Success Co Ltd v Huangpu Forest International Investment PTY Ltd [2018] SBCA 14; SICOA- CAC 24 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Success Company Limited v Huangpu Forest International investment PTY Limited
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from judgment of The High Court of Solomon Islands (Brown J)
Court File Number(s):	CA 24 of 2018
Parties:	Success Company Limited v Huangpu Forest International investment PTY Limited, Mas Pacific International Limited
Hearing date(s):	11 October 2018
Place of delivery:	High Court Of Solomon Islands-Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	Mr. Tagini for the Appellant Mrs. Bird for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Resources and Timber Utilisation Act [Cap 40], Civil procedure Rule, Forestry Act
Cases cited:	Yeo v Iromea
ExTempore/Reserved:
Allowed/Dismissed:	The Appeal is allowed. The matter remitted to High Court.
Pages:	1-6

JUDGMENT OF THE COURT

1. After hearing this appeal on Thursday 11 October 2018 we indicated to counsel that the appeal would be allowed and we reserved the right to deliver the reasons for that decision at a later date. These are our reasons for the decision on appeal.
2. The Appellants in this matter brought a claim for trespass and damages against the 1^st and 2^nd Respondents in the High Court on 1 September 2017. In that claim, the Appellant asserted trespass on a concession area covered by a Timber Licence. The Appellant sought to claim trespass not as a land owner but as the holder of a valid concession granted by virtue of the Timber Rights acquisition process regulated by the Forest Resources and Timber Utilisation Act (FRTU Act) [Cap 40] as amended.
3. A defence and counter claim was filed on 30 October 2010. Various sworn statements were filed both before and after this date, principally concerning interlocutory relief.
4. Whether the matter was a Category A claim as filed in the claim, or an application for a Judicial Review, given that the remedy sought was a quashing order, under the Solomon Islands Courts (Civil Procedure) Rule 2007 (the Rules) either a Trial Preparation Conference (Category A) or a Chapter 15 Conference (Judicial Review) was required to be held prior to trial.
5. Whichever route should have been followed, such a step is necessary to prepare the matter for trial. The procedure is provided to assist litigants in identifying issues and ensuring that the evidence necessary to all the parties is in good order for the trial. It is an integral part of the procedure governed by the Rules to ensure a fair trial with the minimum of delay and expense. The parts fit together to produce the whole. When parts are missing or when the parties or the court attempt to leave out pieces or fit the wrong piece into a space, the whole picture is liable to be damaged.
6. Without either a Trial Preparation Conference (TPC) or a Chapter 15 Conference having taken place, the trial judge ordered that the parties produce and file a statement of agreed facts and issues. In addition, the trial judge required written submissions to be filed within 7 days of his order to enable him to “determine the issues and deliver judgment”.
7. That order was made on 6 June 2018. No statement of agreed facts and issues had been filed when the trial judge delivered his judgment on 15 June 2018.
8. The appeal is brought on three grounds, all of which assert that the trial judge erred in law and in fact on issues. There is no specific ground attacking procedural matters. The three grounds in the notice of appeal are:
   • (1) The trial judge erred in law or in fact when he proceeded to declare the whole of the license TIM 2/38 belonging to the Appellant null and void ad initio whereas the High Court case only concerns PARU customary land. Other concession areas under the same license are not affected by the High Court case hence the trial judge erred in law when he extended his judgment to cover other customary lands in the same licence which are disputed.
   • (2) The trial judge erred in law or in fact when he held that there was absence of proper process under the Act leading to a Form 4 in November 2012 whereas the Appellant had successfully acquired TIM 2/38 in due compliance of the Forestry Act. The Form 4 Agreement signed in 2012 was a renewed agreement after the original form 4 had expired. TIM 2/38 was not issued after the signing of Form 4 in 2012. It was issued after the timber rights in 1993.
   • (3) The High Court erred in law when it said that the signatures of the Timber Rights Agreement on 13^th November 2012 was obtained by mistake. The 2012 Timber Rights Agreement was not obtained by mistake. It was a renewal of the previous timber rights agreement already expired and was signed by the duly authorized representatives/trustees of Paru customary land hence a valid timber rights agreement.
9. In written submissions, counsel for the Respondents did not address any procedural matter, arguing that as there was no ground in the notice of appeal going to procedure, the Appellant was not entitled to raise the matter on appeal. Most of the written submission from the Appellant sought to argue the mistake of law and fact arose because of the procedure adopted by the trial judge.
10. For this court to determine whether there has been error or the part of the trial judge going to either fact or law, it is necessary to consider what material there was before the trial judge. There is no other way through which any suggested error can be investigated. That entails looking at the conduct of the trial to find out what material there was on which to base the decision. In those circumstances we invited counsel for the Respondents to make oral submissions on the procedural aspect.
11. During those submissions and response counsel confirmed that even the agreed facts and issues document as required had not been settled prior to judgment being delivered.
12. The procedure adopted by the trial judge in ordering the parties to file as he did was itself wrong. Even if it had been followed by the trial judge himself, it left no room for any issue which was not an agreed issue or for the finding of any fact which itself was not agreed.
13. It could be the case that the trial judge intended to consider the agreed issues and facts then decide whether a trial was necessary but, given the additional order to file written submission that equally may not have been the case.
14. When the judgment was written and published without any material begin provided, it is a necessary conclusion that there was no material on which the judge could properly make any finding of fact and in a factual vacuum he was unlikely to be able to properly apply any law.
15. Deprived as they were of the opportunity, counsel were unable to present to the trial judge material which was agreed and material which remained in issue and required the calling of evidence.
16. From the pleading the parties are at issue on a vast number of matter and factual findings will be necessary to determine those issues. That can only be achieved when evidence is properly presented and opportunity given to challenge that evidence through cross examination. As this court considered in Yeo v Iromea SICOA the Rules are provided to facilitate a fair trial not otherwise.
17. Without going to the substantive issue, and that itself must be avoided given the decision of this Court to allow the appeal and send the matter back to the High Court for consideration following the correct trial procedure, it is abundantly clear that the claim and counter claim have not been properly considered as they must be. As there was no trial and no findings possible, we cannot conclude that there is no need to send the matter back on the ground that the same result is inevitable given the circumstances. That option, as counsel would no doubt submit, is available in certain circumstances. It is not available here because there is no material on which we could find without falling into the same error as the trial judge, that no other conclusion is possible.
18. The appeal is allowed, and the matter is remitted to the High Court. Costs of and incidental to the appeal and in the court below are costs in the cause.

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Goldsbrough P
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Ward JA
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Lunabek JA