Metangi v Mae [2024] SBCA 9; SICOA-CAC 51 of 2023 (31 May 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Metangi v Mae
Citation:
Decision date:	31 May 2024
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	51 of 2023
Parties:	John Metangi v Maurice Mae and Desmond Probate Mae, Levers Solomon Limited, Attorney General
Hearing date(s):	21 May 2024
Place of delivery:
Judge(s):	Muria P Palmer JA Gavara-Nanu JA
Representation:	J To’ofilu for Appellant A Willy 1st and 2nd Respondent F Fakarii 3rd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Court of Appeal Rules r 12 91) (b) (ii), r 13, Court of Appeal Act S 15, S 16
Cases cited:	Bako v Rozo [2012] SBCA 15, LB Construction and Joinery v Attorney General [2022] SBCA 19
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Dismissed
Pages:	1-5

JUDGMENT OF THE COURT

1. This appeal is listed before the court for formal dismissal for non-payment of security for Costs which was fixed by the Registrar at $15,000.00 on 25 January 2024.

Brief background

2. The appellant filed his Notice of Appeal on 29 November 2023 against the judgement of his Lordship Keniapisia J delivered on 1 September 2023, perfected and signed on 14 September 2023.
3. Following the filing of the notice of appeal, the Registrar fixed the security for costs in the sum of $15,000.00 and notified the appellant through his lawyers by a letter dated 25 January 2024. It is further directed by the Registrar in the same letter that the security for Costs to be paid within 21 days of the receipt of the notice. The security for Costs has not been paid and the appeal has now been listed for formal dismissal

The appellant’s application

4. The appellant now at the hearing for the formal dismissal of his appeal applied for leave to extend time for him to pay the security for Costs. He relied on 8 grounds in support of his application. In addition, he also relied on his sworn statement which in essence, is basically similar to what he sets out in the grounds in support of his application.
5. In basic term, the grounds and the sworn statement in support of the application only point to three reasons as to why the appellant failed to comply with the Registrar’s directive on the payment of the security for Costs. The first is that he did not receive the Registrar’s notice (Letter) of payment of the security for Costs until 13 February 2024. Secondly, the appellant/applicant had financial difficulty and thirdly, the inability of the solicitor getting in touch with the appellant due to the appellant’s mobile phone not responding because it was switched off.

Disposition of the application.

6. This is a case of non-compliance with the Registrar’s direction given under Rule 12(1) (b) (ii) of the Court of Appeal Rules. The consequences of non-compliance are set out in Rule 13 which provides;
   • “13. In the event of non-compliance with any of the provisions of Rules 8, 9, 10, 11 and 12 or in the event of any security required to be given not being given, or being given in part only, within the time directed or within such extended time as may be allowed, all proceedings in the appeal shall be stayed, unless the Court shall otherwise order and the appeal shall be listed for the next sessions of the Court for a formal order of dismissal.”
7. One of the consequences of not complying with the conditions precedent of an appeal is the listing of the appeal for the formal dismissal unless the Court shall otherwise order. There is no application by the appellant before the Registrar for extension of time to pay security for costs. There is also no application to the Court to order otherwise prior to the appeal being listed for formal dismissal. The application seeking leave for extension of time to pay security for costs in this case was filed after the appeal was listed for formal dismissal.
8. The appellant says that he was struggling to find $15,000 for security for Costs. Yet he has not applied to seek the Court’s indulgence to waive the payment of security for costs within the 21 days required of him. He now says that he has $15,000.00 for the security for costs. Not surprisingly, the Registrar rejected the appellant’s request to pay the $15,000.00 after the 21 days. Not only that the Registrar was entitled to refuse to accept the appellant’s request to pay the security for Costs after the expiry of the time fixed for the payment of the security for Costs, but that there was also no evidence to show that the appellant actually had the $15,000.00 within on 4 March 2024 when he made the request to pay the $15,000.00.
9. In addition there is no evidence to show that the appellant did not have the means to secure the payment of the $15,000.00 security for Costs. The case of Bako v Rozo [2012] SBCA 15 CA-CAC 42 of 2012 (30/3/2012) supports the proposition that a party who says that he lacks the means to pay security for costs must produce evidence to support his claim of lack of means. There was no evidence given to the Registrar within the 21 days and none as well is given to this Court. It is only an assertion and that is not good enough.
10. We form the impression that the appellant’s suggestion that he was financially struggling to foot the $15,000 for security for costs is an attempt to justify the lateness in complying with the direction of the Registrar. We do not accept the appellant’s suggestion.
11. The other explanation given by the appellant for not finding the money for security for costs is that he received the Registrar’s letter late. He said that he received the Registrar’ letter on 13/2/24 which he said was only about a week before the 21 days lapsed. Clearly the appellant’s solicitor knew where the appellant lives and there is no explanation why the solicitor chose not to hand-deliver the Registrar’s Letter to the appellant at his residence. It does not tell well of the Solicitor who knew where his client lives and yet not having succeeded in contacting the client by phone, chose not to deliver the Registrar’s letter to his client in person at his residence. There is an air of lack of genuiness in the explanation and actions of the Solicitor and the appellant. We reject the appellant’s submission in this regards.
12. We make it clear that the time to take the necessary actions to comply with condition precedents for an appeal under Rule 12 and to take the remedial actions for non-compliance under Rule 13 must be before the listing of the appeal for formal dismissal before the Full Court: LB Construction and Joinery v Attorney General [2022] SBCA 19; SICOA – CAC 21/2021 (4/11/22). Any application for preliminary orders including application to extend time to pay security for costs or waive costs must be done before the appeal is listed for formal dismissal. It would be a contravention of section 15 of Court of Appeal Act if the listing is done before the application are brought before the Court. This is clearly established in Bako v Rozo also.
13. Section 15 of the Court of Appeal Act provides that subject to the discretion of the Court, “the Court of Appeal shall not entertain” any civil appeal unless the appellant has fulfil all conditions of appeal under the Rules: Bako -v- Rozo. The Court’s discretion is, however, preserved under section 16 of the Act, to make orders, including extending time or waving the payment of the security for Costs, if requested. No good reasons have been demonstrated by the appellant in this case for this Court to exercise its discretion under section 16 of the Act.
14. The appellant’s application for extension of time to pay the security for costs must be refused. As the appeal is listed for formal dismissal, we are of the view that the appeal must be dismissed.
15. Appeal dismissed.

Costs to the respondent to be taxed, if not agreed.

Muria P
Palmer CJ
Gavara-Nanu JA