Zorutu Development Company Ltd v Likokovu [2014] SBCA 31; SICOA-CAC 19 of 2014 (17 October 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 NUMBERS:	Civil Appeal Case No. 19 of 2013 (On Appeal from High Court Civil Case No. 38 of 2012)
DATE OF HEARING:	13 OCTOBER 2014
DATE OF JUDGMENT:	17 OCTOBER 2014
THE COURT:	GOLDSBROUGH P, HANSEN JA, WILSON JA
PARTIES:	Zorutu Development Company Ltd Appellant -v- Hilly Likokovu Alick Lamubeti Basanio Jack Lamana Terry Matekolo Respondents
Advocates: Appellant: Respondent:	Mr. Suri, Suri's Law Practise Mr. Hapa, Pacific Lawyers
Key words	High Court Rules. 15.3.8. 15.3.9 Time Limits. Extensions of time.
EX TEMPORE/RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	- 7

JUDGMENT OF THE COURT

The appeal is allowed.

Costs to the appellant before the primary judge, on the leave application and the appeal on an indemnity basis.

[1] Counsel for the respondents, Mr. Hapa, withdrew on 10 September 2014. The respondents did not attend. Accordingly, we invited Mr. Hapa to attend to assist the court. He willing did so. He advised he wrote to the respondents returning the documents. He confirmed these included the Registrar's directions of 27th August 2014. The appeal was listed for hearing on Thursday 16 October 2014. Mr. Hapa also advised he had received a letter from ANT legal Services referring to a letter of 2 October 2014 (Which he had not received). In the letter of 12 October 2014, signed by Mrs. Tongarutu, it was acknowledged that the hearing date was 16 October 2014 and requesting any further documents be forwarded. Mr. Hapa agreed to reduce the above to writing and file it as soon as possible. We also had the respondents called and there was no appearance.

[2] This is an appeal against a ruling of Mwanesalua J dated 1 July 2013. The Judge granted an application for an extension of time to bring judicial review proceedings, seeking to quash an order made by the Western Customary Land Appeal Court on 2 December 2006.

[3] In his written ruling the Judge sets out the grounds, briefly considers the evidence, appears to have accepted the evidence of Mr Avita and Mr Talasasa that no public timber rights hearing was convened by the Gizo/Kolombangara Council (the Council) regarding Zorutu customary land, and granted the extension of time.

[4] Of more concern are the matters raised by two affidavits filed in support of the appeal by John Prasad and James Risu. They both state they were in Court on 1 July when the hearing was held, and a brief ruling was made by the Judge refusing the application for extension of time and stating that Messrs Talasasa and Avita may have perjured themselves, and he would be referring the matter to the DPP for further investigation.

[5] A draft order based on this ruling was not filed. On 14 May 2014 counsel for the appellants wrote to the registry. He pointed out the ruling said to have been made by the judge on 1 July 2013. He also stated court staff advised a draft was before the judge awaiting perfection. Then on 27 May almost 11 months later, the contrary ruling was handed down incorrectly dated 1 July 2013. It should have been dated 27 May 2014..

[6] There is no analysis by the judge of the evidence, a consideration of delay or whether the evidence now advanced was fresh evidence.

Decision

[7] A claim for a quashing order must be made within six months (Rule 15.3.8). However, "The Court may extend the time within or outside of the prescribed period for making a claim if it is satisfied that substantial justice requires it." (Rule 15.3.9).

[8] It was the respondents' case at the hearing below that there was fresh evidence to show no timber rights hearing had taken place and there was no determination as shown on the published Form 2.

[9] The deponents Mr Avita and Mr Talasasa variously claim no recall of signing documents (Avita) or only signing on direction (Talasasa).The fact is they have both signed a significant number of documents that run counter to the evidence they now advance.

Delay

[10] It is clear that there has been extreme delay of almost eight years in proceeding with this matter.

[11] This Court said in Reef Pacific Trading Ltd v Island Enterprises Ltd [1995] SBCA 1 at 6:

In Samuels [Samuels v Linzi Dresses Ltd [1981] 1 QB 115 (CA)] the English Court of Appeal affirmed that the English courts had the power to extend time under the rule notwithstanding has (sic) an "unless" orderbeen made and not complied lied with. The Court declared that the "modern practice" was not to treat the action as "dead". Although orders were made to be complied with and not ignored, and the provision of relief was always a matter for the exercise of discretion, where the justice of the case required an extension of time, the court might retrospectively grant it. See ibid. Expressly, the, the English Court of Appeal held that Whisti> [Whistleistler v Hancock [1878] UKLawRpKQB 3; (1878) 3 QBD 83] should no longer be followed.

[12] In that case the Court determined a delay of five years was a gross delay, because memory had faded and witnesses were unavailable. The view was also expressed that the principle of finality in litigation must be given some weight.

[13] The reference in the exhibited minutes of the Council as to seeking advice from the Attorney-General regarding the effect of the decision in Lilo v Panda Rizu [1980/1981] SILR 155 is salutary. That decision shows this dispute goes back to 1967, not 1996 as the judge thought. Behind this application is a land dispute. The Lilo decision concerned the land at the heart of this dispute. The Chief Justice in Lilo recorded that the disputes had a long history of hearings and decisions, starting with a decision of Roviana Local Court in 1967 and the Vella Lavella Local Court in 1978. Both decisions were upheld by the learned Chief Justice.

[14] The delay here is inordinate in the extreme, and in our view is not satisfactorily explained.

Prejudice

[15] There will be prejudice from this gross delay to the appellant, because the clerk of the Area Council who sat at the Gizo-Kolombangara Area Council Timber Rights Hearing on 19 June 1996 has died. The witnesses relied on by the respondent, Kohi Talasasa and Etik Avita, have made conflicting and confusing statements (to put it at its most neutral). They deny minutes that bear their signature, even though the minutes had been in the possession of Mr Avita all along. There is confusion as to the timber rights hearing date, and confusion as to the making of Form 2. Given the passage of time there would be extreme prejudice in attempting to enquire into and refuting their evidence.

Is the evidence fresh?

[16] Given there are allegations of fraud and dishonesty, the matter would be somewhat different if the evidence was truly fresh. It is demonstrably not so. The appeal letter to the CLAC dated 24 December 1996, signed by Gordon Darcy, states that the Council "did not hold a public hearing for purposes of determining the grantors of timber rights over the said Zorutu land". The respondents herein were the appellants before the CLAC and had the burden of proving that no public hearing for purposes of determining the grantors of timber rights over the said Zorutu land. At the CLAC one of the respondents, Terry Matekolo, made submissions and evidence to the CLAC, and the CLAC records "the submission or evidence of Mr Terry Matekolo to the Court confirms that the appellant's party attended the public hearing on 1st November 1996 at the Old Power House, Gizo". The issue as to whether or not there was a timber rights hearing has been alive since at least December 1996.

[17] The CLAC statement must be accepted as correct. There was no appeal against that finding and there is no evidence from Mr Matekolo denying it. From the respondents point of view the best interpretation that can be placed on this is that the respondents' witnesses are in major conflict on a critical matter with a previous statement of one of the respondents.

[18] But fatal to the respondents claim the evidence is fresh are the documents they themselves have produced. At EA2 of the Avita affidavit, there are minutes of a meeting held between 30 October 1996 and 1 November 1996. At the third page of those minutes, under 'Recommendations and Resolutions' it is recorded:

The Council first of all endorsed the clarification by the Attorney General Chamber on timber rights over Zorutu land Kolombangara. The clarification had been requested by the GKAC after receiving submissions by both parties attending the last Timber rights hearing conducted by the GKAC. In civil case Rizu Panda – George Lilo 1980/81 SILR 155 High Court decision over Zorutu land timber rights, the Attorney-General chamber has clarified according to decision of the said Court case that Rizu Panda and his line had been declared as having timber them. He says they may have been brought to them by Rizu Panda and he signed them. He claims rights and rightful owners of the Zorutu land. The council therefore having endorsed the clarification by the AGC is satisfied with all evidence so far received and thereby granted timber rights to Rizu Panda and his line as rightful owner of Zorutu land. The council seek to inform both parties of its deliberations. (Our emphasis)

[19] Mr Avita does not deny signing these minutes just saying he can't recall. Mr Talasasa says he signed the documents on the basis they were brought to him by Mr Rizu Panda and he did not know the purpose of the documents. He also said that he was sent a letter from the relevant Member of Parliament to the Provincial Secretary (Western). On it the secretary had endorsed a note to the witness to issue Form 11 as the president had confirmed the decision had been endorsed at the last Council meeting. The president was, of course, Mr Avita.

[20] There is a further document at 92 of Book 1 of the appeal record. It is also signed by Avita and Talasasa. It is dated 9 December 1996 and is an extract of minutes of the 'Gizo-Kolombangara Area Council extraordinary meeting 31/10/96'. The resolution reads:

The council therefore having endorsed the clarification by the Attorney-General chamber is satisfied with all evidence so far received and as a matter of procedure under its jurisdiction resolved to grant timber rights to Rizu Panda and his line for that matter to the applicants which is Zorutu Development Company Ltd. In doing so the council directed to proceed on with issue of Form 2 and make recommendations to approve the application to the appropriate Government authorities. (Our emphasis)

[21] These minutes establish that both deponents in support of the application to the High Court have known of the evidence since 1996. Not only do they produce them but they have been in Mr Avita's care throughout. It seems incredible that after 18 years the deponents have such total recall of events that are at complete odds with the contemporaneous documents.

[22] Further the evidence at the crux of the respondent's application is contradicted by one of the respondents Matekolo.

[23] This makes it clear that the application to Mwanesalua J by the respondents was fatally flawed. The evidence is not fresh.

General

[24] We have no doubt what occurred here was that the timber rights hearing commenced before the Council on 19 June 1996. Because there was a reference to the Lilo v Rizu decision the matter was adjourned part heard to obtain the opinion of the Attorney General as to the effect of that case. That advice was sent on 30 September 1996. The Council reconvened, accepted that advice and awarded the timber rights to the Rizu Panda line. This is confirmed by the minutes.

[25] We can do no better than refer to the decision of Goldsbrough J (as he then was) in HCSI CC 323 of 2008 when the present appellant sought damages for unlawful interference with their contractual relations and a permanent injunction restraining the defendants from interfering with their logging operations (the defendants in that case included all of the present respondents). The applications were successful, and at [10] the Judge noted:

The Court notes with dismay the closing remarks of counsel for the defendant. His final closing remark in these proceedings was to indicate that his client will challenge the grant of this licence. Given that these proceedings have been in existence since October 2008, and occupy two days of hearing time arranged at the request of counsel, it seems quite remarkable that counsel for the defendants sees nothing inappropriate about his remark. Whilst it cannot be the case that counsel has deliberately prolonged these proceedings and thereafter will begin different proceedings solely to increase the fees payable to him by his clients, it is difficult to see quite why counsel for the defendants and his clients have chosen to defend these proceedings without first making any challenge to the grant of the licence. (Our emphasis)

[26] Over two years after that date, Mr Hapa launched these proceedings.

[27] As we have already said, behind this case is a land dispute. It was first decided as long ago as 1967. At every successive stage the respondents have been unsuccessful. This is an application that should never have been brought by the respondents. The appeal is allowed and the grant of extension of time for the respondents to apply for judicial review is quashed.

[28] There will be costs on the application before the primary Judge, costs of the application for leave to appeal, and costs of these appeals to the appellant on an indemnity basis.

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Goldsbrough P
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Hansen JA
Member of the Court of Appeal