Teika v Sanga [2013] SBCA 4; Civil Appeal Case 29 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from Judgment of the High Court of Solomon Islands Civil Case No. 262 of 2010 (Faukona, J.)
COURT FILE NUMBER:	Civil Appeal Case No. 29 of 2012
DATE OF HEARING:	22 April 2013
DATE OF JUDGMENT:	26 April 2013
THE COURT:	Goldsbrough, President Sir Albert Palmer, JA. Sir Gordon Ward, JA.
PARTIES:	Amos TEIKA and Samlinson Company Limited (Appellants) -V- Patrick SANGA, Frank TIBUA and John SA'OGHATOGHA (Respondents)
ADVOCATES: Appellant: Respondent:	C. Hapa for Appellants N. Laurere for Respondents
KEY WORDS:	Dismissal of appeal Locus Standi Res Judicata
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Dismissed
PAGES:	1 – 6

JUDGMENT OF THE COURT

Should this appeal be heard?

1. This appeal is based on leave to appeal granted on 11 January 2013 by a single judge. Subsequently, on 14 January 2013, the Registrar of the Court of Appeal determined security for costs and the same day informed counsel for the Appellants of his decision. That security for costs was determined to be $26,000 payable by 29 January 2013. It was not paid on that date but on 5 April 2013.
   
2. On 11 February 2013, the same Registrar wrote to the same legal practitioner about the same appeal. In that letter it was noted that no response on any matter concerning the appeal had been received, no security paid, no agreement on the index to the appeal book, indeed nothing had been completed in anticipation of the appeal hearing.
   
3. That letter ended with the decision of the Registrar to list the appeal for dismissal in this session of the Court of Appeal
   
4. Today before this Court there is an appeal book and submissions from both parties. Following payment of security on 5 April 2013, an Appeal Book has been prepared and the Appellants have filed submission on the appeal on 19 April 2013. The Respondent submissions were filed shortly before this hearing.
   
5. A hearing of the substantive appeal was not the purpose of this hearing. This hearing was fixed to hear of the default in compliance with directions and for consideration of a default dismissal.
   
6. In an affidavit, filed without leave, counsel for the Appellants sets out what, in his view, took place. He deposes to not being aware until after his return to the jurisdiction on 26 January 2013 of the Registrar's directions and that by the time he did become aware the time limit had lapsed.
   
7. One complaint in his affidavit is of non-participation in the Directions process. Given that in the same material, he sets out how his offices were closed throughout the period 17 December 2012 to 17 January 2013 and that he then left the jurisdiction on 19 January 2013 until returning on 26 January 2013, it is difficult to identify any time when he could have been so involved. Even in that short period between his offices opening in the New Year and his departure, it is evident that he did not ensure that his High Court pigeon hole was checked for correspondence sent by anyone during any time within the vacation or following it. Nor does he set out any attempt to respond albeit belatedly to either of the letters from the Registrar.
   
8. In submissions from the Bar table he asserts that he took the view, as the matter was listed for formal dismissal, which of course it was not between 26 January and 11 February, he would take no step other than to await this hearing.
   
9. That, we feel obliged to point out, was not in fact what he did. He chose instead to arm himself with an appeal book and to file submissions on the substantive appeal on 19 April 2013, the same day he chose to serve on counsel for the Respondents the Appeal book and his submissions. If that was designed as an ambush, it is heartening to note that it did not work.
   
10. It appears, and counsel for the Appellants does not challenge this position, that the Notice of Appeal was served for the first time on the Respondent's on 21 March 2013 after a written request for it dated 12 February 2013. That letter itself was prompted by the Registrar's letter of 11 February 2013, the first indication to the Respondents that an appeal was now on foot. There is no explanation offered as to why that letter of 12 February 2013 from opposing counsel did not itself receive a response until 21 March 2013.
    
11. By choosing to ignore letters from the Registrar and from opposing counsel, counsel for the Appellant has exposed his clients to the substantial risk of losing their appeal by default. It is a matter of great regret to this Court that such a state of affairs exists and gives credence to street talk about the poor performance of lawyers within this jurisdiction.
    
12. Legal practitioners have only themselves to blame for this poor reputation, as it appears from this example to be well deserved. Any legal practitioner knows or should know that if they can demonstrate lack of notice of a particular order or direction then a new time limit may be requested. Any legal practitioner knows or should know that he has a duty to respond to professional correspondence with due diligence.
    
13. We were minded to dismiss this appeal for those reasons but took into account submissions from the Respondent that, given the choice, they would prefer that the appeal is decided upon merit. Given that submissions had been received from both parties and that both parties appear and are ready for a hearing, we are prepared to determine the appeal on its merits as requested by the Respondent. Lest it be thought that this would always be the case we indicate that a default such as took place in the preparation of this appeal merits dismissal and we would not hesitate in similar circumstances to take that course.

The substantive appeal

14. Leave having been granted on 11 January 2013 this appeal is against interim orders made within HCSI CC 263 of 2010. There are two issues on the appeal, the first being the question of locus standi and the second issue estoppel
    
15. The claim in the High Court relates to a Felling licence No. A10543 issued under the Forest Resources and Timber Utilisation Act [Cap 40] (FRTUA) in favour of the First Appellant. In obtaining that licence the First Appellant relied upon a decision of the Bellona Local Court Case number 75 of 1979 in which they claimed ownership of the whole of Tehakamaguku land.
    
16. Aside from claiming that the procedure under FRTUA is defective, the Respondents also challenge whether the decision of the Bellona Local Court covers the entire land area known as Tehakamaguku or four small pockets of land called Tegepa, Kagigo, Niupani and Nukumanogi.
    
17. An appeal against the issue of the licence under FRTUA was filed on 15 May 2007. It is registered as CLAC 6 of 2007 and a receipt numbered B1129334 shows the requisite fees paid in that respect. It is also part of the claim that other landowners also lodged appeals against the same grant.
    
18. Following a determination of who may negotiate and prior to granting a licence it is normal procedure for the Commissioner of Forest to ascertain whether any appeal has been lodged against that determination. A letter seeking such information was written and sent to the Chief Magistrate on 29 June 2007 and a reply written and sent on 4 September 2007. That letter in response would often constitute a certificate of no appeal. In the alternative it would indicate an appeal filed and pending.
    
19. In this instance, whilst in fact an appeal as described in paragraph 17 was on foot, the reply referred to the customary land case completed in the Local Court (on customary ownership as opposed to Timber Rights) and certified no challenge to that process. It then went on;-
    

"Timber rights should not be heard on that same land where decision was already made."

It is difficult to understand not only that expression of opinion contained in the letter but why the writer thought that such an expression of opinion should be contained in an official reply on behalf of the Chief Magistrate to a simple question – is there an appeal against the process under FRTUA – the answer to which question was clearly 'yes'.

20. Whatever the reason or rationale behind the letter, it cannot be a substitute for a decision of the Customary Land Appeal Court (CLAC) charged with making determinations against decision of the relevant Provincial Executive as regards Timber Rights under FRTUA. Nor do we accept the argument put forward by the Appellants that such a letter serves a useful function as a filter to weed out unnecessary or hopeless appeals against the same process.
    
21. There is an existing appeal to the CLAC which in spite of it having been lodged in 2007 has still not been determined. Were it not for the letter dated 4 September 2007 the FRTUA licence would be unlikely to have been finalized prior to disposal of the appeal. In the circumstances, we agree with the finding of the primary judge that the Appellants have locus standi to bring these proceedings.
    
22. The second, related, question is that of res judicata. This arises as it is said that the same parties argued and had resolved the same issue of land ownership of Tehakamaguku land in the Local Court, effectively the same argument contained in the letter from the Office of the Chief Magistrate described above. That argument, in our view, cannot succeed. In addition to the substantial question of land ownership, the statutory process of granting a licence under FRTUA is quite different. It is not confined to issues of ownership although it must certainly encompass that ownership question. In addition, we agree with the remarks of the learned judge at paragraph 31 of his judgment where he says that there is an argument that the concession area covers land not awarded by the local court and other lands outside of the Tehakamaguku land area, which is defined in paragraph 5 of Sanga's sworn statement filed 9 January 2012.
    
23. For those reasons we concluded that the judge was correct when he formed the conclusions that the Respondents to this appeal had established both that they were possessed of locus standi and that res judicata did not apply.
    
24. Before concluding that interim interlocutory relief was indicated the judge applied the usual test and formed his conclusions, about which there is no issue brought on this appeal.
    
25. This appeal is dismissed. Costs to be agreed or taxed will be paid by the Appellants to the Respondents on this appeal.
    

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Justice Goldsbrough
President

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Sir Albert Palmer, JA
Member

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Sir Gordon Ward, JA
Member