Agassi v Jamakolo [2012] SBCA 3; CA-CAC 12 of 2011 (23 March 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Application for Extension of Time for Permission to Appeal from Orders of the High Court of Solomon Islands (Chetwynd/Mwanesalua JJ)
COURT FILE NUMBER:	Civil Appeal Case No. 12 of 2011 - (On Appeal from High Court Civil Case No.43 of 2004)
DATE OF HEARING:	20 March 2012
DATE OF JUDGMENT:	23 March 2012
THE COURT:	Sir Robin Auld - President
	Sir Gordon Ward, JA
	Glen Williams JA
PARTIES:	Agassi and Others - Appellant
	-v-
	Jamakolo and Others - Respondent
ADVOCATES:
Appellant:	Mr S Dausabea Getu
Respondent:	Mr C Hapa – For 1st, 2nd & 3rd Respondents
	Mr J Muria Jnr – For 5th and 6th Respondents
KEY WORDS:	Strike out for want of prosecution – reinstatement
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	4

JUDGMENT OF THE COURT
Agassi & Ors v Jamakolo & Ors

1. The action giving rise to this application began in February 2004. It is a claim by members of the Getu Tribe, a landowning tribe in the Bili Islands, challenging the entitlement of other tribal people and companies to exploit timber rights in the Islands and alleging unlawful authorisation by certain government entities of such exploitation. The action seems to have progressed throughout at a very leisurely pace. Since Mr Samani Getu’s assumption in 2007 of the role as the representative of the claimants in the proceedings there has been little progress in the preparation of their claim for trial.

2. More recently, on 24th September and 8th October 2010, Mr Getu failed to attend court to represent the claimants at trial preparation conferences, giving no cogent reasons for his absences. On the second of those conferences Chetwynd J struck out the claim for want of prosecution.

3. On 3rd November 2010 Mr Getu sought reinstatement, an application that Chetwynd J heard on 22 February 2011 and refused on 8th April 2011 in a fully and cogently reasoned judgment. On 6th May 2011, Mr Getu lodged a document purporting to be a notice of appeal against that refusal, a process that does not appear to have resulted in any order at that stage. Some four months later, on 6th September 2011, he lodged an application for leave to extend time for filing a notice of appeal against the refusal to reinstate, but not in proper form or, as required, supported by sworn statements. The matter came before Mwanesalua J, sitting as a Single Judge of the Court of Appeal on 12th September 2011. On 4th October 2011 he ruled that, in the absence of an application in proper form for an extension of time for leave to appeal, he could not deal with the matter. He directed the claimants, if they were intent on reinstatement, to make application to the Full Court for an extension of time for leave to appeal.

4. On 10th February 2012, there was a directions hearing before Chetwynd J, sitting this time as a Single Judge of the Court of Appeal. The Court has not seen any formal record of the hearing or the order made by the Judge. However, he appears to have directed the claimants that, if they wished to pursue their challenge to his strike-out order, to apply to the Full Court for an extension of time in which to seek leave to appeal it. But he did so subject to a condition that they should, within 14 days, pay $20,000.00 into court, or provide equivalent security - failing such payment or provision of security, the claim, would be stayed.

5. Such an order was capable of challenge under section 19(b) of the Court of Appeal Act (Cap. 6) by way of application to the Full Court - in parallel presumably with the claimants’ challenge to his strike-out order when sitting at first instance.

6. The claimants have not applied in proper form for an extension of time in which to seek leave to appeal the strike-out order, nor have they complied with Chetwynd J’s the condition as to the payment-in of $20,000.00 or provision of security. Instead they have allowed over a month to elapse before lodging by Mr Getu, on 16th March, of a “Skeletal Submission”, purporting: 1) to revive their procedurally invalid “applications” of 6th May 2011 and 6th September 2011 for an extension of time to seek leave to appeal the strike-out order; and 2) seeking removal of the condition of payment-into court.

7. Mr Getu now seeks unconditional reinstatement of the claim in a submission directed: (1) to the claimed substantive merits of the claim, the precise nature and legal basis of which are not always readily identifiable in the claimants’ pleadings; 2) the claimed unfairness of Chetwynd J’s imposition of the condition of payment into court or provision of security; and 3) little in way of cogent explanation of or justification for the claimants’ former and continuing lengthy delay.

8. Quite apart from the lack of merit in Mr Getu’s complaints about Chetwynd J’s strike-out order some 18 months ago for want of prosecution and the doubtful validity of the claimants’ grievance over his imposition of the condition for payment into court, Mr Getu has still not brought either matter before the Court in proper form, that is, by way of application for an extension of time to seek leave to appeal. In addition, as to the condition for payment-in, section 15 of the Court of Appeal Act provides that the Court shall not entertain any appeal under the Act “unless the Appellant has fulfilled all conditions of appeal as prescribed by the Rules of Court”. The applicable Rules are set out as “conditions precedent to appeal”, one of which is Rule 12(1) (b)(ii), requiring the deposit of a sum or provision of security fixed by the Registrar for all costs as may be ordered to be paid by the appellant. Non-compliance with such requirement, by Rule 13 of the Rules, has the effect of staying all proceedings in the appeal unless the Court orders otherwise and in the appeal being listed for the next sessions of the Court for a formal order of dismissal.

9. On 3rd March 2012, some three weeks after Chetwynd J’s direction, the Registrar wrote to Mr Getu stating that the claimants had not complied with it or with any other of his, the Registrar’s, directions in a letter to Mr Getu on 1st March 2012 for the preparation and presentation of the claimants case to the Full Court, pursuant to Manesalua J’s ruling of 4th October 2011.

10. In the Court’s view, the inordinate and plainly inexcusable delays of the claimants over the years, aggravated more recently with the advent to the litigation of Mr Getu as their representative, gave Chetwynd J strong justification for the strike-out order that he made on 8th October 2010 and for which he gave reasons on 8th April 2011. As the Court has also indicated, the ensuing equally inexcusable delays and less than competent handling of the claimant’s purported challenge to that order and his direction for payment into court, coupled with their disregard of the Registrar’s directions, demand firm action by the Court in the interests of all parties. A condition for provision of security for costs in the relatively modest sum of $20,000.00 in the context of the community of claimants interested in this substantial claim and its enforcement as a condition precedent to permitting them to challenge its strike-out it in proper form cannot be said to have been unreasonable or otherwise unlawful.

11. Accordingly, the Court:

1). refuses the relief sought by the claimants in this application on the merits and independently of any defect of form in their application, in particular their application for removal of the condition of payment into court by way of security for costs pending the making of an application to the Full Court for an extension of time for leave to appeal;

2) stays all proceedings in the action;

3) directs that the matter be listed for the next session of the Full Court for a formal order of dismissal; [and

4) directs that the claimants pay to the defendants the costs of and incidental to the proceedings before this Court, to be taxed, if not agreed.

Sir Robin Auld
President

Sir Gordon Ward, JA
Member

Glen Williams, JA
Member