Vikasi v Vunagi [2016] SBCA 14; SICOA-CAC 02 of 2016 (12 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (MAINA J)
COURT FILE NUMBER:	CIVIL APPEAL NO. 02 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE CC 426 OF 2013)
DATE OF JUDGMENT:	14 OCTOBER 2016
DATE OF HEARING:	5 & 12 OCTOBER 2016
THE COURT:	GOLDSBROUGH PRESIDENT YOUNG JA LUNABEK JA
PARTIES:	HEDLEY VIKASI APPELLANT -v- JOHNSON VUNAGI RESPONDENT
ADVOCATES: APPELLANT: RESPONDENT:	MS. MAELYN BIRD MR. MATTHEWS QC MR. WILSON RANO
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	1 – 7

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against a Judgment of the High Court delivered on 16 February 2016 striking out the Appellant’s Notice of Appeal filed on 8 November 2013 as it was filed out of time.
   

Brief Facts

2. Counsel for the Appellant applies to have Mr. Gabriel Manelusi substituted as the Appellant.Hedley Vikasi is the named appellant. He passed away in 2010. This case has progressed since as if the Appellant was still alive without anything done to the status and standing of the Appellant. Counsel for the Respondent does not oppose the application. The application is granted. MrManelusiis substituted in this case and High Court Civil CaseNo. 426.
   
3. On 22 - 24 July 2013 the Isabel Customary Land Appeal Court (CLAC) heard an appeal from the Isabel Local Court over the FuronaVihu Customary Land and on 26 July 2013 orally delivered its decision dismissing the appeal.
   
4. The CLAC gave written reasons for its decision on 8 August 2013. Its final orders read:

“Orders of the Court Made at Buala, Isabel Province on the 26^th day of July, 2013. Signed and released by the Secretary on the 8^th day of August 2013. Right to appeal 3 Months from the 8^th of August 2013.

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Secretary/Magistrate.”

5. On 8^th November 2013, Mr. Gabriel Manelusi filed a Notice of Appeal against the Judgment of the CLAC of 26 July 2013 in the High Court.
   
6. The Land and Titles Act provides for a right of appeal from a decision of a CLAC to the High Court within 3 months of the order or decision.
   

High Court Decision Appealed

7. The Respondent filed an application in the High Court to strike out the Notice of Appeal as it was filed out of time.
   
8. On 26 February 2016, His Lordship heard the Respondent’s application and made an order striking out the Appellant’s Notice of Appeal against the Judgment of CLAC as it was out of time.
   
9. In his reasons for striking out the Appeal his Lordship said:

“As the Law requires and for this matter the appeal against the decision of the Customary Land Appeal Court should commence on 26^th July 2013, the date the decision was made or delivered. It is not on 8^th August 2013, the date in the written judgment. This is so as Section 254 (3) of the Lands and Titles Act states that the decision of a customary land appeal court may within three months from the date of such order or decision. For this case the decision was delivered on 26^th July 2013 and period of appeal should run until on or before 27^th October 2013.

To my view the filing a notice of appeal filed by the appellant is out of time and I rule that appeal filed by Mr. Gabriel Manelusi on 8^th November 2013 is out of time.

The appeal filed by the appellant on 8^th November 2013 is out of time and therefore the appeal is struck out.”

Leave to Appeal to this Court

10. Counsel for the Appellant conceded that an application for leave to appeal to this Court is required. She submitted that this court should to grant leave pursuant to Rule 47 of the Court of Appeal Rules. She relied on the case of Price Waterhouse - V – Reef Pacific Trading Ltd [1996] SBCA 5; CA – CAC 5 of 1995 (29 April 1996).
    
11. Counsel for the Respondent took no issue with the application for leave toappeal to this Court.Leave to appeal is therefore granted.
    

Appeal Grounds

12. The CLAC advised the parties on 26 July to the effect that their right of appeal would start on the date the reasons for the decisions would be published. They repeated this advice when they released their reasons for judgment on 8 August. They said the appeal period ran from 8 August.Mr. Gabriel Manelusi deposed to this effect in his sworn statement before this case.
    
13. It was argued that the Appellant was misled by the Customary Land Appeal Court. The Appellant received the written reasons of the decision of the Isabel Customary Land Appeal Court on 8 August 2013. He filed his Notice of Appeal to appeal that decision before the High Court on 8 November 2013 believing the appeal time began running from 8 August.
    
14. The Appellant argued that the final judgment of the CLAC was not made until 8 August and therefore time for an appeal did not commence until then. In the alternative the Appellant said time for filing the appeal in the High Court could be extended.
    
15. Counsel for the Respondent submitted that time ran from the 26 July when the decision was given and that the High Court had no power to extend time for an appeal pursuant to the Lands and Titles Act.
    

Discussion

16. We are satisfied the decision of the CLAC on 26 July dismissed the appeal and therefore was a final order. That conclusion is reinforced by the CLAC’s decision of 8 August which specifically refers to its decision of 26 July as dismissing the appeal. Time therefore began running for any appeal to the High Court on 26 July. When the Appellant filed his appeal 8 November he was beyond the three month appeal period and so out of time.
    
17. Rule 16.12 of Civil Procedure Rules provides that an appeal from (as relevant here)a Tribunal to the High Court is to be (16.12(a))

“not later than the time provide by the relevant Law or any further time the court allows in accordance with the relevant law”.

18. The Lands and Titles Act as the “relevant law” allows 3 months to appeal from CLAC to the High Court. But it provides for no extension of time. In those circumstances the appeal was out of time and no extension could be given. For the reasonsgiven the appeal is dismissed.
    

Costs

19. We heard Counsel submissions on costs of the appeal, Overseas Queens Counsel fees and thrown away cost on adjournment of this case last week were sought. We consider that this is not an appropriate case to order costs for Queens Counsel. The issues before the court were not complicated. We make costs orders on the appeal in favour of the Respondent against the Appellant on the standard basis. Thrown away costs will be managed in the way we provide in the order below.
    

Orders

20. We make the following orders.
    
    • (1) An order is made substituting Gabriel Manelusi for Hedley Vikasi as appellant in this proceeding.
      
    • (2) Leave to appeal to this Court out of time is granted.
      
    • (3) The appeal is dismissed.
      

(4) (a) The costs of this appeal are allowed infavour of the Respondent against the Appellant on the standard basis save wasted costs.

(b) Certification costs for Queen’s Counsel is refused.

(c) We are considering whether to make a costs order against the Appellant’s previous lawyer relating to wasted costs. Wasted costs from last week are to be identified by Counsel for Respondent on an indemnity basis and the note of those costs beforwarded, with Gabriel Manelusi’s Sworn Statement, to the former counsel for the Appellant.

(d) The Appellant’s former Counsel may file submissionswithin 14 days from the date of service of the material relating to any wasted costs award. Previous Counsel may be ordered to pay wasted costs for the Respondent an on indemnity basis.

(e) We will determine on the papers any wasted costs issue including who is to pay these costs.

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Goldsbrough P

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Lunabek JA

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Young JA