Aleve v Grandly [2024] SBCA 6; SICOA-CAC 22 of 2023 (31 May 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Aleve v Grandly
Citation:
Decision date:	31 May 2024
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Kouhota; J)
Court File Number(s):	22 of 2023
Parties:	Alaster Aleve, Kitchener Bird and Roselyn Aleve, Davis Taro v Carlton Grandly , Leeroy Joshua & Kevin Joshua, PWP (SI) Limited, Gulf Three (SI) Limited, Attorney General
Hearing date(s):	27 May 2024
Place of delivery:
Judge(s):	Muria P Gavara-Nanu JA Lawry JA
Representation:	L Puhimana Appellant E Olofia 1st and 2nd Respondent W Togamae 3rd Respondent F Fakarii 4th Respondent
Catchwords:
Words and phrases:
Legislation cited:	Court Of Appeal Rules 1983, r 22, r 22 (1) and (3) Forest Resources and Timber Utilisation Act S 39 (2),
Cases cited:	Y Sato & Company Ltd v. Honiara Appointed Council [1999] SBCA 7, Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-7

JUDGMENT OF THE COURT

1. The is an application by the appellants made pursuant to Rule 22 of the Court of Appeal Rules, 1983 for leave to adduce fresh evidence in their substantive appeal. The evidence sought to be adduced is comprised of the Commissioner for Forests report on Re-Assessment and Ground Verification (‘the report’ hereon) which was conducted for Voge Operations on or about 9^th May, 2023.
2. The appellants submit the report proves that respondents trespassed into their customary land known as Patukae when carrying out logging operations in the land.
3. The appellants submit they could not adduce the report at the hearing before the High Court on the respondents’ interlocutory application made pursuant to Rule 12.11 of the Civil Procedure Rules, 2007 to strike out their civil claim titled, Civil Case No. 426 of 2022, in which the appellants claimed damages against the respondents for trespassed into their customary land.
4. The appellants submit that the report only became available after the primary court had delivered its decision in which it struck out their claim.
5. In its decision, the primary court held that boundaries of Patukae land were not demarcated nor were they determined. The primary court also held that there was no assessment or verification report from the Office of the Commissioner for Forests on Patukae land upon which the appellants’ claim hinged.
6. The appellants submit, that had the report been available at the hearing before the primary court the decision of the court could have been different.
7. The respondents’ application to strike out was heard by the primary court on 1^st June, 2023. The court’s decision was delivered on 19^th June, 2023.
8. It is submitted that the evidence of encroachment and trespass into Patukae land contained in the report are the determinative factors. It is also submitted that had the report been before the court, it would have rendered the respondents’ application to strike out frivolous and vexatious and thrown out by the court.
9. Notably, after the report became available, the Commissioner for Forests in a letter dated 23^rd June, 2023 to the Managing Director of the second respondent advised that that its Felling License TIM 2/24 was cancelled. The letter also advised that following a suspension notice issued to it on 24^th March, 2023, a report had been received that it had trespassed into a number of customary land including Patukae, thus the cancellation of its Felling License.
10. There is conclusive evidence from the report that the respondents, particularly the second respondent had encroached and trespassed into Patukae land.
11. The respondents placed reliance on a letter dated 7^th November, 2023 by the Minister for Forests to the respondents’ lawyers. The Minister advised in the letter that the respondents had appealed the suspension of their Felling License No. 2/84 by the Commissioner for Forests and that in the exercise of powers granted to the Minister under s. 39 (2) of the Forest Resources and Timber Utilisation Act, the suspension notice dated 24^th March, 2023 had been quashed and the License reinstated. The Minister further advised that all previous assessment reports were quashed and fresh reassessment was to be jointly conducted by parties to ascertain acts of trespass against the appellants group. The last paragraph of the letter read as follows – “That the appellants shall strictly observe the Solomon Islands Code of Logging Practices in their logging operations under license Tim 2/84 Arovo and Gae customary land is hereby reinstated”.
12. The letter is annexed to the sworn statement of Carlton Bradly, who is one of the respondents. The sworn statement was made on 27^th November, 2023.

Consideration

13. Section 22 (1) and (3) of the Court of Appeal Rules, 1983, empowers the Court to grant leave for fresh evidence to be adduced to the court. The Court has wide discretion in deciding whether leave should be granted for fresh evidence to be adduced.
14. In making that decision, the Court must be guided by established principles. Those principles are well established in this jurisdiction. In Y Sato & Company Ltd v. Honiara Appointed Council [1999] SBCA 7, this Court re-iterated the principles in adopting the decision in an English case of Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745 where the principles were restated. The Court said:
    • “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need be decisive; third, evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible”. (Our underlining).
15. The Court must exercise its discretion properly and judiciously in deciding whether to grant leave for the report to be received. Having regard to the principles enunciated in Ladd v. Marshall (supra), we take note that the respondents opposed this application only on the basis of the letter by the Minister for Forests in which the Minister purportedly advised that the suspension of the respondent’s Felling License by the Commissioner for Forests had been cancelled and the License reinstated. The respondents argued that cancellation of the suspension of the respondents’ Felling License had rendered the Commissioner for Forests’ Re-assessment and Verification report on Patukae land null and void.
16. However, we note from the last paragraph of the Minister’s letter that the decisions by the Minister only related to Arovo and Gae customary land, not Patukae land which is owned by the appellants and which was the subject of the claims by the appellants in their civil claim against the respondents before the High Court. This is also confirmed by the heading of the Minister’s letter. In our view, these undisputed facts render the arguments by the respondents frivolous and vexatious, thus have no merit and we reject them.
17. The respondents have not raised any other ground to oppose the appellants’ application. It follows that the matters raised by the appellants in support of the application remain uncontroverted, particularly the report by the Commissioner for Forests, upon which the appellants’ claim for damages against the respondents hinge, as found by the primary judge.
18. The appellants have proved that the report could not be made available at the hearing of the respondents’ application to strike out even with due diligent because it only became available after the primary court had delivered its decision.
19. It is also clear that, had the report been available before the primary court, it would have resulted in the primary court giving a different decision. Thus, we find that the appellants have satisfied all the tests in Ladd v. Marshall (supra) for the report to be received as fresh evidence for the appellant’s substantive appeal.
20. Consequently, we grant the application, and set aside the orders of the primary court.
21. The first to third respondents will pay the appellants costs of and incidental to this application, which are to be taxed if not otherwise agreed.

Muria P
Gavara-Nanu JA
Lawry JA