Sunway SI Ltd v Nogha [2018] SBCA 15; SICOA-CAC 04 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Sunway SI Limited v Nogha
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 04 of 2018
Parties:	Sunway SI limited v Isake Nogha, Kiko Nogha , Alister Aleve
Hearing date(s):	10 October 2018
Place of delivery:	High Court of Solomon Islands-Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	Makario Tagini for the Appellant Maelyn Bird for the Respondents
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Price Waterhouse & Ors v Reef Pacific Trading Limited & Anor, Stead v State Government Insurance Commission
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The Appeal is Allowed
Pages:	1-4

JUDGMENT OF THE COURT

1. This appeal is against a judgment of the High Court finally determining, on 31 January 2018, a civil claim brought by the present Appellants. The claim was one of trespass and had been brought against two parties. During the proceedings the claim was discontinued as against the first Defendant in the court below leaving only the present Appellants to answer the claim.
2. At one stage during the proceedings, a default judgment was entered against the Appellants. Later, on their application, the default judgment was set aside and an order made allowing the filing of a defence to the claim. The defence was filed on 20 July 2016. Together with the defence, a counter claim was filed and thereafter a reply and defence to the counterclaim on 1 March 2017.
3. As is evident from the filing, regardless of viewing the actual content of the defence, counterclaim and reply to defence, matters were in issue within the claim. Indeed, were it not the case that issues for trial were identified, the default judgment would not have been set aside nor any order for the filing of a defence made.
4. After the defence and counterclaim, no further step had been taken when the trial judge asked counsel if the matter could be determined without further procedural steps, without the calling of witnesses of any sort, but on the papers and written submissions. It is recorded on the High Court file by the trial judge that he directed that this procedure be adopted in lieu of a traditional trial.
5. This forms the substance of the appeal. In answer to this ground it is submitted that whilst such a course is indeed irregular, it cannot amount to a successful ground of appeal when counsel in the court below agreed to it.
6. There are other grounds of appeal raised, some of which are not pressed on this appeal, and some of which we do not propose to deal with given our order disposing of this appeal.
7. Whatever findings that may or may not have been made by the trial judge it was not made after hearing evidence and cross examination. Although there are issues between the parties those issues have not been determined after a hearing and consideration of all the evidence, both in chief in the form of the filed statement and in cross-examination where required. As such those ‘findings’ do not fall to be considered on this appeal if we feel that the procedure adopted by the trial judge falls short of that which should be followed to produce a fair trial. It is for that reason that we do not propose to deal with grounds four and five of the appeal.
8. Whether counsel agreed to it or merely acquiesced in the suggestion made by the trial judge, it is clear that the trial in the court below miscarried when the judge attempted to determine contested matters without providing the parties the opportunity to call evidence and to cross examine anyone who sought to give evidence in the trial. There is not even any record of which of the earlier filed sworn statements were relied upon for the “trial”
9. We would go further and say that the trial judge should not have made the suggestion of a trial on the papers in a contested matter.
10. Having found that there has been a failure on the part of the trial judge to afford the parties natural justice within the trial procedure, we turn to consider, as submitted by counsel, the principle discussed and approved in Price Waterhouse & Ors v Reef Pacific Trading Limited & Anor SBCOA 5 of 1995 where the discussion referred to Stead v State Government Insurance Commission [1986] HCA 54; 1986 161 CLR 141 at page 145 and the notion that an appeal court would not send a matter back for retrial if the new trial would inevitably result in the making of the same order as made by the primary trial judge.
11. Here there are issues on which it is not possible to make the necessary findings on the papers. The parties must be afforded the opportunity to cross examine any witness whose sworn statement is sought to be admitted as evidence in chief. Until that evidence is before the court, findings on contested issues cannot properly be made. Where cross examination has not been offered it is difficult if not impossible to conclude that nothing which could be said would make a difference.
12. The defence sets out that no logs were taken from the concession area of the respondent. Logs that were taken, the defence asserts, came from the concession area of the first defendant, against whom proceedings were discontinued. The information contained in the report from the Forestry Office, Seghe about trespass is challenged as is the alleged environmental damage. It is not possible to make findings on these matters on written submissions and only evidence in chief.
13. In that regard we consider that the Price Waterhouse principle, although correctly referred to by counsel on this appeal, does not assist the respondents.
14. The appeal is allowed and the decision of the court below on liability and damages is quashed and the matter remitted to the High Court for trial. Costs of and incidental to the appeal are to be paid by the respondent to the appellants, such costs to be agreed or assessed. Costs of and incidental to the first trial will be costs in the cause.

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Goldsbrough P
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Ward JA
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Lunabek JA