Aeounia v Osiramo [2008] SBCA 5; CA-CAC 29 of 2007 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal Case No.29 of 2007 (On Appeal from High Court Civil Case Nos. 20 and 364 of 2006)
DATE OF HEARING:	17 July 2008
DATE OF JUDGMENT:	18 July 2008
THE COURT:	Palmer VP, Goldsbrough JA, Adams JA
PARTIES:	Mezach Aeounia, Leonard Sasai and Jack Anongolia -v- John Osirama
ADVOCATES:
Appellant:	W H Rano
:Respondent:	A G H Nori
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	ALLOWED
PAGES

JUDGMENT OF THE COURT

Introduction

1. This matter arises out of a dispute as to the ownership of customary land. On 24 October 1975 the West Kwara’ae Local Court decided in favour of the present respondents. On appeal to the Malaita Customary Land Appeal Court the present appellant (and his tribe) were held to be the owners of what was described in the decision as Arabala land. The decision appears, on its face, to delineate the boundaries of the Arabala land. The respondents appealed to the High Court but that appeal was not pressed after it was pointed out to the putative appellants that it was out of time. So the matter seems to have lain for nigh on 25 years. In March 2005 the respondents commenced proceedings in the Aimela House of Chiefs to attempt to obtain a decision inconsistent with that of the MCLAC in respect of the boundary between Arabela and Augiria land and, it appears, succeeded. In the result, it appears that there are two inconsistent decisions as to the boundary between these customary lands, with consequential doubts about ownership of the disputed area.

Proceedings in the High Court

2. On 26 May 2006, the appellant obtained an order from Brown J on an uncontested application giving leave to commence proceedings for certiorari to quash the determination of the Aimela Council of Chiefs.

3. On 12 September 2006, the respondent commenced proceedings in the High Court by way of originating summons for declarations, in effect, that the decision of the MCLAC was final and binding both as to ownership and boundaries (at all events indissolubly linked) and that the decision of the Aimela House of Chiefs was void and of no effect. (We interpolate that these proceedings were correctly commenced by originating summons.)

4. On 27 June 2007, Brown J held that the MCLAC decision was binding as between the parties, decided that the declarations should be granted and, calling up the record of the Council of Chiefs, quashed it. Thus all proceedings in the High Court were determined in favour of the respondent. It appears from an affidavit filed on behalf of the appellants that they wished to call evidence that the decision of the MCLAC had been procured by fraud and, accordingly, was itself void. They also wished to argue that (contrary to the face of the record) there was in effect no real determination of boundaries – as distinct from the argument that the statement of the boundaries was mistaken, which could amount to no more that an error of fact against which there could be no appeal.

5. Unfortunately, however, the hearing was conducted and the orders made in the absence of the appellants who therefore had no opportunity to present their case. His Lordship stated in his judgment that he was satisfied that the appellants had notice of the hearing. It appears from a subsequent affidavit that, in fact, the appellants did not have notice of the hearing. Before us, Mr Nori of counsel for the respondent conceded that the only evidence of service depended on an inference that the usual mode by which the court notifies parties of hearing dates was effective. This is, regrettably, an inadequate evidentiary basis for concluding that notice is in fact given, especially where the consequence is that a hearing proceeds to finality in the absence of a party. In our view, a court should not proceed in the absence of a party unless there is positive evidence on oath as to proper notice.

6. On 31 August 2007 the appellant applied (by Notice of Motion filed on 24 July 2007) Brown J to reopen the earlier hearing. His Lordship declined to do so, holding that he was functus officio and had no jurisdiction to do so. His Lordship was mistaken. Since it is clear that notice of the previous hearing had not been given to the appellant, the judgment could and should have been set aside under Order 38 Rule 7 (as the Rules stood at the time of the hearing – see now Rule 17.55) which provides:

"Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within 21 days after the trial"

In Re Edward’s Will Trusts; Edwards v Edwards [1982] 1 All ER 941, which dealt with a similar rule, the English Court of Appeal said (at 949) that the absent party should apply for a new trial first to the Court of trial, if possible to the trial judge and can appeal to the Court of Appeal (which, at all events, has coordinate jurisdiction) from a refusal to grant the application.

7. If notice had not been given, the hearing in the present case was held in breach of natural justice and the orders made could not have stood, providing that the absent party claimed to have an arguable defence. Even if, in this case, notice had been given (as was surmised), Brown J should nevertheless have considered whether there was reasonable explanation for the non-appearance of the appellants. If it appeared that that an arguable defence was sought to be litigated, his Lordship should have set aside his earlier orders and conducted a new trial. If his Lordship was not available for some reason the proceedings could be tried before another judge of the court.

The appeal

8. In light of Mr Nori’s candid (and entirely appropriate) concession as to notice, it is plain that the orders of Brown J cannot stand and the appeal must be allowed.

9. We note that there was a question whether, in light of the date upon which Notice of Appeal was given, leave to proceed out of time was necessary. In the circumstances is not surprising that the relevant time frame was uncertain, since the appellant first sought to have Brown J reopen the hearing and appealed only when his Lordship refused to do so, making necessary the appeal to this Court. We are inclined to think that, in the circumstances, time had not expired and thus leave is unnecessary but, at all events, would grant leave.

10. We have mentioned the substantial delay between the date of the original decision of the MCLAC and the commencement of proceedings before the Council of Chiefs. The granting of prerogative or injunctive relief is discretionary and it will be necessary for the trial judge to consider, in respect of any application for relief of this kind by the appellants, the extent to which their apparent delay should affect their right to relief.

Orders

11. The appeal is allowed. The orders of Brown J are quashed. The proceedings in matters numbers 20 of 2000 and 364 of 2006 are remitted to the High Court for rehearing. They should be heard together. The respondent must pay the appellants’ costs.

Chief Justice,
Vice President

Judge of Appeal

Judge of Appeal