Tipaika v Magu [2019] SBCA 17; SICOA-CAC 1 of 2019 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Tipaika v Magu
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The Court of Solomon Islands (Faukona J)
Court File Number(s):	01 of 2019
Parties:	Tina Tipaika v Felix Magu and Attorney General
Hearing date(s):	14 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. J To’ofilu for the Appellant S. Kofana for the First Respondent Mrs V Muaki for the Second and Third Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s114 [cap 133] Civil Procedure Rule 2009
Cases cited:	Rizu v Viuru Land Trust Board [2019] SBCA 11 Browne v Dunn [1893] 6 RL 67
ExTempore/Reserved:
Allowed/Dismissed:	Appeal is allowed
Pages:	1-7

JUDGMENT OF THE COURT

1. Following trial, the claim, about which this appeal is brought, was successful. That claim, brought by Felix Magu, the present respondent, was against Tina Tipaika, the present appellant, for eviction.
2. The circumstances surrounding the claim can be summarised as follows. The appellant lives on the land to which the respondent has registered title. She occupies a dwelling house built on that land. In her defence she asserts that the occupation and development of the land preceded the grant of title to the respondent and that, even if she cannot claim the registered title, her interest is protected as an overriding interest under section 114 of the Land and Title Act [Cap 133].
3. There is substantial dispute as to the facts of this case. We will point to some of those factual disputes but caution that there are many and our list is by no means exhaustive. From filed material we see that there is a dispute about when the house was built on the land. The appellant says in her material she built after purchase in 2004 but before 2010 when the respondent come upon the scene. In material for the respondent there is a survey report saying that there was, at the time of survey, no house on the land. As at the date of survey, the appellant’s material asserts the house was already built. That, in our view, is a material dispute of fact.
4. It is a material dispute of fact going to overriding interest in land. That is in question in these proceedings.
5. In the appellant’s material there can be found a letter from an officer of the Commissioner of Lands (COL). It assures the appellant that when the paperwork is done, she will obtain legal title. Evidence from COL asserts to the contrary. This is a material dispute going to whether title could be subsequently properly offered to the respondent.
6. There was no oral evidence received at trial. Counsel for both parties to this appeal submit that the trial judge ordered that the trial take place ‘on the papers’.
7. As we understand that joint submission, we take it that an order was made allowing the reception into evidence of sworn statements under the Solomon Islands Courts (Civil Procedure) Rules 2009 (CPR) Chapter 13.
8. CPR Rule 13.5 (a) provides for the making of an order dispensing with oral evidence and admitted evidence through a sworn statement or statement in a particular case or with regard to particular evidence. For completeness we reproduce the entire rule. It states:-

How to give evidence – High Court

13.4 Evidence in the High Court is to be given at trial orally and for any other purpose by sworn statement.
13.5 However, a judge may order that:
(a) evidence at trial in a particular case, or particular evidence, be given by sworn statement; or
(b) evidence for any other purpose in a particular case, or particular evidence, be given orally.

9. CPR have an overriding objective and to illustrate that we reproduce it here.

Overriding objective

1.3. The overriding objective of these rules is to enable the courts to deal with cases justly with minimum delay and expense.
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.

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.

10. These rules within CPR form the basis for the joint submission from counsel to the parties to this appeal that an order was made for trial on the papers. We asked counsel for sight of that order, but they were unable to identify the same.
11. What is clear from the papers is that the reception of evidence through the medium of sworn statements was permitted by Direction Order, subject to the right to give notice to cross-examine. Thus:-

Use of sworn statement in proceedings

13.6 A sworn statement, including any annexure, that is tendered in court or included in the bundle of agreed documents becomes evidence in the proceeding unless the court has ruled it inadmissible in whole or part - when that part that is inadmissible does not become evidence.
13.7 The sworn statement need not be read aloud during the trial unless the court orders, but before the sworn statement is tendered (unless no notice is given under rule 13.9) the witness shall be required to confirm at trial, on oath or affirmation, the truth of the sworn statement and may clarify any matter contained in it.
13.8 A witness may be cross-examined and re-examined on the contents of the witness's sworn statement.
13.9 A party who wishes to cross-examine a witness must give the other party notice of this:

• (a) at least 7 days before the trial; or
• (b) within another period ordered by the court.

12. Armed with a Direction Order permitting the reception into evidence of sworn statements, counsel is faced with the decision whether to give notice to cross-examine. This Court has already given its decision on what should happen when counsel fails to give such a notice. If an adjournment is required through a failure, the question of costs should be addressed as wasted costs. It is wrong to elevate the rule of procedure to a rule of law thus depriving the errant party of the right to cross-examine for Browne v Dunn^[1] purposes.
13. It is then incumbent upon counsel to consider the rule in Browne v Dunn. Where evidence is sought to be challenged or contradicted, the challenge or contradiction must be put to the witness. To fail to put the challenge or contradiction is unfair to the witness. We discuss that rule further in another judgment from this sitting in Rizu & Ors v Viuru Land Trust Board & Anor. CAC 20 of 2018.
14. In this case, no notice to cross-examine was ever given. Therefore, all sworn statement were admitted into evidence even though material within those sworn statements, it is admitted on this appeal, contained challenged and contradicted evidence. The rule in Browne v Dunn was not followed by counsel.
15. Given that state of affairs, it then became the duty of the trial judge to, himself, make an order that the challenges and contradictions were put to the statement makers before any further step was taken within the trial. For to do otherwise was to conduct a trial that could not be described as a fair trial which is guaranteed under the Solomon Islands constitution.
16. We consider that there is no merit in taking this matter any further. The evidence, after its reception into evidence without cross examination was admitted in a manner which was demonstrably unfair to the parties and simply cannot be supported. That inevitably leads this Court to the conclusion that the appeal must be allowed, and the decision of the High Court set aside.
17. Both legal practitioners involved made the same errors in approaching this trial. In that case we make no order for costs on this appeal, each party bearing the responsibility to fund its own costs.
18. The orders are appeal allowed, matter sent back to the High Court for a trial in accordance with CPR, to be dealt with justly and according to law. No order for costs.

Goldsbrough (P)
Lunabek (JA)
Gavara-Nanu (JA)

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^[1] [1893] 6 R 67