Tran v Sikua [2014] SBCA 5; SICOA-CAC 15 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona J.)
COURT FILE NUMBER:	Civil Appeal Case No. 15 of 2013 (On Appeal from High Court Civil Case No. 436 of 2012)
DATE OF HEARING:	28 APRIL 2014
DATE OF JUDGMENT:	9 MAY 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Sir Gordon Ward JA,
PARTIES:	Namson Tran Appellant -V – Derrick Sikua Respondent
Advocates: Appellants: Respondent:	Sol-Law Appellants G K Suri Respondent
Key words	Time limit Rule 15.3.18 conference
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 7

JUDGMENT OF THE COURT

1. This is an appeal against a decision made on 17 July 2013 at a Pre Trial Conference (PTC) under the Solomon Islands Courts (Civil Procedure) Rules (CPR), Rule 15.3.18. It is made with leave granted on 11 March 2014. That leave itself was granted on the basis of an application for leave filed on 1 August 2013. There appears nowhere in the appeal bundle any reason why an application for leave to appeal is not considered until after it has matured in the High Court Registry for more than seven months. Within that intervening seven months, there was a sitting of the full Court of Appeal.
   
2. Appeals in interlocutory matters require somewhat more immediate attention. By definition such appeals delay the substantive trial process. It may well be, fortunately not in this case, that such a delay renders nugatory any eventual trial. That is simply wrong and must not be permitted to become the norm.
   
3. A notice of cross appeal was filed on 31 March 2014. There is nothing within the appeal bundle to suggest that leave for that appeal was either sought or obtained. It refers to and relies upon an amended claim for Judicial Review filed on 23 July 2013. That amended claim was filed after the Pre Trial Conference and was obviously not before the trial judge when he made his decision under 15.3.8. It was filed prior to the application for leave to appeal and for that reason the cross appellant seeks to include within the appeal bundle those documents, which became a part of the trial bundle after the decision the subject of this appeal.
   
4. No decision prior to the hearing of this appeal was made as to whether the documents should or may be included in the Appeal Bundle. It is not clear why this is the case. After hearing from counsel on the matter, we determined that the material may be included in the bundle to demonstrate that which has subsequently taken place within the matter but noting that the same material was not before the Court at the time of this decision. We do refer to that material as part of this judgment for the sake of completeness.
   
5. The appellant presently represents the Parliamentary Constituency of West Honiara in the National Parliament. He was elected to that position in the 2010 General Election. He successfully defended an Election Petition in the High Court in 2012 in relation to that seat.
   
6. Entitlement to vote and to stand as a candidate in a Parliamentary election is determined under the Part VI of the Constitution of the Solomon Islands, in particular at section 48. The Appellant is a citizen by naturalization, not a citizen by birth. The Respondent is a citizen by birth and also an elected Member of the National Parliament.
   
7. The question raised in these proceedings is whether the naturalization process undergone by the Appellant ending in 2002 with the grant of citizenship should be set aside. The grounds suggesting that it should be set aside can be found in the claim. In summary, it is said that the process and the resultant citizenship should be quashed because the Appellant knew when he applied for citizenship that he had not been resident in the Islands for the requisite ten years. The Appellant made no secret of that fact, declaring the same to be the case in his application.
   
8. At the PTC under 15.3.18 the Court is required to consider four matters. Under SICPR those four matters are:-
   

(a) the claimant has an arguable case; and

(b) the claimant is directly affected by the subject matter of the claim; and

(c) there has been no undue delay in making the claim; and

(d) there is no other remedy that resolves the matter fully and directly.

9. In this instance two issues, b and c, were raised. The first dealt with in the judgment the subject of this appeal is the question of being directly affected and the second whether this claim was brought within the appropriate time.
   
10. The respondent contends that he is directly affected in two ways. He submits that he is directly affected as a Member of Parliament and further submits he is directly affected as an ordinary citizen. The notion of standing as a Member of Parliament arises as the respondent was himself elected. Neither of them could have been so elected, or even nominated for election, without the benefit of citizenship.
    
11. Yet having citizenship is not why the Appellant is a Member of Parliament. He became a Member of Parliament after being nominated as a candidate and thereafter being elected to the position. There seems to have been no challenge to his nomination, for which there is a prescribed procedure, and the challenge brought to his election was heard and dismissed in the High Court.
    
12. It is therefore doubtful that the Respondent is directly affected as a fellow Member of Parliament for in these proceedings, it is not entitlement to membership that is an issue but the much earlier and further removed grant of citizenship. The subject matter of this claim is the grant of citizenship, not membership of the House.
    
13. Nor is it clear that the Respondent establishes that he is directly affected by the decision as a citizen. Whilst there may well be circumstances when another citizen is directly affected by the grant of citizenship, it does not appear that this is one of them. The Respondent in his filed material makes it very clear that his only concern is Membership of the House and the benefits and privileges that go along with that. His actions, for example, in not challenging nomination of the Appellant as a candidate demonstrate that until his successful election the Respondent had no interest in the citizenship of the Appellant.
    
14. It is because of the Respondent's clearly expressed position that his interest lies only because of the Appellant's membership of the House that he cannot thereafter claim an interest based on mere citizenship. Clearly, the trial judge considered the question of mere citizenship and did conclude that any citizen could have standing when any alleged contravention of the law by a Minister arose. That, perhaps, would be too wide an interpretation for some but regardless of that given the stated position of this respondent he by virtue of that stated position makes it clear that he does not act in this case as a mere citizen.
    
15. Should a person obtain citizenship by virtue of some close familial connection with another, that other may be able to establish being directly affected and there are no doubt other examples to be found where being directly affected could be successfully shown. That, though, does not seem to be the case here. A mere citizen with no other interest than that is unlikely to be able to show that he or she is or has been directly affected by a particular individual grant.
    
16. Judicial review, in particular the quashing of decisions, has always been the subject of short time limits. CPR 15.3.8 prescribes six months unless a longer period is warranted to accord with substantial justice. It is to be noted here that the amended claim seeks a quashing order.
    
17. On this application, the trial judge was referred to the time limits prescribed under the Limitation Act [Cap 18]. He deals with time starting at paragraph 43 of his judgment. His conclusion requires that the circumstances in which the Appellant was granted citizenship be set out briefly.
    
18. The Appellant was born in Vietnam in December 1968. He obtained Ni-Vanuatu citizenship in 1993. He came to work in Solomon Islands in 1995 and married a Solomon Islander in 2002. Now divorced he has two children from that marriage and three children from a subsequently relationship. All of the children are citizens of Solomon Islands.
    
19. In 2001 the Appellant applied for citizenship and was told that his application for the same was "suspended" by the Citizenship Commission as he had not then resided in Solomon Islands for the prerequisite ten years. Being aggrieved by that decision he appealed to the relevant Minister and, rather quickly, was told that his appeal was successful. The process ended with the Appellant taking his Oath of Allegiance in January 2002 after renouncing his Vietnamese citizenship (by birth) and Ni-Vanuatu citizenship.
    
20. The questions which are raised by the Respondent over the grant are numerous. Was the Appellant entitled to appeal given that his application had not been refused, merely suspended? Was there a valid appeal given that the notice of appeal was not in the prescribed format or accompanied by the relevant fee? How could the Minister grant the application if the applicant did not meet the statutory criteria? Needless to say the speed with which the applicant was told of his success itself raises some question.
    
21. In his appeal to the Minister, the Appellant disclosed that he had not been a resident for the necessary ten years. Instead, reference was made to earlier decisions granting citizenship to others in the same position, that is to say lacking the ten year qualification.
    
22. Given that there is no requirement for the publication of applications for citizenship, consideration of the same and notices of appeals of decisions of the Citizenship Commission, the Respondent asserts that he was not aware of the circumstances until after a request for information had been complied with emanating from a Parliamentary Committee request. The date on which the Respondent asserts that he became aware of the relevant circumstances is 8 November 2013. He filed his claim on 21 December 2013.
    
23. The time between 8 November 2013 and 21 December 2013 would not of itself disqualify the Respondent under 15.3.18. The question, though, is whether the time began to run from the grant or when the Respondent discovered or should have discovered the circumstances, he now complains about.
    
24. At the hearing, reference was made to sections 5 and 17 of the Limitation Act [Cap 18]. Those sections provide:-
    

General limitation

5. Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of six years from the date on which the cause of action accrued.

Cause of action when accrues

17. Subject to the other provisions of this Act, a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first arises:

Provided that where the cause of action is founded on a continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.

25. Although the Appellant benefits each day that he continues to be a citizen, this, in our view, cannot be described as a continuing wrong as described in section 17. The wrong on which the action is based occurred only once, when the Minister made his decision or, perhaps, when the grant of citizenship took place following the Oath of Allegiance after the renunciation of other citizenship. A continuing wrong exists where a person who is a trespasser remains in a state of trespass on the land of another. Whilst the benefit of citizenship continues, the grant or taking up of citizenship happened in 2002.
    
26. In Liligeto v Commissioner of Lands [1997] SBHC 98; HCSI-CC 166 of 1996Sir John Muria CJ said:-
    

"The Act does not define what "continuing wrong" is but in my view it must mean an act alleged to be a wrong which is continuous and is of the same kind which gave rise to the action."

Here whilst the benefit of the alleged wrong continues to accrue to the Appellant, the alleged wrong which gave rise to the benefit took place only once in 2002.

27. Later in the hearing at first instance and now the Respondent relies on that part of section 32 of Cap 18 dealing with extension of limitation in cases of fraud. Here there is no fraud pleaded on the part of the defendant, it is clear from the material that the Appellant told both the Citizenship Commission and the Minister on appeal that he had not resided in Solomon Islands for the required ten years. If anything, all that the Appellant did was to apply for citizenship when he did not qualify. It was then for others to refuse to grant him the same in the event that he was not entitled. There is no general rule that he who applies in circumstances where he is not entitled must be guilty of fraud in the event that he is successful. Were it the case that the Respondent was relying on fraud or dishonest conduct on the part of the Appellant then the section may have some application but that is not pleaded here.
    
28. The Respondent discovered the circumstances of the grant in 2002 within two days of asking the questions of the Secretary to the Citizenship Commission. If he had a genuine concern over the citizenship of the Appellant the Respondent perhaps should have better raised that before the Appellant was confirmed as a candidate for election, after his nomination. Once he had been confirmed as a candidate and elected the time for challenge on that ground had surely passed. This merely serves to demonstrate further that the concern of the Respondent is continued membership of Parliament by the Appellant and not his citizenship.
    
29. Having renounced his other citizenship prior to taking his Oath of Allegiance the Appellant then became a citizen of Solomon Islands. There must be an argument available to him that once granted it cannot be taken away in circumstance which would render him stateless. If the Respondent is successful in this action it would raise the question of which country would have responsibility for the Appellant. It is not clear which country the Respondent submits must, in the event Solomon Island citizenship found to be not available to the Appellant, take responsibility for the Appellant.
    
30. All of the above re inforces the need for strict time limits in Judicial Review applications. There is a need for certainty and sometimes the need for certainty outweighs the need for review of decisions. This application does not seek only declarations of law about the grant of citizenship but also the taking away of that citizenship and further orders departing the Appellant from the jurisdiction.
    
31. Having considered those two matters on which the trial judge was asked to make decisions we find that the Respondent is not a person directly affected by the subject matter of the claim and we further find that the claim was not brought without undue delay or within a time that accords with substantial justice and, given the provisions of Rule 15.3.18 this claim should not be heard. We therefore quash the decision of the trial judge in that regard and all of the subsequent directions made following the filing of the amended claim and order that the claim be hereby dismissed. Costs of this appeal and costs incurred in the claim are awarded to the Appellant, certified suitable for a Q.C., and to be agreed or taxed.
    

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Goldsbrough JA
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Sir Ward JA
Member of the Court of Appeal