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Sunway Ltd v Havimei [2019] SBCA 19; SICOA-CAC 13 of 2019 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. On 18 May, 2017, the respondent as the Claimant filed a Category A Claim bearing Civil Case No. 210 of 2017, against the appellant as the Defendant.
2. On 4 October, 2017, the appellant filed its Defence.
3. On 27 June, 2017, the respondent filed two separate applications for a summary judgment and a default judgment. The materials before us do not indicate whether any determinations were made regarding those two applications.
4. On 22 February, 2017, the appellant filed an application to strike out the Claim filed on 18 May, 2017, for being frivolous and vexatious and for failing to disclose a reasonable cause of action.
5. On 22 March, 2019, the learned trial judge delivered a decision in which the application to strike out was refused. In that same decision, the learned trial judge also made determinations on the substantive issues raised by the respondent in his Category A Claim.
6. On 8 April, 2019, Orders were made regarding the substantive claims. The Orders granted general damages for trespass in favour of the respondent and an amount of SBD3, 708,075.00 was awarded to the respondent for unlawful conversion of round logs. Costs were also awarded to the respondent.
7. Those Orders were perfected on 18 April, 2019.
8. The appellant has raised 3 grounds of appeal:
   1. The primary judge erred in law by granting the orders in favour of the respondent when the respondent failed to proof (sic.) ownership of the disputed land by way of Chiefs decision or Local Court decision or Customary Land Appeals Court decision.
   2. The primary judge erred in law by holding that uninterrupted occupation or possession of customary land from time immemorial is not only evidence of lawful possession but ownership as well. The primary judge erred in law because by doing so, he had determined the issue of ownership when the High Court lacks jurisdiction to determine issue of ownership of customary lands.
   3. The primary judge erred in law by failing to take into consideration the submission in paragraph 7 of the outline submission of the defendant/appellant filed on March 8 2019 in the High Court which states the disputed land is not owned by the Claimant/respondent but owned by Chief Drumond Ama Goti and his brothers and sisters and their siblings.
9. It is not disputed that findings in favour of the respondent including awarding of SBD3, 708,075.00 were based entirely on paper, viz; documentary evidence such as sworn statements, correspondences and reports. Witnesses did not give oral evidence.
10. It is to be noted that the amount of SBD3, 708,075.00 awarded to the respondent for conversion of round logs was the exact amount the respondent claimed in his Category A Claim. So he was awarded the full amount he was claiming.
11. In the sworn statements filed on behalf of the appellant, the respondent’s claim of ownership over the subject land was strongly disputed. One of those statements was sworn by a Chief. In that statement persons other than the respondent were named as the rightful owners of the land.
12. It is an established principle in this jurisdiction that when the issue of trespass on a land is raised in a claim, it automatically raises the issue of ownership over the land because of the issue of damages attached to such claims. See, Thabatia v. Capital Construction [2013] SBHC 108; HCSI-CC 323 of 2011. In that case, Justice Faukona in reiterating the principle said:
    • “Where the issue of trespass to customary land is raised in litigation, the significant notion that comes to mind is the right of ownership to that land. As it has been recognised as a settled law trespass to land gives rise to damages. Without proof of ownership, there cannot be proof of damages”.
13. This principle has been followed and adopted by many decided cases in this jurisdiction. For example, see Daiwo v. Lano [2011] SBHC 15; HCSI 367 of 2007 (5 April); Halu v. JP Enterprise Ltd [2003] SBHC 123.
14. In Daiwo v. Lano (supra), Justice Chetwynd echoed the same principle in this way:
    • “It is settled law that trespass to land give rise to damages. Without proof of damage.... A crucial element in any claim for trespass to land is proof of ownership. For the Claimants in any case to succeed, and in this case specifically to succeed, ownership of the land must be proved to the requisite standard, namely on the balance of probability.”
15. In our view, the evidence before the learned trial judge was insufficient to establish that ownership of land was not an issue. There was evidence disputing the respondent’s ownership over the land. In our view evidence that a claimant had uninterrupted occupation of the land from time immemorial or for generations is not evidence or proof of ownership. In many cases people can and do settle and occupy land for generations without any right of ownership over the land.
16. It follows that ownership of the subject land being an issue before the learned trial judge, His Lordship lacked jurisdiction to award the damages he awarded for trespass.
17. Aside from the issue of ownership over the land, there is no material before this Court which can show that an informed and proper determination was made regarding the amount awarded for conversion of round logs.
18. Whilst the Civil Procedure Rules, 2007, (Rules 13 and 14) vests discretion on the parties to decide whether to rely entirely on sworn statements or to cross-examine deponents of the sworn statements or to call oral evidence, the Court has inherent and supervisory powers to require oral evidence, which includes requiring cross-examination on sworn statements, if it felt there was need to enable it to make proper and informed determination of issues. In this regard, the observations made by this Court in Yeo v. Iromea [2018] SBCA 6; SICOA-CAC 13 of 2017 (11 May, 2018) are pertinent and they should provide guidance to litigants, lawyers and judges, especially lawyers and judges in exercising their respective discretions. The Court relevantly said:
    • “Such contested evidence which cannot be reconciled should not be admitted at trial as the basis on which a trial judge may find facts supporting a decision one way or another without cross-examination being permitted. The Rules have as their overriding objective the notion that they will enable the court to deal with cases justly with minimum delay and expense. We would go further and say that this is a case where no order should have been made allowing the evidence to be admitted through sworn statements.
    • It appears to this Court that in this instance the Rules, at least Chapters 13 and 14, have been elevated to a status which was not intended. The effect of the application of the rule as to cross-examination has been to deprive the parties of their right to challenge the evidence and to deprive the court of the opportunity to hear the same evidence tested by that cross-examination. That is not to deal with cases justly. In the circumstances it is for the judge to determine how the rule is to be applied to meet the justice of the situation”. (Our emphasis).
19. It is important to bear in mind that litigants and lawyers may for various reasons refrain from calling oral evidence, including cross-examination of witnesses. Some of the reasons may not be in the in the interest of justice, in which case the purpose and the objective of the Rules which is to serve the ends of justice will be lost.
20. In this instance, in our view the evidence before the learned trial judge was insufficient for him to make proper and informed determination of the issues that were before him.
21. In the circumstances, we consider that the proper order for us to make is to allow the appeal, set aside the orders of the primary court and remit the matter to the High Court for re-hearing.
22. Consequently, the Court makes following orders:
    1. Appeal is allowed.
    2. Orders of the High Court given on 8 April, 2019 are set aside.
    3. The matter is remitted to the High Court for re-hearing.
    4. Costs will follow the event.
23. Orders accordingly.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member