JOHN PALMER                -V-             JOHNSON VUNAGI
(Appellant)	(Respondent)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 349 of 2013	
									
Date of Hearing:      21st November 2017				
Date of Judgment:   23rd March 2018

Mr J. Taupongi for the Appellant
Mr K. Mathews and Mr W. Rano for the Respondent

JUDGMENT

 Faukona, J:  This appeal was filed by the Appellant per his amended notice of appeal filed on 7th February 2017.  The appeal was against the orders made by the Isabel Customary Land Appeal Court (ICLAC).  On 26th July 2013, the ICLAC dismissed the Appellant’s appeal from the determination of the Isabel Local Court (ILC).
2.	In the notice of appeal, the Appellant grounded seven grounds of appeal which he relies on in this appeal.  I will not paraphrase those grounds of appeal for the legitimate reason of un-necessary repetitiveness.
3.	The Customary Land Appeal Court (CLAC) is a creature of statute.  Its jurisdiction is to deal with matters or issues affecting customary land, and is limited by the Land and Titles Act.  There is a provision S.256(3) of the Land and Titles Act which limit appeals to the High Court confine to points of law and procedural requirement of any written law.  The same section points out any errornous on point of law shall not for the purpose, included a point of customary law.
4.	The case of Buga v Ganifiri re-inforces the sentiment expressed in S.256(3) of the Land and Titles Act.  The court held:-
		“The court has only power to consider point of law (excluding points of custom) or defects in procedure based upon written law.  If no reasonable tribunal could reach the findings made by a Customary Land Appeal Court on the evidence before it, then it may be that this court could and should exercise its powers to intervene.  If for this court to say that it does not agree with finding of facts or custom reached by Customary Land Appeal Court would be assumption of powers which this court does not process.”
5.	Guidelines suggested by the High Court as to what the Local Court(LC) or CLAC could or should do may be helpful but cannot be seen as briefing on them.  The CLAC regulates its own proceedings (see – Karovo v Sibisopere).
6.	The law to be applied in CLAC is customary law; section 255 (4) of the Land and Title Act provided that CLAC shall have all the jurisdiction of the Local Court.  S.16 of the Local Court Act provides that the LC shall administer the land and custom of islanders that applies to customary land.  The law to be applied and adjudicated by the LC  and CLAC is well settled in – Lagobe v Lezutuni).
	Ground 1:  Failure to take or keep minutes:
7.	This ground focuses on the issue whether the CLAC ought to take minutes of its hearing and maintain it.  The core argument is that, if it does not or fails, it will definitely cause serious prejudice to a prospect appellant which will result in a miscarriage of justice; more so fall short of the procedural requirements provided for under Rule 16.21 of Solomon Ialnands(Civil Procedure Rules) 2007.
8.	Rule 16.21 provides three things which must be filed by the appellant in the court, within 21 days after notice of appeal from the a decision of a Magistrates Court or tribunal.  The rule specifically apply where there is an appeal from Magistrates Court decision or tribunal.
9.	One of the documents which must be filed is any transcript, or notes of the proceeding in the Magistrates Court or tribunal.  The use of the word ‘any’ infront of the word ‘transcript’ is  loosely used and can be interpreted as ‘if there is any transcript, if not, is not necessary.’
10.	An important question to raise at this juncture is whether Rule 16.21 applies to procedures of CLAC?  The Counsel for the Appellant submits “yes” and is mandatory not elective.  On the other hand the Counsel for the Respondent favours negative, and states that  (CPR) Rules 2007 does not regulate the procedures of the LC and the CLAC.  Even if it does, is not fatal to the proceeding – Rule 1.16.
11.	If Rule 16.21 does not apply to procedures of CLAC, in particular filling of an appeal in the High Court, then what rule or regulation applies.  I agree the CLAC does not have any written procedures.  If so, in practice can regulate its own procedure.  This was the view of Palmer J (as he was then)  in the case of Karovo v Sihisopere(), which stated that CLAC controls its own procedure (see Kuku v Luna) including the right of parties to call witness before the CLAC, is without dispute.
12.	Unfortunately, the above case, which the Respondent relies on, in my view, refers to the procedures to apply in the actual conduct of the CLAC hearing.  For instance calling of witnesses, whether it will accept a new witness or not, or whether to conduct a land survey or not.
13.	If there is none at all, has the Minister of Lands makes any rules or regulations by virtue of S.260 (2)(a)(iii) and had been adopted as to the procedures of the CLAC including evidence to be admitted.  Meantime I do not seem to sight any such rules or regulation in place yet.  Can we wait until such time? I do not think so.
14.	The proper approach is we can’t wait or look elsewhere.  Since the establishment of CLAC, some four decades ago, there had been appeals from CLAC decision to the High Court. Of course there must be regulations or rules in place.  Those appeals cannot be filed and heard by the High Court without any set procedures.
15.	Previously, Order 60 A of the previous High Court Rules applied.  Being a magistrate for twenty-eight (28) years, that was the provision we relied on.  Today, I am urged to accept a procedure to be regulated by CLAC itself.  That is absolutely strange and it would appear to be interpreted as we are still waiting for a set procedure, it is still forthcoming.  That is an unbecoming submission, and a reversable ideology rather than positively moving forward. If the Minister of Lands has yet to draw up any rules and regulations, and the expectation that CLAC to regulate its own procedures, is not forthcoming, why should there be continuous appeals from CLAC?  Is it expected from the CLAC to keep minutes or not, a notion vested on CLAC, and an option either to do or otherwise.
16.	From practical point of view, Chapter 16.1 of the Rules concerns with appeals in civil matters.  Rule 16.21 concerns with an appeal from a decision of a Magistrates Court or a tribunal. There is no specific mention of an appeal to the High Court. Any any appeal from the Magistrates Court or Tribunal, can only be made to the High Court as a court next in the hierarchy of courts.
17.	Tribunal as define under Rule 16.1 includes any tribunal court of Solomon Islands (other than a Magistrates Court).  By that definition CLAC can be termed as a tribunal as well.
18.	In the absence of any regulation made by the Minister of Lands, and no fixed regulation created by the CLAC itself, and despite that failure, appeals from CLAC continue to flood the High Court.  Hence, are there rules or regulations that gives guidance in filing appeals from CLAC to the High Court.  I do not think to look elsewhere.  Rule 16.21 has provided documents necessary to be filed to secure an appeal in the High Court.  The rule, in my view, substituted Order 60 A of the former High Court Rules.
19.	I do not think the ratios in Karovo case is flatly applicable in this case.  I have already elaborated on that in paragraph 12 above.
20.	Another issue discussed by the Karovo case is the filing of the case in the High Court.  It was argued it should be done in the Magistrates Court.  The court resolved whether it was filed in the Magistrates Court or in the High Court, does not matter, provided it was done in time conferred by satatute.
21.	Another point in contention is in respect of R16.21.  Even if it applies to procedures of CLAC, such misfortune is not fatal to its proceedings.  Counsel for the Respondent quoted Rule 1.16 as supporting such stand.  However, the Counsel fails to see R1.17 which vested discretion on the court.  The particular rule sets out seven options and that can be granted on the basis as the court sees fit after being complied with R1.18.
22.	In the case of Makolo v Jovere, the court of Appeal did not have records of the proceedings in the High Court.  However, the court noted that the parties had made final submissions in respect of summons of the defendant and the claim by the Plaintiff, so the court satisfied and gave judgment.
23.	In the current case, the Counsels made submissions as well in respect of no record or lack of keeping minutes by the CLAC proceeding.  In my respectable view, as an experience Magistrate, we always keep minutes of CLAC proceedings.  Not at any time we failed this requirement.  This is the first case I come across which the CLAC had failed or choose not to keep minutes.  Practically I must say the CLAC was errored in law and procedure not to keep minutes of its proceeding.
24.	I agree with the Counsel for the Appellant, such defiant of Rule 16.21, is fatal to the case.  Not only it tantamount to miscarriage of justice, but it  attempts to provide an avenue for the CLAC to choose whether to keep minute or not, which practically in my view there is no choice, minutes must be kept.
25.	The most important reason for keeping minutes is so that Counsels will refer to the minutes and records and argue whether an error of law or procedure was committed when such particular issue is raised on appeal. 
26.	I find this ground is a mandatory requirement under R16.21. Note the word ‘must’ is used.  Failure to take minutes is fatal to this case.
27.   In a recent case, CC 204 of 2015, an appeal from a Magistartes Court decision in respect of land acquisition proceeding. There was a similar issue occurred. An appeal was filed in the High Court against the decision of a Magistrate Court in a land acquisition proceeding. The minutes and the file in the Magistrates Court was missing. The issue was brought into one of the Judges Meetings. I was instructed by the Chief Justice to conduct an investigation why the court file was lost. Investigations ensued and subsequently interviewd the concern Magistrate. My recommendation was that the appeal against the Acquisition Officer’s determination be reheard in the Magistrates Court. That recommendation got through. 
28.   This ground must succeed.
	Ground 2:  Denied of right to cross-claim:
29.	This ground of appeal is in respect of the refusal by the Isabel Local Court Clerk for not allowing the current Appellant to cross-claim the First Defendant (present Respondent).
30.	The counsel for the Appellant submits that the conduct of the clerk did not appear in the transcript of the ILC.
31.	I do not seem to agree with the procedure alluded to by the Counsel for the Appellant in respect where a case involves two defendants or more.
32.	The Counsel now questions the action taken by the Local Court clerk in the LC proceedings.  That in my view, should have been an issue raised before the LC, and not in this court.  Whether ICLAC misread the point or not, the parties in a case must know their position right from the chiefs hearing.  It could appear the three parties in the Chiefs hearing had different claims.  The current Appellant and the Respondent seemed to claim the same portion of land indifferent from Mr Vikasi.  At one point, there is a bisection of a portion of land which is common to all the claims that is the area of common dispute.
33.	To talk about cross-claim is a language used by the law and lawyers.  Such words have never been heard of or known by the Chiefs, LC members or even the LC clerks.  It could have been better if all the three parties were encouraged to file a claim against each other with no party as a defendant.  They would pay their own separate fees to commence their cases, and will cross-examine each other and their witnesses.  This will solve the idea of cross-claim.
34.	Where multiple parties disputed a certain portion of customary land, often, there are difficulties as to how to conduct the proceedings.  We could not always expect the men and women who are members of the Chiefs panel and LC to know all the procedures.  It ought to be understood that most of the members comprised the House of Chiefs and LC are lowly educated people.
35.	Despite that shortfall, the LC had conducted its proceedings quite fairly and had decided the dispute in accordance with the customary evidence available before it according to their level of caliber.
36.	In any event, parties were allowed to make submissions in the ICLAC with expectation to cover any misfortunate cited in the LC record.  At the end of the day the ICLAC had made its determination in accordance to the submissions.  The unfortunate occurrence, if noted in the Chiefs proceedings, could have been cured and settled in the LC with the direction by the Magistrates Court responsible.  The mishap in my view, is not severe enough to demand upholding the ground. I therefore must dismiss this ground accordingly.
	Ground 3:	Determining the wrong land:
37.	I noted from submissions that the original plaintiff in the Chief’s hearing (Mr Vikasi) claim furona customary land with the boudaries from jingiri river to jihro river.  The current parties to this case who were Defendants (1) and (2) in Chiefs hearing claimed varei customary land which had a boundary from lupigopa to lepele in the east.
38.	With no mistake the disputed area is from lupigopa to jihro river, an area which has common interest to all three parties.  According to Mr Vikasi the area is B and is part of furona land.  For the current parties area B is part of Varei land.
39.	The area of land from jingiri river to lupigopa is undisputed land under the claim of Mr Vikasi.  Therefore that portion of land if untouched by the decisions of the Chiefs or the LC, remains a land which Mr Vikasi claimed.  There is no irregularity about that.
40.	It would appear the LC had awarded ownership of part B to Mr Vunagi.  Part A which is not disputed still belong to Mr Vikasi according to his claim.  Part C probably from lepele to a point called hurepelo is part of varei land, was awarded to the Hobrae tribe represented by Mr Palmer (current Appellant).
41.	Very significant, I noted in the judgment by ICLAC, whereby which court outlined on the outset, that the LC in its decision gave primary rights of varei land to Mr Vunagi, the respondent, and alternatively gave a small portion to the appellant which is Mr Palmer.  That introductory was totally out of context, and was wrong.  No one was awarded primary right owner in the decision.  The words used by the LC in its decision is not clear. 
42.	The fact is that (see LC decision) the LC had awarded part of varei land from lepele to furapelo to hobrae tribe represented by Mr Palmer.  Mr Vunagi who represented the taraoa tribe was awarded ownership of the rest and whole of varei land.  In my view the Local Court did not reached a conclusion as to who was the primary right owner and who was the secondary right owner.  Its decision is clear, and the lands awarded to parties was clear with boundary marked.  That had never created any ambiguity and should not at all.
43.	From the Local Court decision, Mr Vikasi was the only loosing party, hence faced out.  The portion left untouched which is A is still under his claim.  Mr Vikasi’s claim never covered area C, only for Mr Palmer and Mr Vunagi. 
44.	I do not seem to see where in the records that show a wrong land was determined. Both parties identified and know the bondaries of varei customary land very wll. Perhaps the Appellant is confusing himself. The important point he should note is that there is no primary right owner and no secondary right owner.  However, the implication by ICLAC in its introductory remark was quite out of course.
	Ground 4:  Failure to give reasons:
45.	In this ground of appeal, the Appellant is making reference to the ILC determination. He points out the LC merely outline the claim, what the witnesses stated, but no indication of how each claim (or supported by witness testimonies) weighed against the others.  Yet the ICLAC accepted it and upheld that decision.
46.	I noted Rule 17.34 ascribe to the duty of giving reasons for substantive orders or decisions.  In the case of Taloibiu v Ramousia an appeal from Malaita Customary land Appeal Court (MCLAC), the court stated;
		“…a finding of fact….must be based on evidence before the court, and the court should indicate briefly on what evidence it came to its finding…” see Haikiu v Akuila.
47.	 The importance of the duty to give reasons is that part of the reason maybe a good self–standing ground of appeal.  Where no reasons are given it is impossible to tell whether the judge has gone wrong on the law or facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reason itself – see Flamery v Halifay (State Agencies).
48.	This appeal is against the ICLAC.  S.256(3) makes it plain that an appeal to this court confines to points of law and procedural requirements of any written law.  The determination appealed from must be from the CLAC.  There is no direct appeal to the High Court against the determination by the LC. 
49.	By upholding the LC decision does not mean the CLAC had failed to consider submissions made before it. The composition and membership of CLAC comprised of people with knowledgeable in custom and customary land tenure of that Province.  The Clerk is a magistrate and a qualified lawyer who sat as a member. The conclusion they had ultimately reached, or reasons for it, was well expanded and far more better than the LC. Their decision to dismiss all the appeal grounds was well provided and expressed.
50.	In Haikiu v Akuila, the Court agreed that there is no express duty for the CLAC to give reasons.  However, in this instance it gave its reasons.  It is not that it gave no reasons at all, but giving short explanation for their finding is suffice.  In this instance, the CLAC gave adequate reasons though not different from the LC, after it considered the records of the LC. 
51.	This appeal point is rather on appeal from an act and decision of the LC, therefore, is not a good practice to accept and entertain.  Secondly, whilst I a appreciate the importance of giving reasons for decision, we have to consider the circumstances of Solomon Islands as a Soverign nation and not other common law countries.  The law to apply by the CLAC is Customary Law.  Any evidence adduced must be related to customary rights and practices of the people inhabited the islands or Provinces.  Thirdly, we have to take into account the caliber of the members of the LC and the CLAC.  We cannot expect them to write decisions using records and wisdom the judges do or lawyers.  We cannot expect them to do what we want or follow authorities as expounded, in particular foreign authorities.
52.	The performance of our LC and CLAC cannot match up to the expectations of Counsels who are graduate lawyers, and can do what they think.  To improve their standard, all we can do is to remind the Chief Magistrate to conduct regular trainings so that they be well versed with their area of responsibility.  There is no merit on this ground and must be dismissed.
	Ground 5:  Absorbing contradictory evidence:
53.	This ground, by virtue of submissions by the Counsel for the Appellant, make reference to the fact that evidence adduced by the Respondent in the LC hearing contradicted the 1977 Local Court decision. Undoubtedly, this court has an interest to hear points of law and procedure erroneously adopted or committed by ICLAC.  I do not think it is relevant to consider what was done by the LC and what evidence it did not consider or how it contradict the 1977 Local Court decision.
54.	It is my respectable view, the contradictions alluded to by the Counsel for the Appellant could have been submitted to the CLAC on appeal, in a manner he now attested.
55.	In any event, I assume there are three areas alleged to have contain certain discrepancies by way of contradictions.  Firstly when the Respondent addressed the LC that his tribe owned the entire vari customary land from time immemorial.  That contradicts the decision of Kia Local Court in 1977, in which the court determined from mimina to lepele was owned by Peter Kusolo and Mr Kaiputi owned the other portion.
56.	From the submissions I could able to gather certain pertinent matters.  One, educated elites including lawyers in the modern age need to know and understand the language of old people.  We cannot force them to speak the same language as we are.  In the present case, the Respondent was presenting a history in respect of his tribes right to customary land inherited from generation to generation.  Up until 1977 that right was divided by the court and shared among two litigants including the Respondent himself.  There is nowhere in the language that Respondent’s submissions contradict the decision of the Local Court in 1977.  That decision stands as it is.
57.	In the second allegation of contradiction, there may be a will bequeathed by Kaiputi to his children in 1915.  That transaction was done by custom and not under the Wills and Probate Act.  There is need to understand the custom of Isabel people.  From many litigations crossed my way I learned that an elderly authority (a landowner) can Will or sell his land to his own children, even if it could mean a land own by his tribe.  A sole authority recognized by the tribe, can undertake such transaction even without the consent of the entire tribe.  He is well respected and can dispose of the land at will.
58.	In a circumstance where a claim of right emanated from an outside source intended to dismantle or deprived a right of a tribe to their customary land and tenure, the elder or authority will take a bold stern to defend the rights of the tribe, or family.  The children will definitely support their father.  Any internal transaction belongs to a family or tribe.  Since it is a tradition in Isabel, it is not necessary for others outside to have knowledge of, suffice to say the chiefs, elders and members of the same tribe are obliged to have knowledge of such transaction.
59.	The “will” may still be existed in 1977, however, Mr Kaiputi still the overall boss and had stood up to defend his tribal land.
60.	Like other confusing statements dwindled around by Counsel for the Claimant, it could be noted that the land given to Peter Kusolo and Epi could be the land as from mimina to lepela as affirmed by Kia Local Court in its decision.  The ground that may have given rise to the confusion, that the portion was originally own by Mr Kusolo, which is clear and definite.
61.	I do not seem to cite any contradictory in reasoning or otherwise, in regards to the LC decision made contrary to Kia Local Court decision in 1977.  It requires a proper ground thinking and reasoning in order to ascertain what a lower court intended to expand on.  If one allows himself to sit up stairs and could not bother to go down to our own people, who are not educated the most, you will not understand their language and the issues they have confronted.  Unfortunately one will create further misfortune in addressing their real issues.  Like I say, there is no contradiction against the 1977 Local Court decision by the Local Court decision on 5th December 2008.  This ground must be obviously dismissed.

	Ground 6.  Taking into account 1977 Local Court decision:
62.	The Appellant by this ground alluded that the ILC in 2008 took account of the 1977 Local Court decision which had influenced its deision making. The paragraph which directly made reference to 1977 case was in the words as “this court found that part of the land in question had been brought before the Kia Local Court in 1977 between E. Zavani of taraoa tribe and B. Bao of the hobrae tribe.”
63.	Once a court has delivered its decision it becomes a public document. Anyone can access to and make reference to.  Perceivably, there was no harm for the LC in 2008 to make reference to the 1977 Local Court decision.  Whether the 1977 decision had influenced the LC in 2008 is a non-issue.  It cannot be denied the LC had determined the issues before it in accordance with the knowledge on customary law related to customary land.  More than that the binding effect of 1977 Local Court decision had been settled.
64.	What the Appellant seeks now is to impugn the 1977 local court decision.  In reality is similar to an appeal in disguise.  The problem encounter by the Appellant is that there was no appeal lodged against the 1977 Local Court decision.  Hence, the ownership of that subject portion had been finalized.
65.	Noted from the submissions by the Counsels from the Respondent, the Appellant had on several occasions in the past challenged the decision of the Kia Local Court in 1977.  In this court in Civil Case No. 343 of 1995 and again in Civil Case No. 489 of 2009, and again before the Court of Appeal in Civil Appeal Case No. 20 of 2014.  In all those attempts the Appellant failed.
66.	This court is obliged to consider appeal from ICLAC only, confine to areas of law and procedure which the CLAC may have breached, ignored or failed to apply.  The 1977 Local Court decision is far more remote to bring into this court to adjudge whether its decision was consistent or not.  The issues raise in this appeal ground should be part of or appeal against 1977 Local Court decision.  No appeal was lodged.  I am therefore incline, not to entertain such ground, and I do so by dismissing this ground accordingly.

	Ground 7:  Power to call evidence:
67.	In the case of Karovo v Sibisopere, paragraph (7) above Palmer J (as he was then) stated that the CLAC controls its our procedure, including the rights of parties to call witnesses.  S.255 Land and Titles Act, the CLAC may exercise the power of a Local Court.  S.13 of Local Court Act set out the power including the power to hear witnesses from the chiefs’ hearing and other witnesses.
68.	Whilst the law is clear as to the power to call witnesses, the practice is slightly different.  Where a party intends to call new evidence or witness, the CLAC will decide and exercise discretion whether to accept it or not.  Normal circumstances is that a new evidence or witness to be called must be a witness who had no opportunity to attend the local court hearing to give evidence.  May be he was sick or in another province hence unable to attend.  Only then, the CLAC will incline to allow such witness to be called and gave evidence.  This notion is expressed in the case of Bollen v Sade, see also the case of Karovo v Sibisopere.
69.	In the case of Karovo v Sibisopere, His Lordship Palmer J held;
		“it is entirely with the discretion of the court to allow the parties before it call witnesses or to decline such application.  In this particular instance, it seems that an application was made by the Appellants for those two witnesses or the Local Court President to be called.  The WCLAC however, refused; a decision entirely within its discretion to make.  Unless it can be shown that the exercise of this discretion was unlawful or unprocedural, this court will not interfere.”
70.	The party wishes to call a witness must show on good grounds the difficulties he faced calling the witness to attend local court hearing.  Otherwise the CLAC will focussed to consider the appeal grounds alone.
71.	Further, in common practices the CLAC will also consider the evidences tendered in the local court, and its judgment, together with all submissions and evidence tendered in the CLAC proceeding before making its own final judgment.
72.	In my respectable view, the CLAC had done just that, and had made its judgment. There is no mistake committed in refusing the Appellant’s submissions.  It would be out of cause to think in that manner.  I must therefore dismiss this ground for holding no merit.
	Issue of Resjudicate:
73.	The issue of 1977 Local Court decision was raised in the ICLAC by the Appellant claiming that the 2008 LC relied on the 1977 Local Court decision.
74.	The reasons for that argument is no difference from those given in two other civil suits instituted in the High Court by the Appellant which had been determined, one was subsequently ended up in the Court of Appeal.
75.	In clear sense, the issue of res-judicata is not part of this appeal.  It was raised in the ICLAC by the Respondent and was confronted by challenge from the Appellant.  In the end the ICLAC did not address the issue of res-judicata at all.
76.	I agree with Counsel for the Appellant if the Respondent is aggrieved by the ICLAC rejecting of this specific point of law, the proper avenue is for the Respondent to put this point before the High Court by way of cross-appeal against the ICLAC decision.  The Respondent had not filed any such cross-appeal and is now outside of prescribe timeframe for appeal.
77.	I have read the 1977 decision, and two other High Court civil suits and number of exhibits.  I do not know whether the Respondent will continue pursue this issue.  However, it is an area the Judicial administration be sensitive of to ensure court system do not continue engage on the same issue litigated by the same parties.  If there is anything to go by, the responsible court or judicial administrators must be vigilant to ensure the Chiefs and the Local Courts do not entertain the same issues between the same parties which had been determined. 	
78.	In passing, it is pertinent to reiterate that the High Court has controlling jurisdiction to manage the lower courts' functions and operations and ensure it operates within the bounds of their jurisdiction.
79.	In all that I say, I must allow the appeal on ground (1), a very crucial and strong point which the ICLAC had failed to adhere to. 

Orders:
1.  That the appeal be allowed and the orders made by the Isabel Customary Land Appeal Court on 26th July 2013 be set aside and quashed.
2.  That the case be remitted back  to a differently constituted Isabel Customary Land Appeal Court to be reheard.
3.   That the Respondent pays the Appellant’s costs of this appeal, to be taxed if not agreed.

	The Court.