Temasuu v Taupongi [1983] SBHC 23; [1983] SILR 103 (26 April 1983)

[1983] SILR 103

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 12 of 1982

TENASUU

v

TAUPONGI

High Court of Solomon Islands
(Daly C. J)
Customary Land Appeal Case No. 12 of 1982

26th April 1983

Procedure - customary land appeal court - cross appeals failure to hear one party on appeal points - breach of natural justice - hearing new evidence.

Facts:

In the Local Court both parties brought claims against each other in relation to customary lands. Against the findings the parties cross-appealed. The Customary Land Appeal Court reversed the decision reached save where there was no dispute. The Appellant appealed to the High Court on the ground that he was not given an opportunity to deal with the Respondent’s appeal points in the C.L.A.C.

Held:

Following Dapikana -v- Pazabose (No. 1) C.L.A.C. No. 18 of 1981) it is a breach of natural justice if one party is not given a full opportunity to present his case on the issues before the court. As the Appellant was not given such an opportunity the case must be remitted for retrial. An order for procedure is suggested in the judgment.

Per curiam: The C.L.A.C. considers the record and submissions on it. It can hear new evidence where good cause is shown why such evidence was not heard in the local court. It does not rehear the case in full.

For Appellant: K. Brown
For Respondent: A. Nori

Daly CJ: This is an appeal from a decision of the Central Islands Customary Land Appeal Court (“the C.L.A.C”) given on 29th March, 1982. The Court was considering appeals from decisions of the Bellona Local Court in relation to certain lands. This case is far from a simple case and it is not surprising that the C.L.A.C. fell into procedural error. I have every sympathy with them but, nevertheless, as I indicated at the hearing, I must send this case back for retrial. I now give my full reasons for so deciding.

The original claim was by Thomas TAUPONGI (who I shall call the Respondent) who sought to recover TANGAMUA land although when he came to give evidence in the Local Court he also mentioned MATAGUPE land. There was an immediate counterclaim Sauhonu TEMASUU (“the Appellant”) that the Respondent had taken GONGOMATANGI land and BAIPUKE land owned by him, the Appellant. The Local Court heard much evidence, took time to consider their decision and then gave judgment on 10th March 1981. It held that TANGAMUA, GONGOMATANGI and BAIPUKE lands belonged to the Respondent and that MATAGUPE (or SAUMANGEI) land belonged to the Appellant.

There were cross appeals to the C.L.A.C. The Appellant apparently putting the whole case in issue again whereas the Respondent restricted his appeal to MATAGUPE land; the only land which he had lost.

In the C.L.A.C the Appellant opened first and dealt with appeal points. It was apparent in that court that BAIPUKE not really in dispute as the Appellant was conceding that land belonged to the Respondent. The Respondent then dealt with both the Appellant’s appeal points and his own points. The case ended without the Appellant replying and, as both parties agree, without the Appellant having an opportunity to deal with the Respondent’s appeal points. The C.L.A.C awarded MATAGUPE Land to the Respondent and BAIPUKE “by admission” went to the Respondent. The Appellant was awarded TANGAMUA and GONGOMATANGI Land. We thus have the result that the C.L.A.C changed about the decision concerning each land apart from the land not disputed.

There are cross appeals to this Court against these decisions. The Appellant relies upon one ground of appeal at this stage. It is that the C.L.A.C failed to give him an opportunity to deal with the Respondent’s appeal points. It is correct to say that the C.L.A.C in its judgment recorded that “it is not necessary for the C.L.A.C to comment on Thomas TAUPONGI’s appeal”. But as they then went on to award the land the subject of that appeal to the Respondent, I do not consider that much reliance can be placed upon that passage and neither did counsel for the Respondent who did not seek to make any point upon it.

The result is that we have exactly the same situation as arose in Dapikana v. Pazabose (No.1) C.L.A.C No. 18/1981 (Judgment delivered 23 October 1981). In that case this court said at p. 2: -

“It is a fundamental principle of natural justice that a party before a court shall be given a full opportunity or to present his case on the issues before the court. In this case the issues were set out in two sets of appeal points and, as I find that the appellant was not give an opportunity to deal with one set of points either initially or by way of reply, then I must find that there was a breach of this principle. I should add that I have sympathy with the C.L.A.C that was faced with a large number of complex issues but nevertheless I must set aside their findings and remit the case for rehearing by a Customary Lands Appeal Court differently constituted.”

It follows that the same order must be made in this case.

To endeavour to ensure that this situation does not occur again perhaps I should suggest a procedure to be adopted when there are appeals and cross appeals. This as follows: -

1. Decide whose appeal was filed first. That party becomes “the Appellant” the other party “the Respondent”

2. The Appellant begins. He deals with his own appeal points and the Respondent’s appeal points.

3. The Respondent follows. He deals with his own appeal points and the Appellant appeal points.

4. The Appellant replies dealing with any points arising from what the Respondent has said.

It is, indeed, normal practice in all civil cases to give the Appellant a right of reply whether or not there is a cross-appeal. It is the opportunity to speak that is important; if a party does not wish to deal with any matter that is for him to decide. A record that he was given an opportunity to do so is sufficient.

As the Respondent is content with the order for rehearing there is no need for me to consider the Respondent’s case. The point upon which he sought to rely does however raise another procedural matter which has caused difficulties. This is the calling of evidence in the C.L.A.C. The C.L.A.C. does not rehear the case in full but considers the record and submissions upon it. It can hear new evidence if it wishes but an application should be made to call such evidence and that application should show reason why the evidence was not called in the Local Court. Of course, if the witness was sick or abroad or the evidence to be given is as to something occurring after the Local Court hearing that may be acceptable. In the absence of circumstances such as these leave should be refused. It would be wrong to let party deliberately keep back a witness for an appeal.

As I have said, this case must be remitted to the C.L.A.C. for retrial by a court differently constituted. No order as to costs.