Kakapena v Aivini [1991] SBHC 20; HC-LAC 001 of 1990 (25 February 1991)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 1 of 1990

NEOLLA KAKAPENA

-v-

ASOLO AIVINI

High Court of Solomon Islands
(Ward C.J.)

Hearing: 25 February 1991
Judgment: 25 February 1991

J. Remobatu for the Appellant
Respondent in person

WARD CJ: This is an appeal from the decision of the Customary Land Appeal Court (Malaita) sitting in Luaniua, Ontong Java on 27th January 1990.

There are four grounds:-

1. The court erred in law in not effecting proper service of the notice of hearing and the date of hearing of the case to the Appellant.
   
2. The court erred in law in not taking into account an objection to Mr Walter Henoku by the Appellant from being included as a member of the Court.
   
3. The court erred in law in proceeding to hear and determine the Customary Land Appeal No. 2 of 1988 case without the Appellant and without taking note of the Appellant's objection.
   
4. There was a breach of section 10(8) of the Constitution of Solomon Islands.
   

They all relate to the same basic points which can be seen by a consideration of the history of the case. Having heard counsel for the appellant, I have looked at the original file to ascertain which letters allegedly written by the appellant have in fact been received by the court office and the facts I set out are partly based on that research.

The appellant was the respondent in the lower court and, on 12th July 1989, the clerk to the CLAC wrote to both parties stating that it was hoped to list the case sometime in September depending on shipping schedules. He enclosed a standard letter referred to as "Standard Letter B" and also set out the names of the justices to hear the case which included Walter Henoku.

It appears the standard letter was inadvertently not enclosed and, on 7th September, the appellant telegrammed the Magistrates Court.

"Received 4/9/89 Haleuka Land Appeal Court Case No. 2/88 missing copies standard letter B and local court appeal points. Objection Walter Henoku. Too short notice. May not able attend. Letter follows".

It was signed by the appellant with a Post Office Box in Honiara.

The letter referred to was sent on 16th September. It included this paragraph -

"I am now in Honiara. If you are going to visit Ontong Java next month with the members of the CLAC, please inform as soon as possible so that I can remain here to come over and attend the customary land appeal court. If you have to leave it for another couple of months or so, please could you advise because I left half of my family in Noro in the Western Province."

The documents she asked for were sent and, on 24th September, she again write from Honiara saying -

"I would like to advise you that I strongly object to Walter Henoku - the Luaniua member for the CLAC".

She then sets out three detailed objections.

She wrote again on 9th October acknowledging receipt of the other documents and demonstrating by the points raised that she intended to contest the case.

The clerk to the CLAC replied on 17th October to that letter and the previous one.

The CLAC sat on 24th January 1991 at Luaniua and the record starts -

"The appellant present but the respondent still in Gizo. Apparently came in September. Not this time. Court to adjourn to see if sister of Respondent can act as spokesperson".

When the court resumed, one Mankana was present.

"Mankana explains that she is not authorised to speak on respondent's part. She (Respondent) has all the paper with her in Honiara. Mankana given time to go through appeal points. Wants the case adjourned so Respondent can be present because anything she says might offend Respondent. Does not wish to take part in proceedings."

The trial then proceeded. The record lists the justices including Walter Henoku and notes -

"Objections: None voiced by Appellant"

The judgment given on 27th January referred to this in the following terms:-

"The Respondent is in Honiara but a service message was broadcast on SIBC some two weeks prior to the hearing. The Respondent did not contact the Court to seek an adjournment. As this is an old case which started in 1978 and as this Court felt sufficient notice had been given it was decided that the Appeal should proceed.

The Respondent's relatives in Luaniua were contacted and asked if they wished to be heard. They declined to take part in the proceedings because they did not have any of the court documents and they did not have the Respondent's authority. They remain as observers and this court is grateful to them for their courtesy.

This court also took the view that all the evidence necessary had been put before the Local Court. In any appeal case it is only in special circumstances that new evidence is allowed. The Appellant did not seek to introduce any new evidence.

In all the circumstances the court took the view that this appeal should be heard and disposed off as quickly as possible."

Thus the appeal is based on two main points, the question of notice of hearing and the objection to Walter Henoku.

On both grounds, I feel this appeal must be allowed.

The use of a service message is a very useful means of warning parties to litigation. However, where there is a clear postal address, the notice of hearing should also always be posted. In this case, there was already ample clear evidence that the appellant intended to oppose the appeal in the CLAC. With that before them and the statement that the papers were all with the respondent, I feel the court should not have proceeded with the case.

Also in those papers was a clear challenge to one of the justices. The record shows that was not even considered. Not only was there on the file a written objection but substantial grounds also in support of that objection. The failure by the court to consider that is fatal and the appeal must be allowed.

Appeal allowed. Appeal remitted to CLAC. It is not practical to order a hearing by a different court but I feel the matter may be considered by the same court. Before the new hearing starts, the Court must hear the objection to Walter Henoku. If it is upheld he must withdraw.

Both parties must then present their cases de novo.

I appreciate that, if the objection to Walter Henoku is upheld, it may be suggested he has already expressed his opinion in the case. I am sure the remaining justices will ensure they consider the appeal on the matters before them in the fresh hearing only and disregard any other points that may have come up previously. Because the clerk/magistrate who sat previously will have left, there will have to be a different clerk and he must ensure the discussion is limited to matters brought up at the new hearing.

Costs of the appeal to be costs in the cause.

(F.G.R. Ward)
CHIEF JUSTICE