Ahikau v Waihunu [2014] SBHC 64; HCSI-CC 489 of 2010 (17 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CIVIL CASE NO. 489 OF 2010

BETWEEN:

CHRIS HARISIHARAI AHIKAU, PETER MANEHANISIWA, PETER KENITAHANA (Representing haunihuro arata/ohapu sub-tribe or clan).
Appellants

AND:

PHILIP WAIHUNU, PAUL KAUSIMAE, MERCY ONAHERO, FELIX PAOMAE and ROMORO (Representing haunihuroasi sub-tribe or clan)
Respondents

Date of Hearing: 3rd June 2014
Date of Ruling: 17th June 2014

Mr M. Ipo for the Appellants
Mr D. Marahare for the Respondents

RULING

Faukona J: This case is an appeal to the High Court against the Malaita Customary Land Appeal Court (MCLAC) decision made on 13th September 2010. The appeal was filed by way of notice of appeal on 1st December 2010, and content thereof comprises grounds of appeal.

2. This application is basically seeking leave from this Court to adduce new evidence. That is to include in the appeal book sworn statements by two deponents, and further amendment to the amended notice of appeal.

3. During submissions both Counsels agreed that the sworn statements of two witnesses Mr. P. Manehanisiwa and Mr. A. Manerou be admitted and be part of the appeal papers. The two sworn statements support the allegation of likelihood of bias by MCLAC alleged in ground one of the notice of appeal.

4. The two Counsels further agreed and accepted that leave is not necessary. As soon as the sworn statements are filed and served the Respondent be given opportunity to reply.'

5. With the consensus reached by Counsels the new sworn statements by the Appellants and reply from the Respondent be either inclusive in the Court Book or kept in file as separate but part of the appeal papers which the Court will consider at trial. Therefore, as agreed leave sought under relief 2 is not necessary. Further to that document marked as "PM1" attached to draft sworn statement of Peter Manehanisiwa be included.

6. As reflected in submissions those documents were previously used in lower Courts including the MCLAC. As such, they are part and partial of the Court record papers in the MCLAC; there is no need to seek leave to include. They became automatic part of the record and ought to be included.

7. The only contentious issue is leave sought under R16.31 for the amendment of notice of appeal after the date for settling the appeal papers had been set. The application is to grant leave for the Appellants to file further amended notice of Appeal. Mr Marahare argues any grant of leave to file further amendment to the amended notice of appeal must be on good grounds or for good reasons.

8. The Court Book had been settled filed and served. Usually it was done by the Claimant/Appellant. In this case was done by the Counsel for the Appellants. Mr Ipo submits that the major difference can be distinguished by paragraph 4 of the propose further amended notice of appeal. I do not seem to agree with Mr Ipo. Paragraph 4 may utter some hindrances to the Appellant's case. The arrangement I knew during my time in the Magistrates was that each language group in Malaita should only have one member representative in the MCLAC. For instance East AreAre one members, the same as West Areare and so on. Other further amended paragraphs may seem to require respond by the Respondent, for instance, relationship of the vice President of MCLAC to the Respondent, paragraph 1(b).

9. I noted from the two documents, there are no major variances in structure and point. Secondly, to allow and admit further amended notice of appeal won't change the Appellants' case. Whatever missed out can be covered by final submissions by the Counsel. To allow further amended notice of appeal may promote reopening of pleadings which I am mindful not to entertain at this stage.

10. In conclusion, there is no good reason to convince me to allow further amended notice of appeal to be filed. I must therefore refuse to grant leave on this point.

Orders:

1. Order, the Claimants can adduce new evidence by including sworn statements of Peter Manehanisiwa and Aloysius Manerou.

2. Consequent to order 1 the Respondents are given privilege to file response by way of sworn statement.

3. Order, documents marked as "PM1" exhibit and attached to Mr Manehanisiwa sworn statement be part of that sworn statement.

4. Refuse to grant order to file further amended notice of appeal.

5. Both parties succeed in part hence costs in the cause.

The Court.