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Dia v Kera [2000] SBHC 18; HC-CC 030 of 1998 (5 May 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 30 of 1998

FRANK DIA

-V-

NATHAN KERA & AVITA TABOARIKI

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 21st November 1999
Date of Judgment: 5th May 2000

Mr P Tegavota for the plaintiff
Mr T Kama for the defendant

JUDGMENT

(Lungole-Awich, J): Mr Frank Dia, the applicant, obtained leave from the Registrar of the High Court on 10.3.1998 to apply to the High Court for order of Certiorari to remove and quash the judgment of the Gizo/Kolombangara Local Court, dated 27.8.1995, in its Land Case No. 23 of 1994. Order of certiorari may be applied for under Order 61 of the High Court (Civil Procedure) Rules, but first, leave of Court must be obtained on ex parte application in compliance with O61 r2.

What happened at judgment stage after the Gizo/Kolombangara Local Court had concluded hearing Land Case No. 23 of 1994 was scandalous. There are now two judgments of the Local Court in the same proceeding. One judgment was handwritten; it was taken by the Clerk of the Local Court, Mr Avita Taboariki, the second respondent, to Mr Frank Dia, away from court office, possibly to a residence. The other judgment was a typed one; given to Mr Terry Kera representing Nathan Kera, the first respondent, when Terry Kera was at Gizo public market. The two judgments are diametrically different. Frank Dia says the handwritten one favours him, and the typed one favours Nathan Kera. It is the practice in Local Courts and Customary Land Appeal Courts that the Clerk of the Court records the proceedings and writes the judgment, but under direction and supervision of the Court Justices. The Clerk does not make or participate in making the decision; that is the responsibility of the justices.

Mr Taboariki swore affidavit in which he confessed to fraud on his part, that the typed judgment had been altered by him. He was therefore not offering defence to the applicant's case against him, as the second respondent. Unfortunately Taboariki died before the case came for hearing. I am sorry to hear of his death. Learned counsel, Mr Kama for the respondent wanted to cross examine Taboariki on the affidavit, had Taboariki not died, and so Mr Kama raised the question as to how the Court would deal with the affidavit if it remained on record. Learned counsel Mr P Tegavota for the applicant, then discontinued the case against Taboariki and agreed that Taboariki's affidavit be excluded from evidence. Later Mr Tegavota sought to present the affidavit back in evidence to support the applicant's case.

If death of Taboariki was Mr Tegavota's only reason for withdrawing Taboariki's affidavit, then Mr Tegavota needed not withdraw it. Affidavit evidence of an intended witness who has since died or cannot be found or is abroad, can be presented to court by leave of the court under O39 r2 and even by direction order under O32 r2, but subject to the consideration that it is an important part of our procedure that a party against whom evidence is presented has the right to cross examine on the evidence, and that the affidavit of the deceased witness will not have been tested by cross examination. It is an important consideration as to the probative weight to be attached to the facts in the affidavit; that is why it is more usual to grant leave if the facts in the affidavit are not so controversial. In this case, I struck out the affidavit of Taboariki, because it was filed as evidence of one of the parties, the second respondent, in the same litigation, and affects another party, the first respondent; its content as far as it affects the other party, the first respondent, cannot be admissible without opportunity for cross examination by him. The first respondent has the right to cross examine on the affidavit evidence of a co-respondent - see Allen -v- Allen [1894] p.248.

For clear understanding of this case, I need to briefly state the background of the Gizo/Kolombangara Land Case, No. 23 of 1994 together with the facts of the present application in this Court. On 25.4.1994 Mr Frank Dia filed, at the High Court, a case of trespass and conversion of timber trees against Nathan Kera and Kalena Timber Company Limited who were carrying out logging operations on the land areas that included Kalena, Maepu, Palae and Soloko in the Western Province of Solomon Islands. The case is HCCC No. 30 of 1994. Dia's claim was in respect of trespass and conversion on Palae and Soloko lands only. He obtained interlocutory injunction stopping logging operations on the two lands while the case proceeded. Then parties agreed to settlement of the case outside Court; they filed consent order approved and adopted by Court as court order dated 2.7.1996. Under the order, monies payable as royalty would be paid into a joint trust account of solicitors for both parties. The consent order anticipated that boundaries of the lands in issue, Palae and Soloko in relation to Maepu would be determined later. It is not clear from the order how parties would have the boundaries determined later, but it was anticipated that injuncted monies and monies that would accrue later would be dealt with according to the boundaries to be determined. From the record of the Gizo/Kolombangara Local Court, it seems Mr Nathan Kera, described as plaintiff, filed the Gizo/Kolombangara Local Court case No. 23 of 1994 to have the boundaries determined pursuant to the order by consent. It is the Local Court that determines right in customary land - see s:254 of the Lands and Titles Act, Chapter 133, Laws of Solomon Islands and Gandly Simbe -v- East Choiseul Area Council, Eagon Resources Development Company Ltd, Steven Taki and Peter Madada, HC-CC No. 33 of 1997. The case was heard at Munda on 30 and 31 of August 1995. The Local Court visited the land area, and reserved its judgment to be delivered at Gizo later. On 21.9.1995, the justices attended at Gizo, the Clerk, Mr Avita Taboariki, read a judgment and gave the justices a blank piece of paper to sign on. It is not clear whether Nathan Kera and Frank Dia or their representatives were in attendance. Later in the afternoon Taboariki took a handwritten judgment to Frank Dia somewhere in Gizo. Dia said, "Avita then came to me and congratulated me for winning the case.........the clerk then gave me a handwritten decision." Taboariki told Dia that a typed copy would be sent to Munda Police Station from where Dia would collect the copy. A few days later on 29.9.1995 Taboariki gave Mr Roderick Terry Kera, at Gizo public market, a typed judgment to take to Nathan Kera. Mr Frank Dia did not receive the promised typed copy through Munda Police Station, instead he was told to return the handwritten copies because changes were to be made to it. He went to Gizo and returned the original handwritten judgment to Taboariki, but kept a photocopy, now exhibit in Court. On 3.10.1995 Taboariki conveyed to Frank Dia, through someone, a typed judgment dated 27.8.1995 which was the same as the one given to Terry Kera. Frank Dia was at Gizo that time and had been to ask for the judgment several times.

Frank Dia says that the typed judgment states boundaries which favour Nathan Kera to Frank Dia's detriment. He has applied to this Court for order of certiorari to remove and quash the judgment, and for a declaration that the handwritten judgment that he was first given is the judgment of the Gizo/Kolombangara Local Court in the case, No. 23 of 1994.

Even only on those facts which combine only the non-controversial accounts of events as given by both sides, it is easy to see that there has been falsification of both the handwritten and typed judgments, by Avita Taboariki. Why should judgment of court be hand-delivered to parties individually and off court premises? Well, more evidence was available: On 21.9.1995 Taboariki read out to the three Local Court Justices, what he presented as judgment he had drafted on their instruction and asked the justices to sign acknowledging that it was their judgment. He asked them to sign, not on the judgment itself, but on a separate blank piece of paper. One of the justices, Mr Lilito, PW1, told this Court that Taboariki explained that the justices were to sign on the blank paper because there was not enough space on the last page of the judgment. So the justices never even had opportunity to read the handwritten judgment. Intention to falsify the judgment was there. Then the handwritten judgment was not given to Frank Dia nor to Kera there and then, Taboariki took it to Frank Dia later. He might have had reason to personally take the judgment off court premises. Given that Taboariki had the intention to falsify and that he had the opportunity before he took a copy to Frank Dia, I do not regard even the handwritten judgment as reliable. Can one say for sure that what Taboariki read to the justices was exactly what he took to Frank Dia?

The typed copy, now part of exhibit GMS1 in Court, was obviously falsified. The text is in original typed print, the signature page is a photocopy, that was the animus furandi. Two of the justices called as witnesses, Gilbert Murray Solapitu, PW1, and Naingime Beiaruru, PW2, specifically told Court that they never saw that judgment at the time they handed down judgment, they never signed it.

On the evidence available, fraud has been proved, it is ground for court to issue order of certiorari to bring the judgment up and quash. The point has been raised that the order of certiorari is discretionary and that the Court would refuse it where there has been delay in applying for it and where the relief of appeal is available as in this case. I have found the fraud a strong enough reason for this Court to waive the delay in making the application and for the Court to grant certiorari despite the availability of appeal. I order certiorari and remove both the handwritten judgment and the typed judgment from the Gizo/Kolombangara Local Court case No. 23 of 1994 to the High Court and I quash them. The result is that the Local Court will sit again to make determination in case No. 23 of 1994 between Nathan Kera and Frank Dia. The Clerk who will sit in court with them will have to read this judgment to them. The case as I see from the record is not a rehearing to determine ownership of Maepu Land or Palae and Soloko lands. Ownership has already been decided by the Local Court earlier in its case No. 25 of 1980 and confirmed on appeal by the Customary Land Appeal Court. Maepu land, the Local Court has decided, belonged to the Maepu butubutu and that Terry Kera as Chief of Saikile represented the interest of the owners. The Local Court has also decided that Palae and Soloko were lands that Frank Dia's line had right over, and further that Palae and Soloko were lands within Maepu land. The judgments of both courts stated out the boundaries, so the case to be returned to the Local Court is limited to determining by physically pointing out the boundaries of Palae and Soloko in relation to Maepu. Local Court case file No. 23 of 1994, Customary Land Appeal Court case file No. 12 of 1995 and any exhibit that may be relevant in the proceeding of the Local Court, now ordered, are to be returned to the Gizo Magistrates' Court.

Costs

Parties will bear their own costs.

Delivered this Friday the 5^th day of May 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge