Liufaifao'oa v Malaita Customary Land Appeal Court [1989] SBHC 12; [1988-1989] SILR 70 (10 November 1989)

[1988-1989] SILR 70

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 61 of 1986

LIUFAIFAO’OA

v

MALAITA CUSTOMARY LAND APPEAL COURT

High Court or Solomon Islands
(Ward C.J.)
Civil Case No. 61 of 1986

Hearing: 17 October 1989 at Auki
Judgment: 10 November 1989 at Honiara

Application for mandamus - whether Customary Land Appeal Court required to consider claim for costs not made at original hearing - duty of CLAC to advise litigants - application of equitable doctrine of laches.

Facts:

The Applicant won a case in the CLAC in April 1985. He applied for, and was awarded, costs of $40 but, being ignorant as to his rights, failed to claim a further sum of $401 to which he would clearly have been entitled. He became aware of this in October 1985 and sought legal advice from the Public Solicitor. The Public Solicitor applied to the Magistrate asking for the matter to be relisted but the Magistrate refused the ground that the CLAC was functus officio.

In 1986 the Public Solicitor filed an application in the High Court under Order 61 for leave to apply to issue mandamus against the CLAC. There was then delay in prosecuting the matter until July 1989 when leave was granted but the court left the question of the delay to be considered with the substantive motion.

Held:

(1) The general rule is that costs should be applied for at the end of the case.

(2) The CLAC is in a special position. Whilst it deals with matters of custom its procedure is that of a formal court. No legal practitioner is permitted to appear before a CLAC and thus there is a burden on the CLAC to ensure the parties know their rights and obligations.

(3) In this case, there was nothing on the record to show that the Applicant was told what costs would be entitled to. The CLAC had therefore made a decision that the Applicant should have his costs but had failed to consider the relevant matters in determining the amount of those costs.

(4) The equitable doctrine of laches applies not only where there is delay in commencing proceedings but also if there is delay in prosecuting or pursuing proceedings even after judgment. Where a party tries to establish that the delay has been so excessive as to amount to laches he must show that, in all the circumstances of the case, a reasonably assiduous person would have proceeded with substantially greater speed or diligence. Dicta of Lord Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. Case 1218 at page 1279 and Sir Barnes Peacock in Lindsay Petroleum Company v. Hurd (1874) 5 LRCP 221 applied.

(5) In the particular circumstances of this case the reasons for the delay were such that it did not prevent the order sought.

Accordingly a writ of mandamus was issued for the CLAC to consider the matter of costs.

Cases referred to:

Lindsay Petroleum Company v. Hurd (1874) 5 LRCP 221
Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. Case 1218

P. Kee for the Applicant
The Respondent did not appear and was not represented

WARD CJ: On 12 April 1985, the Applicant in this case successfully appealed to the Malaita Customary Land Appeal Court in a case involving Haui land.

The record of proceedings in that court shows the decision of the court was delivered and the record then continues:

“Decision: Appeal allowed. Decision of local court set aside. Appellant and his line are the sole owners of Haui land. Appellant claims $40 expenses. Respondent will accept the claim if he is shown a receipt.

Order: Respondent to pay $40 expenses to the Appellant on production of receipt”.

The Applicant has told this Court that he was asked by the Magistrate/Clerk to the CLAC whether he had any expenses and he thought the only thing he could claim was the cost of the truck to the hearing. He had, in fact, paid a filing fee of $100 and typing charges of $301 in December 1984 but did not realise, when asked about expenses, that he should have mentioned those.

On 4 October 1985 he went to the Public Solicitor in Auki and was advised he could have claimed those sums. On 16 October, the solicitor, Mr Shipley, wrote to the Magistrate asking to “list a costs hearing between the two parties at the next hearing of the CLAC so that the problem can be resolved.”

On 29 October, the Magistrate replied “There is no way this case can be reopened by the Customary Land Appeal Court as the court is functus officio.”

On 28 January 1986, Mr Shipley filed an application for leave under O.61 to apply for an order of mandamus requiring the CLAC to entertain the application for costs. At that stage Mr Shipley left the Public Solicitor’s Office and the file was transferred to Mr Brown in Honiara. He realised a further fee of $41 was payable and wrote to the Applicant on 13 May 1986 requesting payment. Part of the reason for the subsequent delay was the failure of the Applicant to pay that sum.

In October 1986 Miss Hays took up the post of Public Solicitor in Auki. The Applicant saw Miss Hays and she, according to his evidence, said there was no High Court sitting due in Auki and he therefore thought there was nothing to do. Miss Hays left in December 1987 and Mr Kee arrived to take her place in October 1988. The Applicant went to see him and Mr Kee, who knew nothing of the case, requested the file from the Honiara office, eventually receiving the papers in early 1989. He applied for the case to be reinstated and it was listed before this court on 3 July 1989 when I granted leave but left the question of the delay to be considered with the substantive motion. The Respondent, though advised leave had been granted, did not attend this hearing.

The Customary Land Appeal Courts were set up under the provisions of the Land and Titles (Amendment) Act 1972 and, although there is provision under the principal act for the Minister in consultation with the Chief Justice to make rules, none have been made.

What, then, is the general position regarding costs? Clearly costs should be applied for at the end of the case and, where possible, the order should be made at that time subject, of course, to any later hearing necessary to ascertain the measure of them. The parties to an action are entitled to finality in the proceedings and it is undesirable that one party should come back after the conclusion of the case and obtain an additional order for costs against the other.

At the CLAC hearing the Applicant won the case and was clearly considered by the court to be entitled to his costs. Only $40 was ordered because that was all that was asked. I accept that normally that would be an end of the matter.

However, the CLAC is in a special position. Whilst it deals with matters of custom, its procedure is that of a formal court. For anyone who does not understand the ways of court procedure, as is the case with many litigants in land cases, it is a confusing and, possibly, even a frightening experience. Furthermore, by section 231A(b) no legal practitioner is permitted to appear before a CLAC. Thus the normal way in which a confused litigant can seek assistance is denied him. There is, of course, good reason for this provision but the result must be that it casts a burden on the court itself to ensure the parties know their rights and obligations.

The record of the appeal shows that the matter of costs was considered and it is clear the court felt that, in accordance with the usual rule that costs follow the event, the Appellant should have his costs. There is, however, nothing in the record to show whether he was told what that involved. In fact, I feel he cannot have been told. I cannot believe that a man who claims $40 truck hire would fail to mention a further sum ten times larger if he had known it could be claimed. Thus, on the particular facts here, the court made a decision that the Appellant should have his costs but failed to consider the relevant matters in determining the amount of those costs.

In a normal case, the failure of the successful party to claim adequate costs would be no help to him later but here the circumstances were different. It is apparent the CLAC did award him his costs. Their failure was to advise him sufficiently to enable him to make a full claim. Thus, in principle, I feel the court should be directed to consider those additional costs but, before I make such an order, I must consider the question of his delay.

The general principle in Equity is expressed by the maxim ‘Delay defeats equities’ or, as it is sometimes expressed, ‘equity aids the vigilant and not the indolent’. The position, as stated in a very early case by Lord Camden LC, was that a court of equity

“has always refused its aid to stale demands, where a party has slept on his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting, the court is passive and does nothing”. (as quoted in Snell’s Principles of Equity, 27th edition at page 33).

However, as the doctrine developed, it became necessary in order to establish laches (i.e. sufficient delay to bar a party from obtaining his equitable remedy) to show that the delay of which one part complains is such that it has caused him to be prejudiced or that for some other reasons it would be unjust.

Sir Barnes Peacock giving the opinion of the Board in Lindsay Petroleum Company v. Hurd (1874) 5 LRPC 221 at page 239 said -

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of the these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

Later he added at page 241 -

“In order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily, ... necessary that there should be sufficient knowledge of the facts constituting the title to relief.”

In Erlanger v. New Sombrero Phosphate Co. (1878) 3 App. Case 1218 at page 1279, Lord Blackburn, after quoting the first passage above of Sir Barnes Peacock said -

“I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the injury, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.”

That accurately expresses the present position. Where a party tries to establish that the delay has been so excessive as to amount to laches, he must show that, in all the circumstances of the case, a reasonably assiduous person would have proceeded with substantially greater speed or diligence. This doctrine applies not only where there is delay in commencing proceedings, which is the commonest case, but also if there is delay in prosecuting or pursuing proceedings which have been properly commenced and it applies even after judgment has been entered if the plaintiff should delay unduly in obtaining execution. In all the circumstances, I feel the reasons for the delay here are such that it should not prevent the order sought in this Court.

Thus there will be an order of mandamus for the CLAC to consider the matter of these costs. It is for them also to decide whether the delay, on account of the reasons or the manner in which it has occurred or its effect on the other party should defeat the claim. Clearly, as this affects the Respondent in the action, he should be informed of this judgment and given an opportunity to address the court before a decision is made. However, if he does not wish to attend after notice, his absence should not delay the proceedings further.