Chow v Constantine [2017] SBHC 138; HCSI-CC 52 of 2016 (16 May 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Appeal Case Number 52 of 2016

BETWEEN: STELLA CHOW - Appellant

AND: NEIL CONSTANTINE - Respondent

Date of Hearing: 16^th May 2017.
Date of Ruling: 16^th May 2017.

Mrs. K. Ziru for the Applicant/Respondent.
Mr. L. Kwaiga for the Respondent/Appellant.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO STRUCK OUT AN AMENDED NOTICE OF APPEAL

1. This is an application to struck out the Amended Notice of Appeal (“ANA”) filed by the Appellant. Amended Notice of Appeal filed on 30/11/2016. Application to strike was filed 7/2/2017.
2. The application in the main is premised on two grounds. First that the Magistrate’s decision appealed, is not defective in any manner. And that the judgment appealed, is a reasonable decision, in that it captured well, all the matters and considerations that were available. Secondly, that no miscarriage of justice was disclosed in the appeal. Hence the applicant submits that the ANA should be struck out.
3. And then at paragraph 29 (a) – (i) of Counsel Ziru’s amended written submission, Counsel spells out the detailed grounds, on which she believes, the decision of the Magistrate was not an error of law or fact. And submitted that this court should not intervene. And that the ANA should be struck out now.
4. The flaw in Counsel’s submission is that, at this stage of the proceeding, court does not have any records, upon which to reach a conclusion on whether or not the Magistrate had committed an error of law or an error of fact or error of procedure or indeed any miscarriage of justice. All that has surfaced now from ANA and defence^[1] is, Appellant contends the Magistrate had erred. On the other hand, Respondent contends that Magistrate did not.
5. The application is putting the cart before the horse. How could this Court form a conclusion on any alleged error, if the records used to arrive at the decision of the court below are still to be disclosed? For instance, where is the Social Welfare report, where are the notes of the Magistrate, where are the transcript, where are the evidence, where are the Exhibits and documents which the Magistrate used to arrive at the decision appealed. Only if I have the benefit of seeing full records, will I be able to make a proper review/assessment, and will I be able to form conclusions on error or no error as alleged in the ANA. The only document I now have is the judgment of the Magistrate appealed against. It does contain reasons. I need to see those reasons against the records mentioned above, to arrive at a decision that is fair and just. So that I myself will not be accused of having a miscarriage of justice in this proceeding. Counsel Ziru conceded in submission, that this Court should see the records,^[2] of the Court below as per case law authorities she relied on. Full trial is warranted, to properly assess the decision of the court below, against the records used, to determine any errors as alleged in the ANA. Records include sworn statements used by the Court below, not new statements filed in this Court after 5^th February 2016, unless there is prior leave.

6. Orders:-

6.1. Application to struck out ANA declined with costs.

6.2 Appeal and Response to be properly conducted according to the Rules.

6.3. Matter to be prepared for hearing in line with Rules with haste.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] Under the Rules it should properly be called “Notice of Intention to Respond” – Rule 16.9.
^[2] See paragraph 57 (b) of her amended written submission.