Fera v Morris [2003] SBCA 5; CA-CAC 009 of 2003 (16 July 2003)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
Civil Appeal No. 009 of 2003

REX FERA (AN ADJUDGED BANKRUPT)
Appellant

-v-

WAYNE FREDERICK MORRIS & BENJAMIN ST GILES PRINCE
Respondent

Before: Kabui, J.

Date of Hearing: 15^th July 2003
Date of Ruling: 16^th July 2003

Mr B. Upwe for the Appellant
Mr J. Sullivan for the Respondents

RULING

(Kabui, J): This is an application for extension of time brought under section 19 (b) of the Court of Appeal Act (Cap. 6), filed by the Appellant on 6^th June 2003. The extension of time is required to enable the Appellant to file his application for leave to appeal against my ruling made on 15th May 2003.

Under rule 10, sub-rule 2 of the Court of Appeal Rules 1983, an application for leave to appeal must be filed within 14 days of the decision from the date the decision below was signed, entered or otherwise perfected. I delivered the ruling and signed it on 15^th May 2003. The 14 days period therefore would have commenced from 16^th May 2003 and ended on 29^th May 2003. (See section 55 (1) (b) and (c) of the Interpretation and General Provisions Act Cap. 85). Extension of the 14 days period is therefore necessary for the filing of the application for leave to appeal against my ruling. Under section 19 (b) of the Court of Appeal Act cited above, this Court does have the power to extend time. This power is however discretionary in nature and is based on evidence in support of the application for extension of time. The evidence in support of this application was in the form of an affidavit filed by Counsel for the Appellant, Mr Upwe, on 6th June 2003 in which he said that the reason for his delay was his erroneous view of the Court of Appeal Rules that the time limit for appealing was a period of 30 days. He said he did not realize his error until 5th June 2003 when he obtained a copy of rules 9-11 of the Court of Appeal Rules and found the correct time limit was a period of 14 days and not 30 days. He said he was out of time by 8 days. Mr. Upwe for the Appellant had argued that his delay was not really a bad one in that the delay was not unreasonable, inordinate or inexcusable in any way so that it would in some way adversely affect the Respondents. Mr. Sullivan, on the other hand, had argued that on the question of extension of time, my ruling in Shell Company (Pacific Islands Limited) v. Wayne Frederick Morris and Benjamin ST. Giles Prince (Trustees), Civil Appeal No. 005 of 2003 was applicable to this case in that a mistaken view of the law by the Solicitor of the appellant would be no excuse as constituting a reasonable delay for extension of time to be granted. The view I took then was that evidence of toiling over conflicting legal opinions was no evidence of a fact explaining a delay justifying an extension of time but rather an academic exercise arising from confusion over the correct legal position regarding what was an interlocutory judgment and what was not. It had taken two weeks of toiling over that legal issue. Whereas in this case, there is evidence of a fact that explains the delay being the incorrect view of the time limit for leave to file an appeal held by the Solicitor for the Appellant, Mr. Upwe. There was a delay of 8 days. I will return to this point later. The other points that Mr. Sullivan raised were that the authorities cited by Counsel for the Appellant, Mr. Upwe, were not helpful to the Appellant's case. He distinguished Beckett v. James [1979]13 All E.R. 38 as a case about want of prosecution and R. v. Faulkner (No. 2) [1983] S.I.L.R. 282 as one that stood for the proposition that there must be miscarriage of justice to justify extension of time. Mr. Sullivan then moved on to a more interesting argument that there was no case for extension of time if there was no prospect of success for leave to appeal and then he went into the reason why he believed there was no prospect of success for an application for leave to appeal.

Should extension of time be granted?

As I have said above, the power to grant an extension of time is a discretionary one based on the evidence available to the Court. The erroneous view of the Solicitor for the Appellant of the correct time limit for leave to appeal was the only reason for the delay in this case. I do not accept the justification for committing that delay as explained by Counsel for the Appellant, Mr. Upwe in his affidavit cited above because any lawyer who has been granted a practicing certificate to practice law in this jurisdiction must bear the consequences of his negligence. I do not accept such explanations such as being new in the profession or being inexperienced or the like. A lawyer in private practice must be taken as being a qualified person in the practice of the law and nothing less. A client takes him as he finds him. However, the fact is that there was a delay resulting in the Appellant being out of time. In my view, section 19 (b) of the Court of Appeal Act clearly envisages occasions when extension of time will be necessary for notice of appeal or application for leave to appeal otherwise that provision would not exist in the law. I think the same spirit in the law also finds its place in Order 64, rule 5 of the High Court (Civil Procedure) Rules 1964 ‘the High Court Rules’, endorsed in Reef Pacific Trading Limited v. Island Enterprises Limited, Civil Appeal No. 1 of 1992. The underlying spirit of this power to extend time is the requirement for ‘justice’ to prevail. If, as argued by Mr. Sullivan, there is no prospect of success for an application for leave to appeal, then an application for extension of time should be denied. I do not accept that argument at this stage. The delay here was a delay of 8 days only. Although I do not accept the reason for the delay, I do accept the fact that the Appellant was out of time due to the delay caused by his Solicitor. I would let the Appellant through to file his application for leave to appeal. It is at that stage that the question of an arguable case would present itself for comment by the Respondents.

I will not shut him out even if his grounds of appeal may be perceived by the Respondents to be weak. To do so would be to deny him justice of being heard when he seeks leave to appeal. Let him be heard at that time if he has got a good case to go to the Court of Appeal. The Appellant's application is therefore granted. Costs be costs in the appeal.

F.O. Kabui
Judge