Honiara Resort (Solomon Islands) Ltd v Commissioner of Lands [2022] SBCA 12; SICOA-CAC 03 of 2022 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Honiara Resort (Solomon Islands) Ltd v Commissioner of Lands
Citation:
Decision date:	8 July 2022
Nature of Jurisdiction	An Application to State a Case from the High Court to the Court of Appeal
Court File Number(s):	3 of 2022
Parties:	Honiara Resort (Solomon Islands) Limited, Dorothy Isaac, Vincent Kurilau & others v Commissioner of Lands
Hearing date(s):	30 June 2022
Place of delivery:
Judge(s):	Goldsbrough P Palmer CJ Hansen JA
Representation:	Appellants: Sullivan QC J, Preston A Respondent: Dive R Radclyffe A Banuve S
Catchwords:	Case Stated –Procedure S 14 Court Of Appeal Act Solomon Islands Courts (Civil Procedure) Rules
Words and phrases:
Legislation cited:	Court of Appeal Act S 14, Civil Practice Direction 52E
Cases cited:	Allardyce Lumber Company Limited v Laore [1990] SBHC 46, Fera Group v Attorney-General [1997] SBHC 55.
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Not Proceeded with
Pages:	1-5

JUDGMENT OF THE COURT

1. This Case Stated purportedly pursuant to s 14 of the Court of Appeal Act was listed for hearing on Thursday 30 June. This Court received the Appeal Books late because of the failure of some parties to comply with the various Consent Timetable Orders. For that reason, there was a preliminary matter that could only be raised by the Court with counsel at hearing.
2. The effect of that was the Court advised that for a Case Stated to proceed there must be factual findings from the Court below, which had not occurred in this case. Notwithstanding counsel’s position that all necessary factual matters were not in dispute findings need to be made by the trial judge. In those circumstances we declined to hear the matter.
3. We advised we would give brief reasons. These are our reasons.
4. The starting point is s14 of the Court of Appeal Act:

Power to reserve questions of law for the decision of the Court of Appeal

14. In addition and without prejudice to the right of appeal conferred by this Part of this Act, a judge of the High Court may reserve for consideration by the Court of Appeal, on a case to be stated by him, any question of law which may arise on the trial of any cause or matter, and may give any judgment or decision, subject to the opinion of the Court of Appeal, and the Court of Appeal shall have power to hear and determine every such question. (Our emphasis).

5. There have been only two previous Case Stated’s in this jurisdiction. In the first, the then Chief Justice made factual findings which were reflected in the Case Stated. In the second, the Chief Justice was faced with an originating application which raised different considerations.
6. As stated in this case the Judge made no factual findings. Rather, the Case Stated begins:
   • Part A: Assumptions
   • The following assumptions should be made by the Court of Appeal for the purposes of the case stated only: —
7. This is not an unconditional acceptance of fact. Rather, in the vernacular the parties have “kept their powder dry,” which would allow them to dispute questions of fact following the decision of this Court. It would not necessarily bring the matter to an end.
8. The reasons for the purported Case Stated procedure in this matter were said to be that there were two conflicting decisions of the High Court, the first, being Allardyce Lumber Company Limited v Laore [1990] SBHC 46, and the second, Combined Fera Group v Attorney-General [1997] SBHC 55. On that basis it was said the Court of Appeal’s decision would settle any contradictions between the two High Court decisions.
9. It can be seen from s 14 set out above the question of law that may be stated for the opinion of this Court needs to arise on “the trial of any cause or matter”.
10. In the Fourth Schedule to the Solomon Islands Courts (Civil Procedure) Rules 2007 a trial is defined as:
    • 'trial' means any hearing that is not an interlocutory hearing.
11. In this case the application in the High Court was filed pursuant to Rules 2.8 and 7.3 of the Solomon Islands Courts (Civil Procedure) Rules 2007, both of which relate to interlocutory applications. This is plain from the intituling of the Application.
12. We are quite satisfied by reading s 14 Court of Appeal Act, along with the High Court Rules and definitions, that a Case Stated may not be triggered by an interlocutory application. It must arise during the trial and in our view must be the subject of factual findings of the trial Judge.
13. As was advised to counsel when the matter was called, we find support for that from both the Criminal and Civil Rules of the High Court in England and Wales. The Civil Practice Direction 52E states:
    • An appeal by case stated is an appeal to a superior court on the basis of a set of facts specified by the inferior court for the superior court to make a decision on the application of the law to those facts.
14. In our view it is clear from the matters set out above that the same practice must be adopted in the Solomon Islands. The Court of Appeal Act and the Rules require it.
15. We would add that, just because there are apparently conflicting decisions in the High Court, it should not automatically be assumed that the Case Stated procedure is appropriate. In this case, as well as findings of fact necessary to found a Case Stated, it would be beneficial for this Court to have a further legal view on the competing considerations.
16. Also, as a matter of public interest, we think it better that the fundamental questions of customary land law that arise in this case should go through the normal trial and appellate process.
17. These are our reasons for declining to hear this matter. We order that the costs of the hearing in the Court of Appeal be costs in the cause.

Goldsbrough (P)
Palmer CJ
Hansen (JA)