Estate of Oliver Jino v Majoria [2017] SBCA 1; SICOA-CAC 15 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (BROWN PJ)
COURT FILE NUMBER:	CIVIL APPEAL CASE NO. 15 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 124 OF 2016 and NO. 134 OF 2016)
DATE OF HEARING:	26th APRIL 2017
DATE OF JUDGEMENT:	5th MAY 2017
THE COURT:	GOLDSBROUGH P WARD JA WILSON JA
PARTIES:	Estate of OLIVER JINO (deceased) and ZELIKO MYRE (representing themselves and the Bareke Tribe of Vangunu Island, Western Province). -V- HAVEA MAJORIA (representing himself and the Rodo Tribe). RODO DEVELOPMENT COMPANY LIMITED. CLERK TO NEW GEORGIA LOCAL COURT. CLERK TO CUSTOMARY LAND APPEAL. COURT (WESTERN).
	AND:
	ANDREW LADA and XMAS MYRE (representing the Bareke/Veala Tribe) -V- HAVEA MAJORIA (representing the Kadiki Tribe) RODO DEVELOPMENT COMPANY LIMITED THE ATTORNEY GENERAL (representing the Commissioner of Forests)
ADVOCATES: APPELLANT: RESPONDENT:	MS M BIRD MR M PITAKAKA (with MR J TAUPONGI)
KEY WORDS:	PROCEDURE:NATURAL JUSTICE: EFFECT OF NON COMPLIANCE
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	ALLOWED
PAGES:	1-11

JUDGMENT OF THE COURT

1. This appeal concerns two High Court civil claims which have been consolidated. Those claims are 124 and 134, both of 2016. Case number 124 of 2016 is a claim brought by the Respondents to this appeal and 134 of 2016 is a claim brought by the Appellants in this appeal.
2. The judgment against which this appeal is brought was delivered on 15 July 2016 following a hearing which took place on 27 June 2016 and then 4 July 2016. The effect of that order was to bring both proceedings and proceedings before the Customary Land Appeal Court (Western) to a conclusion. The orders made by the judge at first instance were:-

“i. A declaratory order that the 1^st defendant in these proceedings had no jurisdiction to hear and determine any further dispute over ownership of Rodo customary land between the Bareke/Veala tribes and the Rodo/Kadiki tribe in August 2013 for the Local Court acted outside its jurisdiction so that the 1^st defendant’s decision given on the 12 August 2013 is null and void ab initio.

2. A declaratory order that the decision of the Western Customary Land Appeal Court given on the 13 January 2013 accepting the findings of the Marovo Council of Chiefs decision respecting boundaries and ownership of Rodo customary land dated 7 August 2003 is final and conclusive of those matters and is afforded the protection of Section 10-[2] of the Forest Resource and Timber Utilisation Act.

And I further order;

3. That the application by proceedings seeking to appeal the Local Court decision of the 12 August 2013 to the WCLAC is dismissed by reason of my order i above and the WCLAC be accordingly advised.
4. That the interlocutory proceedings commenced in Civil Claim no. 134 of 2016 for urgent interlocutory orders and those Category A claims filed on the 10 May 2016 are refused and the proceedings dismissed.
5. An order prohibiting the Local Court from hearing or determining any referral of any further dispute over the ownership and/or boundaries of Rodo customary land as between the Rodo/Kadiki tribe and the Bareke/Veala tribes.
6. A permanent injunction against the Claimants in Civil Case No. 134 of 2016 and the Third Defendants in these proceedings, restraining them, their servants, agents, relatives and wantoks from interfering with the logging operation of the First and Second Defendants in Civil Case No. 134 of 2016 and the First and Second Claimants in these proceedings and their contractor in Rodo customary land under felling licence No. A10202, and from entering and/or carrying out any logging activity on Rodo customary land.
7. The 3^rd defendants in these proceedings and the claimants in the other proceedings shall pay the successful claimants (costs) in these proceedings and 1^st and 2^nd defendants’ costs of both consolidated proceedings.”

3. The hearing at which this decision was made and thereafter published was a hearing called to consider the question of leave to bring civil claim 134 out of time. That leave is required when proceedings are brought for a quashing order more than six months after the decision complained of. This is set out in Rule 15.3.8. of the Solomon Islands Courts (Civil Procedure) Rules 2007 (the Rules).
4. This decision was made not, then, after a trial of the issues between the parties, but at an early stage. The reference in the formal order issued by the judge to being “after trial” we believe to be misleading if indeed it is meant to suggest after a full trial of the issues between the parties, for it was arrived at prior to the receipt of all the evidence in the two claims but following submissions on the preliminary question of leave which itself involved the admission for those purposes of a wealth of material touching on the issues between the parties.
5. The appeal is brought on six grounds and it is necessary to set them out in full. They are:-
   1. The application that was listed before the learned judge on 4 July 2016 was the First and Second Respondents’ application for leave pursuant to Rule 15.3.19 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
   2. The learned judge had erred in not addressing the issue of leave pursuant to rule 15.3.19 first and foremost, before dealing with the substance of the claim in Civil Case 124 of 2016.
   3. In doing so, the learned judge had put the Appellants at a disadvantage when he had in his written judgment of 14 July 2016 ruled in favour of the First and Second Respondents as a final order. The Appellants were denied their right to be heard on the substantive claim.
   4. The learned judge had erred in stating that the decision of the Marovo Council of Chiefs is binding on the parties whilst the said decision is an open ended decision that has no distinct or succinct hinterland boundary. The said decision only relate (sic) to a coastal boundary and nothing further.
   5. The learned judge had further erred when he stated that the ownership issue over Rodo customary land is res judicata between the Appellants and the First and Second Respondents as the boundary issue of Rodo customary land had not been succinctly described by the 7^th August 2003 Marovo Council of Chiefs decision.
   6. The learned judge had further erred in consolidating Civil Case No. 124 of 2016 and Civil Case No. 134 of 2016 without an application for consolidation either from the Appellants or the First and Second Respondents.
      
6. It is possible to deal with the final appeal point at this stage as it is quite distinct and discrete. It is suggested that in the High Court consolidation of cases could only be ordered when an application has been made by either or both of the parties to the claim. Consolidation is provided for at Rule 3.10 of the Rules and it provides:-

Consolidating proceedings

3.10 The court may order that several proceedings be heard together if:

(a) the same question is involved in each proceeding; or

(b) the decision in one proceeding will affect the other; or

(c) for any other reason the court considers the proceedings should be heard together.

7. There is nothing contained in the rule to suggest that consolidation is restricted, as the Appellant submits, to claims where an application for consolidation has been requested by a party. When pressed counsel for the Appellants agreed that the same question is involved in each proceeding and that the decision in one proceeding will affect the other. That ground of appeal must fail and needs no further mention.
8. Grounds one and two of the appeal can be equally simply disposed of. They suggest, and it is correct to say, that the application which brought the matters to the High Court for a hearing were the need for an application for leave in 134 of 2016. That is ground one. Ground two recites no more than the fact that the judge at first instance did not make any order granting or refusing leave on the application. He did not do so for good reason, but nevertheless because of his decision he did not give any decision on leave. Whether the judge was required to give a decision on leave before dealing with the substance of the claim is discussed later in this judgement but suffice it to say here that there is no decision granting or refusing leave.
9. This brings the Appellant to what is the substance of this appeal, that is to say being disadvantaged when the trial judge sought to consider the whole of both claims and made the decision he did without the parties appreciating that this course of action was being contemplated. The essence of this appeal is that the Appellants were deprived of the right to be heard on the wider questions which the trial judge had in mind when making the order the effect of which was to end these proceedings early.
10. Ending proceedings early merits a whole chapter of the Rules. That chapter is Chapter 9 and sets out the various circumstances where proceedings may be concluded without a full trial of the issues. Many instances are instances of default by a party but there are in addition circumstances where a trial judge may make final orders prior to a full hearing. Those instances are contained beginning at Rule 9.71 and end with Rule 9.76. For convenience those rules are set out here:-

Striking out

9.71 Rules 9.72 to 9.74 apply if the claimant does not:

(a) take the steps in a proceeding that are required by these rules to ensure the proceeding continues; or

(b) comply with an order of the court made during a proceeding.

9.72 The court may strike out a proceeding:

(a) at a conference, in the High Court; or

(b) at a hearing; or

(c) as set out in rule 19.5; or

(d) without notice, if there has been no step taken in the proceeding for 12 months.

9.73 If no steps have been taken in a proceeding for 6 months, the court may:

(a) give the claimant notice to appear on the date in the notice to show cause why the proceeding should not be struck out; and

(b) if the claimant does not appear, or does not show cause, strike out the proceeding, including any interlocutory relief that has been ordered.

Note: Example notice to show cause why proceeding should not be struck out in Schedule 2 Part B

9.74 After a proceeding has been struck out, the registrar must send a notice to the parties telling them that the proceeding has been struck out.

Frivolous and vexatious proceedings

9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious; or

(b) no reasonable cause of action is disclosed; or

(c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.

9.76 The court may receive evidence on the hearing of an application for an order under rule 9.75

11. If it were the case, then, that the trial judge considered that, perhaps, Rule 9.75 applied there is provided the power for the court to deal with a matter on its own initiative. As particularised in Rule 9.72 this could be considered at a hearing or a conference. For the purposes of this appeal we consider that the learned trial judge was exercising those powers contained in Rule 9 to bring both of these claims to an end, for reasons which he sets out in his judgment and having due regard to the history of litigation between these parties over this land. Whilst we do not intend to set out a comprehensive history of those proceedings it is clear that they have been ongoing for more than a decade and have involved multiple claims, venues, tribunals and chiefs with, at present, little progress towards a true resolution and only substantial costs and conflicting decisions to show for that cost.
12. In principle we feel that the course adopted by the learned trial judge was an appropriate response to this litigation and truly in keeping with the overriding objective of these Rules. That overriding objective is to enable the courts to deal with cases justly with minimum delay and expense. In particular Rule 1.4 provides that:-
    

1.4 Dealing with cases justly includes, so far as is practicable:

(a) ensuring that all parties address the real issues of the proceedings; and

(b) saving expense; and

(c) dealing with the case in ways that are proportionate:

(i) to the importance of the case; and

(ii) to the complexity of the issues; and

(iii) to the amount of money involved; and

(iv) to the financial position of each party; and

(d) ensuring that the case is dealt with speedily and fairly; and

(e) allocating to each case an appropriate share of the court's resources, while taking into account the need to allocate resources to other cases.

13. In addition courts are under a duty to consider Rule 1.5 which provides:-
    

Courts to apply overriding objective

1.5 The courts must give effect to the overriding objective when they:

(a) do any act under these rules; or

(b) interpret these rules.

14. Given this positive duty to actively case manage civil claims this Court is encouraged by the steps taken by the learned trial judge on dealing with this application before the court when he sought submissions from counsel not only on the matter the subject of the application, that is Civil Case 134 of 2016, but also on Civil Case 124 of 2016. There was no application before the Court within that matter but it was, of course, before the Court given the earlier order for consolidation of the two matters.
    
15. It is a matter of extreme regret that counsel did not respond, in our view, appropriately to that request from the learned trial judge for submissions. It appears to this court best summarised through a submission made to this Court by counsel for the 3^rd and 4^th Respondents. In her submission she told this Court that counsel had prepared for and were addressing an application for leave to bring judicial review. It appears that the minds of counsel were closed to the powers that the court had to consider the wider implications of the two civil claims and in particular the powers described in the rules set out above.
    
16. The position was not assisted by counsel not asking the learned trial judge what it was that he had asked them to make submissions about. It is agreed as between counsel on this appeal that a request came from the learned trial judge for submissions in Civil Case 124 of 2016, and counsel were aware that this was not the subject of any application. No submissions were made by counsel in response nor did any of the three counsel then present ask the trial judge the rationale behind the request for submissions on Civil Case 124. If they had asked this would have had two effects. It would have first served to alert the learned judge to the fact that whatever course he was seeking to follow had not been clearly identified by counsel and secondly would have given the same judge the opportunity to explain that course to counsel in order that they could make valid submissions on the issues.
    
17. As no request for clarification came from counsel, no explanation was offered by the presiding judge. That led to this appeal on these grounds. For reasons which should be obvious, we make no comment on the merits of the decision made by the learned judge and note, indeed, that the decision attacked in this appeal is not attacked on merit but only on the procedural grounds.
    
18. We agree in the circumstances that counsel were not able to make submissions on the issues covered by the learned trial judge’s all-encompassing decision, which in effect finds that the issues between the parties have been fully and finally decided and that any other proceeding in that regard by brought to an abrupt halt. Given that submissions were not made and that counsel were not aware (for whatever reason) of the course intended by the learned judge we turn to the effect of that on the decision itself.
    
19. In this Court in Price Waterhouse & Ors. V Reef Pacific Trading Limited & Anor. SICOA 5 of 1995 the principles set out in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 (CA) were said to be applicable in Solomon Islands. That principle sets out the necessity for a fair trial. The principle was further explained in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 in the High Court of Australia in which that Court went on to state:-
    

“That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules, O.58,rr.6 and 14. However, when the Full Court is invited by a Respondent to exercise these powers to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial”.

20. In this case, the decision arrived at by the learned trial judge was not arrived at as a question of law alone but from his assessment of the factual matrix and thereafter his assessment of the applicable law and it is application to that factual matrix. Whilst this may not be a case on which there was to be reliance on contested evidence to be determined, in our view this case nevertheless falls within that category of appeals described in Stead that must be allowed when the rules of natural justice have not been followed. There has not been a fair trial and we cannot uphold the decision made following that error.
    
21. We note, however, that in neither case have the claims been correctly pleaded. Counsel agreed that the observations made in the Court below concerning judicial review claims being brought disguised as other proceedings were correct observations. Thus both of the claimants in the proceedings below still require leave, but that leave cannot be considered until amended claims have been filed.
    
22. For that reason, we are not prepared simply to quash the orders made in the Court below and send the matter back to the High Court. We wish to consider the matter of leave prior to sending the matter back for trial in order that when the matter is referred back there exists a better possibility of a speedy resolution of the issues. We were asked to grant leave during the appeal hearing in an attempt to achieve this but declined as we have not yet seen the proposed amendments.
    
23. We order that each claimant submit an amended claim reflecting the accepted observations made in the Court below of seeking quashing orders. Given that both claimants require leave to bring those claims out of time that the matter of leave be dealt with on the papers by a single judge of this Court. That application for leave may be accompanied by submissions and following a decision on leave our order below remitting this matter back to the High Court will come into effect. That is so since, regardless of leave, there will still be other matters within the claim to be determined.
    
24. We make no order for costs on this appeal. The appeal is allowed and the orders made in the Court below will be quashed and the matter remitted to the High Court for rehearing subject to the caveat appearing in the paragraph above concerning the grant of leave.
    

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Goldsbrough P

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Ward JA

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Wilson JA