Abeai v Basifari [1997] SBHC 107; HCSI-CC 323 of 1995 (30 July 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 323 of 1995

ROBERT ABEAI

-v-

MANIALA BASIFARI, ROBERT RIMANA AND LEMUEL BAAI

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 323 of 1995

Hearing: 18 June 1997
Ruling: 30th July 1997

Patrick Lavery for Applicant
Thomas Kama for Respondents

RULING

MURIA CJ: At this stage of the proceedings in this case, the evidence for both parties have been concluded except that Mr. Kama would like to have the Court Clerk, Mr. Adrian Aihari, examined on his affidavit which exhibited a sketch map of the area under consideration.

Counsel for the applicant now asks the court to order an inspection of the area by an agricultural officer with a view to determining whether the coconuts (if any) growing on the land in question were planted before or after February 1982. Counsel contended that there is evidence to suggest that the respondent had planted coconuts in the area but the respondents said that those coconuts were planted before the 1982 CLAC decision. Counsel therefore suggested that a survey would be necessary to ascertain whether the respondent’s contention can be accepted or not.

Mr. Kama, for the respondent, objected to the application on the basis that the applicant had already closed its case and the respondent had already completed his evidence also and just about to formally close his case. This will be done as soon as the Court Clerk is examined on his affidavit. As such counsel argued that the further evidence by way of a survey report should not be allowed without any opportunity of examining the report or the person making the report. Secondly Mr. Kama argued that it would be an unnecessary expensive exercise to have the survey done. Thirdly Mr. Kama contended that both parties had already given their oral evidence and the court can properly consider the case on the evidence that is now before the court.

There are two issues here. The first is whether the court has the power to order inspection of the area under consideration in order to ascertain the age or the maturity of the coconuts or cocoa (if any) growing thereon and secondly, whether it should issue the order for inspection, if there is power to do so. Counsel for the respondents had not raised any objection to the fact that the coconut and cocoa trees are at the heart of the dispute between the parties in this case as it was the alleged planting of those crops by the respondents on the land in question that gave rise to these proceedings.

As to the first issue, it cannot be doubted that this court has power, inherent in its jurisdiction, to permit inspection of the subject matter of an action where it is necessary for the proper functioning of the court as well as for the proper conduct of the proceedings before it. No doubt such a power appears to be very wide indeed but there is good reason for the court to be allowed to have such a wide jurisdiction, that is to say, the court must be able to do whatever it can and necessary for the proper conduct of the proceedings and to the attainment of a just solution to the dispute before it which is the basic function of the court: Reef Pacific Trading Limited -v- Island Enterprises Limited, Civil App. No. 1 of 1992 (CA).

An illustration of what I have just said can be seen in Smith -v- Peters [1875] UKLawRpEq 126; (1875) LR 20 Eq. 511. In that case the defendant entered into an agreement with the plaintiff (through his agent) for the purchase of a house. A deposit of £500 was paid and other further sum of £10,200 was to be paid later. The defendant agreed to assign the lease of the premises and the goodwill thereof and the purchaser agreed to purchase at a fair valuation to be made by an agreed valuer. The valuer proceeded with his valuation but in the course of which the defendant intimated that he did not intend to complete the agreement between himself and the plaintiff and refused to permit the valuer to enter into the premises for the purpose of inspecting and valuing the property. The plaintiff sued for specific performance and in the meantime applied to the court for an interim order against the defendant to permit the valuer to enter the premises and carry out the inspection and valuation. The court ordered the defendant to allow the valuer to enter into the premises to enable him to carry out inspection and valuation. The court held that it has jurisdiction to make any order which is reasonably asked as ancillary to the administration of justice at the hearing. At page 512, Sir G. Jessel, M.R. said this:

“The first question that I have to consider is whether this application is in accordance with the practice of the Court. I have no hesitation in saying that there is no limit to the practice of the Court with regard to interlocutory applications so far as they are necessary and reasonable applications ancillary to the due performance of its functions, namely, the administration of justice at the hearing of the cause. I know of no other limit. Whether they are or are not to be granted must of course depend upon the special circumstances of the case”.

The Master of the Rolls was there exercising the court of Chancery’s equitable jurisdiction which jurisdiction this court also enjoys. The principle as expressed in Smith is clearly applicable in this jurisdiction.

Apart from the court’s inherent jurisdiction there is also power under the High Court (Civil Procedure) Rules which permits the court to order inspection of property which is the subject of a cause of matter. This is provided for under 0.53, r.4 which is in the following terms:

“r.4. It shall be lawful for the court upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter or as to which any question may arise therein, and for all or any of the purposes aforesaid to authorise any persons to enter upon or into any land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence”.

Under the same rule, there is also the power which the court may exercise to order entry onto any land as may be necessary or expedient for the purpose of obtaining full information or evidence. Again even under the rules of court there is a wide power possessed by the court in this area.

Thus the position is clear that the court has, both inherent and under the rules, the power to order inspection of the properties sought to be inspected in this case.

Turning to the second issue posed it is necessary to consider that in the light of what I have said earlier relating to the basic function of the court. That function is the attainment of a just solution to the problem before the court between the parties. A question may be asked is: will the inspection of the properties (coconuts and cocoa) enhance a just solution to the dispute between the parties in this action?

There is evidence in this case to suggest that the first respondent had coconuts and/or cocoa in the area concerned but those he said, were planted before the decision of the CLAC in 1982 was made. It is therefore sought by the applicant to have an expert in the field of agriculture gone into the area and inspected the crops with a view to ascertaining whether they were planted before or after 1982. I am inclined to feel that the need for a just solution to the dispute in this case requires the court to exercise its discretion in favour of making the order sought. That is what the court will do and it is hereby so ordered.

I order that an agriculture officer from the Ministry of Agriculture and Fisheries shall be allowed to enter upon the area of land under dispute and carry out inspection of coconuts and/or cocoa growing on that particular area of land and to determine, among other things, the age of those coconuts and/or cocoa as found growing thereon and to produce the report thereof to the court within three (3) months from the date hereof. For the avoidance of doubt that part of the Bita’ama Land under dispute is that which covers Bita’ama Point, then moving inland along the Malesaia (Malethaia) stream up to Bina Stream then across to Fo’osu Stream and follow that Stream down to the coast. The inspection shall cover only that area of land under dispute and described herein.

Mr. Kama raised the matter of costs. He claimed costs against the applicant for withdrawing the case against the second respondent at this stage of the proceedings. Mr. Kama also claimed costs against the applicant for withdrawing the case against the third respondent earlier on. Mr. Lavery conceded that as far as the second respondent was concerned, the applicant agreed that he should pay the second respondent’s costs.

I think that concession was properly made. I therefore formally order the applicant to pay the second respondent’s costs up to and including the costs of the hearing on 14th July 1997.

As far as the third respondent is concerned, the case against him had been withdrawn by Notice filed on 6 September 1996. It will be noted that by that Notice the applicant withdrew the case against both the second and third respondents. However, at the hearing on 9 September 1996 the applicant applied to have the second respondent re-joined as a party. The application was granted.

The hearing on 9 September 1996 at Auki was the first hearing of this matter. No doubt the parties had all been notified of the hearing. As a result all the parties were present at 9 September 1996 hearing at Auki. Mr. Lavery said that the third respondent was not entitled to claim costs since the case against him was withdrawn at the beginning of the hearing of this case. Also, it was argued that notice of this withdrawal was issued on 6 September 1996 and that even before that date, he informed Mr. Kama on 4 September about the withdrawal of the case against the third respondent. In those circumstances, Mr. Lavery argued, the third respondent was not entitled to costs.

It is well settled that the award of costs is a matter of discretion of the court. That power will, of course, be exercised by the court take into account the circumstances of the particular case.

In this case there are three factors which I feel should be borne in mind affecting the exercise by the court of its discretion. Firstly, the length of time between the notification of the discontinuance of the case against third respondent and the date of the hearing. The notification of the discontinuance must I take it be the formal Notice which in this case was that filed on 6 September 1996. Although the advice was communicated to Mr. Kama on 4 September 1996, Mr. Kama was entitled to rely on the formal Notice of Discontinuance filed on 6 September 1996 rather than the information received on 4 September 1996 as a change of heart by clients does some time occur between the giving of initial instructions and the actual filing of formal documents in court. Thus the period between the formal notification of the discontinuance and the hearing on 9 September 1996 was three days. Could this be considered sufficient time to get the message to the 3rd respondent of the withdrawal of the case against him? I feel the answer must depend on how and where the 3rd respondent could be easily reached at the time. However one must obviously accept that there must be some measure of reasonableness as to the timing in such a case. This leads to me to the next criteria.

The other factor that must be borne in mind is the location of the third respondent who lives in Malaita Province. The notice was issued in Honiara and filed on 6 September 1996. Assuming for the moment that the Notice was served on Mr. Kama on the same day, Mr. Kama had three days within which to notify the third respondent. If however the Notice which was filed at 14:29 in the afternoon on 6 September 1996 had not been served on Mr. Kama on the same day, then he had less than three days to notify the third respondent. In view of the fact that the third respondent was in Malaita Province, to expect him to receive the message of the withdrawal of the case against him within three days cannot be said to be reasonable.

The other factor which may be considered and which the applicant may argue is the fact that the third respondent was legally represented and with due diligence, his solicitor could have caused the message to be sent to him through the most quickest means which was by service message by radio. While this argument may hold good in some cases it certainly cannot be so in this case. Within the three days, one has to take into account realities of transportation and communication in Solomon Islands, particularly in this case where the parties had to travel from North Malaita to Auki and the solicitors had to travel from Honiara to Auki for the hearing on 9 September 1996. The chances were that it would be difficult to properly communicate with the third respondent even by radio message especially in view of the fact that the Notice was filed at 14:29 on 6 September 1996 which was a Friday and the last working day of the week. The hearing was at Auki on the Monday 9 September 1996. Of course solicitors are expected to act with due diligence when representing the interest of their clients. But the circumstances as presented here do not warrant any adverse view of the action on the part of the respondent’s solicitor.

The third respondent in this case acted on the notice of hearing of the case at Auki on 9 September 1996. Acting on that notice he attended Auki hearing. It was there and then that he was told that the case against him was withdrawn. In those circumstances and weighing all that I have said above, I exercise the court’s discretion and order that the third respondent’s costs occasioned by his attendance of the hearing at Auki on 9 September 1996 shall be paid by the applicant.

Order:

1. Agriculture Officer from the Ministry of Agriculture and Fisheries to enter upon and inspect the coconuts and/or cocoa in the area under dispute and to report to the court within 3 months from date hereof.

2. Applicant to pay second respondent’s costs up to and including costs of hearing on 14 July 1997.

3. Applicant also to pay the third respondent’s costs occasioned by his attendance at the Auki hearing of this case on 9 September 1996.

(GJB Muria)

CHIEF JUSTICE