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Odikana v Lagobe [2009] SBCA 14; COA CAC 30 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal No 30 of 2008
(On Appeal from High Court Civil Case No 142 of 2006)

ODIKANA
(1^st Appellant)

GINA
(2^nd Appellant)

WESTERN CLAC
(3^rd Appellant)

v

LAGOBE & TOZAKA
(Respondents)

THE COURT: Goldsbrough P, Williams JA, Hansen JA

ADVOCATES: W. Rano, A. Tongarutu, S. Woods for the Appellant
J. Sullivan, QC, R Kingmele for the Respondent

DATE OF HEARING: 26 March 2009
DATE OF JUDGMENT:

JUDGMENT OF THE COURT

Counsel on record

1. At the start of the hearing for this appeal, Mr. S. Woods, counsel, sought leave to appear. No objection was made by remaining counsel to the grant of leave and it was granted. Appearances were entered by counsel for the First Appellant, that of Mr. W. Rano, for the Second and Third Appellants Mrs. A. N. Tongarutu, for the Respondents Mr. J. Sullivan Q.C. with Mr. R. Kingmele.

2. The court was then referred by Mr. S. Woods, Deputy Solicitor General from the Attorney General's chambers to the fact that the Attorney General remained on the record as representing the Western Customary Land Appeal Court, the Third Appellant. Mrs. Tongarutu submitted that she had been approached verbally to appear for the same body, through a telephone conversation with the magistrate responsible for administration of the tribunal. She had not communicated this other than verbally to another counsel in the chambers of the Attorney General. No notice of change of advocate had been filed and the magistrate was not seeking to be represented before the Court of Appeal in his personal capacity.

3. Given the provisions of the Crown Proceedings Act [Cap 8] the third appellant in these proceedings would more correctly be the Attorney General representing the Western Customary Land Appeal Court. The same body was represented in the High Court by an officer of the Attorney General's chambers. Given that there is no notice of change of advocate and the Attorney General's chambers is present and prepared to proceed with this appeal, on the usual basis as might be expected where parties to a dispute before the tribunal cite the tribunal as a party, there seems to be no ground upon which Mrs. Tongarutu is entitled to appear on behalf of the tribunal, set up as it was under statutory provisions.

4. We determined that the Third Appellant was represented by Mr. S. Woods.

5. Mr. W. Rano appeared on behalf of the First Appellant, seeking leave for his name to appear on the record in substitution for that of Mrs. Tongarutu. Mrs. Tongarutu had prior notice of this application, as did counsel for the respondents and there was no objection raised to this change. Mr. Rano was given leave for his name to be on record as legal practitioner for the First Appellant.

Application to adjourn the appeal

6. As counsel on record for the First Appellant Mr. Rano sought an adjournment of the appeal on the grounds that he lacked sufficient instructions to prosecute the appeal. He indicated that he had only recently been approached and had prepared no submissions on the appeal. The First Appellant had been represented by Mrs. Tongarutu as at 21 November 2008 on the filing of the original notice of appeal and when the amended notice of appeal was filed on 24 November 2008, following judgment on 24 October 2008, and Mrs. Tongarutu had attended all direction hearings prior to the hearing of this appeal, indicating on 16 February 2009 that the First Appellant was likely to change legal practitioners and then on 27 February that Mr. Rano had been instructed.

7. We heard all counsel on the application to adjourn. Mrs. Tongarutu raised no objection to the application, for reasons that will later become apparent. The Crown had no particular objection but made the point that even given no notice of the appeal material by the Appellants they were ready to proceed. Objection was raised by counsel for the respondents. The respondents submitted that since notice that the appeal was to be listed and without any sign of an appeal book being prepared by the Appellants, they had undertaken preparation of the record of appeal.

8. No reasons were given by counsel for the First Appellant why the change of legal practitioner had been left by the First Appellant to this late stage, nor any reason advanced as to why no preparation of any submissions for the Court of Appeal hearing had been made.

9. In the circumstances we declined to grant the adjournment requested and indicated to Mr. Rano that reasons for that decision would form part of our reasons on the appeal.

10. Our reasons are simple. We were not given any reason for the change at this late stage of legal practitioner and apart from the fact of the application there was therefore no other reason to grant it.

11. On receipt of our decision given in court at the hearing Mr. Rano immediately sought leave to withdraw as legal practitioner on record. His stated reasons were that he could not assist the court with submissions and therefore felt unable to assist the court further in the matter. We gave our decision on his application for leave immediately and indicated that our reasons for the decision would be included in the reasons on the appeal.

12. Our decision was that leave to withdraw as counsel on the record was refused.

13. When counsel accepts instructions from a client they put themselves under a duty to the client, to represent the interests of the client in the proceedings in which they are instructed. The duty extends to being prepared when a matter is listed to present their client's case. The duty is not fulfilled when a legal practitioner attends a hearing without having made the necessary preparation, in the hope that an application to adjourn intended to be made is successfully made. To do so is to assume that all that is sought will inevitably be granted, which makes a mockery of the requirement to seek an adjournment. Such an approach transfers the listing of cases to the parties and away from the Court.

14. Counsel has the right to decline to accept instructions when they form the view that they will have insufficient time to adequately prepare for any hearing. That may be for many reasons, including other work commitments or, as in this case, when the client is tardy in seeking representation. If it was apparent when he was first approached that Mr. Rano would not have adequate time to prepare for the hearing, his duty was to decline to accept instructions. Having accepted instructions it was his duty to obtain the necessary information from his client and from the previously instructed legal representative. He could not sit and wait for this material to come his way, as it appears that he did in this case. We come to that conclusion because in support of his application to adjourn Mr. Rano did not point to any act on his part to be ready for this hearing that had been unsuccessful. We came to the conclusion that his intention on taking instructions was to do nothing other than seek a postponement.

15. This appeal began with the filing of notice of appeal in November 2008. Dates for the Court of Appeal were available to all counsel in February 2009. At least two directions hearings took place in this appeal, on the 16^th then on 24^th February 2009. An order for security for costs was made and complied with. The appeal record was prepared by the respondents given that there was no movement on the part of the appellants to prepare the same. Notice was given by the Registrar of the Court of Appeal to all parties to agree the index, or make individual submissions as to the index in the absence of agreement. Mr. Rano made no submissions in response as to the index.

16. Counsel, having accepted instructions and successfully sought an order to be the legal practitioner on record, cannot walk away from the proceedings for no reason other than not being prepared. For this reasons Mr. Rano's application for leave to withdraw was refused.

Leave to include documentary evidence in the appeal record/adduce further evidence

17. Mrs. Tongarutu, for the Second Appellant sought leave to include in the record of appeal documentary evidence or on the alternative adduce additional evidence on the hearing of this appeal. At the directions stage, when the parties failed to agree an index, requiring the Registrar to intervene and determine the index for the parties, in submissions Mrs. Tongarutu foreshadowed this application by seeking to have the additional material as part of the record of the appeal.

18. The Registrar declined to include material that did not form part of the proceedings in the High Court.

19. The additional material was described in submissions as crucial to the appellant's case. Yet it was never asserted that the 'crucial' material was placed before the High Court for its consideration nor reason given as to why this was not the case. Given that the documentary evidence was never placed before the High Court (a fact conceded by counsel for the Second Appellant in making this submission), the application to have it included in the appeal record could never succeed.

20. The present respondents appealed to the High Court from the decision of the WCLAC on two broad grounds. The first was that an earlier decision of the WCLAC was binding and that the doctrine of res judicata prevented the WCLAC from reconsidering its earlier decision. The second broad ground of appeal was that if the matter was not governed by res judicata the WCLAC erred in reaching its decision on the material before it. In August 2007 Brown J. ordered that the res judicata point be heard as a preliminary issue and that a record should be prepared on that basis. In consequence only material going to the res judicata issue was before the High Court judge who heard the appeal limited to that ground. It is from the decision of the High Court on that ground that the appeal to this court is brought. The documents which Mrs. Tongarutu seeks to have included in the present record are only relevant to the second ground of the original appeal to the High Court which is not an issue now before this court. This appeal is only against the finding by the High Court judge that the WCLAC was prevented by operation of the doctrine of res judicata from reconsidering its earlier decision.

21. Indeed in those circumstances it is difficult to understand why Mrs. Tongarutu would write to the Registrar of the Court of Appeal maintaining that both she and her clients remained dissatisfied with the decision of the Registrar not to allow the documents to form part of the appeal record. To do so, when the documents were not placed before the High Court in the original proceedings, would amount to a misrepresentation. The correct application in these circumstances is for leave to adduce additional evidence.

22. Mrs. Tongarutu's displeasure at the decision of the Registrar appears as annexure 3 to her affidavit of 26 March 2009. It resulted in her 'withholding filing of my clients written submissions'. This would not be the last time that Mrs. Tongarutu would adopt a similar approach in this appeal.

23. We therefore went on to consider the alternate submission that leave be granted by the Court of Appeal to adduce the additional evidence. We invited submissions from all counsel on the application. The reason submitted by Mrs. Tongarutu for the evidence not being placed before the learned trial judge was that it was not given to her until after the delivery of the judgment. Yet the existence of these documents, as indeed formed part of Mrs. Tongarutu's submission, was known to her at a much earlier stage as she herself pointed out in her submission. They were referred to on page 2 of the decision of the Western Customary Land Appeal Court. That decision was made in October 2005, and is the decision the subject matter of the trial at first instance which took place in October 2008 having been commenced in 2006 by the present respondents.

24. No reasons were given by Mrs. Tongarutu as to why the documents were not made available to the High Court at trial, other than that they were only given to her after the trial. There is no explanation given about the provision of the documents, and because of that, and the limited nature of the hearing before the judge we saw no reason to grant the request.

25. The documents do not, it was conceded by counsel for the Second Appellants go to the issue of res judicata but to other matters sought to be raised in the appeal.

Leave to seek joinder

26. A further application brought by counsel for the Second Appellant sought leave to join one. Johnathan Dive as a party to the appeal. An affidavit in support from Mr. Dive was filed. Whilst it is not clear from submissions whether this application is brought as counsel for Mr. Dive or in her capacity as legal practitioner for the second appellants, it is clear that no notice of intention to make the application was given to any of the parties to this appeal.

27. Mr. Dive describes himself in his affidavit as holding the customary position of Tribal Chief of the Reresare Tribe on Vella La Vella. He is not a stranger to proceedings in the High Court relating to land and timber matters. In August 2007 in HCSI Civil Case 264 of 2007 he was by order restrained from interfering with the timber rights process invoked under the Forest Resources and Timber Utilisation Act. As the High Court pointed out in that judgment, traditional chiefs play no role as such in determining the grant of timber rights after the statutory procedure has been invoked. That procedure requires determinations to be made by other bodies, including the relevant Provincial Executive and the Customary Land Appeal Court.

28. Objection was made to the application by the respondents. They point to ample earlier opportunity for his application and to the relevance of any material that may be brought by his inclusion within this appeal.

29. Having considered the material in support of his application for joinder we are inclined to agree that Mr. Dive being joined as a party to this appeal will not assist the court in determining this appeal, nor does any right exist that Mr. Dive could not and should not otherwise have sought earlier in these proceedings.

30. The application for joinder was refused and we indicated that our reasons would form part of the reasons on the appeal.

Hearing the substantive appeal

31. Preliminary matters disposed of, we turned to the substantive appeal. Mr. Rano sought to rely on submissions from the Second Appellant on behalf of his client, as he had no submissions either in writing or oral to make on the appeal. Mrs. Tongarutu indicated that she was under specific instructions to make only written submissions on the appeal and that those written submissions she now felt needed to be amended given that they had been prepared on the assumption that her applications for leave to adduce additional evidence and for joinder would be granted. The wisdom, if not ethic, of accepting such a restriction on counsel is doubtful.

32. Appreciating that some of her submissions would not be relevant given our decisions referred to above, we granted leave for Mrs. Tongarutu to present those submissions on the understanding that those parts referring to her failed applications would not be considered by the court. In response Mrs. Tongarutu indicated to the court that she did not have those written submissions with her to present to the court, a somewhat surprising fact given her indication that the only submissions she was permitted by instructions to make were those written submissions. Still, the office of the particular legal practitioner being but a short walk from the court, we decided to adjourn the hearing for fifteen minutes until 12.30 pm for her to bring her original written submissions.

33. At 12.35 pm when the court resumed there was no sign of the said legal practitioner. She had left the court with both her wig and gown, her clients left in ignorance of her intentions, and, perhaps significantly, perhaps not, had turned her chair at the bar table so that its back faced the court.

34. Counsel for the respondent to the appeal indicated that he relied upon his written submissions. Counsel for the Third Appellant indicated that his client sought to abide by the decision of the court, as would be expected of an inferior tribunal made a party to such an appeal. The court determined to adjourn and indicated that in the event the Mrs. Tongarutu re-appeared before the court rose again following the afternoon session it would hear her apology and consider accepting her written submissions.

35. Mrs. Tongarutu appeared immediately prior to the start of the afternoon sitting. Her apology indicated a failure to accept what she had been invited to do by the court in the morning, to produce the written submissions that then, she had told the court, existed and to submit them on the agreed understanding. She explained that the time taken was necessary to alter the original submissions to reflect the necessary changes. We agreed to her filing those submissions although did not accept her explanation. The appeal is therefore determined on the written submissions of the Second Appellant and the Respondent.

36. On receipt of her written submissions, counsel for the respondent sought to make a further submission after the court had risen. We determined to decline that request. Our decision to so decline was communicated to the parties but not before Mrs. Tongarutu wrote in strenuous opposition to the request. It is worth noting that she was able to prepare that letter in a much shorter timeframe than it took her to return to court with her written appeal submissions. That same letter also sets out a completely false assertion that counsel for the First Appellant when in court was refused the opportunity to respond to the respondents written submissions.

The appeal

37. In a judgment delivered on 24 October 2008 the High Court determined an application for judicial review (HCSI Civil Case 142 of 2006) and Land Appeal Case No 8 of 2006. The decision in question is a decision of the Western Customary Land Appeal Court, hereinafter referred to as WCLAC, of 10 October 2005.

38. No better exposition of the circumstances leading to the matter appearing before the High Court can be undertaken than that of the judge at first instance in his careful, considered and extensive setting of the background in his published judgment. For that reasons we will not set out any of the facts leading to this appeal.

39. Of the thirteen grounds of appeal set out in the amended notice of appeal six raise questions of error of law and the remainder relate to decision of fact. The most significant error of law raised by the appellant relates to the application of the doctrine of res judicata in customary land matters. Ground 5 states that "The principle of res judicata does not apply the Local Courts and the Customary Land Appeal Courts (sic)."

40. One authority for that proposition was cited in support. That authority, contained in HC-CC 126 of 2004, a decision at first instance, has not been adopted by this Court of Appeal as is clear from the judgment in the Majoria v Jino case Civil Appeal 36 of 2006 and in particular from paragraphs 28-29, and 37-40.

41. The relevance of the doctrine of res judicata and the applicable test are set out in the judgment and we merely refer to them to indicate that they are applicable in the instant appeal. The interpretation given to that judgment and the application of the relevant test were correctly set out and applied by the judge at first instance and we can find no error of law on that point.

42. This finding alone is determinative of this appeal. It goes in many respect to the questions raised in the notice of appeal as to erroneous findings of fact. Given that it is clearly the law in this jurisdiction as set out in the earlier decision in this court, which decision we have no cause to question and about which we have no feeling of unease, that the doctrine of res judicata is applicable, and there are no submissions from the appellants that the earlier decision of this court should be reconsidered. We note from the appeal grounds that there is no appeal on the relevant findings in relation to the test, that is to say the findings on 'privity of blood, title or interest'. We further note that the judge at first instance went on to consider the subject matter of the previous proceedings and correctly formed the view that there were the same. We cannot therefore conclude that the doctrine was not correctly applied by the judge at first instance. No error of law is demonstrated in this respect.

43. There are no other points raised on this appeal that have any other merit.

44. Before turning to the decision on this appeal, we note with some dismay the performance of counsel for the First and Second Appellants, in particular that of counsel for the Second Appellant. The standards displayed before this court fell well short of that which could and should be expected. It is our view that the conduct should be referred to the Bar Association under Section 8B of the Legal Practitioners Act for their consideration, and we so do. The public have the right to be protected from this conduct which will eventually lead to the legal profession being brought generally into disrepute.

45. This appeal is dismissed. The decision made by the learned trial judge is upheld, and his orders confirmed. Costs of this appeal are to be paid by the First and Second Appellants. Certification is given for Queen's Counsel. The costs of the appeal are to be agreed and if not agreed to be taxed, and in any event are to be paid within 28 days of delivery of this judgment.

Goldsbrough JA
Acting President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal