Halitia v Attorney General [2013] SBHC 21; HCSI-CC 26 of 2012 (18 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 26 of 2012

BETWEEN :

BRENDA HALITIA
Applicant

AND:

ATTORNEY GENERAL
First Respondent
(Representing the Director of Immigration, their Servants or Agents)

AND:

ATTORNEY GENERAL
Second Respondent
(Representing the Minister of Commerce, Industries Labour and Immigration)

Hearing : 26 February 2013
Ruling : 18 March 2013

D. Hou for the Applicant
S. Banuve for the Respondents

RULING

Mwanesalua J:

1. This is an application for leave to appeal filed on 31 August 2012. The Applicant was the Claimant in Civil Case No. 456 of 2011. She seeks leave to appeal only parts of the judgment or order of the court dated the 16 August 2011, in which among other things, the court ordered the claim to be struck out on the basis that the claim is res judicata and an abuse of the court process.
   
2. The grounds of appeal on which the Applicant seeks leave to appeal are that:
   
   • (1) The Learned judge wrongly failed to consider the legal effect of the position taken by Counsel for the Applicant in HCSI Civil Case No. 39 of 2011, when he reached his conclusion in paragraph 16 of the judgment in Civil Case No. 456 of 2011 delivered on the case on 16 August 2011;
     
   • (2) The Learned judge erred in holding that the proper cause of action would be an appeal;
     
   • (3) The Learned judge erred in holding that the present proceeding was res judicata and an abuse of the court process to again raise the constitutional relief now sought in this case.
     
3. The Respondents contend that the sworn statement of the Applicant filed to support her application for leave to appeal does not identify the nature of the potent mistakes made by the court and the nature of injustices sustained by the Applicant. Thus the three grounds of appeal have no merits and accordingly this application should be dismissed with costs.
   
4. This application was filed on time and the Applicant seeks the leave of the court to wave payment of court fees and security for damages and costs on the basis of her impecunious status. This matter will be considered later if this Application is granted by the court.
   

Appeal Ground (1)

5. The first ground of appeal relates to two separate civil cases. The first is Civil Case No. 39 of 2011. There were two Claimants in that case. The First Claimant was Mr. Rajaparksha, the husband of the Applicant. The Second Claimant was the Applicant herself who claimed redress under the constitution. Mr. Hou acted for the Claimants in that case. He withdrew the Applicant's case upon Mr. Banuve's objection who represented the Defendants. The ground for objection was because the Applicant's case was not filed under the relevant procedure provided for under the constitution. The withdrawal was made with a view to filing a fresh claim under the relevant procedure later on. Notwithstanding the withdrawal, the learned judge considered the entire evidence in the trial and awarded judgment against the Applicant. Mr. Hou contends that since the case was withdrawn, there was no cause of action remaining on foot upon which the learned judge could consider and make a decision in relation to the constitutional relief.
   
6. The second case on which the first ground of appeal relates to is Civil Case No. 456 of 2011. The reference to paragraph 16 as appeared in the first ground of appeal was derived from the judgment, which led to the striking out of the claim in that case.
   

Appeal ground (2)

7. In the judgment in Civil Case No. 456 of 2011, the court stated that the proper course of action would be an appeal. Mr. Hou contends that his Lordship erred when he concluded that the proper course of action would be an appeal as stated in paragraph 33 and 34 of the judgment. That was because the decision of High Court Civil Case No. 39 of 2011 concerns immigration matters, which are not appealable to the court of appeal by virtue of section 5 of the Deportation Act. Further, Mr. Hou submits that an appeal does not lie against the decision of the High Court in Jayanth Arachilage Rajaparksha –v- Attorney General (CC 39 of 2011) since the constitutional issue in respect of the Applicant was not correctly brought before the court and was adjourned to be pursued later by Counsel. Mr. Hou cited a list of authorities under this ground of appeal in support.
   

Appeal ground (3)

8. Mr. Hou contends that this ground is to the effect that "the learned judge erred in holding that the present proceeding was bared by res judicata". He submits that as he had withdrawn the constitutional relief in respect of the Applicant, means that the question of res judicata did not arise and was not an issue at all. He further contends that in the circumstances the principle of res judicata does not apply. He then provided a list of authorities under this ground of appeal in support.
   
9. I see typed Form A in the Appeal Case File which contains a total of five grounds of Appeal. It has not been signed and filed. In the result only three grounds of appeal which I have dealt with above have been filed on 31 August 2012.
   
10. These three grounds of appeal raise important issues of law, which needed to be fully argued and determined by the full court.
    

I accordingly grant leave to appeal to the Applicant. In view of that this court weaves payments of court fees and security for damages and costs to the Applicant.

Order: (1) That the Applicant files written submission by 21st March 2013
(2) That the Respondents file response by 3rd April 2013.

THE COURT