Misifea v Attorney General [2021] SBHC 15; HCSI-CC 206 of 2019 (1 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Misifea v Attorney General
Citation:
Date of decision:	1 February 2021
Parties:	Bukah Misifea and Sade Belo v Attorney General, John Wesley Kii
Date of hearing:	23 November 2020
Court file number(s):	206 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona ;DCJ
On appeal from:
Order:	1. Application for leave to file notice of appeal out of time is dismissed. 2. The Cost of this proceeding is to be paid by the Appellants to Respondent (2).
Representation:	Mr. b Etomea for the Appellants Mr. D Damilea for the 1st Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act section 66 (1)
Cases cited:	Kinisita v Maemarine [2000] SBHC 89, Vikiasi v Vunagi [2016] SBHC 14

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 206 of 2019

BETWEEN

BUKAH MISIFEA AND SADE BELO
Appellants

AND:

ATTORNEY GENERAL
First respondent

AND:

JOHN WESLEY KII
Second Respondent

Date of Hearing: 23 November 2020
Date of Ruling: 1 February 2021

Mr. B Etomea for the Appellants
Mr. d Damilea for the 1^st Respondent

RULING ON APPLICATION FOR LEAVE TO FILE APPEAL

Faukona DCJ: This is an application for leave to file an appeal out of normal time prescribe by Section 66 (1) of the Land and Title Act, to appeal within 3 months.

2. The current Appellants were the Appellant in an Appeal Case No. 9 of 2011 pending before the Malaita Magistrate Court. On 11^th March 2014 the appeal was heard. Neither the Appellants nor their lawyer Mr. Allan Hou of ANH Lawyers attended the hearing. The appeal was then dismissed on the ground of want of prosecution.
3. From the materials I would able to deduce that there were two grounds attributed to dismissal by want of prosecution.
4. Firstly, that neither the Appellant nor their Counsel complied with the direction orders issued by the Court on 20^th November 2013, for the Appellant to file and serve amended appeal submissions. That was not done, hence, warranted issuant of a similar order on 18^th April 2014. Again neither the Appellants nor their Counsel complied with the second direction orders. On both occasions the orders were served respectively.
5. The second reason for dismissing the appeal was that neither the Appellant nor their lawyer attended the date of hearing of the appeal on 11^th March 2014. The Appellants and their lawyer were aware of the hearing date but failed to attend.
6. Upon receipt of the decision of the Court, the Appellants approached Mr. Hou to explain why their case was dismissed for want of prosecution, but Mr. Hou assured them, he would appeal. That appeal was said in words but never done practically.
7. Mr. Sade, the second named Appellant now, was then appointed by the first named Appellant to follow up what the Counsel had commenced to attend court mentions.
8. At several occasions Mr. Sade called to see Mr. Hou but he excused that he was waiting for a reply from the Magistrates Court Auki, before filing a notice of appeal. Eventually was not done at all.
9. As a last resort Mr. Sade took upon himself and wrote to the Bar Association of Mr. Hou’s predicament. The Secretary of the Bar Association Mr. J. Finau did write to Mr. Hou and advised the Appellant to engage another lawyer in order to file an appeal, which they eventually did.
10. From the facts and the history of the case, the Magistrate was correct to dismiss the appeal before him, on the ground of want of prosecution under Rule 9.13.
11. It was the failure of the Counsel representing the Appellants to act within the period of limitation (3 months) to file notice of appeal in the High Court.
12. It ought to be noted that the delay took little more than 5 years before notice for leave to appeal out of time was filed. From the evidence by the Appellants they were eager to have their day in Court and be heard. Their Counsel had failed them for not complying with the direction orders and attended the hearing.
13. I noted the delay is one of extreme unreasonable delay. But then, would justice be barricaded for none activation and compliance by a lawyer? I think a party should not suffer legal consequence when their faith in a lawyer had failed them. They rely and depend with full faith that their lawyer would serve them, having met the required legal fees.
14. But that is not the law. In the case of Kinisita V Maemarine^[1], at paragraph 3 Justice Palmer as he was then stated;
    • “.... This Court simply does not have any jurisdiction to entertain any application to extend any time never mind the merit of the appeal. If no appeal had been filed within 3 months, there is no justiciable matter before the Court and this Court simply cannot entertain this Application. That is the harsh reality of law as it stands”.
15. The same position was adopted and expressed by the Court of Appeal in the Case of Vikiasi V Vunagi^[2], where the Court stated that any appeal filed outside of time period provided by the relevant law is out of time and no extensions could be given.
16. I noted the agony the Appellants had encountered for 5 years. Nevertheless I noted, though not well verified, that the Appellant had received decision of the Magistrates Court within 3 months. If Mr. Hou had been inactive and not complying, then engage another lawyer immediately. It is sad the Appellants have to find a lawyer only when they were instructed by the Secretary of the Bar Association by his letter dated 11^th March 2019. Even then it was more than late, the delay was for more than specified period allowable by law.
17. It was then that Mr. Etomea of BETS Legal Service was engaged. Notwithstanding that, it does not change the nature of delay. In October 2018, tribal members of the Appellants met and agreed to demand refund of the legal fees. In 2018 it was still 4 years delay.
18. What is expected of the Appellant is that, after being aware of the decision of the Magistrates Court, act spontaneously and find another lawyer acknowledging Mr. Hou had not been complying with the direction orders of the Court. I noted from the decision that on 18^th February 2014, the second Appellant was present in person when the case was adjourned to 11^th March 2014 for hearing. A similar direction orders were given. Despite the foregoing events the second Appellant, or Appellants for that matter, still wish to engage Mr. Hou.
19. Logic would dictate, if a lawyer had failed a client several times, seek another immediately, I guarantee there will never be any improvement at all if continue to retain. A lawyer, who gives more excuses more than once, though grand, is guiding himself from his own failures.
20. With the reasoning I have alluded to, I must conclude that this Court lacks jurisdiction to extend time to grant leave to file an appeal. I must therefore dismiss the application with costs.

Orders:

1. Application for leave to file notice of appeal out of time is dismissed.
2. The Cost of this proceeding is to be paid by the Appellants to Respondent (2).

The Court.

---

^[1] [2000] SBHC 89; HCSI – CC 377 of 1999 (19 April 2000)
^[2] [2016] SBHC 14; SICOA – CAC 02 of 2016 (12 October 2016)