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Podarua v Chow [2012] SBCA 5; CA-CAC 20 of 2011 (23 March 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL


NATURE OF JURISDICTION:
Appeal from Judgment of the High Court of Solomon Islands (Cameron, J.)


COURT FILE NUMBER:
Civil Appeal Case No. 20/2011 - (On Appeal from High Court Civil Case No.125 of 2010)


DATE OF HEARING:
14 March 2012
DATE OF JUDGMENT:
23 March 2012


THE COURT:
Sir Robin Auld, President

Sir Gordon Ward, JA

Justice Glen Williams, JA


PARTIES:
PODARUA - Appellant



-V-



CHOW - Respondent


ADVOCATES:

Appellant:
D Marahara
Respondent:
M Tagini


KEY WORDS:
Practice, extension of time to appeal, fresh evidence, delay,
NO GOOD REASON TO EXTEND TIME.


EX TEMPORE/RESERVED:
RESERVED


ALLOWED/DISMISSED:
DISMISSED


PAGES:
11

JUDGMENT OF THE COURT


1. By application filed 18 November 2011 the applicant (defendant below) sought an extension of time to appeal a judgment of the High Court of 3 August 2010.


2. The background to the application is as follows. The respondent (claimant below) was the owner of premises known as Amy’s building, Point Cruz, Honiara. The appellant was a tenant in part of those premises for a two year period from 4 August 2007. The trial judge made the following finding:


There was no written tenancy agreement, signed by the parties, tendered in evidence. The claimant says this was because the entire agreement was oral. The defendant says that the parties did sign a written agreement, but that now she cannot locate her copy of it.


...


I am not satisfied that a written tenancy agreement, signed by both parties, ever existed in this case. Neither party produced any such agreement and indeed the claimant asserts no such agreement existed. I prefer the evidence of the claimant on this point, and find that the agreement between the parties was an oral one.”


3. For reasons which need not be canvassed now the trial judge made orders granting the respondent possession of the premises and requiring the appellant to pay $350,000 being the amount of arrears of rent.


4. According to the applicant in her sworn statement of 18 November 2011, she was told by her legal representatives shortly after 3 August 2010 that she could only appeal on a point of law and no such ground was available. She was able to negotiate an extension of time in which to vacate the premises. Then she says in mid-August her lawyer told her he would like her to appeal the award of damages. According to that statement, she considered “the ordeal of going back to Court was beyond my comprehension” and she “opted to pay the claimant accordingly and leave justice to God.”


5. However, in an another sworn statement filed 18 August 2011 in support of her application of 22 August 2011 seeking leave to appeal she stated:


“After the decision was delivered on 3 August 2010 my solicitor at that time advised me to file an appeal against the Decision. I decided not to do so because the crux of the Decision which I was penalised on was the absence of the tenancy agreement which the claimant denied signing.”


6. On about 9 September 2010 an enforcement order was entered against the applicant. She was served with a pink card, titled “Enforcement Register Card.”


7. Nothing further of relevance appears to have occurred until March 2011. The following passages are taken from the applicant’s sworn statement of 18 November 2011:


Sunday, 20 March 2011: Following a week-long conviction that something was not right, I wrote an email to Fa’aitoa, and did this in the early hours of Monday, March 21 2011, title of my email was. “Revisiting Issues”. Fa’aitoa responded via email, on 2pm of 21/3/11, that he would meet with me on Friday 1500hrs March 23 2011 to which I expressed my agreement via return email;


The document titled, Tenancy Agreement, written and signed between Chow and myself was found at my home Tuesday 22 March 2011, two days after my email to Fa’iatoa.


...


On Wednesday 23 March 2011, around noon time, Mr Christopher Fakarii of Global Lawyers serves me at my home with a notice to appear in court on 7 April 2011. That was the first time for me to learn that I had been absent from earlier court hearing of 17/3/11;


During the course of the discussion with Mr Christopher Fakarii, I was informed that Fa’aitoa had enlightened them that he was withdrawing his legal representation from my case [Note, the date here being court date 17 March 2011; 5 days before I was to locate the missing evidence crucial to the case, i.e. written and signed tenancy agreement];


Fa’aitoa made nil efforts to contact me about the 17/3/11 hearing;


On Friday 25 March 2011, around 1445hrs, per the appointment made on 21 March 2011. I briefly met (about 5 mins) with Fa’aitoa in his office to which I informed him that I had found the signed Tenancy Agreement.


...


However, on Monday 28 March 2011, after much deliberation for which the question of could I trust him was a major factor. I concluded that it would be in my best interest to appoint the services of another solicitor on this case and sent an email to Fa’aitoa informing him of my intention as such;


On Thursday, 7 April 2011, I attended court as scheduled. Fa’aitoa formally withdrew his legal representation and Mrs Nuatali Tongarutu of ANT Legal Services became my new solicitor. On same date, a document informing Fa’aitoa of my intent to move this case to ANT Legal Services was produced to him by Tongarutu in court. Case was adjourned for 21/4/11;


....


It was not until the 1st of July 2011, when a Warrant of Arrest was served on me, that I actually realised the presence of false and misleading stories about my case. The judge, I now believe, on 21/4/11, threw my case back on the Registrar’s table for enforcement hearing on 18/5/11.


8. In a statement to Police dated 24 August 2011, the applicant gave an account of how she found the Tenancy Agreement. There she said:


Tenancy Agreement


On Tuesday morning, 22 March 2011, one year after the altercation between Ms Mary Chow and I started, I (accidentally) located the signed written tenancy agreement at my home whilst searching for another court document which was a card titled, “Enforcement Order”.


I found the document amongst other papers and files around 0900hrs. At the time I located the document, the following persons were at home with me, though in different locations of the premises. Moses Fuata (11), Maelyn Finega (17), Cathy Oiri (19), Anna Mosese (23), Eddie Kairi (26), Freeman Podarua (42) and Francis Kairi (53).


On Wednesday 23 March 2011, I sought legal opinion from two different law firms who recommended that where perjury is thought to have been committed, one should report such matter to the Police directly. I also sought legal opinion on the standing of this piece of evidence in relation to the court’s decision of trial.


9. In a later Additional Statement to Police dated 29th November 2011, she gave a more detailed account of the finding of the document. There she said:


Furthermore, in the morning of Tuesday March 22 2011, at just about 0900hrs, the written tenancy agreement, titled, Tenancy Agreement, signed between Ms Mary Fun Lun Chow and myself dated August 2007 was, after tireless and endless efforts of searching numerous locations, finally located:


(1). The lost document was located by me at my residential home, Mbumburu Ridge, Honiara;


(2). What transpired in the morning of Tuesday March 27 2011, prior to location of the tenancy agreement:


(i) I asked my husband (Freeman Podarua), my son (Moses) and Cathy Oiri (family friend) to help me locate a court document, enforcement Register Card, also referred to as Enforcement Order (a pink coloured A4 card) which was left at my home by two court officers. This card was only brought to our home in September 2010 by High Court officials. I was not searching for the Tenancy Agreement;


(ii) My husband went into our bedroom to look for the court document;


(iii) I asked my son (Moses) and Cathy Oiri to pull out boxes under the living room table for me so that I could look through the boxes for the court document. They (Moses and Cathy) pulled out the boxes and passed a few to me;


(iv) I sat down and looked at the box in front of me and could immediately see the pink card under some pile of papers. I picked up the papers, separated them on my lap, looked at the pink card to confirm it is the court paper I wanted, and then unconsciously moved on to the next papers which were clipped together, opening the pages I noticed the signatures of Mary Chow, Tahi, Ruth Alepio and myself. I knew instantly that I had found the missing tenancy agreement. I must have reacted so strangely;


(v) My husband, coming from the bedroom saw my reaction and knew immediately too what was in my hands and without even asking, said, “Thank you Lord” knowing on instinct that the lost tenancy agreement had been found;


(vi) I began sobbing. Cathy and Moses left the room because I was crying so loud much and everyone at home were perplexed about the situation;


(vii) My daughter, Anna, came rushing from her room when she heard me crying loudly and asked what the matter was. I told her I had found the tenancy agreement between Mary Chow and myself and showed her the document;


(viii) Though I was crying so much that day, it was tears of relief;


(3) It is a miracle to have found the tenancy agreement amongst recent papers because as far as I knew, the agreement had been missing since very early days after signing and it was so surprising that it was found amongst latest court papers. The most surprising thing was the fact that I have moved stuff around about 5 times from my AMA office at NPF Building to my office at the La Tertilla/Amy’s building then to my (deceased) parents’ bedroom then to the storage room outside my home only to find the document under one of my dining tables;


(4) I had searched for the document everywhere I thought it could be since I knew it was missing and especially prior to court trial of 2010: the bank, Honiara City Council, my office in AMA, Tongs and Amy’s building but to no avail;


(5) I thank Almighty God for revealing the document: To Him be the Glory. That is all I can say on this matter.


10. In the statement of 24 August she gave an account of the signing of the document in general terms, including an assertion it was she who was responsible for getting the document typed. In the later statement of 29 November, she goes into more detail about the witnessing. She claims that having seen the document she was able to recall how two customers of the shop were asked to witness the signatures. That was contrary to her case before the trial judge. At that time, her case was that it was her husband who witnessed the signatures and there was a statement from the husband supporting that.


11. By application filed 22 August 2011 the applicant sought leave to appeal against the judgment of 3 August 2010. The applicant relied in support on her affidavit of 18 August. In it she said that on 24 March 2011, acting on legal advice, she went to the police and reported the respondent for perjury. That application for leave came before Mwanesalua J on 22 August and the document found on 22 March was shown to him and counsel for that respondent. Apparently it was not readily obvious whether the document was an original or a copy and in consequence the judge asked that the document be formally examined by police to ascertain whether it was an original or otherwise. The application was adjourned for that to be done.


12. The police reported they did not have the services to do that. The adjourned application was then brought on before Mwanesalua J on 12 September 2011. Ms Tongarutu appeared for the appellant on 22 August and 12 September. For reasons given on 5 October the judge dismissed the application for leave to appeal pointing out that an application for an extension of time to appeal was required. It would appear he intimated that the application for extension of time should be brought before the next sittings of the Appeal Court scheduled for November.


13. Shortly thereafter the applicant terminated the services of Ms Tongarutu as her solicitor. It appears the applicant herself prepared the application for extension of time filed on 15 November 2011, her affidavit in support of the same date, and the draft Notice of Appeal. That was too late for hearing at the sittings in November 2011.


14. On 12 December 2011 she engaged Mr Marahare of DNS & Partners as her legal representative. That firm prepared a further affidavit from the applicant which was filed 9 February 2012.


15. The Court of Appeal has a very wide discretion pursuant to s.19 of the Court of Appeal Act 1975 to extend the time for appealing. By operation of rule 10 of the Court of Appeal Rules, the applicant had 30 days from 3 August 2010 to appeal as of right. It has been said in many cases that there is a public interest in finality of litigation and in consequence the party seeking an extension of time to appeal must demonstrate good cause for the court so ordering.


16. In Price Waterhouse & Ors –v- Reef Pacific Trading Limited [1996] SBCA 5 this Court (Kirby P., Kapi JA and Palmer AJA) held that in exercising the discretion the following principles should be applied:


“1. The discretion to extend time will not be granted as a matter of course.


2. An applicant whose right of appeal is extinguished by the expiration of time must show some good or acceptable reasons why the time in which to file an appeal was allowed.


3. There must be some merit in the proposed grounds of application for leave or proposed grounds of appeal.


4. The onus is on the applicant to satisfy the Court.


5. Whether time is extended or not is always in the discretion of the Court.”


17. Here the principal submissions on behalf of the applicant were that the terms of any tenancy agreement were essential to the resolution of the dispute between the parties, and (on the assumption the document lately found was genuine) the respondent committed perjury at the trial.


18. The New South Wales Court of Appeal in Wentworth –v- Rogers (no 5) (1986) 6 NSWLR 534 at 539, referring to a number of authorities, said:


“...although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not usually be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.”


19. Were an extension of time granted another critical issue on the appeal would be whether the applicant could convince the Court to allow fresh evidence, that is evidence of the located document, to be admitted. At that stage principles derived from cases such as Ladd Marshall [1954] EWCA Civ 1; (1954) 3 ALL E.R. 745 would come into play. In that case Denning, LJ at 748 said that for a retrial to be ordered on the ground that a witness told a lie, three matters had to be satisfied:


In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.”


20. It is against the background of all that is said above that this Court must determine how its discretion should be exercised.


21. There is no doubt that the terms of the tenancy agreement between the applicant and respondent were central to the judgment in question. The difficulties facing the applicant are the delay in making this application, and questions as to finding of the document and its genuineness.


22. In her statement to police of 24 August 2011 she said (quoted above) that on the day after finding the document, that is on 23 March, she sought advice from two different law firms on the “standing of this piece of evidence in relation to the court’s decision of trial.” Yet in her later sworn statement of 18 November 2011 she said (quoted above) that in a meeting with her solicitor on 25 March, three days after the finding, she informed him she had found the document. There is no explanation as to why no step was taken in late March to bring the finding to the attention of the Court. The inconsistency in her evidence does not help her case.


23. There was a five month delay (22 March – 22 August) between finding the document and making any application to a court based on finding the document. There was then a further delay of about 3 months before an application for extension of time was filed. Further the application for extension could have been made ready for hearing at the Court of Appeal sittings in late November 2011 if the applicant had acted promptly after the ruling on 5 October. A shorter period of delay was held by this Court in Solomon Islands Home Finance –v- Attorney-General [2011] SBCA 3 to warrant declining to exercise discretion to extend time.


24. It is also significant that the finding of the document was not drawn to the attention of the court on 7 and 21 April and 18 May 2011. According to the applicant’s statement quoted above, there were enforcement proceedings before the Court on those dates and she was then represented by a solicitor. They were the first opportunities she had of drawing to the attention of a court the fact that she had found the tenancy agreement and, so far as the material before this court reveals, she did not do so.


25. The circumstances of the finding of the document on 22 March 2011 raise concerns that there had not been a diligent search for it before trial. It was allegedly found in box containing legal documents under the dining room table in the applicant’s home. It must have been among papers kept as important for a long period of time. Not only was it not discovered prior to the trial in July 2010 but it was not found during the nearly 8 month period after judgment during which time enforcement proceedings against the applicant were in train. The timing of the find is also concerning. There was apparently an enforcement hearing in the Court on 17th March, of which the applicant said she was unaware. It was just “a week-long conviction that something was not right” which led to the search on 22 March. That hardly explains why such a diligent search was made on that day when it could have been undertaken much earlier.


26. The respondent in the submissions on her behalf emphasises the doubt as to the authenticity of the document. Is it a copy or an original? Also stress was placed on the inconsistency in the applicant’s position. At trial the applicant’s case was the tenancy agreement was witnessed by her husband but the document found was not. She was later able to give a detailed account of the witnessing. It is surprising she could not remember anything at trial about preparing the document and obtaining witnesses as recounted in her most recent statements.


27. The respondent also submitted that even if the document found was genuine, it never became effective because a condition precedent was never satisfied. The document on its face provides that the applicant should pay the creditors on an attached list marked “1” by 23 August 2007 otherwise the agreement “will not be valid.” The respondent contends that condition was not satisfied, but that is disputed by the applicant. In the circumstances that issue is not a matter relevant to the exercise of the Court’s discretion to extend time within which to appeal.


28. The delays in this case are significant. There was a lengthy delay (some 8 months) between judgment and the finding of the document, which is even more concerning when it is realised the document was found amongst documents in a box under the dining room table in the applicant’s home. That enlivens the question whether with due diligence the document could have been located before trial. There is then a delay of some months between the finding of the document and the first intimation to a court that the document had been located. Even after that there was a significant delay in seeking an extension of time in which to appeal. Those delays could themselves justify this court refusing to extend time. But there are further relevant considerations. There are significant inconsistencies in the applicant’s account of events between judgment and application and in consequence there are doubts as to the reliability of her testimony. Even after this length of time there is still doubt as to whether the document in question is an original or a copy.


29. Against that background the Court has concluded that the applicant had not demonstrated sufficient good reasons for extending the time, and in the exercise of its discretion, the court declines to do so.


30. The application is refused.


Sir Robin Auld
President


Sir Gordon Ward, JA
Member


Justice Glen Williams, JA
Member


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