Greenland Enterprises Ltd v Piko [2024] SBCA 12; SICOA-CAC 2 of 2024 (18 September 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Greenland Enterprises Ltd v Piko
Citation:
Decision date:	18 September 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Lawry J)
Court File Number(s):	2 of 2024
Parties:	Greenland Enterprises Limited v Rose Piko and Leadly Lukisi, Attorney General
Hearing date(s):	21 May 2024
Place of delivery:
Judge(s):	Muria P Palmer JA Gavara-Nanu JA
Representation:	L Chite for the Appellant L Kwaiga first Respondent F Fakarii Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Court of Appeal Rules r 8 (3), r 8(2) and (3)
Cases cited:	Ngalavole v Attorney General [2022] SBCA 20, Marine Services Ltd v The Owner of the Ship Classique [1992] SBCA 3, Ramnathon Sao and other v Gobardhan Sao, AIR 2002 SC 1201, Kirite’e v Ome [2022] SBCA 31, Reinunu v Usa [2012] SBCA 18
ExTempore/Reserved:	Reserved
Allowed/Dismissed:
Pages:	1-9

JUDGMENT OF THE COURT

1. This is an application by the first and second respondents to dismiss the appellant’s appeal for failure to serve the Notice of Appeal on the respondents within the time allowed for service. On 21^st May 2024, we heard and refused the application. We promised to give our reasons for our decision. The following are our reasons.
2. On 8th January 2024 the appellant filed his Notice of Appeal. It was filed in time. However, it was not served on the respondents within 7 days as required by rule 8(3) of the Court of Appeal Rules. The respondents have now applied to dismiss the appeal for non-compliance with rule 8(3). The respondents relied on the affidavits of Rose Piko Jerry Pakivai and John Nige.
3. The appellant admits that its former Counsel filed the Notice of Appeal on 8^th January 2024 and that the Notice of Appeal was not served on the respondents within 7 days as required by rule 8(3) of the Court of Appeal Rules. However, the appellant states that the failure to serve the Notice of Appeal on the respondents was mostl due to the fault of its then Counsel (John Taupongi) who failed to effect service on the Respondents after the filing of the Notice of appeal on 8^th January 2024. As we will note shortly, this was indeed the case.
4. The affidavits of Mr. Taupongi and Mr Johnny Yeh laid out clearly that the faults were on the appellant’s former lawyer for the failure to effect service of the Notice of Appeal on the respondents within time. It is sufficient only to refer to Mr Taupongi’s affidavit filed on 17^th May 2024 to confirm his failure and the reasons for his failure.
5. Mr. Taupongi deposed to in his sworn statement that tragedy happened in his family and so after filing the Notice of Appeal on behalf of his client (appellant) on the 8^th January 2024, he left for Rennell on a chartered flight with the body of his late Aunt (Alice Puia). He returned to Honiara on 19^th January 2024. Again on 13^th February 2024 another tragedy struck his family again with the death of his relative, David Tuhanuku (deceased). He did not join the chartered flight to Bellona but he assisted in making the arrangements for the flight. He resumed work on 29^th February 2024.
6. While the brief scenario of events just described provides some background for Counsel’s failure in serving the Notice of Appeal on the respondents, we are not convinced that the family events described were sufficient in themselves to justify the failure on his part in ensuring that the Notice of Appeal was served on the respondents in time. He could have taken other steps, including instructing his clients (appellant) to effect service on the respondents since he was busy dealing with the tragedies in the family.
7. The crucial point regarding the failure by the appellant to effect service of the Notice of Appeal on the respondents is evident from the affidavit of Johnny Yeh. That failure clearly stems from the advice given by its former Counsel as shown in paragraph 7 of Mr Yeh’s affidavit which states:
   • “7. I say and confirm that on 27 February 2024, when I asked him on WhatsApp, whether there is any time limit for service on the Respondents, he responded and assured me that there is no time limit for service of appeals, and that the only time limit is on claims filed in the High Court, that must be served within 3 months. If not, it will be deemed ineffectual. He further said that, with appeals the important deadline is the first direction hearing before the Registrar. She will not list it until security for costs has been paid, and that so long as we serve before that hearing, it is fine.”
8. Coupled with Mr. Yeh’s evidence, comes the admission by Mr Taupongi (the appellant’s former lawyer) of not only his mistakes, but his erroneous advice on the law regarding service of a Notice of Appeal. His glaring erroneous legal advice and mistakes are set out in his own affidavit, in particular, paragraphs 20 to 25:
   • “20. On February 29, 2024, I appeared before the Deputy Registrar at the first mention of this appeal. Before that hearing commenced, Mr Kwaiga advised me that he represents the First Respondents and handed me the Application for Dismissal on the ground of lack of service within the prescribed timeframe. In turn, I handed to both Mr. Kwaiga and Mr. Ofanakwai of the Attorney-General’s Chamber copies of the Notice of Appeal in this proceeding. It was them that I personally served that Notice through Counsels of the Respondents.
   • 21. After reading the Application for Dismissal and conducting proper research, I realised my grave mistake. I had given my clients wrong advice with regards to timeframe for service of appeals. Because of my mistaken understanding of the rules about service of appeals, it never crossed my mind to serve the Notice of Appeal within 7 days of filing. However, even if I had that in mind, it was not possible to effect service within that timeframe because, as deposed to above, straight after filing of the Notice of Appeal on January 8, 2024. I flew to Rennell early the next day for a burial so I was away from Honiara during the 7-days period. Furthermore, my office remained closed until January 22, 2024 and there was no staff member to carry out service on my behalf during that period.
   • 22. By the time my firm reopened on January 22, 2024 and my staff resumed work, the 7-days period had long lapsed. As deposed to above, I was heavily distracted in the weeks that followed with reopening my firm and the death of another sibling of my mother in such a short time. I remained in that distracted state of mind until the first mention of this appeal on February 29, 2024 when I finally effected service.
   • 23. In light of the matters deposed to herein, I say that the failure of the Appellant to serve the Notice of Appeal within 7 days of filing was entirely my personal fault. It was caused by my mistaken understanding off the relevant rules, the fact that filing occurred during a vacation when my firm was closed and major distractions arising from two deaths in my family and my own work commitments at the start of the 2024 Legal Year.
   • 24. My former client, the Appellant, and its representatives, Johnny and William did not in any way cause the failure. In fact, they raised the issue of service with me (after the 7-days period had lapsed) but it was I who gave them the wrong legal advice.
   • 25. For the reasons given above, I believe that the Appellant should not be penalised for my failure as its previous Counsel. Any blame for that failure should be directed to myself and not my former client. I am willing to accept an order by this Court for me to pay the Respondents’ costs on standard basis if the failure to serve the Notice of Appeal on time resulted in the Respondents’ incurring unnecessary costs.”
9. There can be no question in this case that the default in not complying with the time limit for serving the Notice of Appeal on the respondents was mainly due to the mistake and erroneous legal advice of the appellant’s former Counsel. Mr Taupongi did not seek to shift the blame to anyone else, especially not to his former client who is now the appellant, and has sought indulgence for his mistakes by offering to pay costs, as he should.

Consequence of breach of Rule 8(3).

10. As already noted above, the appellant admits its failure to comply with the time limit imposed by rule 8(3) of the Court of Appeal Rules for service of the Notice of Appeal on the respondents. The failure, and therefore, the non-compliance of rule 8(3) were due to the mistake and/or erroneous advice of the appellant’s former Counsel. The Court is now asked to consider and to determine the consequence of that breach in the light of the respondents’ application now before the court.
11. Rule 8(3) provides as follows:
    • “(3). The notice of appeal shall be filed with the Registrar and within 7 days of such filing or such greater time as the Registry shall allow shall be served by the appellant upon all parties directly to the cause or matter, or upon any person not a party, and in the meantime may postpone or adjourn the hearing upon such terms as may be just and may give such judgment or make such order as might have been given or made if the person served with such notice had been originally parties.”
12. The above rule has been considered by this Count in Ngalavole v Attorney General [2022] SBCA 20; CAC 23 of 2021 (4 November 2022) where the Court had to consider whether the late service of the Notice of Appeal on the respondents should be condoned by the Court. The Court held that where good reason for the late service of the notice of appeal is shown, the Court might condone the late service.
13. The Court reasoned as follows:
    • “This Court may condone late service where good reason is shown for that. The Rules are sufficiently flexible to allow that to happen. Condonation must though, be for good reason and here no good reason is put forward.”
14. In the case of Marine Services Ltd v The Owner of the Ship “Classique” [1992] SBCA 3; CA – CAC 8 OF 1992 (9 November 1992) Palmer J (as he then was) dealt with the same point under rule 8 (2) and (3) of the Court of Appeal Rules. In that case the respondent in the appeal (and who were the applicant in the application for striking out) applied to the Court to strike out the appellant’s Notice of Appeal because it was not served on the respondent within 7 days as required by rule 8 (3) of the Court of Appeal Rules. The explanation for the delay, as put forward by Counsel for the appellant was that there was no Registrar in post at the time, and who would be available to grant an extension, even if he had intended to apply for one. Coupled with that was the fact that the usual practice at the time was that when the Notice of Appeal was filed, the Registrar would send it back to the appellant’s lawyer who, in turn, would effect service on the other party. That did not happen and so the delay arose. The appellant did not have the opportunity to apply to the Registrar for extension of time to serve the Notice of Appeal due to unavailability of the Registrar. The Court refused the respondent’s application for striking out the appellant’s Notice of Appeal. His Lordship opined:
    • “This Court should be allowed to consider the merits of the grounds of appeal raised by the appellant and not be penalised unnecessarily for mere defects in form and defaults in time, especially when justifiable reasons have been given.”
15. The principles stated in Ngalavole v Attorney General and Marine Services Ltd v The Owner of the Ship “Classique" are, in our view, succinctly applicable to the case now before us. The question, of course, is whether the cause of non-compliance with the procedural requirement of rule 8(3), that is, Counsel mistaken or wrong advice, satisfies the test of “justifiable reasons”: Marine Services Ltd or “good reason”: Ngalavole, for the Court to condone the delay of service of the Notice of Appeal on the respondents.
16. There is no dispute that the social and family obligations of the appellant’s former Counsel at the material period of time kept Counsel pre-occupied, resulting in less attention given to the appellant’s matter. However, that did not prevent the appellant from following up the progress of its case with its then Counsel as shown by Mr Yeh’s affidavit. The fate of the appellant’s default came when the appellant’s former Counsel advised the appellant that there was no time limit given under the Rules for service of the Notice of Appeal on the respondents. At that time there was nothing else the appellant could do but to follow its Counsel’s legal advice.
17. As we now know, and Mr. Taupogi has accepted, that the advice he gave was clearly erroneous. Rule 8 (3) requires service of the Notice of Appeal to be effected within 7 days of it being filed, on the respondents. Mr. Tuapongi did not seek to shift any blame onto his then client (the appellant).
18. The Courts have recognised that delay in filing notice of appeal or service of notice of appeal within the prescribed time due to wrong or mistaken advice given by Counsel is “sufficient cause” for condonation of delay, although this may not always be the case. It depends on the facts and circumstances of each case, in particular, the explanation given for the delay. This is pointed out in Ramnathon Sao and Others v Gobardhan Sao, AIR 2002 SC 1201 where the Supreme Court of India stated:
    • “The expression ‘sufficient cause’ is to receive liberal construction with a purpose to advance substantial justice when no negligence or inaction or want of bonafide is, imputable to a party, in a particular case, whether explanation furnished would constitute ‘sufficient cause’ or not will depend on the facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.”
19. This court in Kirite’e v Ome [2022] SBCA 31; SICOA – CAS 7 of 2021 (28 November 2022), similarly expressed the need to explain the circumstances of the case and reasons for the delay so as to ‘establish good reasons’ for the Court to exercise its discretion to condone the delay and extend time.
20. In the present case, we are satisfied that there is no evidence to suggest that the appellant’s case is in anyway tainted with mala fide or that the reasons for the delay in serving the notice of appeal given by the appellant were anything less than genuine. The advice given by the former Counsel was wrong and the appellant took no further steps to serve the notice of appeal on the respondent based on the mistaken legal advice of its former Counsel. We are satisfied that in the circumstances the appellant should not be made to suffer the consequence of the wrong advice of its former Counsel.
21. For the reasons we expressed above, we exercise the Court’s discretion to condone the delay by the appellant in serving the Notice of Appeal on the respondents. The sworn statement of Mr. Taupongi confirmed that he later served the Notice of Appeal on Counsel for the respondents. That was done at the hearing before the Registrar on 29 February 2024 which must now be taken as the date on which the respondents were effectively served with the Notice of Appeal.
22. The respondents’ application to dismiss the appellant’s appeal is refused.
23. On the question of costs, this Court had pointed out in Reinunu v Usa [2012] SBCA 18; SICA CAC 14 of 2012 (26 October 2012) that default on the part of a solicitor would render him or her personally responsible for costs on indemnity basis. The Court stated:
    • “Solicitors in Solomon Islands need to understand that this Court’s response to such default will generally be to hold the responsible solicitor personally liable for indemnity costs”
24. The Appellant’s former Counsel has agreed and rightly so, to pay the costs of this application. We order that the costs occasioned by this application to be paid by Mr. Taupongi to the first and second respondents on indemnity basis.

Muria P
Palmer CJ
Gavara-Nanu JA