Podarua v Chow [2011] SBCA 14; Civil Appeal Case 20 of 2011 (5 October 2011)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Appeal Case No. 20 of 2011

BETWEEN:

AGGIE PODARUA
(Representing herself or trading as La Tortilla)
Applicant/Appellant

AND:

MARY CHOW
Respondent

HEARING: 12 September 2011
RULING: 5 October 2011

A Tongarutu for Applicant
M Tagini for Respondent

RULING

1. This is an application for leave to appeal. It was filed on 22 August 2011 under rule 9 (1) of the Court of Appeal Rules (the Rules) by the Applicant. The Applicant seeks leave to appeal against the decision of the High Court in Civil Case No. 125 of 2010. The court delivered its decision on 3 August 2010.
   
2. The decision went in favour of the Respondent and Orders were made against the Applicant. The Applicant made a sworn statement in support of her application. She deposed that she initially declined legal advice to appeal the decision, because it was plain from the decision that she was greatly disadvantaged at trial because of the absence the relevant tenancy agreement made between herself and the Respondent in August 2007, which the Respondent denied signing. However, she managed to locate her original copy of that agreement in her residential home in Honiara, on 22 March 2011, which was pivotal to the decision of the High Court. She deposed that there was further delay in her application for leave as she had to find another solicitor to assist her in this application.
   
3. The proposed grounds for leave to appeal are:
   
   1. The case before the trial judge was premised on a tenancy dispute between the parties named herein. Revelation of fresh evidence, of the existence of the written Tenancy Agreement dated 5th August 2007 signed between the parties named herein does have a bearing on the entire Decision of the trial judge.
      
   2. The information contained under paragraph 3 of the Tenancy Agreement and paragraph 9 of the High Court Decision pertaining to the issue on the monthly rental will affect the judgment amount as ordered under paragraph 21 ( e) of the Decision.
      
   3. Impending criminal case on perjury and extortion by the Respondent in connection with allegations of false statements made in court and on affidavit evidence by the Respondent which led the trial judge to decide under paragraph 4 of the Decision that no tenancy agreement was signed by the parties herein.
      
   4. The revelation of the tenancy agreement may call for a retrial of the Respondent's case at the High Court.
      
4. The proposed grounds of appeal are set out in the application as follows:
   
   • (1) The trial judge erred in his findings under paragraph 11 of the Decision that no Written Tenancy Agreement existed between the parties.
     
   • (2) The trial judge erred in his decision under paragraph 12 in finding that the Applicant made a conscious decision to increase the monthly rental prior to the expiry of the term of the Written Tenancy Agreement.
     
   • (3) The trial judge erred in his assessment of damages and the judgment amount.
     
5. The dispute between the parties and the issues in the court below arose from a tenancy agreement they entered into in August 2007. The Respondent is the owner of a building which the Applicant rented for a food bar for a period of two years. The rental for the premises was $35,000.00 per month with rental payments in arrears. The issues, among others, which the court had to deal with relate to the increase of rentals, periodic tenancy, eviction, precise amount of damages, the existence and execution of a written rental tenancy agreement. On the last issue, the Respondent vehemently denied the execution of any written agreement and insisted that the tenancy agreement was merely verbal. On the contrary, the Applicant stated that she knew that there was a tenancy agreement which both signed, but she had misplaced her copy. The court accepted the Respondent's evidence on this issue.
   
6. As stated above, the decision sought to be appealed was dated and delivered on 3 August 2010. Application for leave to appeal must be filed within 14 days from the date of the decision appealed. In this case, leave to appeal should have been filed by 16 August 2010. It was not so done. This court has discretionary power to grant extension of time to seek leave to appeal. This application for leave to appeal was filed 22 August 2011. There is no application to extend time to seek leave to appeal before this court. This means that at present no appeal is on foot until extension of time for leave to appeal is granted to enable the Applicant to properly institute application for leave to appeal.
   
7. The court is therefore not able to proceed with the application for leave to appeal. The Applicant may seek extension of time to apply for leave before the full court. If the Applicant desires to do so, then she would need to file an application for extension of time to apply for leave, file a notice of appeal, and be prepared to prosecute the appeal before the full court.
   

THE COURT