Palmer v Vunagi [2014] SBCA 33; SICOA-CAC 20 of 2012 (23 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Chetwynd J.)
COURT FILE NUMBER:	Civil Appeal Case No. 20 of 2012 (On Appeal from High Court Civil Case No. 469 of 2009)
DATE OF HEARING:	24 APRIL 2013
DATE OF JUDGMENT:	23 MAY 2014
THE COURT:	Goldsbrough President, Sir Gordon Ward JA, Sir Albert Palmer, Chief Justice
PARTIES:	John Palmer Appellant -v- Johnson Vunagi, Estate of Hilda Pago Vahia (deceased) and Kathleen Fraide 1st Respondent Attorney General (representing the Registrar of Titles Respondent) 2nd Respondent Attorney General (representing the Commissioner of Lands). 3rd Respondent
Advocates: Appellants: 1st Respondents: 2nd and 3rd Respondents:	Mr Michael Pitakaka Mr. Dwane Tigulu Mr. Daniel Damilea
Key words
EX TEMPORE/RESERVD:
ALLOWED/DISMISSED	DISMISSED
PAGES	1-5

JUDGMENT OF THE COURT

1. The Appellant in this matter appeals against an order striking out his claim in the High Court. The claim of the Appellant was struck out at a preliminary hearing on 18 June 2013 on the grounds of judicata and abuse of process.
   
2. The grounds of appeal are that the learned judge erred in fact and law in holding that the claim amounted to an abuse of process, that his finding in the regard was in error being consistent with the principle that no one should benefit from fraud and in error for holding that costs be on an indemnity basis.
   
3. The claim in this matter was filed on 7 December 2009 and in that claim the claimant sought:
   

A declaration that the will of James Kaiputi is null void

A declaration there was no Kia Local Court hearing between Ezekiel Zavani and Ben Bao in respect of the ownership of Varei customary land.

A declaration that the purported 1977 Kia Local Court decision referred to in the above paragraph was obtained by fraud and therefore is null and void; and

Consequential orders that a declaration that the registration of the title of in the Perpetual Estate in Parcel number 106-002-1 in the names of the 1st defendant were made or obtained by fraud and therefore null and void, cancellation of registration of that title number and a referral by the High Court of the question of ownership of Varei land to the appropriate forum and damages and exemplary and aggravated damages and costs.

4. There was a previous decision of this High Court in 1998. That case was begun in 1995 by claim brought by the same claimant as brought the present claim. His claim was then brought against the same defendants and covered the same subject matter. That claim sought rectification of the Land Register in respect of the same Title number on the same grounds of fraud and mistake.
   
5. There is no issue that this was in fact the case and that can easily be seen in the previous claim and judgment. The issue in this appeal is whether that decision of 1998 was based on the merits of the claim in relation to the allegation of fraud or whether that decision was a dismissal without consideration of the merits of the claim.
   
6. There is a further issue as to whether if the finding that the claim was dismissed on its merits whether the strict application of the rule of res judicata offends the principles of natural justice in that it may lead to a person benefiting from fraud.
   
7. After the hearing in 1998, at which hearing the Appellant had the benefit of counsel, in his decision what the learned trial judge said about the allegation of fraud is set out in the judgement now appealed. He said:
   

"In the affidavit of the Plaintiff no attempt was made to aver the animus furandi - the facts alleged to disclose fraud upon which the Commissioner was said to have acted. No attempt was made later on. In the ease, to pursue the allegation of fraud. Learned counsel Mr Radclyffe, for the plaintiff, did not make submission to the court to consider fraud. I have not come across any suggestion of fraud in the whole case, the application for rectification based on fraud is dismissed."

8. Later in his judgment the learned judge discusses the evidence of mistake alleged in the earlier case, and notes that the then Plaintiff asserts that there was either no Local Court decision or that the decision was not that which the then defendants asserted to be the ease. There is a remarkable similarity between that and the Appellant's position in the present case.
   
9. In dismissing the 2005 claim the judge dealt with both mistake and fraud. Whilst it is not correct to say that the fraud claim was considered and positive findings made against the present Appellant that was only because the Appellant presented no evidence on fraud. At the same time he did not seek to withdraw the allegation of fraud or explain why he presented no evidence on that point. The learned judge in those circumstances was obliged to make the finding that he did.
   
10. When the present claim was before the High Court and Chetwynd J the question of res judicata was raised and submissions made on that. In dealing with that the trial judge set out the relevant test and applied the test which he had set out to the facts he found on the previous and the present claim. He set out in great detail the similarities between the previous and the instant case. We do not propose to set out those same similarities here.
    
11. The learned judge went on to explain res judicata in both the traditional and the more modern, wider sense of abuse of process. He referred to Henderson v Henderson (18434) [1843] EngR 917; 3 Hare 100 and the later case of Johnson v Gore Wood (2001) 1 All E R 481. Both in setting out the relevant test and reaching his conclusions we agreed with the learned judge. Again we do not propose to repeat that which he set out but refer in particular to the extract from Johnson v Gore Wood which he sets out at paragraph 10 of his judgment.
    
12. We do not consider that this represents a too dogmatic approach. We are aware of the Solomon Island approach to the issue of customary land ownership and how such ownership disputes are expected and do continue from generation to generation. We therefore note the difference in approach. Simply because there is a difference that does not indicate that one approach or the other should be favoured. When it comes to litigation brought into the High Court a litigant should not expect to be able to import rules and customs of a different regime.
    
13. That, in essence, is the issue here. This Appellant seeks to re-litigate the same questions. Some of which had already been fully litigated and determined and some of which he had the opportunity to litigate and failed to prove. He submits that he now has material that he did not have when he previously brought the matter before the High Court.
    
14. At first instance the judge considered whether this should be permitted and he determined that it would be wrong to permit that. He referred to the number of years that have passed between the various decisions that being thirty years since the Local Court decision and thirteen years since the decision of the High Court in 1998. He arrived at the conclusion that even if the present matter was not strictly res judicata, in that the fraud issue was not the subject of an adverse finding on evidence, he felt that it came within the wider rest outlined in Gore Wood.
    
15. We do not disagree with either of his findings in that regard. It is not the public interest to permit litigation to be repeated or for it not to reach some finality after trial. For those reasons we see no merit in this appeal and it is dismissed on the substantive matter.
    
16. Turning to the question of whether, in dismissing the claim, the learned trial judge was correct in awarding cots on an indemnity basis we consider that Rule 24.12 of the Solomon Islands Courts (Civil Procedure) Rules allows the Court in its discretion to order indemnity costs when a party has brought litigation in circumstances which amount to a misuse of the litigation process. An award of indemnity costs is a matter for the judge's discretion and, when exercised, should be accompanied by his reasons for the decision. No such reasons were given and without them, it is not possible for an appellate court to evaluate his decision.
    
17. This appeal is dismissed and the orders made in the court below confirmed, save for the order for indemnity for costs which is set aside. The costs of this appeal and below incurred by the Respondents will be paid by the Appeal such costs to be agreed or taxed on the standard basis
    

Orders of the Court:

1. Appeal dismissed.
2. Order of the Court below confirmed, save the order for cost
3. Order for costs on indemnity basis is hereby set aside and substitute order for costs to be paid by the appellant such cost to be agreed or taxed on standard basis.
   

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Justice Edwin Goldsbrough, President of the Court of Appeal.

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Sir Gordon Ward, Justice of Appeal.

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Sir Albert R. Palmer, Chief Justice