Dettke v Bartlett [2022] SBCA 28; SICOA-CAC 12 of 2021 (4 November 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Dettke v Bartlett
Citation:
Decision date:	4 November 2022
Nature of Jurisdiction	Appeal from The High Court of Solomon Islands (Kouhota, PJ)
Court File Number(s):	12 of 2021
Parties:	Roselyn Dettke v Alex Bartlett
Hearing date(s):	28 September 2022
Place of delivery:
Judge(s):	Goldsbrough, P Palmer; CJ Gavara-Nanu, JA
Representation:	Suri, G for Appellant Kako, I for Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S 229, S 229 (2), Solomon Islands (Civil Procedure) Rules 2007,r 3.27, r 1.3 and r1.4, r 1.5, r 1.6, r1.5
Cases cited:	R. Dettke v Attorney General CC 45 of 2008, Allen v Sir Alfred McAlpine and Sons Ltd [1968] 1 ALL E.R 543, Delma Corporation South Pacific Ltd v William & Gosling Ltd [ 2018] FJHC 332, Samlimsan (SI) Ltd and Akoai v Tarihao and Nakumora [2012] SBCA 8
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-22

JUDGMENT OF THE COURT

1. This is an appeal against the orders of the Court dated 31^st May 2020, in which the judge granted an application to re-instate the Claim of the Claimant after it had been struck out on the 4^th December 2019.
2. The appeal raised four grounds of appeal as follows:
   1. The primary judge erred in law by his failure to consider and give due weight to the following specific facts when he considered the issue of Respondent’s/ Claimant’s delay in prosecuting his claim:
      1. lack of prosecution of the claim by the Respondent/Claimant from 7^th June 2018, the date Maina PJ delivered his ruling and dismissed the application for preliminary determination.
      2. the Respondent/ Claimant himself showed lack of enthusiasm in his case to appoint a replacement Solicitor quickly to replace Counsel Barnabas Upwe who had orally informed Court of his withdrawal on 21^st August 2019. The Respondent/ Claimant, therefore, delayed to act by a period of four months and 12 days before the strike out order was made on 4^th December 2019.
      3. there is reasonable possibility that Counsel Upwe would have informed the Respondent/ Claimant of his withdrawal of legal representation from Civil Case No. 152/2012, and therefore, had knowledge thereof because Counsel Barnabas Upwe continued to represent the Respondent/ Claimant at all material times in the High Court Civil Case No. 244/2011.
      4. the Respondent/ Claimant delayed further by seven months and forty days (from 4^th December 2019 to 13^th July 2020) to lodge application for reinstatement of his case.
   2. The primary judge erred in law in reinstating the case, after being dismissed, when there was unchallenged evidence in the Court below that some of the Defendants (i.e, one of 2^nd Defendants and three of 4^th Defendants) against whom fraud is being alleged and upon whom the Appellant/ 1^st Defendant relied to rebut the allegation of fraud have died, and so there is substantial risk of unfair trial and miscarriage of justice.
   3. The primary judge erred in law in reinstating the case, after being dismissed, when there was medical evidence in the Court below that a material witness of the Defendants (namely, John Hikimae) upon whom the Appellant/ 1^st Defendant relied to rebut the allegation of fraud is now very ill and incapable of giving evidence at trial, and so there is substantial risk of unfair trial and miscarriage of justice.
   4. Cost of the appeal and in the Court below to be paid by the Respondent/ Claimant.”

Brief background of the case.

3. On the 11^th November 1995, the perpetual estate in Parcel Number 192-016-7 (“the Property”) was registered in the name of all the 4^th Defendants, that is, Joseph Manehamosa, Anna Rahevi, Dominic Mikini, Pioni Laumate and Peter Morosiva.
4. On the 14^th March 2007, a transfer of the Property was executed between the 4^th Defendants as transferors to Joseph Manehamosa and Alex Bartlett, as transferees.
5. The Property was subsequently registered in their names, Joseph Manehamosa and Alex Bartlett, on the 15^th March 2007.
6. On the 4^th August 2007, a further transfer of the Property was executed between Joseph Manehamosa and Alex Bartlett as transferors and Anna Rahevi, Pionio Laumate, Peter Morosivo and Joseph Manehamosa as transferees. Three days later, on the 7^th August 2007 it was registered in the names of the 4^th Defendants except Dominic Mikini.
7. On the same day, 7^th August 2007 it was transferred and registered in the name of Roselyn Dettke.
8. A rectification of the Register appears to have been done by the Deputy Registrar of Titles, which was challenged^[1] by Roselyn Dettke and on the 10^th February 2009, it was re-registered by Court Order in her name.

The Claim in the Court below.

9. On the 21^st May 2012, a Category Claim A was filed by the Claimants, Alex Bartlett and Joseph Manehamosa. On the 27^th November 2012, an Amended Claim was filed with Joseph Manehamosa’s name removed. Mr. Bartlett thereby continued with the claim in his sole capacity.
10. The claim in the court below was inter alia for:
    1. A declaration that the transfer of title in Parcel Number 192-016-7 from the claimant as joint owner with the first named fourth defendant to the 4^th defendants and from the 4^th defendants to the 1^st defendant was void and registration obtained by fraud and / or mistake.
    2. Owing to the above, the claimant being one of the joint owners with the first named fourth defendant, is entitled to rectification of the land register, by removing the name of the 1^st defendant as registered owner of Parcel Number 192-016-7 (“the Property”) and replace therewith the name of the claimant being one of the joint owners with the first named fourth defendant, pursuant to Section 229 of the Land and Titles Act (cap. 133).
    3. That title to the property is rectified in favour of the claimant being one of the joint owners prior to 9^th August 2007. That title to the said property is rectified to where it was prior to 9^th August 2007, in favour of the Claimant on the ground of fraud and or mistake.
11. The claim of fraud and or mistake relates to the allegation that the transfer executed on or about the 4th August 2007, between Joseph Manehamosa and Alex Bartlett (“Transferors”) to Anna Rahevi, Pionio Laumate, Peter Morosivo and Joseph Manehamosa (“Transferees”) was forged. He says that his signature on the transfer instrument executed before Makario Tagini on the 4^th August 2007 was forged. Accordingly, that transfer instrument and subsequent registration was tainted with fraud and defective.
12. He says that section 229(2) of the Land and Titles Act (cap. 133) empowers the Registrar of Titles to have the register rectified on the grounds of fraud and or mistake.

Issues that arise from the Claim in the Court below.

13. The primary issue in the court below is the allegation by the Claimant that his signature on the transfer instrument dated 4^th August 2007 was forged.
14. Secondly, he denies that he appeared before the Commissioner for Oaths (Makario Tagini) to sign the said document. He submits therefore that the instrument is defective as well for non-compliance by the Commissioner for Oaths that the Transferor (Alex Bartlett) must appear in person before him.
15. Makario Tagini (“Tagini”) on the other hand says in his defence that both Joseph Manehamosa (first named Fourth Defendants) and Francis Orodani (second named Second Defendant) had assured him and confirmed to him that the Claimant (Alex Bartlett) had signed that instrument as one of the Transferors. He says he relied on their assurances to have the instrument attested to.
16. The third issue that arises relates to an earlier case, that of R. Dettke v. Attorney-General cc 45 of 2008, in which a default judgement was obtained for the title to the same land to be registered in favour of R. Dettke, on 13 February 2009.
17. Alex Bartlett was not a party in that case. He says it was fraudulently obtained. He says he was not aware of that case and so says that it is not binding on him.
18. The fourth issue is directly connected to the issue of proof of the allegations of fraud or mistake as set out in section 229(2) of the Land and Titles Act (cap. 133). That section states as follows:
    • “ s. 229 LTA:
    • (2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”
19. In order for the allegation of fraud to be successful, it is necessary for the Claimant to also prove the element of knowledge of the fraud or mistake, or caused the fraud or mistake, or substantially contributed to it by her act, neglect or default.
20. In other words, the Claimant is required to establish that the first defendant, Roselyn Dettke (“Dettke”), was aware of the forgery, or caused it, or substantially contributed to it etc.
21. In her defence Dettke says that before the Property was transferred to the Claimant and Joseph Manehamosa, she had already entered into prior dealings with the fourth defendants to purchase the Property for $1 million.
22. She says that she was informed of the claim of forgery by the Claimant in a letter from the Registrar of Titles dated 6^th December 2007, which is some four months after the fact. Her dealings therefore she says were confined to the fourth defendants and not with the Claimant. She denies knowledge of the allegations of fraud, or that she caused the fraud or mistake, or substantially contributed to it by her act, neglect or default, as between the Claimant and the fourth defendants.
23. In her counter claim, she alleges fraud in turn against the Claimant for falsely representing to Joseph Manehamosa that registration of his name would enable him to become a joint developer. She says that transfer of the land to include him would enable the fourth defendants to plant rice and carry out other developments on the land, which turned out to be false.
24. She also says that the transfer consideration of $4,000 was not the true value or fair consideration for the land, which is some 749.5 hectares. She says this arrangement was only accepted by Joseph Manehamosa because of the false representation that the Claimant made regarding the purported joint development on the land, but which did not happen.
25. The crucial issue for trial in the court below therefore will be that of proof of knowledge of the forgery, or that she caused the fraud or mistake, or substantially contributed to it by her act, neglect or default. This will be a major hurdle in the court below and will be dependent so much on the evidence before the court. This issue becomes relevant in relation to the grounds of appeal raised by the Appellant that due to the death of key witnesses and the incapacity of one crucial witness that there is a real and substantial risk of an unfair trial, prejudice and a miscarriage of justice occurring. We will touch on this later in this judgement.

GROUND 1 OF THE APPEAL.

26. Under this ground the Appellant alleges that the learned judge erred in law by failing to consider and give due weight to a number of specific facts when he considered the issue of delay by the Respondent / Claimant in prosecuting his claim.
27. In other words, the failure to adequately consider and take those factors into account amounted to an error of law which affected the Judge’s decision to re-instate the claim of the Respondent. Four factors or reasons are set out in the appeal as follows:
    1. lack of prosecution of the claim by the Respondent/Claimant from 7^th June 2018, the date Maina PJ delivered his ruling and dismissed the application for preliminary determination.
    2. the Respondent/ Claimant himself showed lack of enthusiasm in his case to appoint a replacement Solicitor quickly to replace Counsel Barnabas Upwe who had orally informed Court of his withdrawal on 21^st August 2019. The Respondent/ Claimant, therefore, delayed to act by a period of four months and 12 days before the strike out order was made on 4^th December 2019.
    3. there is reasonable possibility that Counsel Upwe would have informed the Respondent/ Claimant of his withdrawal of legal representation from Civil Case No. 152/2012, and therefore, had knowledge thereof because Counsel Barnaba’s Upwe continued to represent the Respondent/ Claimant at all material times in the High Court Civil Case No. 244/2011.
    4. the Respondent/ Claimant delayed further by seven months and forty days (from 4^th December 2019 to 13^th July 2020) to lodge application for reinstatement of his case.
28. We will deal with all those factors together as they relate in essence to the issue of delay and lack of due diligence in pursuit of the claim.
29. The sequence of events can be summarised into two parts, the first delay and second delay.
30. The first delay is from the 7^th June 2018, date when the court delivered its judgement on some preliminary issues raised for determination, to the 4^th December 2019, being the date of the strike out order. That delay was for one year, five months and twenty-six days.
31. In that period, Mr. Suri submits the following activities took place.
    1. In 2018, three mention hearings took place, on 7^th June 2018 (being date of delivery of judgement), 25^th June 2018 and 17^th October 2018. The Appellant submits that little activity occurred in 2018.
    2. In 2019, a total of five mention hearings occurred. On 21^st August 2019, Mr. Upwe informed the Court for the first time about his intention to withdraw as legal counsel for the Respondent. The matter was specifically adjourned by the judge for 7 days to 28^th August 2019, for Mr. Upwe to inform the court about his client’s position. He did not appear however on that occasion.

As well he had not been granted leave to excuse himself from continuing as the legal counsel for the Respondent and so it was incumbent upon him to attend that mention hearing on 28 August 2019 to inform the court about a replacement solicitor. The matter was then further adjourned for four months to the 4^th December 2019 it seems to give him opportunity to inform the court of a replacement solicitor.

He again did not appear on the adjournment date and Mr. Suri applied to the Court for the matter to be struck out for want of prosecution. Mr. Suri submits that the delay to timely pursue the case and address the issue of a replacement solicitor is inordinate delay and inexcusable, and warranted a strike out of the claim.

3. Mr. Suri also points out that on the following dates, 25^th July 2018, 17^th October 2018, 6^th February 2019, and 17^th April 2019, the court had directed parties to complete directions but the Respondent continued to procrastinate and was not diligent in pursuing his claim from 7^th June 2018 to 4^th December 2019. He submits that this is inexcusable conduct on the part of the Respondent.

32. He refers to what this court said regarding this issue of delay and lack of reasonable expedition, in Samlinson (SI) Ltd and Akoai v Tarihao and Nakumora^[2], at paragraph [14]:
    • “... the introduction of the new Solomon Islands Civil Procedure Rules in 2007 heralded a fundamental change in the Court's attitude to delay in court proceedings.
    • [15] Parties in civil claims should be entitled to expect that the case will proceed with reasonable expedition. All lawyers must appreciate that it is their responsibility to ensure that they and their clients comply promptly with all procedural requirements and, in particular, any orders by the court. Failure to do so is likely to result in orders for the strict application of the new Rules. The specific purpose of rule 23.4 is to prevent deliberate or sustained failure causing the degree of delay that has so often bedevilled actions in the past.” (Emphasis added).
33. Mr. Suri submits that those words aptly apply to this case and strict application of the new Rules in relation to failures to comply promptly with all procedural requirements and directions of the court mean this case too should not have been re-instated. He says the learned Judge erred in lay by re-instating this claim without taking those factors into account.
34. Finally, on the question of change of legal representative, he submits that there was a lack of enthusiasm and promptness on the part of the Respondent by his failure to appoint a replacement solicitor from the 21^st August 2019 to the 4^th December 2019, being date of the strike out order, a delay of four months and 12 days.
35. He submits that there is reasonable expectation that Mr. Upwe would have informed the Respondent of his withdrawal as legal counsel as he continued to represent the Respondent in another civil matter in civil case no. 244 of 2011. He submits that the court was entitled to rely on that reasonable expectation to rule against any re-instatement of this case after it had been struck out in the court below. Blame therefore should be placed equally on the Respondent as on Mr. Upwe, as the Respondent was expected to act diligently and responsibly by maintaining reasonable contact and communication with his lawyer at all times about the progress of his case. The delay in the circumstances is consistent with lack of reasonable diligence and expedition in prosecuting his case.
36. The second inordinate delay relied on stretches from 4^th December 2019 to 13^th July 2020, being the date when the application for reinstatement was filed. This delay lasted for seven months and forty days. Again Mr. Suri submits that this amounted to excessive and inordinate delay in having the matter timely pursued and addressed.

Submission of the Respondent.

37. In its response, Mr. Kako for the Respondent submits otherwise, that during the period of the 7^th June 2018 to 4^th December 2019, being a period of some 17 months, there was no inordinate delay as the parties were busy attending to Direction Orders issued by the Court.
38. In particular, he refers to the directions issued by the Court on the 21^st August 2019 to adjourn the matter for 7 days for further mention on the 28^th August 2019. Mr. Upwe had advised the court of his intention to withdraw as counsel for the Claimant on the grounds of conflict of interest, and so the matter was adjourned so that he could provide an update for the Court as to a replacement solicitor.
39. In the interim period, the Court made it clear that Mr. Upwe should remain as counsel on the record for the Claimant.
40. Mr. Kako submits that nothing happened on the 28 August 2019 and from that date to 4^th December 2019, no replacement solicitor was engaged.
41. He submits that no inordinate delay occurred during that period as Mr. Upwe remained on record as the counsel for the Respondent. He submits that from the 21^st August 2019 to 4^th December 2019 was only a short period of 3 months.
42. On the issue of lack of reasonable expedition, he submits that it was this very fact of an intention to withdraw as counsel which contributed to further delay of the case from 28^th August 2019 to 4^th December 2019.
43. He also submits that the application for strike out on the 4^th December 2019 was done orally without any application being filed and so no notice was given to Mr. Upwe to attend and provide explanation.
44. On the issue of Change of Respondent’s legal representation, he submits that prior to taking over the file on or about 2^nd July 2020, Mr. Upwe was counsel from 27 August 2018 to 1^st July 2020.
45. He reiterates the point that from 21^st August to 4^th December 2019, was only a short delay of 3 months and 14 days. He submits that the Respondent was not responsible for the withdrawal of his counsel.

Analysis of Appeal Ground 1.

46. We have had opportunity to take judicial notice of the records of the court during the hearing on the 21^st August 2019. The records of the Judge read:
    • “Upwe –
    • ... Now at disclosure stage, have perused Issue instrument sign 29/10/2003 was instructed by 4 def in cc 39/15, I act for Claimant Joseph Manehamosa and tribe 4 defe in this matter. Have talked to my client & decide to withdraw from the matter. Seek adj to allow client to transfer to another counsel, may be Apaniai. An adj to allow process to go on.” (Emphasis added).
47. It is clear from the records of the court that Mr. Upwe had spoken with his client before seeking to withdraw from the matter. We are satisfied therefore that the Respondent was aware of the need to have the file transferred to another lawyer as at 21^st August 2019.
48. We agree with Mr. Suri that taking the totality of the period of delay from 7^th June 2018 to 4^th December 2019, and from 4^th December 2019 to 13^th July 2020, is a total delay of some 2 years and 5 months. That is exorbitant and excessive delay.
49. We agree with Mr. Suri that the delay of more than 3 months from the 21^st August to the 4^th December 2019, to have the issue of a replacement solicitor attended to is inordinate. The learned judge had given this issue high priority by adjourning the matter for 7 days for counsel to attend to this. His lack of diligence and expedition to attend to this issue promptly is unacceptable.
50. Directions issued by the court are to be taken seriously by counsel as part of their obligations and duty not only to the court but to their client as well. Directions are issued to ensure that progress of the case to trial or conclusion is not unnecessarily delayed and costs minimized. Where counsel is unable to meet the requirements of the court then an appropriate application should be made with reasons. No reason or explanation has been provided to the court for the non-compliance of the directions of the court.
51. We are satisfied this appeal ground should be allowed.
    • APPEAL GROUND 2: The primary judge erred in law in reinstating the case, after being dismissed, when there was unchallenged evidence in the Court below that some of the Defendants (i.e, one of 2^nd Defendants and three of 4^th Defendants) against whom fraud is being alleged and upon whom the Appellant/ 1^st Defendant relied to rebut the allegation of fraud have died, and so there is substantial risk of unfair trial and miscarriage of justice.
52. This ground relates more to the issue of proof of fraud in the case as raised by the Respondent in his claim in the court below.
53. It is not disputed that the following defendants have died:
    1. Francis Orodani, 2^nd Second Defendant, died on 11^th May 2019;
    2. Pioni Laumate, (one of the 4^th Defendants) died on 27^th December 2010;
    3. Joseph Manehamosa, (one of the 4^th Defendants) died on 23^rd January 2017; and
    4. Dominic Mikini (one of the 4^th Defendants) died on 20^th February 2018.
54. It is not in dispute that the heart of the allegation of fraud is the claim of forgery against Joseph Manehamosa and Francis Orodani, defendants who purportedly witnessed the signing of the transfer instrument by Joseph Manehamosa and Alex Bartlett, as transferors, on the 4^th August 2007.
55. In his defence filed 12^th March 2013, Makario Tagini (1^st Second Defendant) states that the signatures of Alex Bartlett and Joseph Manehamosa were identified to him by both late Francis Orodani and late Joseph Manehamosa. Mr. Tagini says that Joseph Manehamosa signed before him on that occasion of the 4^th August 2007, as did the First and Fourth Defendants.
56. He says that he did not know that the signature was forged and acted in good faith and due diligence, in relying on the assurances by Francis Orodani and Joseph Manehamosa about the signature of the Respondent.
57. So while he may have failed to comply with the requirement to have the Respondent physically present before him to sign the document, the issue of proof becomes relevant in the circumstances of this case.
58. We accept submissions by Mr. Suri that that issue can only be responded to by the deceased persons in this case.
59. The 2^nd Second Defendant (Francis Orodani) did not make any sworn statement and so there is no evidence available regarding his confirmation of the signature to the instrument by the Respondent. It would have been his word as against the word of the Respondent. As well, it was Joseph Manehamosa, who identified the signature of the Respondent to Mr. Tagini.
60. This is not as simple as it appears on the papers, for Mr. Manehamosa at the initial stages was joined as a Claimant with the Respondent but later withdrew and joined as one of the Fourth Defendants. The opportunity therefore to have him cross-examined in court is no longer available through his demise.
61. We note those two deceased persons are crucial to the issue of fraud and forgery in this claim. We agree that their death has affected the issue of fairness in this case in one way or another and accept that the risk of prejudice and an unfair trial is real and substantial. We adopt the words of the English Court of Appeal in Allen v. Sir Alfred McAlpine and Sons Ltd [1968] 1 All E.R. 543 as quoted in Delma Corporation South Pacific Ltd v. William & Gosling Ltd [2018] FJHC 332; HBC82.2006 (15 March 2018):
    • “The English Court of Appeal in that case, said when delay in the conduct of an action is prolonged or inordinate and is inexcusable (as is, per Salmon, LJ., the natural inference in the absence of a credible excuse), and there is substantial risk by reason of the delay that a fair trial of the issues will no longer be possible or that grave injustice will be done to one party or the other or to both parties, the court may in its discretion dismiss the action straight away, without giving the plaintiff opportunity to remedy the default, but leaving him to his remedy against his solicitor for negligence.”
62. The prolonged and inordinate delay in this case has resulted in the deaths of crucial witnesses to the claim of fraud and forgery.
63. We also note and remind counsel of the requirements of rule 3.27 of the Solomon Islands (Civil Procedure) Rules 2007, which state that:
    • “Conduct of proceedings if a party becomes bankrupt, under a disability or dies during a proceeding
    • 3.27 If a party becomes bankrupt, becomes a person under a disability or dies during a proceeding, a person may take another step in the proceeding for or against the party only:
    • (a) with the court's leave; and
    • (b) in accordance with the court's directions.”
64. We agree with Mr. Suri’s submissions that there is a risk that continuation of this case in the court below will be greatly prejudiced through the death of those key defendants and raises the potential of a substantial risk in the conduct of an unfair trial and miscarriage of justice. This is not the case where the deceased defendants can be substituted by the “party's trustee or personal representative or, if there is no personal representative, someone else”. That simply cannot be done in this case as the allegations of fraud are specific to those persons, Joseph Manehamosa and Francis Orodani, and only they can answer fully to those allegations.
65. We are satisfied the learned judge erred, in not taking those relevant factors into account and also allow this appeal ground.
    • APPEAL GROUND 3. The primary judge erred in law in reinstating the case, after being dismissed, when there was medical evidence in the Court below that a material witness of the Defendants (namely, John Hikimae) upon whom the Appellant/ 1st Defendant relied to rebut the allegation of fraud is now very ill and incapable of giving evidence at trial, and so there is substantial risk of unfair trial and miscarriage of justice.
66. This appeal ground arises from the counter claim of the Appellant against the Respondent, of fraud and forgery inter alia for the transfer of the said Property executed on the 14^th March 2007, from Joseph Manehamosa, Anna Rahevi, Dominic Mikini, Pionio Laumate and Peter Morosivo to Joseph Manehamosa and Alex Bartlett (transferees).
67. The Appellant alleges that the transfer of the said property was also forged in that it was not properly or validly executed before the witnessing officer, John Mark Hikimae (“Hikimae”) on the said date. In his sworn statement filed 11^th December 2013, and also in his oral evidence given before Maina J., Hikimae denies witnessing the signatures on the transfer instrument of 14^th March 2007. He is therefore a crucial witness to that important dealing.
68. If as alleged that the transfer was tainted with fraud this raises the issue of nullity of that transfer.
69. The significance of Hikimae’s evidence is relevant in the light of his deteriorating medical condition as set out in the medical report of Dr. Michael Vavala dated 23 December 2020, attached as “Annexure MV-4” to his sworn statement filed on the 21^st January 2021.
70. According to the medical assessment of Dr. Vavala, he says that Hikimae is essentially medically, mentally and physically impaired and that his condition will continue to deteriorate over time. He states that he could “rarely reach an hour sitting or several minutes standing”.
71. In his submissions, Mr. Suri says that the Appellant relies upon him as a material witness to the allegation of fraud in the Appellant’s counter claim but that because of his debilitating medical condition, she would be denied that assistance and thereby prejudicing her case. Mr. Suri submits that due to the ongoing inordinate delays and lack of expediency and diligence in the pursuit of this case in the court below, the likelihood of prejudice and a fair trial increases each day the case is prolonged. Drastic changes have occurred to the point that there is now a real and substantial risk of an unfair trial occurring and a miscarriage of justice in the court below.
72. We agree with Mr. Suri in his assessment of the state of the evidence with regards to the allegations of fraud and forgery in the claim in the court below and similar allegations of fraud and forgery in the counter claim of the Appellant (1^st Defendant in the court below). This case has suffered badly from an agonising delay in due process and diligence in the pursuit and progress of this case since its inception on or about the 21^st May 2012^[3].
73. We remind counsel and parties of the overriding objectives of the Solomon Islands Courts (Civil Procedure) Rules 2007, which stated in Rules 1.3 and 1.4 as follows:
    • “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.”
74. Rule 1.5 requires the Courts to apply the overriding objective and to give effect to it. Rule 1.6 also requires the Court to actively manage the case and sets out how to actively manage a case that is before it in Rule 1.7.
75. Rule 1.8 in turn sets out the duties of the parties in a case as follows:
    • “Duties of the parties
    • 1.8 The parties to a proceeding and their representatives must help the court to act in accordance with the overriding objective. They must avoid undue delay, expense and technicality and consider options for primary dispute resolution as early as possible.”
76. This case has taken more than 10 years to come this far without any end in sight when the issues raised in this appeal and before the court below could have been easily addressed many years ago had the overriding objective been strenuously and diligently applied. It has now reached the stage where the risk of prejudice and unfairness have eaten deep into the continuation and timely conclusion of this case.
77. There is another significant issue which has been partially referred to in the submissions of counsel in this appeal and in the court below with regards to the requirement of section 229 (2) of the Land and Titles Act (cap. 133), which provides as follows:
    • “(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”
78. In the Statement of Defence of the Appellant in the court below she continues to vehemently deny knowledge of the fraud or mistake or that she caused such omission, fraud or mistake or substantially contributed to it by her act, neglect or default.
79. The adverse changes that have occurred since the commencement of this case ten years ago can only infer that the likelihood of a fair trial has reached the point where it may be greatly compromised, and that there is a real risk of an unfair trial and miscarriage of justice occurring. We are satisfied this ground should also be allowed.
80. The orders of the court accordingly are, to allow the appeal, quash the orders of the Court below dated 31^st May 2021 to reinstate the claim, and award costs on the appeal in favour of the Appellant.

Goldsbrough (P)
Palmer (CJ)
Member
Gavara-Nanu (JA)
Member

---

^[1] Roselyn Dettke v. Attorney-General (Representing the Commissioner of Lands) and Attorney-General (Representing the Registrar of Titles) CC 45 of 2008.
^[2] [2012] SBCA 8; CA-CAC 49 of 2011 (23 March 2012)
^[3] Date the Statement of Claim was filed in the Court below.