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Rizu v Viuru Land Trust Board [2019] SBCA 11; SICOA-CAC 20 of 2018 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. A claim for rectification of the land register maintained by the Registrar of Titles appointed under the Land and Titles Act [Cap 133] (LTA) was heard and then determined in the High Court on 27 April 2018. An appeal against that determination was filed on 28 June 2018. Given that these proceedings were brought under the LTA, the appeal is governed by section 257 of that Act, in particular 257 (4) which provides that an appeal must be brought within three months of the decision of the High Court and that the appellant must seek the leave of either the High Court or the Court of Appeal before proceeding.
2. This court in SMMS & Ors v Axiom & Ors CAC 34 of 2014 has already determined that such an appeal must be commenced with the filing of a notice of appeal within the three months provided but that it is permissible to apply for and obtain leave to do so outside of the same three month period. In this case, the notice of appeal was filed within the three months allowed but leave to proceed not yet obtained. Counsel on this appeal made no issue of the grant of leave under section 257(4) but, in error, applied a shorter time within which to appeal and overlooked the requirement of leave.
3. We grant leave under section 257(4) for this appeal to be heard. We remind counsel that, when dealing with proceedings under LTA, always to be conscious of the provision of section 257. It has, for a long time, been overlooked. Since the decision in SMMS v Axiom, where initially it was again overlooked, that is no longer the case. We note that, following the dicta in SMMS, this Court would have had no power to intervene if the appeal notice had not been filed within the three-month period.
4. The claim in the High Court concerned former customary land which became registered land in 1975. "Customary land" means any land not being registered land, and so on registration, which registration is not challenged in this appeal, all customary rights were extinguished.c
5. Nevertheless, after registration and for reasons not before this court on appeal, a series of customary land ownership hearings took place and determinations were made on customary ownership in favour of the Rizu, Solomon, Gilbert & Zutu, representing the Voko tribe of Kolombangara, Western Province (the appellants).
6. Given the definition of customary land, and since the hearings took place after registration, those hearings could not determine present customary ownership. The decisions reached may indicate customary ownership from the past, but registration had placed ownership of the land with the Commissioner of Lands (COL).
7. Having taken title, COL determined that the land could be the subject of a lease. In that regard he considered an application by Viuru Land Trust Board (the 1^st respondent) for the grant to it of a lease. That lease was granted, and it is against that grant that these proceedings are brought.
8. The appellants seek on their claim to persuade the court that the grant to the 1^st respondents was made by mistake or fraud. The mistake or fraud, they assert, is that COL was approached on the basis that the 1^st respondents represented the former customary owners and that the effect of the lease would be to restore former customary owners to their position, whereas the effect, the appellants say, of the lease was to grant to people who misrepresented their status of being representative owners to him.
9. The matter proceeded in the High Court with the filing of sworn material and the asking of preliminary questions of law. Those preliminary questions of law were not answered at trial (see paragraph 6 onwards of the judgment) at what appears from the record to have been somewhat of a ‘hybrid’ affair. It was a hybrid between questions of law, for which no findings of fact may have been necessary, and on material seeking to establish a factual matrix within which to determine the substantive claim.
10. The evidence before the court when adopting this course came from nothing other than sworn statements from the appellants and the 1^st respondents. The evidence from the 2^nd Respondent, effectively COL and his officers, was both sworn and cross examined.
11. On this appeal, only grounds 2, 3, 4 and 5 of the original six grounds. Those four grounds are:
    2. That the learned High court Judge erred in law when his Lordship found that section 114 of the Land and Titles Act (Cap.133), as amended (“the LTA”), had no relevance to the proceedings in cc 97 of 2016;
    3. That the learned High Court Judge erred in law when his Lordship failed to give recognition to, consider and uphold the judgment of Chief Justice F. L. Daly dated 3^rd June 1981 as well as legal Notice 93/78, which by way of a temporary variation of a warrant, afforded the Vella La Vella Local Court jurisdiction to hear summonses issued by George Pina (now represented by the members of the First Respondent) in respect to Lot of LR 159 (Zorutu land) against Rizu Panda and Piasi Bule and in respect of an area within Lot 159 known as “Voko” against Ghoto Kera and Joseph Ghemu (now represented by the Appellants);
    4. That the learned High Court Judge erred in law when his Lordship found that the Appellants have no interest in the registered land parcels sufficient to support caveats and similarly, his Lordship erred in law when he found that that the Appellants have not shown any equitable interest over the registered parcels. Accordingly, the order direction the Registrar of Titles to remove any caveat affecting either or both of the named parcels amounts to an error of law;
    5. That the learned High Court Judge erred in law when his Lordship found that the First Respondent is capable to owning a perpetual estate pursuant to section 112(3) and (4) (a) of the LTA when as a matter of fact and law, the Respondent was not the actual applicant.
12. Before turning to these appeal grounds, we turn to consider the evidence which was available in the High Court to establish the factual matrix within which a decision could be made. That evidence was, in the main, evidence admitted through sworn statements.
13. The evidence within the sworn statements of the claimants was not the subject of cross-examination at trial, although the content of the sworn statements was the subject of challenge. That challenge was made through contrary evidence contained in sworn statements filed by the members of the 1^st respondent charitable trust. This, it was submitted, accords with the procedure set out in the Solomon Islands Court (Civil Procedure) Rules 2009 in Chapter 13. For clarity we set out the relevant section of that Chapter: -

How to give evidence – High Court

13.4 Evidence in the High Court is to be given at trial orally and for any other purpose by sworn statement.
13.5 However, a judge may order that:
(a) evidence at trial in a particular case, or particular evidence, be given by sworn statement; or
(b) evidence for any other purpose in a particular case, or particular evidence, be given orally.

Use of sworn statement in proceedings

13.6 A sworn statement, including any annexure, that is tendered in court or included in the bundle of agreed documents becomes evidence in the proceeding unless the court has ruled it inadmissible in whole or part - when that part that is inadmissible does not become evidence.
13.7 The sworn statement need not be read aloud during the trial unless the court orders, but before the sworn statement is tendered (unless no notice is given under rule 13.9) the witness shall be required to confirm at trial, on oath or affirmation, the truth of the sworn statement and may clarify any matter contained in it.
13.8 A witness may be cross-examined and re-examined on the contents of the witness's sworn statement.
13.9 A party who wishes to cross-examine a witness must give the other party notice of this:
(a) at least 7 days before the trial; or
(b) within another period ordered by the court.

14. Applying those rules to this trial, before evidence was received into the trial by sworn statement, an order was required under Rule 13.5(a). The principal rule as to how evidence is to be received in a trial (as distinct from the hearing, for example, of an application) is through oral evidence.
15. For the purpose of this appeal, it can be assumed that an order was made under R 13.5 (a) allowing sworn statement evidence. What, perhaps, is more important is when such an order may be appropriate? No guidance is contained within CPR and so it is necessary to look elsewhere for guidance.
16. That guidance, in our view, begins with the constitutional provisions contained in section 10 of the Constitution in particular at 10(8) and 10 (9).

Provisions to secure protection of law

10....
(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established or recognised by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, that person shall be given a fair hearing within a reasonable time. (9) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.

17. What constitutes a fair trial? There are many aspects which together make for a fair trial, most of which need not be touched upon on this appeal. One aspect, however, which must be discussed is whether, when the content of a sworn statement is sought to be admitted other than though the giving of oral evidence, and not to be the subject of cross-examination where there is a challenge to the content, it can be said that the end result is a fair trial. To be fair to all the parties, which must include the maker of the sworn statement when he or she is a claimant or defendant, should not any challenge to their evidence be made in court through cross-examination?
18. Challenge through contradictory sworn statements does not provide the opportunity for the author of the statement to hear the challenge to their evidence in open court, nor for the opportunity to answer that challenge by responding to questions put to them. Similarly, by choosing not to call for cross examination, counsel has equally chosen not to put matters to the author which, according to the rule in Browne v Dunn^[1], which should be put. The common law rule in Browne v Dunn&#/i>statestates that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examon. It is essentially ally a rule of fairness—that a witness must not be discredited without having had a chance to comment on or counter the discrediting information. It also gives the other party notice that its witness’ evidence will be contested and further corroboration may be required.
19. Lord Herschell, Lord Chancellor said in Browne v Dunn: -
    • “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some. Questions. put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case; but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that. He is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.”
20. Two matters arise from this principle. Counsel should not waive the right to cross examine on challenged evidence or they risk offending the rule in Browne v Dunn. To do so would lead to a trial which could not subsequently be described as fair.
21. Secondly, a judicial officer charged with conducting a fair trial should not make any order under CPR dispensing with oral evidence when faced with challenged or contradictory evidence contained in sworn statement. For, as Lord Herschell said, that is essential to fair play and fair dealing with witnesses.
22. The Solomon Islands Courts (Civil Procedure) Rules 2009 do not have, nor should they have, the status of substantive law. They made no change nor could they change the substantive law or the constitutional requirement for a fair trial. They are rules of procedure design to achieve that guaranteed fair trial and are not to be used to subvert that principle. Thus, when counsel does not give notice to cross-examine on time, they should not be used to deny the right to cross-examine but that may be dealt with by and adverse costs order. The rule should not be used to remove the fair trial right.
23. This is not the first occasion this court has dealt with this situation, but it is hoped that this practice will not now be repeated. For it is clear, any trial which takes place in contravention of this rule may well not be regarded as the fair trial guaranteed by the Constitution of Solomon Islands. Any decision arrived at when the trial cannot be shown to have been fair may be overturned.
24. Counsel for the respondents to this appeal filed challenging and contradictory statements and made no request to cross examine the challenged evidence of the appellants. When it became clear that there was a challenge to the evidence in sworn material, notice to cross examine should have been given and the judge should not have been asked to make any order dispensing with oral evidence. Equally the trial judge, if asked, should have refused.
25. There may be occasions when such an order can be made, as when, in Lord Herschell’s words, the witness has had full notice beforehand that there is an intention to impeach credibility. That was not the case here, as is apparent from the challenges now brought on this appeal.
26. Given our decision on this matter, based as it is on the failure to conduct a fair trial, we do not propose to comment on the contested issues. To do so may prejudice any future trial and that would not be of assistance.
27. In the event this appeal is allowed. The matter is remitted to the High Court for trial. We make no order as to costs on the appeal as we note that both the appellants and respondents through their respective counsel appear to have contributed to this sad state of affairs.

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