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Kokoro v Piko [2021] SBCA 14; SICOA-CAC 8 of 2020 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an application by the appellants seeking leave to appeal the decision of Kouhota J, given on 9 March, 2020, in respect of the High Court Civil Case No. 595 of 2019, in which his Lordship dismissed the appellants’ application for strike out of a claim brought against them by the Respondents. That claim was against the decision of Western Customary Land Appeal Court (WCLAC) which is the second respondent herein. His Lordship ruled that the application to strike out should be dismissed as he found that the original appeal against the decision of WCLAC was brought within time and was not in breach of s. 256 (3) of the Land and Titles Act, [Cap 133] and was therefore competent.
2. The appellants have raised eight grounds for their application. The ninth ground is only stating the jurisdictional basis for the application. The grounds for the application are these:
   1. The judge erred in dismissing the appellants’ application for dismissal of Notice of appeal.
   2. The learned judge in his judgment of 9 March, 2020, erred when he stated that the written judgment of the second respondent dated 29 July, 2019, made no reference to any verbal decision made earlier by the second respondent whilst on the sealed decision dated 29 July, 2019, it was written that the verbal decision was delivered on 31 May, 2019.
   3. The learned judge in his judgment when he stated that there was no reference by the second respondent on the written decision on 29 July, 2019 that they are giving reasons for their earlier decision on 31 May, 2019.
   4. The learned judge erred in concluding that there was no evidence from the second respondent about the verbal decision that was said to have been delivered on the 31 May, 2019, despite the fact that there was evidence through sworn statement from Mr Jerry Pakivai for the appellants and sworn statements from Rose Piko, Graem Soga and Ray Sibisopere filed on 24/02/20 (sic.) on behalf of the first respondent confirming that the verbal decision was delivered on 31 May, 2919.
   5. The learned judge erred in the application of law relating to the issue of delivery of verbal decisions and written decisions by the second respondent.
   6. The learned judge had misdirected his mind as to the relevant law when he stated that there was no evidence from the second respondent to confirm that a verbal decision was delivered on 31 May, 2019.
   7. The learned judge erred when he failed to consider the evidence that was put before the court from both the applicant and first respondent that the verbal decision was delivered on 31 May, 2019.
   8. The discussion contained in the judgment dated 9 March, 2020 shows that the learned judge had failed to discuss the issue based on the evidence put before the Court and the decision was against the weight of the evidence.
   9. This application is made pursuant to Rules 9(1) and 18 (3) of the Court of Appeal Rules, 1983, for the appeal to be heard by the full Court.
3. The appellants’ arguments are premised on their claim that his Lordship had misdirected himself in regard to the three-month appeal period for them to appeal. However, that appears to be a misconception by the appellants of what the learned primary judge held, which was, despite there being reference made to the WCLAC giving a verbal decision on 31 May, 2019, by the appellants, there was no evidence of such verbal decision being made on 31 May, 2019. More significantly, the WCLAC made no reference to making such decision in its written decision given on 29 July, 2019.
4. Following from such finding, his Lordship suggested that as a matter of practice, the records of proceedings before tribunals whose decision are challenged on appeal should be produced before the appellate court. His Lordship said such records would prove whether a verbal decision was made or not.
5. A number of case authorities have been relied upon by the appellants, however, in our view there is a marked difference between this case and the cases cited by the appellants. In this case, the WCLAC did not make any clear reference to it making a verbal decision on 31 May, 2019. In the cases the appellants relied upon, direct references were made to the earlier verbal decisions which had been actually made. In stressing this point, the learned primary judge said - “The written judgment made no reference to any earlier verbal decision”.
6. The appellants relied on the sworn statements of Jerry Pakivai. Notably, his Lordship devoted a good part of his judgment commenting on Mr Pakivai’s sworn statement in which his Lordship said:
   • “The applicant relied on the sworn statement of Jerry Pakivai filed on 2/12/2019 (sic.) and the exhibits annexed to that statement. The paragraphs of Mr Pakivai’s sworn statement relevant to the application now before the court are paragraphs 4,5,6,7,8,10.11,12 and 13. At paragraph 7 Mr Pakivai stated as follows, “After hearing submissions of the appeal from both parties on 30^th May 2019, the second respondent informed the parties that they will give their decision on the following day” (No time was fixed for that by the WCLAC).
   • At paragraph 8 Mr Pakivai states, “The next day 31^st May 2019, the second respondent gave their verbal decision of the First Respondent’s appeal. I was present in court at that time and receive (sic.) the decision on behalf of our party.
   • At para 10 Mr Pakivai stated as follows, “After handing down their verbal ruling the second respondent also explained the right of appeal within three months by any aggrieved party.
   • The appellant, now respondent in this application, did confirm what was stated in paragraph 7 and 8 of Mr Pakivai’s sworn statement but in the sworn statement of Ray Sibisopere filed on 24/2/2020 (sic.) and Rose Piko filed on the same date, they stated that they were not in court and are (sic.) not aware of the decision and did not hear the second respondent delivered (sic.) the verbal judgment. They stated they had followed up with the Clerk to the Western CLAC but were told the written judgment was not yet ready.
   • The written judgment of the second respondent was dated 29 July, 2019. The final orders were in paragraph 33 of the judgment point 1 to 7. The relevant points to this application are points 33.1and 33.7, they read as follows,
   • 1. Appeal allowed.
   • 2. ....

3. ....

4. ....

5. ....

6. ....
Any aggrieved party shall appeal within 3 months. (Our underlining).
Dated 29^th July 2019”.

7. In stressing his view that the records of the hearing before the WCLAC should have been brought before him so that he could confirm whether or not a verbal decision was given on 31 May, 2019, his Lordship said:
   • “It is a desirable practice that when there is an appeal from the CLAC the whole CLAC file should be forwarded to the High Court including a typed copy of the proceeding and the clerk’s notes. In the present case, the failure is negligence on the part of the Clerk (sic.) to the Western CLAC. Where the decision is pronounced verbally and written reasons are to be given later, the verbal decision and the exact words used in the decision should be recorded by the clerk so they can be made available in case of an appeal.
   • In the present case, paragraph 33.7 of the written judgment clearly stated, “Any aggrieved party shall appeal within 3 months. The written judgment made no reference to any earlier verbal decision”. In the absence of any evidence including the record of the W/CLAC proceeding by the second respondent confirming the verbal decision and the content of the said verbal decision, I am not satisfied that there was a proper verbal decision made by the WCLAC hence the 3 months for the appeal will run from 29^th July 2019 the date of the written judgment, that is what the record says”. (Our underlining).
8. These comments in our view underpin his Lordship’s finding that there was no conclusive evidence that a verbal decision was given by the WCLAC on 31 May, 2019. Thus, his Lordship held that the three month appeal period ran from 29 July, 2019, the day the WCLAC gave its written decision.
9. The second respondent argued that the appellants need to show more than an arguable case. They also had to show that the issue they raised in their appeal was of general public importance. Furthermore, they had to show that there was substantial injustice to be suffered by the appellants if leave was denied and therefore deny them from appealing the decision of the learned primary judge. These are indeed established principles which must be satisfied in an application for leave to appeal. See, Price Waterhouse v. Reef Pacific Trading Ltd [1996] SBCA 5; CA-CAC 5 of 1995 (29 April 1996); Khanna v. Bond Realty Pty Ltd [2019] NSWCA 128 and PPK Willoughby Pty Ltd v. Baird [2019] NSWCA 48.
10. The central issue before the Court is whether the WCLAC gave a verbal decision on 31 May, 2019. If the answer is in the affirmative then that should meet the above tests for grant of leave. It is important to bear in mind that there was no clear and conclusive evidence of a verbal decision being made on 31 May, 2019. It is trite law that the appellants having asserted that WCLAC gave a verbal decision on 31 May, 2019, had the onus to prove their assertion. He who asserts must prove. In our considered view, they failed to discharge the onus, and this is fatal to their application. Their claim does not go beyond the mere references to the WCLAC making a verbal decision on 31 May, 2019. It follows that the application is based on mere conjecture and hearsay and has no merit.
11. In Minister of Labour v. Genner Iron & Steel Co. (Wollescote) Ltd, Same v. Dyas & Fowle. Ltd [1967] 3 All E.R. 278, the issue before the Court also involved time to appeal, but in that case unlike in this case, there was express statutory requirement that the decision with its reasons be served on persons directly affected by the decision and the decision be recorded. Besides these express statutory requirements, Lord Parker took an all embracing and pragmatic approach to the issue. His Lordship said:
    • “I confess that, as a matter of common sense, I should have thought that a time limit for appeal ought to date from the time when the aggrieved party receives the reasons for the decision, which reasons he is entitle to have. I say that because an appeal to this court is an appeal on a point of law alone, and, until the prospective appellant sees the detailed reasons he cannot determine whether it is a proper case in which to appeal or settle his grounds of appeal. That, as it seems to me, is what one would expect to be provided by the machinery in regard to appeal”. (Our underlining)
12. Having regard to these principles, it was quite absurd for the appellant to rely on and refer to a decision they did not see. If there was a verbal decision then it would have been one in which issues of fact and law would have been considered and the reasons given, which could have formed the basis of their appeal. But, there was no such decision and therefore they had no basis to assert that a verbal decision was given on 31 May, 2019. Furthermore, the clerk of WCLAC told those who inquired about the decision that it was going to be given later, which clearly meant that there was no other decision except the one that was going to be given later. This was subsequently confirmed by WCLAC when giving its written decision on 29 July, 2019 that anyone aggrieved by its decision had three months (from 29 July, 2019) to appeal the decision. Thus, there cannot be any room for doubt that the decision given by WCLAC on 29 July, 2019 was WCLAC's only decision.
13. For these reasons, we find that the appellants have not satisfied the requisite tests for leave to be granted. The application is therefore dismissed.
14. The appellants will pay the respondents’ costs of and incidental to this application, which are to be taxed, if not agreed.
15. Orders accordingly.

Goldsbrough
Lunabek JA
Member
Gavara-Nanu JA
Member