Tome v Attorney General [2021] SBHC 124; HCSI-CC 420 of 2016 (21 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tome v Attorney General
Citation:
Date of decision:	21 September 2021
Parties:	Joel Tome, Henry Tabule and Nelson Leua v Attorney General, James Onoi
Date of hearing:	18 May 2021
Court file number(s):	420 of 2016
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:	Guadalcanal Customary Land Appeal Court
Order:	1. All the grounds in the notice of appeal are all struck out and dismissed. 2. The written decision of the Guadalcanal Customary Land Appeal Court on 12th May 2015 remain standing. 3. Cost of this application be paid by the Appellants to the Respondent.
Representation:	Mr. C Solosae for the Appellant Mr. D Lidimani for the Second Respondent No one for the First Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 240, Local Court Act S 12
Cases cited:	Quarters Enterprises Pty Ltd V Allardyce Lumber Company Ltd [2009] SBCA 15, Tikani v Motui [2002] SBHC 10,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 420 of 2016

BETWEEN

JOEL TOME, HENRY TABULE AND NELSON LEUA
Appellants

AND:

ATTORNEY GENERAL
(Representing the Guadalcanal Customary Land Appeal Court)
First Respondent

AND:

JAMES ONOI
Second Respondent

Date of Hearing: 18 May 2021
Date of Ruling: 21 September 2021

Mr. C Solosae for the Appellants
Mr. D Lidimani for the Second Respondent
No one for the First Respondent

RULING ON APPLICATION TO STRIKE OUT

Faukona DCJ: A Notice of Appeal was filed on 27^th September 2016 in this court. It was an appeal from Guadalcanal Customary Land Appeal Court (GCLAC) delivered on 27^th March 2015 and a written copy judgment delivered on 22^ndmay 2015.

2. The notice of appeal grounded five grounds of appeal. For the purpose of ease of reference those grounds are paraphrase as thus:
   1. That the learned Secretary Magistrate had erred in law and in fact when he had the written verdict after the verbal one of the same case made after the hearing of the appeal in court 3 at the high court.
   2. That the learned Secretary Magistrate had erred in law when he had the court judges signed the final page of the ruling earlier on, on a separate paper prior to the actual body of the ruling being prepared and to be read by the judges.
   100. The Clerk of the Magistrate Court Cecil Pohe, had erred in law when he did not allow Judge Hendry Lui and another to read through the whole judgment before signing it.
   4. That the written ruling was given almost one year after the actual hearing of the appeal and not in an open Court.
3. The argument raise by the Respondent is that the Notice of Appeal be struck out on the basis, it is frivolous and vexatious, discloses no reasonable cause of action and an abuse of process.
4. The Notice of Appeal should constitute a valid appeal setting out grounds which raise issues as:-
   1. Whether the lower Court act on wrong principle in law (including customary law)?
   2. Whether the lower court gives weight to extraneous or irrelevant matters?
   100. Whether the Court fails to give weight to sufficient weight to relevant consideration?
   4. Whether the court made mistake as to fact?
5. Subsequently, as he submits, ground (1) – (5) of the Notice of Appeal fails to meet the threshold necessary to invoke the High Court’s appellate jurisdiction. The Counsel further submits that issue (2) raises a scenario of procedural irregularity that should properly be challenged by way of judicial review. Subsequently places emphasis that the Appellants should have filed application for judicial review and not by way of appeal.
6. Section 240 of the Land and Titles Act provides for any notice of appeal comprising an appeal from Customary Land Appeal Court to the High Court must premise on point of law or on procedures only, in order to constitute a valid appeal.
7. In addition, the Respondent raises four other areas pointed out in paragraph E (1) that goes to the substance of the judgment. He further states they do not inclusive of the process or procedures taken in arriving at the judgment complaining of. This raises issues of procedural irregularity which should be challenged by way of judicial review.
8. Whilst I would agree with the Respondent’s argument stems from the case of Quarters Enterprises Pty Ltd V Allardyce Lumber Company Ltd^[1]. The paragraph (para.2, page 7) which the Respondent relies on deals with assessment of costs, where the Court must exercise discretion to a reasonable standard.
9. In my opinion, appeals provided for under S. 240 of Land and Titles Act does not require discretion to be exercised, even in reference to procedural irregularities. They are issues raised in appeal confine to the legal requirements which legally require the Court to mandatory determine based on evidence related to law and procedures applied by the lower Court.
10. Therefore it is not necessary to segregate matters of procedural irregularity be head by way of judicial review and issues relating to the substance of the judgment is subject to an appeal to the High Court. In fact S. 240 operates as one. If time could not allow for an appeal because of lapse of three months, the Appellant can resume to application for judicial review which period allowable is six months to file a claim for judicial review.

The law on striking out.

11. The law on striking out is all too familiar in this jurisdiction. The need to recite again in full is not so relevant. Suffice to note R.9.75 which sets out grounds for striking out. Further assistance is derived from the case of Tikani v Motui^[2] which differentiated the test to be applied in “no reasonable cause of action” and “frivolous and vexatious or an abuse of process”.
12. In respect to “no reasonable cause” the court stated at page 2 paragraph 6,
    • “The court should exercise its power to strike out in plain and obvious cases, and where no reasonable amendment would cure the defect. Such application is only appropriate where it is clear that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. A reasonable cause of action means basically a cause of action with some chance of success or where a tenable case has been disclosed for relief sought. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided at trial, the mere fact it is weak and not likely to succeed is no ground for striking out. If however, it is found that the alleged cause of action is certain to fail the statement of claim should be struck out”.
13. With respect to “frivolous and vexatious or abuse of process” the court further stated,
    • “The jurisdiction given to the court on these grounds is to be sparingly used and only in exceptional cases. It should be exercise where the claim is devoid of all merit or cannot possibly succeed”.
14. The Motui case is a leading case in an application to strike out. It sets out grounds to look for in determining whether to strike out a claim or an appeal or not.

The grounds in the notice of appeal.

15. I have the reason to peruse all the grounds diligently and I noted ground (3) to start off with. It was a ground against the Clerk of the Magistrates court for not allowing Justice Hendry Lui and another to read the whole judgment before signing.
16. First and for most the Clerk of Court is not a member of GCLAC at all. Whatever he does do not affect the result of the CLAC decision which may constitute procedural act appealable to the High Court. I must strike out this appeal point outright on the outset.
17. On ground (2) the sworn statement of the Secretary\Clerk of GCLAC at that time, explaining it was a normal practice which he conceded by allowing the CLAC members to pre-sign the judgment, was done for convenience sake because they came from different parts of the Province, hence was expensive to keep them in Honiara whilst ruling is being prepared.
18. Apparently that practice which had been exercised and employed by the Clerks to the Customer Land Appeal Courts, and perhaps may still be continuing.
19. Perceivably, there is risk of pre-signing; it may tantamount to manipulating the judgment by the Clerk. Because of pre-signing, whether the final content was what was agreed upon or not, has to be accepted as a judgment of CLAC.
20. That adopted practice differs from what I consider appropriate and practised during my days as a Magistrate. What I and supposed others did were, after hearing evidence and survey, the CLAC members and the Secretary had to congregate, discussed and wrote the judgment in hand written form. After reading through and explaining to the entire members, and agreed then all including the Secretary signed the hand written judgment. And then the judgment had to be read the next day before sending the entire CLAC members to their respective homes. Typed copies of the judgment will be done later one or two days’ time by the Secretary before sending to the parties, with the implication the original hand written judgment had been endorsed by all the members of the CLAC including the Secretary. But the President or the Secretary or both have to endorse the written judgment before service.
21. In those days there were no complaints about differences from the judgment read out orally in court and the typed copies received by the parties. To avoid current practices employed by CLAC Secretaries, it is prudent and best, in my opinion, that a judgment orally read in court must be well written in full before endorsement and before sending typed copies to parties to their respective homes.
22. Simultaneously is ground one (1) which make reference to different content of oral judgment that was read, as oppose to the content of the written judgment. Unfortunately there is no carbon copy of the oral judgment disclose so as to create comparison easy. To claim the content of the oral judgment was different from the written without evidence to proof is as good as bad. There is not even a scrap paper containing the points and the reason in the oral judgment relied on. Not even orders of the Court that were read out.
23. What appears in the sworn statement of the Secretary Mr Seuike is that the written judgment was uncompleted. He attempted to convince the Court that the oral order he read out deferring the case back to the Chiefs for a re-hearing. I would not just accept that. It could have been fabricated. Unless a copy of the draft orders produced in Court in written form which had been orally read, I would not accept. Apparently there is nothing in the material evidence to compare to discover the truth. Therefore I must strike out these grounds of appeal one (1) and two (2) forthwith.
24. Another major difference is in respect of the two judgment copies submitted to this Court. The Appellants submitted a copy which was not dated and or signed by the Secretary whilst all other members signed. Opposite to that was a copy in the bundle of documents sent by the Central Magistrates Court which the Secretary and all the members signed the judgment. The copy received from the Central Magistrates Court clearly shows the Secretary Mr Seuika had signed and was dated 22^nd May 2015. Both judgments were not stamped. By face value both judgment are the same and carry the same orders.
25. The appellants aver that the GCLAC had erred in not completing the judgment and has omitted the necessary orders that the case should have deferred back to the Chiefs for a fresh hearing. This contention is supported by Mr Seuika’s sworn statement and sworn statements of David Thuri and Mr William Pocho, a member of GCLAC.
26. Unfortunately the judgment disclosed by the Appellants and Mr Seuika in his sworn statement had been definitely tampered with. The signatory page and the date of the written judgment were manipulated to suit their case. The written judgment sent by the Magistrates Court was a perfect one without any error or omission. It proves wrong the contention advocated by the Appellants. Hence I find there is no error or omission on the face of the GCLAC written judgment.
27. In respect to ground 4 which alleges late service of the written judgment upon the Appellants, almost a year after hearing. That could possibly true however, there is no evidence to show when the Appellants received their copy of the written judgment. If that is available would determine whether the judgment was received very late. Meantime there is nothing implicating time and date Appellants received the judgment.
28. From the documents it would appear that the GCLAC heard the appeal and delivered its oral judgment on 27^th March 2015. The written copy of the judgment was date 22^nd May 2015 and probably delivered on that same date or a date later, which the Appellants do not verify the date they received. In any event it may have taken almost a year to deliver the written judgment. This appeal was filed on 27^th September 2016, one year and 4 months after the date of the written judgment, that is, 22^nd May 2015.
29. In any even there is no application to strike out the notice of appeal on the grounds of late filing. Probably the parties could have conceded that service of the written judgment was late, and the appeal could have been filed in time after it was received.
30. A point to note has been raised in this ground. The Court administration could have done better to ensure written judgments served by letter must be done one or two weeks after the oral judgment was delivered. To take almost a year before service, was delay unacceptable. This sort of service manifested by a Court of law has more questions than answers. It is only hope that all CLAC perform their functions merit of appreciation rather than promoting dismay, anxiety and questioned by public. Service delivery must be on time so that aggrieved party utilizes appeal privileges accorded to them by law in time. This is an administrative issue which ought to be noted by authorities and not an issue or ground to be raised by notice of appeal in order to change the decision.
31. As to ground 5 I would agree the GCLAC was not about directing where the case should go after quashing the Guadalcanal Local Court decision of 20^th March 2013. All it stated in the second order is that the Chief’s decision of June 2007 remains valid and binding. Upon reading the order it means the parties should go back to the Local Court with an aggrieved party fling referral against the Chiefs’ decision by certain date.
32. The Chiefs hearing was conducted at Tetere on 28^th February 2006, after notice was served on the Appellants on 10^th February 2006, to attend the hearing. They failed to attend by 1:30pm in the afternoon. The Chiefs allowed one hour waiting but the Appellants failed to show up. The Chiefs proceeded and gave judgment in favour of the Respondent. Since then the Appellants as an aggrieved party failed to file a referral to the Guadalcanal Local court, instead the chief did which was contrary to S.12 of the Local Court Act. Until this appeal, there was nothing tangible to invoke the powers and the jurisdiction of the Local Court. A similar action or attitude noted again when the Appellants were late to attend GCLAC hearing.
33. I have noted land dispute is a civil litigation by concern parties and civil rules do apply. Further I have noted from documents that the Chiefs record and procedures applied were in order and perfect.
34. In conclusion since all the grounds of appeal have been unsuccessful to contain grounds to invoke the jurisdiction of this Court, I must therefore strike out all the grounds of appeal and have them dismissed accordingly.

Orders:

1. All the grounds in the notice of appeal are all struck out and dismissed.
2. The written decision of the Guadalcanal Customary Land Appeal Court on 12^th May 2015 remain standing.
3. Cost of this application be paid by the Appellants to the Respondent.

The Court.

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^[1] [2009] SBCA 15: CA-CAC 5 of 2009 922 July 2009).
^[2] (2002) SBHC 10; HC-CC 29 of 2011 (18^th March 2002)