Henderson Estate Development Ltd v Kwan [2019] SBCA 16; SICOA-CAC 40 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Henderson Estate Development Ltd v Kwan
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands ( Brown J)
Court File Number(s):	40 of 2018
Parties:	Henderson Estate Development Limited v Peter Kwan, Commissioner of Lands and Registrar of Titles
Hearing date(s):	10 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. I Kako for the Appellant Mr. A Radclyffe for the Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Estate of Oliver Jino v. Majoria [2017] SBCA 1, Sunway SI Limited v. Nogha [2018] SBCA 15, Prince Waterhouse v Reef Pacific Trading Ltd [1996] SBCA 5
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The Appeal is dismissed
Pages:	1-5

JUDGMENT FOR THE COURT

1. The appellant is appealing against the orders of Brown J, made on 3 May, 2018, in Civil Case No. 206 of 2017, in which the first respondent was the claimant and the appellant was the third defendant. The learned trial judge gave judgment for the first respondent and granted relief against the forfeiture of first the respondent’s fixed term estate in parcel No. 192-004-1079 and ordered rectification of the register in the first respondent’s favour on the grounds of mistake.
2. It should be noted that the Commissioner of Lands and the Registrar of the Titles made no appearance in this appeal.
3. The background facts are these. The first respondent was granted a fixed term estate in the above parcel in July, 2010 for 50 years commencing from 1 January, 2009. On 16 May, 2014, the first respondent applied for and was granted a building permit by the Guadalcanal Town and Country Planning Board. In early 2012 the first respondent started the groundwork to build a motel on the land.
4. On 2 February, 2017, the first respondent received a notice of re-entry of the land from the second respondent. The notice was received by a registered mail. The notice referred to a notice before forfeiture dated 12 November, 2012. The first respondent said he first became aware of the registration of the appellant on the parcel of land when he received the re-entry notice. He denied receiving the notice before forfeiture. The first respondent went to the Registrar of Titles’ Office to check the register, he found that his title had indeed been forfeited.
5. The first respondent said he paid annual land rents and other rates and had obtained drawings for a motel he had intended to build on the land.
6. The genesis of the appeal goes back to 17 May, 2017, when the first respondent commenced a Category A Claim, in Civil Case No. 206 of 2017. The Claim was for relief against the forfeiture of his title for a fixed term estate in parcel number 192-004-1079 and for rectification on the ground of mistake.
7. The appellant filed its Defence to the first respondent’s Claim on 12 June, 2017 and the second and third respondent filed their Defence on 13 July, 2017. The first respondent filed his Reply to the second and third respondents’ Defence on 20 July, 2017.
8. Only the first respondent filed a sworn statement on 15 August, 2017. None of the other parties including the appellant filed sworn statements.
9. The appellant has raised 5 grounds of appeal, they are as follows:
   • (a) The learned trial judge had erred in law and fact when he allowed the hearing to proceed without proper trial.
   • (b) It is evident on the pleadings that there were conflicting assertions by all three parties to the claim.
   • (c) No evidence was adduced during the hearing on 3 May, 2018 before an order was entered in favour of the first defendant.
   • (d) The appellant was not represented by counsel on 3 May, 2018, when the matter was allegedly heard by the Court. The appellant was also not in attendance because they were not informed of the hearing date by their former counsel.
   • (e) No proper hearing was conducted and the appellant was denied the opportunity to be heard in their Defence.
10. The first respondent argued that all the grounds of appeal lack merit. He argued that the appellant was given an opportunity to defend the Claim in the court below but failed to so. The first respondent submitted that the appellant was fully aware of the trial date but failed to appear at the trial. There were Directions given by the court below for parties to file sworn statements and notices to cross-examine. The appellant either ignored or failed to comply with those Directions. The first respondent submitted that there was a proper hearing of the Claim and the trial date was set at a pre-trial conference which the appellant’s lawyer attended.
11. In his reasons for decision, the learned trial judge among others said that after the first respondent’s Reply the pleadings closed. His Lordship said the claim by the appellant that the notice before forfeiture of the first respondent’s title was valid was not supported by evidence. His Lordship said the sworn statement by the first respondent was the only one filed and the evidence in that sworn statement remained unaffected. His Lordship was satisfied that the first respondent had made out his case. His Lordship also found that the appellant had contributed to the mistake in the forfeiture of the first respondent’s title by failing to check with the Office of the Registrar of Titles where the first respondent was registered as the owner of the parcel of land.
12. Mr Radclyffe of counsel for first respondent told the Court that the appellant’s lawyer was present at the pre-trial conference when the case was set down for trial. The appellant’s lawyer was therefore fully aware of the trial date of 3 May, 2018.
13. There is evidence that at the Directions hearings orders were issued to the parties to file sworn statements and give notices for cross-examination. The appellant has conceded that such Directions were issued. There is also no dispute that a pre-trial conference was held and all the parties were present at that conference when the trial date was fixed. There is also evidence that all the parties were issued with a Notice of Hearing which confirmed the hearing date of 3 May, 2018.
14. Having perused all the materials produced before us, we are satisfied that all the parties were fully aware of the trial date of 3 May, 2018 and that a proper trial was conducted, in which the Court found in favour of the first respondent.
15. We find that the appellant failed to comply with the Directions of the Court by not filing any sworn statements and notice to cross-examine the first respondent on his sworn statement.
16. We do not find any error by the learned trial judge. We find that issues the appellant is complaining about in this appeal resulted directly from its own failure to comply with the Directions issued by the court below. The appellant was given full opportunity by the court below to be heard but it failed to avail itself of the opportunity thus we find the trial in the court below did not miscarry. See, Sunway SI Limited v. Nogha [2018] SBCA 15; SICOA-CAC of 2018 (12 October, 2018).
17. We find that there was a full and proper hearing of Civil Case No. 206 of 201 and was fully and properly determined by the court below. The appellant had by its own conduct deprived itself of the right to be heard and the trial in the court below did not miscarry. Thus, there is no merit in the case being remitted to the High Court for re-hearing because there was no denial of natural justice to the appellant. See, Estate of Oliver Jino v. Majoria [2017] SBCA 1; SICOA-CAC 15 of 2016 (5 May, 2016) and Price Waterhouse & Ors v. Reef Pacific Trading Limited & Anor SICOA 5 of 1995. In the circumstances, we consider that the proper order for the Court to make is to dismiss the appeal.
18. Consequently, the Orders of the Court are as follows:
    1. The appeal is dismissed.
    2. The appellant will pay the first respondent’s costs.
19. Orders accordingly

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member