Reinunu v Usa [2012] SBCA 18; SICOA CAC 14 of 2012 (26 October 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court Case 453 of 2011 of the High Court of Solomon Islands (Chetwynd J)

COURT FILE NUMBER: Civil Appeal No. 14 of 2012
(On Appeal from High Court Civil Case No: 453/11)

PARTIES:

ONESIMO REINUNU (Chief and Representative of Claimant Kakau-Roha Clan)
Appellant

AND:

SIRIAKO USA (Representative of Kakau-Gota Clan and Lakuili Tribe)
First Respondent/ First Defendant

AND:

GUADALCANAL LOCAL COURT
Second Defendant/ Second Respondent

AND:

ATTORNEY GENERAL
Third Respondent/ Third Defendant

DATE OF HEARING: 26 October 2012

DATE OF JUDGMENT: 26 October 2012

THE COURT: Williams, JA.
Hansen, JA.
Apaniai, J.

ADVOCATES:

Appellant: Gabriel Suri, Appellant/Claimant

Respondents: Dwane Tigulu, First Respondent/First Defendant

KEY WORDS: Strike out for non-appearance costs. Solicitor liability for own default

EX TEMPORE/RESERVED:
ALLOWED/DISMISSED: Ex Tempore

PAGES: 1 – 4
JUDGMENT OF THE COURT

1. Mr. Reinunu appeals against an order made by Chetwynd J on the 30 April 2012 striking out his claim for Judicial Review.
   
2. The grounds advanced are:-
   
   • (i) The appellant was not advised of the hearing date;
   • (ii) The reasons given for counsel’s non-appearance were excusable;
   • (iii) The appellant had a good arguable case on his application for Judicial Review;
     
3. The appellant, as Chief of Kakau-Roha Clan of North East Guadalcanal, applied successfully to the Tandai House of Chiefs declaring he had the Powers and Birth Rights to the Honiata and Ravuneha customary land in a decision given on the 20^th November 2009.
   
4. Despite being properly served and advised of the hearing date the 1^st Respondent, Chief of the Kakau-Gota Clan did not attend the hearing. Rather he disputed the appellant’s claim and wrote to the Chiefs stating that unless his four objection points were addressed before the hearing he would not attend. Although he did not attend he was apparently observed on at least one occasion driving up and down the street outside the hearing.
   
5. Notwithstanding his non-appearance, the 1^st respondent appealed to the Guadalcanal Local Court. On the 7 October 2011, they ordered the matter be referred to a fair and neutral panel of chiefs for a rehearing pursuant to Section 13(e) of the Local Court Act.
   
6. The appellant attended this hearing and in their decision the Local Court recorded:-
   

On the defendant side, Mr Onesimo Reinunu, was asked if he had anything to say to this Court in response to the plaintiff’s application and submissions. In reply, he said he only present to hear what the plaintiff has to say. He made no further comment.

7. The appellant being dissatisfied with the decision launched the Judicial Review proceeding on 9 November 2011. In those, he took issue with the objection process adopted by the 1^st respondent alleging it was disrespectful to the Chiefs. He pleads that if the 1^st Respondent was unavailable to appear before the Chiefs someone else from the Kakau-Gota Clan or the Lakuili Tribe should have attended.
   
8. He further alleges bias against the Local Courts for three reasons.
   
   • (i) The hearing was initially set for 27 September 2011. The night before a member of the Court, Basil Savani, arrived drunk at the place where the appellant was staying. He alleges Savani said:-
     

“This matter will be postponed tomorrow, because Usa rang from Malaysia to postpone the case. The decision of the Chiefs is not right. We will postpone it and refer it back to the Chiefs. I am the man who judges all the case on this island.”

(ii) That on the 27 September 2011, at the hearing, the Acting President, Charles Manakako, said:-

“Today we will postpone the case because the appellant is not present. The matter will be heard again in Tetere, you do not need to attend because it is just a preliminary hearing. First, Siriako should submit his appeal points. After Siriako submitted his appeal points then we can set a date for a proper hearing.”

(iii) That at the hearing on 7 October 2011, the Local Court heard submission from Siriako and then asked the appellant if he had anything to say. The appellant said that he understood a proper hearing would now be set. Notwithstanding this, the Local Court retired for 15 minutes and then returned and made the orders.

9. The 1^st respondent supports the Local Courts decision. He says the appellant had the chance to address the Local Court and in any event, his proper course was to appeal to the Guadalcanal Customary Land Court.
   
10. On 11 April 2012, the Judicial Review Proceedings were listed for first hearing on 30 April 2012. On that date the appellant’s counsel, Mr Gabriel Suri failed to attend. As a consequence Chetwynd J made the strike out order. The email from the Courts to Mr. Suri dated 3 September 2012 confirms 30 April 2012 was a first hearing.
    
11. The affidavits filed make it clear that the appellant was not personally advised of the hearing date. However, it is equally clear Mr Suri was sent a notice of hearing so the appellant is deemed to know of the hearing date.
    
12. Mr. Suri, in his affidavit states the hearing notice was placed on the file by his staff and not entered in his physical or electronic diary. That may be so but the Court emails out a weekly list on Friday afternoon. Mr. Suri did not bother to open his email until 12:40pm on 30 April. He claims he did not receive emails on late 27 April or 30 April. He gives no reason for this.
    
13. It is the obligation of Counsel to properly diarize dates and appear. While slip-ups occur, it seems inexcusable here where the Court sent an electronic reminder. What occurred here appears to be problem endemic to some counsel in the Solomon Islands. It interferes with the smooth running of the Courts, the administration of justice, and is disrespectful to the Court. Some counsel need to seriously consider their responsibilities as officers of the Court.
    
14. However, we note this was in fact a first call of this matter so there can be little prejudice to the 1^st Respondents. We also note that the 2^nd and 3^rd Respondents had not filed a defence by that date. We are also satisfied that the appellant has a good arguable case, particularly given the currently unanswered matters relating to bias we set out in para [8] above. Judicial Review is the appropriate form to confront alleged bias.
    
15. Accordingly, we quash the order for strike out. But Mr. Suri needs to understand that he can expect no further indulgence from the Courts. He carries a heavy responsibility to advance this matter expeditiously.
    
16. This appeal has solely been occasioned by the inaction of Mr. Suri. He concedes he should pay cost personally on an indemnity basis. Indeed he should have offered costs to the other side given he was seeking an indulgence for a personal mistake. Solicitors in the Solomon Islands need to understand that this court’s response to such default will generally be to hold the responsible solicitor personally liable for indemnity costs.
    
17. Accordingly, we order that indemnity costs of, occasioned and thrown away be the appeal should be paid to the 1^st respondent by Mr Suri.
    

Justice Williams
Acting President

Justice Hansen, J.A
Member

Justice Apaniai, J.A
Member