Chow v Podarua [2014] SBCA 17; SICOA-CAC 11 of 2013 (14 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (CAC 11 of 2013)
COURT FILE NUMBER:	Civil Appeal No 11 of 2013 (On Appeal from High Court Civil Case No. 125 of 2010)
DATE OF HEARING :	14th October 2014
THE COURT:	Williams JA Hansen JA Wilson JA
PARTIES:	Mary Chow APPELLANT -v- Aggie Podarua RESPONDENT
ADVOCATES: Appellants: Respondent:	Mr Tagini In Person
Key Words:	Enforcement of Judgment – potential perjury - enforcement await finalization of perjury
Ex tempore:	Judgment
PAGES:	1 - 4

COURT:

The Appellant applied to the High Court for an Order that she be granted leave to sell property the subject of a charging order placed against property owned by the Respondent and another effectively to enforce a judgment obtained in the High Court on the 3rd of August 2010. At first instance, the Judge refused to grant leave on the basis that perjury proceedings were pending against the Appellant and that the matter should abide the outcome of those proceedings. It is from that decision that this appeal is brought.

The background is as follows. The Appellant sued the Respondent amongst other things for arrears of rent. The trial was heard by Justice Cameron who gave judgment in favour of the Appellant against the Respondent on the 3rd of August 2010 for the sum of $350,000.00. There was a clear dispute at the trial as to the basis on which any rent owing was to be calculated. The Respondent contended that there was a written tenancy agreement for two years but that was vigorously disputed by the Appellant. The trial Judge accepted the Appellant's evidence that there was no written tenancy agreement and the $350,000.00 was calculated on that basis.

Subsequently, the Respondent was able to locate a signed tenancy agreement and it has been submitted to forensic testing. It now seems that the Appellant admits that at the material time there was in existence a written tenancy agreement for a period of at least two years. When it was established that the document (the tenancy agreement) had been signed by the Appellant, perjury proceedings were brought against her. There were initially four charges of perjury. As one reads the decision of the Magistrate, the defence to the perjury charges was in essence that the false evidence given by the Appellant was an honest mistake. The Magistrate convicted the Appellant on three counts of perjury and she was sentenced to a wholly suspended jail sentence on the 8th of April 2014.

The Appellant then lodged an appeal to the High Court and that was the subject of a judgment delivered by Justice Mwanesalua on the 13th of June 2014. For reasons which he gave he quashed the convictions and sentence and ordered a re-trial before another Magistrate. That is where the matter now stands. There are perjury charges still pending against the Appellant arising out of evidence she gave and statements she made in connection with the proceedings before Justice Cameron which resulted in the judgment in favour of the Appellant against the Respondent for $350,000.00.

If ultimately perjury is established then the Respondent would have a right to have the judgment of the 3rd of August 2010 set aside because it was tainted by fraud, and of course all subsequent attempts at enforcing that judgment would also be set aside. If that judgment was set aside, it seems clear that it would be open to the Appellant to have a trial Judge re-calculate on a proper basis the amount, if anything, owing by the Respondent to the Appellant for rental during the relevant period.

If the Appellant were acquitted of the perjury charges that would not necessarily be the end of the matter. It would still be, as I have already indicated, that there was now clear evidence that the $350,000.00 the subject of the judgment of 3 August 2010 was calculated on an incorrect basis. What remedy the Respondent must then have would depend upon a consideration of a number of rules of practice and on advice that she may be given. But the important aspect for present purposes is that this Court could not entertain the hearing of this appeal because by so doing, it has the potential of giving effect to a judgment which was obtained by fraud. This Court would not lend its support to the enforcement of a judgment while that cloud was still hanging over its head.

It seems to the Court that the only course open is to adjourn the appeal to a date to be fixed after the conclusion of the perjury proceedings in the Magistrates Court and after any further appeal in relation thereto. The matter can then be restored to the listing to be dealt with in the light of the position as it then stands.

So the Order of the Court is that the appeal is adjourned to a date to be fixed after the resolution of the perjury proceedings pending against the Appellant in the Magistrates Court. Costs reserved.

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Williams JA
Member of the Court of Appeal

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Hansen JA
Member of the Court of Appeal

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Wilson JA
Member of the Court of Appeal