Pita v Qoloni [1997] SBHC 116; HCSI-CLAC 6 of 1996 (21 December 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 6 of 1996

JOHN PITA

-v-

ISAAC QOLONI, LESLIE PITISOPA

High Court of Solomon Islands
(Muria, CJ.)
Land Appeal Court No. 6 of 1996

Hearing: 29 September 1996 at Gizo
Judgment: 21 December 1997

Douglas Hou for the Appellant
L. Pitisopa for the Respondents

MURIA CJ: This is an appeal by John Pita against the decision of the Customary Land Appeal Court (Western) in the dispute over the boundary of Panaka Land. The Customary Land Appeal Court quashed the Local Court’s decision and found in favour of the present respondents.

Before this Court, the appellant relied on one ground only, that is, the hearing and subsequent decision be set aside on the basis that there had been a breach of the principles of natural justice in that he (the appellant) was not given a fair opportunity to be heard. The appellant’s ground of appeal, although, a short one, raises an important point for consideration.

Briefly the circumstance leading up to this appeal are that an appeal was lodged by the respondents against the Local Court’s decision on 14 March 1988. There is no doubt that the appellant knew of the appeal being lodged by the respondents in the Customary Land Appeal Court in 1988. In 1992 the appellant was informed of the hearing. However the 1992 hearing was later cancelled on advice from the Court so there was no need for the parties to attend. A further hearing was scheduled in May 1996. Messages were said to be sent to the parties in May 1996 for a hearing before the Customary Land Appeal Court. That sitting did not take place as the present appellant failed to turn up. The case was adjourned to the July sitting of the Customary Land Appeal Court (Western). A message was said to have been sent in July 1996 for the hearing by Customary Land Appeal Court of this case which was scheduled for 22 July 1996. That message prepared on 16 July 1996 was broadcasted over the SIBC on 18 July 1996. Following that Service Message, the respondents turned up for the hearing. The appellant failed to turn up. The Customary Land Appeal Court proceeded with the hearing on 22 July 1996 without the appellant and gave its decision on 26 July 1996 quashing the Local Court’s decision. In its finding the Customary Land Appeal Court held that the real boundary of the land in question is from Puru River, Kubotia and Vuru Qome.

Natural Justice

The principles of natural justice, one of which is that a person must be given the opportunity to state his case, are all too elementary to repeat them here. The right to be given the opportunity to state one’s case entails also the right to be given reasonable notice of the case a party has to meet. Thus the opportunity to present one’s case can only become real if reasonable notice of the opportunity is given to the party concerned. Of course once a party has been shown to have been given due notice, then the failure to state his or her case at the time required under the notice will usually result in a matter being considered in his or her absence. I say “usually” as there may be exceptional circumstances in which the party will be unable to make use of the opportunity to state his case despite being given due notice, such as being ill or prevented by natural disasters and so on.

Having said that, it will be necessary then to consider the circumstances in this case. The evidence in this case disclosed that on 22 May 1996 the Magistrate’s Court, Gizo sent Notice of Hearing to the parties. The Notice together with copies of the record were sent in a sealed envelope to the appellant at Tunoe Village, South Choiseul. The Gizo Post Office received the envelope on 23 May 1996. The stamp at the back of the envelope was dated 25 July 1996 which was the date Papara Postal Agency in South Choiseul received the envelope containing the Court papers. This goes to confirm the appellant’s evidence that he did not know of the hearing in May 1996. He did not receive the Court papers until 25 July 1996 or some time after that.

As to the adjourned hearing on 22 July 1996, the appellant stated that he did not hear of it. He did not receive any notice of the July hearing nor heard any service message about it. The respondent on the other hand argued that a service message notifying the parties of the hearing on 22 July 1996 was sent to the parties through SIBC and also through radio communication. They heard the messages and attended the hearing on 22 July 1996. They said the appellant heard the messages and should have returned. The implication is that the appellant heard the message about the hearing before the Customary Land Appeal Court in Gizo on 22 July 1996 and deliberately failed to attend.

Materials before the Court

The evidence and other materials now before Court show that the envelope sent to the appellant by the Magistrate’s Court Office in Gizo was dispatched from Gizo Post Office on 23 May 1996 and was received at Papara Postal Agency in Choiseul on 25 July 1996. The appellant also received that envelope on 25 July 1996 or sometime after that. The Court documents together with the Notice of hearing for 29 May 1996 before the Customary Appeal Court were in that envelope. Clearly the appellant did not know of the hearing fixed for 29 May 1996. The matter was adjourned to 22 July 1996. Apart from the SIBC message there was not notice in writing sent to the parties about the new hearing date.

The respondents’ evidence was that they heard the service message and attended the hearing. They said the appellant must also have heard the message. Apart from that assumption this Court is not able to ascertain whether or not the appellant’s actually heard the message.

Then there is the suggestion by Patrick Silas, on behalf of the respondent, in his evidence that in May 1996 a message was delivered to the appellant by one Supakana about the May hearing of the case. Again it was said that in July 1996 Patrick Silas said that he sent message to the appellant through Supakana to inform him about the hearing in July 1996.

Unfortunately, Supakana had not been called and so we cannot be sure of the truth of that assertion.

Having considered the evidence and materials, the Court is left in uncertainty as to whether the decision of the Customary Land Appeal Court should not be interfered with. There is clearly some sense of doubt as to whether the appellant was aware of the hearing on 22 July 1996. On balance I feel the scale is tipped in favour of the appellant.

In the circumstances, I feel justice will be served if the appeal is allowed and have the matter remitted to the Customary Land Appeal Court differently constituted to hear the appeal from the Local Court. I direct that the service of the Notice of hearing on the parties be done through the Police with affidavit evidence of service to be filed in Court.

Order: Appeal allowed.

Remitted to Customary Land Appeal Court differently constituted to hear the appeal.

Service of Notice of hearing through Police.

(GJB MURIA)
CHIEF JUSTICE