GRP & Associates Ltd v Palmer [2014] SBCA 1; SICOA-CAC 08 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J.)
COURT FILE NUMBER:	Civil Appeal Case No. 8 of 2014 (On Appeal from High Court Civil Case No. 431 of 2009)
DATE OF HEARING:	28 APRIL 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Sir Gordon Ward JA,
PARTIES:	GRP & Associates Limited 1st Appellant and Michael Edward Hemmer 2nd Appellant -V - Leonard Scott Palmer Respondent
Advocates: Appellants: Respondent:	A. Radclyffe 1st & 2nd Appellants J. Sullivan QC and Katahanas Respondent
Key words	Contract – Duly Stamped – Retrial of whole Proceedings.
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED	Allowed
PAGES	1- 4

JUDGMENT OF THE COURT

The respondent commenced proceedings against the first and second appellants and the Attorney General by claim filed 3 November 2009. At all material times, the respondent was the registered owner of a fixed term estate in a parcel of land on Gizo. In the action, he claimed various declarations and orders against the appellants, including an order that the appellants forthwith deliver up possession of a portion of that land, and orders for mesne profits and damages for trespass.

By defence and counterclaim filed 18 November 2009 the appellants sought specific performance of an agreement dated 18 September 2003 which was alleged to relate to part of the Gizo land, dismissal of the respondent's claims, damages and interest.

After amendments to both sets of pleadings the matter went to trial before Mwanesalua J on 7 – 10 August 2012. Submissions, including written submissions, were made by the parties on 17 October 2012.

When the judgment was not delivered within 3 months as provided for by rule 12.30 of the Solomon Islands Courts (Civil Procedure) Rules 2007 both parties contacted the judge and the Registrar but nothing happened. There were a number of approaches by the parties to the court about the non delivery of the judgment between January and June 2013. The parties were then notified that judgment would be delivered on 10 June 2013. There was some indication the decision would be based on a stamp duty point. Neither party had made a submission to the effect that the agreement of 18 September 2003 was not duly stamped. Before judgment was delivered counsel for the appellants drew the judge's attention to the fact that the document of 18 September 2003 was stamped on 9 November 2009 prior to filing of the defence and counterclaim on 18 November 2009. The judge delivered an oral judgment on 10 June 2013 based on the asserted non – stamping of the agreement of 18 September 2003 when the action was commenced. Consequential relief was granted to the respondent. It was intimated written reasons would be provided.

As no written reasons were forthcoming by 24 January 2014 the respondent's lawyer lodged orders based on the oral reasons. On 3 February 2014, the appellant filed a notice of appeal. On 12 February 2014, the Judge's written reasons were made available.

It appears that all parties and the judge believed that a transcript of oral evidence at trial would be available but none was forthcoming. The judge had made notes of evidence and they were made available to the Court of Appeal. But the notes were cryptic, and were no more than a précis or paraphrase of some of the evidence.

In the written reasons, the judge referred to the document dated 18 September 2003 and an earlier purported agreement between the parties in 1995. He concluded, correctly, that the purported 1995 agreement was ineffectual for number of reasons. But he made no findings on critical factual matters such as the building of a house by the appellants on part of the Gizo property and their apparently enjoying quiet occupation of it for some years.

The respondent claimed that a signature or signatures on the document of 18 September 2003 were forged. The Judge make no finding on that merely noting: "The Claimant denied executing the Agreement. His signature on the agreement was very different from his normal signatures in documents before the court".

Critically the judge held the document of 18 September 2003 was stamped "on 9 November after this case had been filed. It should have been filed (sic) before the claim was filed." He therefore held that in consequence of S.9 of the Stamp Duties Act (cap 126) the document had no effect in law. In consequence, he made the orders sought by the respondent with costs.

The reference to the need for stamping before the proceeding was commenced was based on the decision of this court in Austree Enterprises Pty Ltd & another - v – Guo and others [2012] SBCA 19. But the relevant proceeding for present purposes was the appellant's counterclaim not the respondent's claim. The document was stamped before the counter- claim was filed, therefore it was stamped in time.

The document bore the imprint of the stamp with the date. Though it was stamped late (see s. 20 of the Act) no penalty was assessed by the Chief Collector or his deputy. When the document was tendered no point was taken in relation to penalty and the six month period for recovery of penalty (s. 28) had passed. In those circumstances, the trial judge should have concluded the document was duly stamped and therefore not rendered void for want of stamping.

In those circumstances, counsel for the appellants submitted there should be a retrial of the whole proceedings before a different judge.

Counsel for the respondent submitted that on the material before this court it was clear that the agreement of 18 September 2003 was unenforceable because of uncertainty and that any retrial should be limited only to some aspects of the respondent's claim.

The difficulty facing the respondent is that acceptance of his counsels' submission essentially involves this court making findings of fact, which were not made by the trial judge in circumstances where the trial judge make no findings of material facts and expressed no findings on credibility.

Particularly given the absence of a full transcript there would be an element of speculation in this court making any findings of fact. It is not possible to conclude on the existing material that the alleged uncertainly in the 18 September 2003 agreement could not be overcome by evidence. As already noted the appellants have enjoyed quiet enjoyment of a house they have erected on part of the Gizo land for some time. Findings with respect to that could well impact on conduct of the parties with respect to the alleged 2003 agreement and associated issues. It is only when findings on credibility and findings of fact on disputed evidence are made that a court could come to any conclusion in law on the issues raised by the litigation. That cannot be done at this stage by this court.

Regrettable though it is the only conclusion open is that the whole proceeding should be sent back for retrial before a different judge. The costs of the aborted trial and of this appeal should be each party's costs in the cause.

ORDER

1. Appeal allowed.
2. Set aside all orders made by the trial judge.
3. Order that the whole proceeding be retrial before a different judge.
4. Costs of the first trial and of this appeal be each party's costs in the cause.
   

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Goldsbrough JA
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Sir Ward JA
Member of the Court of Appeal