Ganea v Sibea [2021] SBHC 82; HCSI-CC 105 of 2021 (14 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ganea v Sibea
Citation:
Date of decision:	14 September 2021
Parties:	Michael Ganea v Christando Sibea
Date of hearing:	13 September 2021
Court file number(s):	105 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Application to Extend Time to file the Appeal Out of Time is dismissed. 2. The cost of this proceeding is to be met by the Appellant on an indemnity basis.
Representation:	Mr L B Lauta for the Appellant Mr D Lidimani for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S256 (3), Solomon Islands (Civil Procedure) Rules 2007 Rules 16.12 and 16.13, r 24.12
Cases cited:	Vikasi v Vunagi [2016] SBCA 14, Multi-Chartering Shipping Services Ltd v Fairtrade Co Ltd [2014] SBHC 29, Misifea v Attorney General [2021] SBHC 15, Kinisita v Maemarine [2000] SBHC 89

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 105 of 2021

BETWEEN

MICHAEL GANEA
(Representing himself and Maena Tribe, West Kwaio)

AND:

CHRISTANDO SIBEA
(Representing himself and the customary owners of Talairiu Customary Land)
Respondent

Date of Hearing: 13 September 2021
Date of Decision: 14 September 2021

Mr L B Lauta for the Appellant
Mr D Lidimani for the Respondent

RULING

1. For the purposes of this application it is unnecessary to set out the history of this matter before the decision of the Malaitan Customary Land Appeal Court [“MCLAC”] delivered on 11 November 2020.
2. The Appellant in a statement sworn on 11 March 2021 deposes that he learned of the decision in November 2020 and took a copy of the decision to his lawyers in December 2020. He also deposes that he believes that the period of from 12 December to 12 January will not be counted in the period in which an appeal may be filed because of the closure of the legal year.
3. On 11 March 2021 the Appellant filed an “Application to file Notice of Appeal Out of Time”. In support of the Application the Court was advised that between January and February 2021, the lawyers for the Appellant moved office from the Wesley Centre to Gilbert Camp. It was submitted that the Court vacation and the move prevented the lawyers for the Appellant from filing the appeal in time.
4. On 13 August 2021, after receiving confirmation as to the suitability of the date for hearing the appeal and also the date by which submissions were to be filed and served, the Court made Direction Orders that the Application to file an Appeal out of time be heard on 13 September 2021 and that written submissions from counsel were to be filed and served by 2 September 2021.
5. No submissions nor authorities were received from the Appellant. At the hearing of this matter counsel for the Appellant explained that his principal had been involved in another hearing for the last 7 days and requested that the fixture be vacated and that submissions could be filed within 14 days. When asked why they were not filed by 2 September 2021 counsel suggested that the submissions could be filed within 7 days. The application to vacate the fixture for the appeal was opposed. It is recorded that the Respondent had travelled to Honiara for the purpose of attending the appeal. Counsel for the Respondent submitted that counsel for the Appellant could make oral submissions and the Respondent could address those.
6. The Court discussed the Court of Appeal decision of Vikasi v Vunagi [2016] SBCA 14 with counsel and asked counsel how the position of the Appellant could be improved by allowing the fixture to be vacated and the appeal being heard at a later date. Counsel repeated the reasons why the Appeal was not filed within the 3 months prescribed in section 256 (3) of the Land and Titles Act. The application to vacate the fixture was refused, there having been no compliance with the Directions Order and there being no apparent prospect of the Application being successful. In addition, there had been no request prior to the appeal to have the appeal heard on a later date.
7. Section 256 (3) of the Land and Titles Act provides:
   • “(3) Any person aggrieved by any order or decision of a customary land apcourtwithiwithin three moee months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.”
8. The three month period within which an appeal from the MCLAC decision may be filed in the High Court commenced on 11 November 2020. The time period for filing the appeal therefore lapsed on 11 February 2021.
9. The Appellant relied on Rules 16.12 and 16.13 of the Solomon Islands (Civil Procedure) Rules 2007. Those provisions provide:
   • “ 16.12 A notice of appeal from a decision of the Magistrate's Court or a tribunal must be filed in the court:
   • (a) not later than the time provided by the relevant law or any further time the court allows in accordance with the relevant law; or
   • (b) if no time is provided by the relevant law - not later than 28 days after the day the decision appealed from was made, or not later than any further time the court allows on application at any time;
   • 16.13 An application for further time must be accompanied by a sworn statement showing:
   • (a) the nature of the case in summary form; and
   • (b) each question involved; and
   • (c) the reasons why the extension of time should be given.”
10. In Vikasi v Vunagi the Court of Appeal had to deal with this issue from paragraph [16].
    • 16. “We are satisfied the decision of the CLAC on 26 July dismissed the appeal and therefore was a final order. That conclusion is reinforced by the CLAC’s decision of 8 August which specifically refers to its decision of 26 July as dismissing the appeal. Time therefore began running for any appeal to the High Court on 26 July. When the Appellant filed his appeal 8 November he was beyond the three month appeal period and so out of time.
    • 17. Rule 16.12 of Civil Procedure Rules provides that an appeal from (as relevant here) a Tribunal to the High Court is to be (16.12(a))
    • “not later than the time provide by the relevant Law or any further time the court allows in accordance with the relevant law”.
    • 18. The Lands and Titles Act as the “relevant law” allows 3 months to appeal from CLAC to the High Court. But it provides for no extension of time. In those circumstances the appeal was out of time and no extension could be given. For the reasons given the appeal is dismissed.”
11. In the present case the MCLAC granted the Appeal. It was therefore an order which meant the Appellant had three months within which to file the appeal. By 11 March 2021 when the Appellant filed his appeal the Appellant was a month out of time. Section 256 (3) of the Land and Titles Act is the relevant law. It provides for no extension of time. In these circumstances the appeal was out of time and no extension could be given.
12. The sole remaining issue was whether the period from 12 December 2020 to 12 January 2021 is counted in the calculation of the three month period. A similar submission came before the High Court in Multi-Chartering Shipping Services Ltd v Fairtrade Co Ltd [2014] SBHC 29. In that decision, Faukona J, as he then was, considered an application for a default judgment arising from the delay in filing a defence. He said at paragraph [5]
    • “Excuses embraced by the First Defendant for late filing of defence were because of Court vacation. Court vacation does not mean closing of offices. This should apply to sitting of Court only. I do not think private law firms should take Court vacation unnecessarily for long period and absolutely close the office. If there is a need necessary to go on vacation then one solicitor should present in Office to ensure the doors of the office are opened for public to access to. In the circumstances, I do not accept the reason advance by Mr Pehu as reasonable. There is nothing in the Rules, which states that period of filing defence can be waived because of Court vacation or that public holidays and weekends be discounted.”
13. A similar situation arises in the present case. The Solomon Islands (Civil Procedure) Code 2007 makes no provision for the time referred to as the Court vacation to be excluded from the calculation of the period during which the appeal period runs. Counsel put no authority before the Court contrary to the Multi-Chartering Shipping Services Ltd decision. In the circumstances I reject the proposition that the period from 12 December2020 to 12 January 2021 is to be excluded. In fairness to counsel, no submission was made to that effect. The basis for the issue being raised was from the sworn statement of the Appellant.
14. The Court is concerned that the Appellant may feel a sense of injustice. Faukona J was similarly concerned in Misifea v Attorney General [2021] SBHC 15. He adopted the words of Palmer J as he then was in Kinisita v Maemarine [2000] SBHC 89 “This Court simply does not have any jurisdiction to entertain any application to extend any time limits never mind the merits of the appeal. If no appeal had been filed within 3 months, there is no justiciable matter before this Court and this Court simply cannot entertain this application. That is the harsh reality of the law as it stands”.
15. The Application to extend time for the filing of the Appeal must therefore be refused. The Respondent has been put to expense and is entitled to costs. The decision to pursue the application in light of the decision of the Court of Appeal in Vikasi v Vunagi is difficult to understand. In the circumstances the Court considers that in terms of Rule 24.12 the Respondent is entitled to indemnity costs.

Orders

1. The Application to Extend Time to file the Appeal Out of Time is dismissed.
2. The cost of this proceeding is to be met by the Appellant on an indemnity basis.

By the Court
Justice Lawry
Puisne Judge