IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Appeal Case No. 6 of 2010

BETWEEN:

Nollen Leni
Appellant

AND:

Lever Solomons Ltd
First Respondent

AND:

Attorney-General
Second Respondent
(Representing Commissioner of Lands)

Date of Hearing: 13 July 2010
Date of Decision: 23 August 2010

Tongarutu N for the Appellant
Radclyffe A for the First Respondent
Muria J for the Second Respondent

DECISION ON STAY APPLICATION

Goldsbrough J:

1.	This is an application for a stay of execution of the order made by the High Court on 12 May 2010, which order itself contained a provision that 'immediate possession' of Parcel 192-004-590 be suspended for 21 days from 11 May 2010. In this decision the original Claimant is referred to as the Respondent and the original Defendant as the Appellant. 

2.	Counsel for the Appellant sought, without seeking leave, to introduce new material into this application and the substantive appeal. Counsel for the Respondent was permitted to make submissions on the question as to whether leave should be granted and, if so, for what purpose. Following that and having heard from counsel for the Appellant as to why new material should be permitted the Court gave its decision with reasons in brief to permit the balance of the application to continue.

3.	The reasons most often cited for material being introduced on appeal are that it was not available or did not exist at the time of the trial. This evidence, whilst it did not exist because it had not been commissioned by the appellant at the time of the trial, could and should have been commissioned and could and should have been available to the trial judge. It is a report purporting to be written by an expert suggesting that the house alleged to have been built on land properly the property of the Respondent is not actually built within land in that parcel number. Since the whole purpose of these proceedings, instituted on 17 September 2007, was to determine whether the Appellant had entered into land not belonging to him and had built a house thereon (see para. 3 of the statement of claim) one might assume that evidence for and against that assertion would be made available to the trial judge.

4.	This trial at first instance is complete and there is no merit now in the Appellant seeking to introduce matters which should properly have been presented and argued before the trial judge. 

5.	Counsel for the Appellant submits that they wish to introduce evidence to contradict evidence led in the trial. Yet that evidence in the trial was not the subject of cross-examination during the trial. 

6.	The Court of Appeal in Y Sato & Company Ltd. V Honiara Appointed Council (1999) SBCA 7 set out the test to be applied when determining an application to admit additional evidence. Reference was made in that case to an England and Wales Court of Appeal decision in Ladd v Marshall 1954 3 All E R at 745. This evidence does not, in my view, fit within that test. It is evidence which could and should have been presented at trial. It is evidence which seeks to contradict the evidence of the witnesses Soaki and Limopu which was not the subject of any cross-examination at trial. It is neither novel nor is it concerning a point which arose unexpectedly at trial. 

7.	Leave to introduce this additional material was refused. It will be necessary to return to the failure to cross examine later in this decision. 

8.	On the stay application submissions were heard as to the prospects of success on the appeal. Based on the notice of appeal and the present decision not to permit the appellant to introduce matters not before the trial judge, there are very limited, if any, prospects of success. This is principally because the evidence introduced by the Claimant was not the subject of cross-examination nor did the Appellant introduce evidence on his own behalf save for one sworn statement he made and filed for an earlier hearing.

9.	Counsel for the Appellant explained that she did not prepare or consider in detail evidence to be admitted in the trial because of an assurance she received from counsel for the respondent that regardless of the outcome of the trial, he would continue to encourage his clients to negotiate a financial settlement. She submits that this assurance to consider a financial settlement continued after trial.

10.	Exhibited to her own affidavit is correspondence suggesting that an offers to settle prior to and after trial. An invitation to submit a better offer did not receive any response. This process, it seems to the court, is evidence of continued negotiations even post verdict. However, counsel for the appellant explained to the court that in her view counsel for the respondent did not keep his word in this. Whilst on the face of it, this appears to be a submission that the offer and counter offer did not happen, evidence from the counsel herself confirms that it indeed did. 

11.	The Court was therefore faced with clear events that did happen (the offer and counter offer) and the submissions from counsel for the Appellant that none of this took place. Whilst prepared to assert most forcefully that counsel for the respondent had failed to honour an undertaking given, the facts demonstrated in her own correspondence undermined that assertion. Yet it was repeated in the face of the contrary evidence. 

12.	The only explanation that offers some comfort in this situation is that counsel for the appellant has a different understanding of what is meant by agreeing to consider offers. It must have meant the Respondent's agreeing to consider and accept whatever offer the Appellant was prepared to make. 

13.	I return to the question of failing to cross examine at trial. As earlier stated, this appeal has limited prospects of success unless additional material is permitted to be filed on the appeal. I have refused that application but the application may be renewed to the Full Court. If granted by the Full Court the position may change. I have considered the prospect of that in addition to the matters I have to consider in determining this stay application. 

14.	Allowing the reception of evidence after trial to accommodate counsel's failure to take advantage of the first trial coupled as it is here with a failure to cross examine evidence at trial seems to me, at least, to introduce a novel concept. It seems to suggest that the first trial need not be taken seriously but regarded as a rehearsal. It further suggests that defects exposed may be remedied on appeal by asking for a second trial at which the appellant will take a more active part. 

15.	In all the circumstances the Court concludes that a stay would be inappropriate. 

16.	Since it was a repeated and forcefully put allegation that counsel for the Respondent failed to honour an undertaking made, the Court finds no undertaking to have been given, merely an assurance and that the assurance was kept in that counsel for the Respondent took the offer made by the Appellant to his clients and thereafter communicated his client's refusal to counsel for the Appellant. He could do no more than that, and the misapprehension, if there was any, that the assurance was any more than that is erroneous.

17.	Costs of this application will be costs of the appeal.

Dated this 23rd day of August 2010

GOLDSBROUGH J