Anasia Corporation Ltd v Pone [2019] SBCA 14; SICOA-CAC 43 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Anasia Corporation Ltd v Pone
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgments of The High Court of Solomon Islands (Faukona J)
Court File Number(s):	43 of 2018
Parties:	Anasia Corporation Limited and Rite Trade Pacific Limited v Josiah Pone and Nicholas Maelana
Hearing date(s):	15 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. T Matthews QC with S Kofana for the Appellant Mr. W Rano for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Evidence Act 2009
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is allowed
Pages:	1-8

JUDGMENT OF THE COURT

1. This appeal was heard on Tuesday October 15^th, 2019. Given that in the court below, the question of the admissibility of evidence was clearly raised but not answered by the trial judge before he relied upon used challenged evidence and delivered his judgment on 16 November 2018, we were clearly of opinion that the appeal has to be allowed; the matter be remitted back to the High Court for a proper assessment of damages; and Costs. We now provide the reasons for our decision.
2. This appeal was filed on 14 December 2018 challenging the entire judgment of the High Court delivered on Friday 16 November 2018 in Civil Claim numbers 126 and 167 of 2009.
3. It challenges the principles of law and the basis on which the trial judge assessed and awarded damages in the judgment under appeal.
4. We note that there is currently in force an order staying enforcement of the judgement issued and sealed by this court on 24 May 2019.
5. On 20 January 2016, the High Court stayed the proceeding pending the determination of ownership of Hovi customary Land.
6. The Claimants in civil claim No HC- CC 126 of 2009 who are now the respondents appealed the said judgement to this Court in Civil Appeal No. 1 of 2016.
7. On 14 October 2016, this Court allowed the appeal and made orders that Respondents/Claimants are the owners of the Hovi customary lands. By order 3, the case was remitted back to the High Court on trespass and damages.
8. The trial on trespass and damages was held on 25 July 2018 at which hearing the parties made oral submission supported by written submission.
9. On 16 November 2018, the trial Judge found that the Appellants had trespassed. His Lordship assessed:
   • (a) Damages for trespass and environment in the sum of $639,000.00.
   • (b) Damages of $ 3,983,608. 40 for conversion of Logs; and
   • (c) Exemplary damages of $ 250,000.00
10. It is the assessment of damages against which the appellants appeal.
11. During the hearing of the appeal, Counsel for the appellants pointed out to the court that, at trial, the Respondents relied on the sworn statements by Nicholas Maelana filed on 16 April 2009, 5 August 2009 and 25 April 2010.
12. He also pointed out that Mr Nicholas Maelana is not an expert in environment to give evidence on how the erosion happened, what caused them and whatever pollution it may be but Mr. Maelana cannot say with certainty what extent or the degree of the damage are.
13. The photos in exhibit NM8 of the sworn statement of Nicholas Maelana were not independently verified by personnel and from the Environment Division.
14. He further said that the sworn statement of Nicholas Maelana filed on 23 April 2010 at 237 of the Trial book 1 pages 541 to 551 of the appeal Book, Part IV expressed opinion by Mr. Tura (Exhibit NM1) is the assessment of Hovi Land Customary land carried out by Robert Tura, a principal Forest Officer in the Ministry of Forestry & Research.
15. Counsel for the Respondents conceded that objections were made on the admissibility of the evidence by Counsel for the Appellants.
16. Both Counsel expected that the trial judge would make a ruling on the question of admissibility of the evidence as the material evidence and attached exhibits contained in the sworn statements are challenged and the court could not rely on them unless a prior determination was made on their nature, quality and admissibility.
17. There was no prior ruling made by the trial judge on the question of admissibility of the evidence. The learned trial judge relied on the sworn statements tendered and attached material referred to earlier and gave judgement on the assessment of damages on 16 November 2018 despite objections.
18. Two grounds of appeal were advanced. We consider them in turn.
    • Ground one: The trial judge erred in law by failing to consider the evidence adduced in the context of sections 128,129 and 130 of the Evidence Act 2009 relating to opinion and expert evidence.
19. Sections 128,129 and 130 provide:
    • “Opinion evidence
    • 128. A statement of an opinion is not admissible in a proceeding, except as provided by this Act.
    • General admissibility of opinion
    • 129. A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived.
    • Expert evidence opinion
    • 130. (1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.
    • (2) An opinion by an expert is not inadmissible simply because it is about –
    • (a) an ultimate issue to be determined in a proceeding; or
    • (b) a matter of common knowledge.
    • (3) Subject to subsection (4), if an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.
    • (4) If expert evidence that includes an opinion about the sanity of a person also includes a statement that the person made to the expert about the state of mind of the person, then –
    • (a) the statement of the person is admissible to establish the facts on which the expert's opinion is based; and
    • (b) neither the hearsay rule nor the prior inconsistent statements rule applies to evidence of the statement made by the person.”
20. The trial judge made reference to the sworn statements of Mr Nicholas Maelana filed on 16 April 2009, 5 august and on 23 April 2010.
21. The trial judge commented upon the said sworn statements Mr Nicholas Maelana.
22. The trial judge admitted into evidence and relied upon the report prepared by Mr Tura and the Photos exhibited to sworn statements by Mr Maelana of 16 April 2009 purporting to show environmental damage and land degradation.
23. It is submitted that the findings based thereon by the trial judge were erroneous in law.
24. We consider and agree with the submissions made by Counsel for the Appellants. Until a decision is made by the trial judge on the question of admissibility, the evidence is not properly before him. There must be an answer given on admissibility and whatever that decision is will determine what evidence is available for consideration.
    • Ground two: The trial Judge erred in failing to apply correctly to the present case sections 117 and 118 of the Evidence Act 2009 relating to hearsay.
25. Sections 117 and 118 provide:
    • “Hearsay
    • 117. A hearsay statement is not admissible except as provided by this Act or other law.
    • General admissibility of hearsay
    • 118. (1) A hearsay statement is admissible in any proceeding if –
    • (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
    • (b) either –
    • (i) the maker of the statement is unavailable as a witness; or
    • (ii) in any case where the court considers that undue expense and delay would be caused if the maker of the statement were required to be a witness.
    • (2) In a criminal proceeding, no hearsay statement may be offered in evidence unless –
    • (a) the party proposing to offer the statement has given reasonable notice of the intention to rely on the statement; or
    • (b) a other party has waived the requirement for notice; or
    • (c) the court dispenses with the requirement for notice in the interest of justice.
    • (3) If an accused in a criminal proceeding does not give evidence, the accused may not offer his or her hearsay statement as evidence in the proceeding.
    • (4) In this section, 'circumstances', in relation to the statement by a person who is not a witness, includes –
    • (a) the nature of the statement; and
    • (b) the contents of the statement; and...”
26. We consider and agree with the submissions of the Appellants’ Counsel that the Court failed to determine the question. Prima facie, the assessment report of Mr. Tura is hearsay.
27. The trial Judge erred in law by not having provided a decision on admissibility. A decision remains to be taken as to whether the report may be admitted into evidence in those circumstances.
28. These are the reasons of the decision we made on 15^th October 2019. We now make the following formal orders:

Orders

1. The appeal is allowed;
2. The assessment of damages is remitted back to the High Court for assessment;
3. The Respondents shall pay the Appellants’ costs of and incidental to the appeal on the standard basis including certification for overseas counsel.

Dated this 18^th October 2019
BY THE COURT
Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member