Development Bank of Solomon Islands v Roni [1998] SBHC 91; HCSI-CC 26 of 1993 (5 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 26 of 1993

DEVELOPMENT BANK OF SOLOMON ISLANDS

-v-

JAMES RONI

High Court of Solomon Islands
(Kabui J.)
Civil Case No. 26 of 1993

Hearing: 4/6/98
Judgment: 5/6/98

Dennis McQuire for the Plaintiff/Applicant
Andrew Nori for the Defendant/Respondent
Mrs. Loa Tepai for 2nd Defendant/Respondent

JUDGMENT

KABUI J.:

The Plaintiff/Applicant by summons filed in this Court on 28th May 1998 has applied to this Court for directions as to whether -

1. (a) The Applicant should settle the contract of sale for Perpetual Estate in Parcel No. 191-076-61 with the Second Respondent signed on 3rd December, 1997; or

(b) The Applicant should accept settlement of the full amount of the debt owing by the First Respondent.

2. If the Plaintiff should accept full settlement of the debt what amount is payable by the First Respondent.

3. Such further or other orders as the Court may see fit.

The date and time for the hearing of this application was yesterday 4th June, 1998 at 9.30 am. in Chambers before myself. Apparently, the Defendant had also filed a Summons on 29th May, 1998 seeking the following orders -

1. Leave to appeal out of time against the order at the High Court made on 19th December, 1993 for the sale of the defendant’s property to Leslie Teama;

2. Leslie Teama to be joined as a party to the Appeal and for the Notice of Appeal to be served on him.

3. There be stayed of execution of the orders for sale and eviction of the Defendant from the property in Lot 24 of Parcel No. 191-076-1 on Tasahe Heights.

4. Such other orders as the Court deems just and equitable in the circumstance.

This Summons was further amended in an amended summons filed on the date of hearing of the Plaintiffs summons. The date of the Court Order to be appealed against was then amended to 10th February 1998. The Defendant’s Notice of Appeal was also filed on the same date as the filing of the Defendant’s amended summons. The order of the High Court being appealed against is in the following terms -

1. The Plaintiff, the Development Bank of Solomon Islands as mortgagee in possession, be empowered to sell the defendant’s property in Perpetual Estate Parcel No. 191-076-1 to Mr. Leslie Teama (the highest bidder).

2. The order for leave to sell the Perpetual Estate in Parcel No. 191-076-1 be stayed for 30 days at the expiry of which the Plaintiff be entitled to proceed without further application.

3. The Plaintiff gives the defendant the notice of tenders received.

4. The Registrar of the High Court be empowered to execute such documents as may be necessary to give effect to this order including but not limited to transfer documents.

5. The costs of this summons be costs in the execution.

At the start of the hearing of the Plaintiffs application, Mr. Nori on behalf of the defendant applied to the Court for adjournment so that he could first deal with his client’s appeal to the Court of Appeal. In other words, his client’s application should be heard first and if he was successful the Plaintiffs application would then be rendered irrelevant. If not, the Plaintiffs application would then he heard by the Court. This application was opposed by Mr. McQuire for the Plaintiff and Mrs. Loa Tepai for the second respondent. Due to the non-service of the Notice of the Appeal and affidavits thereto upon the Court and Counsel for the Plaintiff and the second Respondent, the matter was adjourned to 11 a.m. to allow service of the said documents by Mr. Nori. On the resumption of hearing, the Court heard submissions from Counsel for all the parties on the defendant’s application for leave to appeal out of time as set out in the summons as amended. At this time the Court was sitting and exercising powers under section 19 of the Court of Appeal Act 1978. One of the powers of a Judge sitting and exercising jurisdiction under this section is the power to extend time within which a notice of appeal or an application for leave to appeal may be given (s.19(b)) The main thrust of Mr. Nori’s argument was that his client’s grounds of appeal had merit on the following grounds -

1. His client’s right to redeem his property would be lost forever if his application was refused. His client still had the chance to redeem his property as he was still the title holder to the property;

2. The High Court had no power under section 160(2) (a) of the Land & Titles Act (Cap.93) to empower the Registrar of the High Court to execute transfer documents. To have done so was putting the impartiality of the Court in question.

3. In terms of section 232(4) of the Land & Titles Act, the defendant was entitled to go to the Court of Appeal to decide this matter under section 160(2) (a) of the Land & Titles Act in 2 above.

The greatest hurdle against Mr. Nori’s client is that he was out of time. Mr. Nori first conceded this fact but later withdrew and said that time limit should run from the date the Court Order was perfected, signed and sealed. The date the Order of the Court was perfected according the Court record was 2nd March, 1998. If this is the case, the Defendant is well within the time limit set under section 232 of the Land & Titles Act. The Court record shows that the Plaintiffs Summons seeking orders from the High Court was filed on 5th December, 1997. The matter came before the Honourable the Chief Justice on 15th December, 1997 but was adjourned due to lack of service upon the Defendant of Court documents. The Defendant was subsequently served on 17th December 1997. The matter was then heard again before the Honourable the Chief Justice on 19th December, 1997. A Warrant of Arrest was to be issued by the Court. The matter was then adjourned to a date to be fixed. The matter finally came for hearing on 10th February, 1998 before the Honourable Mr. Justice Awich. By then the Defendant had been served with the court documents. The Order was in hand written form.

The order sought was granted in terms of the application but to be stayed for 30 days. Costs would be included as costs of execution. This was signed and dated 10th February 1998. At that hearing the Defendant was not represented by Counsel. It is possible that the Defendant did not understand what the Court Order meant in terms of its legal implications. There is no evidence to discount that possibility. The perfected order was filed on 2nd March, 1998 on behalf of the Plaintiff. There is also no evidence to suggest that the defendant took possession of a copy of that perfected order on 2nd March, 1998 or was ever served with a copy of that order.

I wonder if the Defendant ever was aware of his right of appeal under section 232(4) of the Land & Titles Act. Subsection 4 of this section rather begs the question than answering it for it says that an appeal may be made within three months “after the issue of the decision”. In other words, it does not specifically state a date from which the period of three months should run. The question of the relevant date of a decision for appealing within the period of three months has been the subject of a High Court ruling in this jurisdiction but only confined to section 231B of the Land & Titles Act, that is, appeals from decisions of the Local Courts. In Nano and another -v- Riringi and Katavai -v- Lumukana (1984) SILR 9 at 18, Daly CJ said – “Accordingly what must be looked for in deciding what is the date of a decision of a court in Solomon Islands in the date when that decision is announced. Where a decision is in writing and forwarded to the parties it cannot be said to be announced until it reaches the party; or is deemed to have reached him as is the case where a party is served by post or other means and the provisions relating to such service operate to fix the time of service. It is also “announced” when a party is given due notice of an oral announcement but does not attend. This conclusion achieves the result advanced as desirable in the submission described by Lord Scarinam as “powerful and attractive” that is, that the words “person aggrieved” are given real meaning in that the person concerned must have actual knowledge of the decision before time runs, he may realistically be described as a “person aggrieved” throughout that period”. Applying that to the facts of this case, the date of the Court’s decision (order) was 2nd February 1998. But how can one be aggrieved if one does not understand the legal implications of a Court Order stated in brief form and perfected later? Especially where the terms of such Order are technical and can be very difficult to be understood by a layman who is not legally represented. There is a real risk of injustice being done to the defendant. There must be exceptions to this rule stated by Daly CJ in the interest of justice. It must not be forgotten that appeals in customary land disputes is a matter well known in Solomon Islands and what to do by a losing party is always a foresome conclusion. Appeals are always the common practice. Not so in complicated civil cases without legal representation in early stages of litigation. I am therefore prepared to say that in the circumstances of this case, time began to run from the date the Order was perfected. There would be no doubts at that stage. In answer to the Court’s question as to why his client was late in appealing in time, Mr. Nori stated that his client had no lawyer from the beginning due to lack of finance on his part. Mr. McQuire argued that the Defendant was simply and purely procrastinating and frustrating the Court’s effort to conclude the matter. This maybe so but the Court must deal with the Defendant as a party with a prima facie case. The bottom-line position of the Defendant is that his right of redemption is at stake. He wants to redeem his property. Clause 30 of the contract of sale signed on 3rd December 1997 recognises that right. There may still be a chance for him to do so under the said clause. Even if I am wrong in ruling that time runs from the date the Order was perfected, I would still allow leave to appeal out of time under the scope of Order 64 of the High Court (Civil Procedure Rules, 1964 and on the authority of Reef Pacific Trading Limited -v- Island Enterprises Limited (Civil Appeal Case No. 1 of 1992). The application by the Defendant is granted. This being the case the Plaintiff’s application by summons will not now be heard. It can however be relisted for hearing if the Defendant is not successful in the court of Appeal.

Frank O. Kabui
JUDGE.