Hona v Attorney General [2017] SBCA 24; SICOA-CAC 35 of 2016 (30 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

(FAUKONA PJ)

COURT OF APPEAL NO. 35 OF 2016

BETWEEN: JOHN HONA, PLINTY VIGULU, Applicants
JAMESLY HALO AND HAPI CHRISTMAS

AND: ATTORNEY-GENERAL First
(Representing the Commissioner of Lands Respondent
and the Registrar of Titles)

AND: CHACHABULE AMOI Second Respondent

AND: FAIRTRADE COMPANY LIMITED Third Respondent

Date of Hearing: 25^th April 2017

Date of Ruling: 30^th May 2017

Mr B. Upwe for the Applicants
Mr W. Rano for the Second and Third Respondents
First Respondent’s absence does not affect the application

RULING ON APPLICATION TO GIVE LEAVE FOR APPEAL

Faukona, PJ: An original application was heard by this Court pursuant to Rule 9.75 of the Civil Procedure Rules 2007. The application was filed by the current applicants on the basis that Cross- claim is an abuse of process, is frivolous and vexatious and no reasonable cause of action shown. The application was eventually dismissed on 30^th September 2016.

2.	Being aggrieved by the ruling of the High Court, the Applicants then intended to file an appeal to the Court of Appeal. Realising they were late, beyond 14 days as stated in the case of Fera V Morris[1], and as prescribe by Rule 10(2) of the Court of Appeal Rules. The 14 days period would have commenced from 30th September 2016. However, the Applicants filed an application for leave to extend time to file notice of appeal on 9th November 2016, one month and nine days later.
3.	The Applicants rely on S. 19(a) of the Court of Appeal Act, which vested upon this Court power to give leave to appeal. That power is later defined as a discretionary by authority of the case of Price water House & Others V Reef Pacific Trading Limited[2]. The case outlines the requirements which the applicant must show. The power should be exercised by a single judge of the Court of Appeal. However by S.85 of the Constitution, judge of the High Court is also a judge of the Court of Appeal as ex-officio.
4.	It need not for me to fully outline those requirements, suffice to acknowledge that the Court has discretion to extend time, and that the onus to show and satisfy the Court is on the Applicant. They must show good and acceptable reasons why time should be allowed and that there must be some merit in the propose grounds.
5.	The reason for not fully exerted the requirements is because the Counsel for the second and third Respondents is arguing that the application was misconceived. It is more or less an urge calling upon the Court to determine a preliminary point in law.
6.	Mr Rano submits that the Applicants only file an application for leave to file an appeal out of time. He further stated that the Applicants are required to file the followings;
	(a).			Seek leave to file an application for leave out of time.
	(b).			Application for leave to file an appeal against the ruling
	(c).			Application to file leave to appeal out of time.
7.	By reading the case of Fera V Morris[3] it is quite difficult to digest three applications which an aggrieved applicant ought to file to extend time to file notice of appeal when the period specified by law has expired.
8.	However, upon reading of S.19 of the Act more thoroughly, I am optimistic that Mr Rano is just almost right. The Counsel for the Applicants should first apply for leave to extend time to file leave, then file leave to appeal and then must file application to extend time to file notice of appeal.
9.	The process is rather complicated because such occasion frequently occurs and hence not being acquainted to by the courts. I may be wrong, and stand to be corrected, but that is my personal view in reading of the law.
	Reasons for delay:
10.	The reasons rely on for incurring delay is twofold. One is late receiving of a copy of the Court ruling and lack of funds to file notice of appeal.
11.	With the latter, is an unacceptable excuse. One must acknowledge that being accepted and a party to a litigation; whether in the lower Court or in the High Court, you are expected to be prepared in terms of funds to meet all costs that may be legally required throughout the processes of the Courts. If one does not willing to expend money to uphold his claim of right, when threatened, then it would be better not to be involved in legal litigations at all, in order to save costs and time.
12.	As to the first reason the appeal period starts to run from an open Court ruling that was made on 30th September 2016.
13.	To support my view I refer to the Court of Appeal in the case of Vikasi V Vunagi[4] where the Court stated in paragraph 9;
		“As the law requires and for this matter the appeal against the decision of the Customary Land Appeal court should commence on 26th July 2013, the date the decision was made or delivered. It is not on 8th August 2013, the date in the written judgment.
14.	The brief facts to that case is that Isabel Customary Land Appeal Court was conducting hearing of an appeal from Isabel Local Court, and made its decision on 26th July 2013, dismissing the appeal. The written decision was made available (to the party appealed) on 8th August 2013. Finally the case went through appeal processes right to the Court of Appeal. On paragraph 19 above was the relevant part of the decision. In this case the Applicants supposed to file notice of appeal on 14th October 2016, two weeks after the ruling was read out in an open Court. Nothing was filed until this application. The Applicants were late 26 days, almost a month. That the delay is without good reason. I cannot exercise my discretionary power to change the Law. The delay is undue delay and is unacceptable.
15.	With the reasonings I endorse, the application should not proceed further but be dismissed accordingly.
	Orders:
	1.		Dismiss and refuse to grant leave for the Applicants’ application for leave to extend time.
	2.		Refuse to grant leave to file notice of appeal
	3.		Costs are awarded to the second and third Respondents in the amount of $10,000.00, payable by the Applicants.
	The Court.

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^[1] (2003) SBCA 5; CA-CAC 9 of 2003 (16 July 2003)
^[2] (1996) SBCA 5; CA-CAC 5 of 1995 (29 April 1996)
^[3] Ibid (1)
^[4] (2016)SBCA 14; SICCOA – CAC 2 of 2016/12 October 2016)