcement Order was filed and how that was signed, notwithstanding the matter was listed for mention on 11 May 2017.
24. The Court file records that on 11 May Faukona J adjourned the matter generally on seven days’ notice, with the Registrar to endorse the Enforcement Order. There is no record of counsel attending.
25. There was no further activity until 8 August 2017, when Mr Tegavota filed on behalf of Bulacan another Application to Set Aside the Enforcement Order, and a Notice of Hearing was issued for 10 October 2017. On that date the matter was further adjourned to 16 February 2018.
26. The matter was ultimately heard by Faukona J on 15 April 2019. He recorded that the so-called third party, Bulacan Integrated Wood Industries Limited, sought to set aside :- the Consent Order of 17 November 2016; the Order that all proceeds of logs seized and sold by Bulacan Integrated Wood Industries (SI) Company Limited on behalf of the Commissioner be paid to the defendants’ solicitor, Mr Togamae; the application to set aside the Enforcement Order of 17 November 2016, the Enforcement Order of 11 May 2017, and Orders of 27 April 2018, 30 April 2018, and 10 May 2018.

The High Court judgment

27. We do not need to rehearse the lengthy judgment. Suffice to say the Judge concluded:^[1]
    • 75. It would appear the Counsel for the Defendants had concealed material facts with the purpose of achieving benefit.
    • 76. By involving the amount of $3,876,032.38 in the orders of 17^th November 2016, had paved the path for next orders including informal orders against the 3^rd Party. Apparently, the orders on 17^th November 2015 were drafted in a manner to appear as a decision of the Court followed by application for enforcement orders. Unfortunately the only decision/order of the Court alive at that material time was the Consent Orders with the amount mentioned therein not the above amount.
    • 77. Any enforcement order can only be made against the amounts in the distribution formula. In respect to undertaking as to damages there must be an assessment hearing commenced by an application. Evidence must be produced to establish losses suffered because of the unnecessarily granting of the injunctive orders.
    • 78. There is evidence already being filed that the Consent Orders had been complied with and distribution had been done according to the formula agreed to.
    • 79. In conclusion it is worth pointed out that at the commencement of two proceedings in the High Court and in the Magistrate Court the 3rd Party was excluded. It was never being a party. It was after Mr Tegavota filed the notice for discontinuance that Mr Togamae immediately filed for orders against the 3rd Party concerning $3,876,632.36 that was when the 3rd Party appeared in the scene. The 3rd Party was never being joined or served. In fact, there was no actual hearing, because the parties were different, and the issues concerned are different, the amount is also different from the amount in the Consent Orders. This was when the processes were diverted from the initial claims and entered into an unknown process.
    • 80. Since the case of Fry v Moore has drawn the line that if an order is null then it renders all that is done afterwards void. I have determined that orders of this court on 17th November 2015 are dismissed for reason of nullity.
    • 81. Premise on the evidence and my findings this is a case where I must grant the reliefs sought in the amended application.
    • This is a damning indictment of the actions of Mr Togamae. However, on the material before us we completely concur.
28. Support from the findings of the Judge can be found in the sworn statements of Johnny Sy and Derek John Sy, filed on 11 May 2018 on behalf of Bulacan and an associated company and from documentation on the Court file.
29. The parties are now represented by different counsel, and the submissions filed by the Appellants make serious allegations against Mr Tegavota, a counsel who has suffered from significant ill health that may have contributed to what occurred.
30. The thrust of the appellants’ submission is that Mr Tegavota was never instructed to act or be retained by the Appellants and had no authority to enter into the consent order in the Magistrates Court. Further, he later appeared and acted for the alleged Third Party, described as Bulacan Integrated Wood Industries (SI) Company Limited. Finally, damages could properly be assessed against Bulacan under an undertaking for damages, presumably the one filed by the First Respondents.
31. For the alleged Third Party, Mr Rano submitted the findings were open to the Judge and that at various stages of the proceedings, particularly from discontinuance onwards, Mr Togamae completely misled the Court.

Discussion

32. As noted above, this matter has gone through a torturous process. Paragraphs 49 to 81 of the judgment set out a number of matters that were known by Mr Togamae and not advised to the Court. If in fact, he did not know them any competent lawyer in Mr Togamae’s position ought to have known them and would have known them even from the most peremptory consideration of the material. Most of these matters are set out in paragraph 43 of Mr Rano’s written submissions. Most come from the documentation and the Sworn Statements, including that of Mr Lau for of the Third respondent. We accept them as accurate. They were closely scrutinised by the judge and accepted.
33. However, given the seriousness of this matter it is appropriate that we set them out. We also accept them as evidence. They include, not exclusively:
    • (i) That there was never tubi trees to the value of SB$3,876,032.38 exported. The correct amount was 1818 logs for SB $1,999,657;
    • (ii) Failure to advise the Court of the Discontinuance even when Mr Lau deposed to it;
    • (iii) Awareness the Second Respondent was never a party and was never joined as a Third party (in that name or in the name Bulacan International (SI) Limited;
    • (iv) The limited steps available to the Appellants once the Discontinuance was filed;
    • (v) Awareness the proceeds of sale had been disbursed, including in part to the Appellants and failing to advise the Judge of this;
    • (vi) That the Commissioner of Forests had effectively taken over the matter of the tubi trees when he issued the Seizure Notice;
    • (vii) Allowing the Court to believe the Appellants did not receive any proceeds of sale;
    • (viii) Claiming SI$3,876,032.38 when knowing the sale proceeds were SI$1,999,657.00;
    • (ix) Submitting to the Court that the Appellant was entitled to damages in accord with Maure v Mega Enterprises Limited [2013] SBHC 161 when that decision had been overturned on appeal in Mega Enterprises Ltd v Sunway (SI) Ltd [2014] SBCA 21. There this Court stated in assessing damages pursuant to an undertaking delay was a factor to be considered;
    • (x) Failing to point out the considerable delay on the part of the Appellants in this case.
34. There are three matters of very great importance that arise from the non-exhaustive list set out above. The first, and most important, is the discontinuance filed by the First Respondents on 18 January 2016. The second is the fact that the agent to dispose of the tubi trees on behalf of the Commissioner of Forests was Bulacan International (SI) Company Limited, not Bulacan Integrated Wood Industries. The third is that no member of the Bulacan group of companies were ever a party in the proceedings Civil Case No. 307 of 2014.
35. It is of significance to note that the only matters filed by the Appellant before the discontinuance was filed was an Application Seeking a Stay of the Ex Parte Injunction, made by Maina J on 3 October 2014. This was filed on 16 February 2015, along with the usual undertaking as to damages, and a supporting affidavit of Steven Carlos. We note that the index to the Court of Appeal book indicates that sworn statement was dated 16 February 2016. In fact, it was 16 February 2015.
36. That application, although called for mention a number of times, was not proceeded with by the Appellants, perhaps not surprisingly when the Commissioner had seized the Tubi logs and appointed Bulacan International (SI) Company Limited to sell them. The logs after all were a protected species.
37. For completeness we note the Appellants’ allegation that Mr Tegavota was not instructed by them in the Magistrate’s Court matter. Given the Appellant’s and First Respondents had combined in that application we can see there may well be no issue if he did act. But more fundamentally if such an allegation is made against Counsel it is incumbent of those making the allegation to waive their right to legal privilege. This allows the other side to investigate the matter and, where appropriate to obtain a sworn statement. Absent the waiver, as here, that is the end of the matter.
38. Nothing else happened on this file until the appellants filed a Certificate of Urgency on 8 November 2016, some 10 months after discontinuance. No defence or counterclaim was ever filed by the appellants.
39. Discontinuance is covered in Chapter 9 in the Rules of the High Court [Solomon Islands Courts (Civil Procedure) Rules 2007]:

Discontinuing proceeding

9.67 The claimant may discontinue his or her claim at any time and for any reason.
9.68 To discontinue, the claimant must:

• (a) file a notice of discontinuance; and
• (b) serve the notice on all other parties.

9.69 If there are several defendants:

• (a) the claimant may discontinue against one or some only; and
• (b) the claimant's claim continues in force against the others.

9.70 If the claimant discontinues:

• (a) the claimant may not revive the claim without the leave of the court; and
• (b) a defendant's counter-claim continues in force; and
• (c) the party against whom the claimant discontinued may apply to the court for costs against the claimant.

40. In this case the Notice was filed and served and there is no Defence or Counterclaim. The only steps that could have been taken by the appellants was to apply for costs against the claimant. That was never done.
41. We would also add that at no stage was the incorrectly named Bulacan Integrated Wood Industries Limited joined as a third party. Although leave was granted, no orders were ever effected. That leaves the insurmountable problem that it is the wrong party in any event, given the Commissioner appointed Bulacan International (SI) Limited to effect the sale of the illegally logged tubi trees. (We would query whether it would be possible to join the Commissioner’s agent. If there was any claim it would need to be against the Attorney General representing the Commissioner of Forests. Given this case is about the felling of protected trees it is hard what cause of action there may be against the Commissioner. For completeness we note the Court granted an oral Application by Mr Togamae to join the Commissioner. But the order was never perfected, and the commissioner was never joined.).
42. We turn back to Mr Rano’s written submission at paragraph 43. It is clear on the evidence that the value of the Tubi exported was in fact only SBD1,999,657 for 1818 logs, not the SB$3,876,032.38 claimed. That was clearly known to the Appellants, and they had received some of those funds.
43. As noted, it is also clear, from reading the judgment of Faukona J, that the Appellants’ counsel failed to disclose the proceedings had been discontinued; that the Second Respondent was not a party to the proceedings and could not have made any undertaking as to damages to which it would be liable. Indeed, the Second Respondent should never been in the intituling below as a Third Party. They never were, under the correct name or not.
44. Following discontinuance, there were steps available to the appellants which were clearly not taken. They simply proceeded as if the proceedings were still fully on foot. It is true that Mr Tegavota acted for all the appellants and the first claimant in the consent order in the Magistrates Court, but if they claim that was wrong, their remedy must now be against counsel and cannot be against the Second Respondent. In any event, it is clear on the evidence that the money was disbursed, and the Appellants received some of those proceeds which they did not advise the Court of. It is apparent that they submitted to the Court that they had received nothing, when in fact they did receive payments from proceeds and advances.
45. Furthermore, throughout, the Appellants through counsel were well aware that the Second Respondent had never been properly joined in these proceedings and, in any event, was not a proper party to the proceedings; more particularly so when the proceedings had been ended by discontinuance. Counsel should have known that he could not seek damages against a non-party and that he could not seek an injunction in the absence of any cause of action. Mr Togamae took a number of steps that a competent counsel should have known were not available to him.
46. Rules 4(a)(ii) and (iv), and 16(2) and 16(5) of the Legal Practitioners (Professional Conduct) Rules 1995, read together, show that a legal practitioner is under a duty to inform the Court of the state of affairs of his client’s case, whether it be in the client’s favour or not. As Mr Rano submitted, having knowledge of a material fact or the state of the law, yet choosing not to disclose it, is “simply tantamount to either suppressing it or concealing it.” We agree. This is a serious matter.
47. Mr Togamae, counsel then representing the Appellants, had an opportunity to inform the Court fully of the circumstances of the Appellants, including the legal difficulties in any attempt by the Appellants to recover from the Second Respondent, who was not a party and not a party who ever gave an undertaking. Mr Togamae also needed to respect the Notice of Discontinuance that he was well aware had been filed.
48. We have only rehearsed the major concerns we have with the way previous counsel advanced this case. There are other matters set out at length, (and properly so), in the decision appealed from. In our view, it was inevitable that the Judge would reach the conclusions he did. Given the discontinuance, and the matters of concealment, this matter should never have got as far as it did, accepting of course that counsel for the appellants on appeal did not appear below. We note it is now eight and a half years since the Notice of Discontinuance was filed. It is scandalous that the Appellants have taken all the improper and unavailable steps they did in this matter.
49. The appeal will be dismissed and there will be indemnity costs in favour of the Second Respondents. We were troubled by Ms Willy telling us she was instructed not only by the Appellant’s but also by Mr Togamae. That was in relation to the personal cost order made against him. There were ample grounds for that order. However, we accept what she said that the Appellants instructed her to pursue this hopeless appeal. The costs order we have been made will be against the Appellants, jointly and severally.
50. Criticism has also been directed at Mr Tegavota. The Appellants have not waived their rights to legal privilege so he cannot defend himself. In those circumstances we say nothing about the complaints made against him. That is not to say that cannot be directed to the correct forum by others.
51. In these proceedings, once discontinuance was filed, the only remedy left open to the appellants, if they believed they had any cause of action, was against the two lawyers involved.
52. We consider the actions of Mr Togamae were so serious in this case that they need to be referred to the Chief Justice so that he may consider the appointment of a Disciplinary Committee under s 8 of the Legal Practitioners Act [Cap16] to consider if there is a complaint worthy of reference.
53. Finally, we note that many of the steps, and documents, in the High Court that highlighted the impropriety here are not included in the Appeal Book. They should have been.

Goldsbrough (P)
Palmer (CJ)
Hansen (JA)

^[1] Carlos v Uziah CAC 30 of 2019.