Plamer v Vunagi [2016] SBHC 206; HCSI-CC 349 of 2013 (16 December 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

CIVIL CASE NO. 349 OF 2013

BETWEEN: JOHN PLAMER Appellant

AND: JOHNSON VUNAGI Respondent

Date of Hearing: 27^th September 2016
Date of Ruling: 16^th December 2016.

Mr J. Taupongi for the Appellant
Mr W. Rano for the Respondent

RULING ON APPLICATION FOR LEAVE TO AMEND NOTICE OF APPEAL

Faukona, PJ: The substantive cause of action in this case is an appeal by the Appellant against the Isabel Customary Land Appeal Court (ICLAC) decision made orally on 26^th July 2013 concerning Furona customary Land.

2.	Due to unforeseeable circumstances the minutes of the ICLAC was not among the papers submitted to the High Court to enable the hearing of the appeal. The Appellant now comes to Court and seek an order granting him leave to amend the notice of appeal to include a new ground of appeal.
3.	The Appellant’s reason for filing this application was premised on the ground expecting the minutes of ICLAC would be obtained later. Until today there was no minute of ICLAC ever located? Fear of being late, the Appellant filed the notice of appeal with certain grounds.
4.	The Appellant’s argument premise on the fact that since the minutes had not been located, he seeks to add a new ground. The new ground is asserting that ICLAC was erred in law/procedure in failing to take minutes of its hearing, or failing to ensure minutes are maintained and made available to parties, hence caused serious prejudice to the Appellants appeal which likely to result in a miscarriage of justice.
5.	Mr Rano opposes the application and base his reasons on Rule 16.31 and the overriding objective of the rules. Rule 1.3 “is to enable the Courts to deal with cases justly and with minimum delay and expense.” Rule 1.8 that the parties must assist the Court to act in accordance with the overriding objectives, and must avoid undue delay. The crux of Mr Rano’s argument is that this application for leave to amend the notice of appeal was filed almost two years after the Appeal Book was filed. Not only that, but any amendment should confine to condensation of a ground and not to add a new ground which will allow introduction of new evidence. Apart from that that the new ground of appeal is barred by limitation of Section 256 (3) of the Land and Title Act.
6.	The issue is whether the Court has the power to entertain the application to grant leave for a new ground to be filed by way of amendment.
7.	The starting point is Rule 16.30 which provides that any time before the Registrar sets a date for settling the appeal papers an appellant may amend a notice of appeal without leave. Rule 16.31 states that after the date set for settling the appeal papers, the Court may give leave for a notice of appeal to be amended. This application is premise on this particular rule.
8.	My view in relation to the rules is that after the index to appeal book and the appeal book was filed, the Court may grant leave for a notice of appeal to be amended.
9.	Subsequently, the appeal book was filed on 12th June 2014 and this application was filed on 14th June 2016, roughly two years and two months late.
10.	From rule 16.31 two significant matters can be identified. One that the Court has jurisdiction to exercise discretion in determining whether to grant leave or not. Secondly, that the applicant is given privilege even after the date set for settling of the appeal papers been done, can file leave application to amend notice of appeal.
11.	In an attempt to convince the Court, the Counsels have submitted wide perceptions in the relevant area of law, pertinent to this issue. The Counsel for the applicant relies on a number of domestic case laws but dominantly a common law position is more favourable to take precedent.
12.	On the other hand, the Counsel for the respondent likewise rely on domestic authorities but rather urge the Court to be vigilant and accept the Australian view as more appropriate. In any event, there are two extreme views. Like in all litigation, only one view will be accepted.
13.	Firstly, Rule 16.31 is so precise without any ambiguity. Any application for amendment filed after subsequent date for settling the appeal can be made by leave of the Court. There is no mention of time limit and confinement. There is no mention of any qualification of any nature of an amendment to be filed. In my respectable view, the rule is perceived as a general provision vesting right upon the applicant to seek leave. The finality of such application is a duty conferred upon the Court to exercise its discretion according to the facts as materialise.
14.	In the current case, the Applicant sought relief that the Court grant leave by way of permit, to enable the applicant to amend his notice of appeal to include a new ground of appeal.
15.	Notably, Rule 16.21 was totally in breach, not of the making by the Appellant, but by the Clerk to the ICLAC. Rule 16. 21 require three sets of documents to be filed by the Appellant. One of them, which is relevant in this case, is the transcript or notes of the proceeding in the ICLAC. It is common knowledge and uncontentious that there is no notes or minutes of transcript of the proceedings located or found in the file. There is no dispute that the Clerk to ICLAC failed to submit any minutes of the proceeding. In fact there is no record ever found and nothing is provided, so that the Appellant would file his appeal in compliance with Rule 16.21.
16.	I noted Mr Rano argues that in this case the Appellant is introducing a new appeal as opposed to a condensation of the original appeal.
17.	In this case the law in Seselono V Kikolo[1] does not apply. None of the Appellant’s original grounds had been struck out and the Appellant is not seeking leave to substitute the strike out grounds for the current propose ground of appeal. The law in Seselono is that a struck out grounds of appeal cannot be substituted, if it is intended to be done beyond period allowable by Section 256 (3) of the Land and Titles Act.
18.	The test, which the Counsel for the Appellant wish to adopt is in rule 52.8 of Civil Procedure Rules 1998 (as amended) of the United Kingdom. In effect the rule state that an appeal notice may not be amended without the permission of the appeal Court. In any event the UK Courts had developed a test which upholds that it is only in exceptional case that the permission will be given to amend an appeal notice. In support the Counsel refer to the case of Crane T/A Indigital Satellite Services V Sky In-Home Ltd[2]
19.	On the other hand Mr Rano’s argument wholly anchored on rationality of upholding the overriding interest of the case. To support his contention he refers to the case of Queensland V JL Holdings PTY LTD[3] which advocate, “the court was entitled to consider whether reasonable diligence on the part of the moving party would have led to bringing of the claim earlier and where amendment raised new issues they fell to be considered by the general discretion given by the rules (Rule 502.1 as read with the objectives outlined in Rule 12 (2) – ( Australian Rules).
20.	I appreciate the submissions made by both Counsels. They are well formulated and presented. However, I noted the common point, although the submissions are in two extremes, both recognise the discretionary power of the Court as an ultimate vestment or conferment of power. This has advocated no difference from Rule 16.31; which uphold the Court may give leave for notice of appeal to be amended.
21.	The question to pause; is the reasons for the application fair in order to invoke the discretionary power of the Court? I would answer in the affirmative. One of the reasons which I took account of and referred the case of Lone v Sade[4] to be reheard by the Malaita Customary Land Appeal Court was because there was no minute of proceedings among appeal papers. In the absence of such will not assist the Court determine the appeal fairly?
22.	I noted as well the argument that without the minute transcripts the Appellant would be prejudiced to prosecute grounds 3,4 and 5 of the notice of appeal which allege ICLAC failed to give reasons for its findings, or for preferring the Respondent’s evidence when both parties were adducing conflicting evidence. To be fair to the Appellant I must exercise my discretionary power and grant leave so that he would amend his notice of appeal by adding this one particular ground and non-other.
	Orders:
	1.	Application for leave to file amended notice of appeal granted.
	2.	Cost in the Cause.
The Court.

---

^[1] (1982) SILR 15 (8 January 1982)
^[2] (2008) EWCA Cr 978 (3 July 2008) URL.
^[3] (1997) 189 CLR 146
^[4] (2013) SBHC 123; HCSI – CC 49 of 2011 (11 September 2013)