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Attorney General v Levers Solomon Ltd [2024] SBCA 22; SICOA-CAC 58 of 2023 (14 October 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. When this appeal was called in Court, Mr Geoffrey McDonald of Counsel for the respondent, raised a preliminary question for the Court to determine, namely: Whether the application for leave to appeal filed on 27^th October 2023 was made against Orders made in HCC 513/2015 on 20^th October 2023. The question is now raised for the court to determine following what is said to be a request by the respondent to the Registrar to clarify whether the appeal filed “is not against any order made in case 513/2015.”
2. The request was made in the submissions dated 7^th December 2023 filed by the respondent’s Legal Practitioner, Ms Alice Willy. The respondent’s request and the question raised, undoubtedly stem from the appellant’s application for leave to appeal and the subsequent Orders made by the Acting President of the Court of Appeal which orders are as follows.
   • “1. That leave is granted to the appellant to appeal.
   • 2. In consequence to order 1 above, the orders of the High Court made on 20^th October 2023 are stayed.”

Brief Background

3. 3A brief background will assist us in appreciating the nature of this case and how the question now raised by the respondent came about. The present case, the subject of the appeal, is one of a series of cases involving the parties in this case. Two of those cases are referred to in the submissions of Counsel, namely, HCC 541 of 2022 and HCC 513 of 2015, both of which are relevant to the present proceedings.
4. We need not set out in details the orders of the High Court, which are the subject of controversy in the appeal. It is sufficient for the purpose of the background of this case that we simply state that on 20^th October 2023, his Lordship Foukona DCJ delivered his rulings on the two separate applications which were before him. The two applications, both brought by the respondent, are:
   • Application for Urgent Interlocutory Orders; and
   • Further Application for Enforcement of Orders.
5. The Deputy Chief Justice’s Ruling given on 20^th October 2023 commenced with the heading:
   • “RULING ON APPLICATION FOR INTERLOCUTORY ORDERS.
   • RULING ON APPLICATION FOR RENEWAL OF ENFORCEMENT ORDERS.”
6. There are no references as to which cases the applications arose from. On the face of the introductory part of the ruling the two applications appear to have arisen from HCC 541/2022. This is because the Case Heading of the Ruling is shown as Civil Case 541 of 2022. However as we shall see, the two applications mentioned at the commencement of the Ruling by the learned DCJ, arose from HCC 541 of 2022 and HCC 513 of 2015 respectively.
7. We feel obliged to state here that no suggestion or comments or remarks or indication by respondent (or by the appellant, for that matter) that the two applications and rulings were anything other than that those applications arose from HCC 541 of 2022 and HCC 513 of 2015 respectively.

The first issue to be determined.

8. Having set out the brief background to the proceeding, we will proceed to consider what we see is the first and crucial issue to be determined by the Court before we can even begin to delve into the points raised in the respondent’s submission. In our view, the first issue to be considered is whether the Court should consider the submission at all and answer the preliminary question posed by the respondent. Only if that first issue is determined in the affirmative then the Court will proceed to consider the respondent’s submission and the matters raised therein. The basis for that is the elementary principle that the Court of Appeal is a creature of statute: Reef Pacific Trading Ltd v Reef Pacific (Sydney) Ltd [1994] SBCA 2; CA-CAC 001 of 1994 (21 June 1994) per Connolly P; Mani v R [2022] SBCA 5; SICOA-CRAC 25 of 2021 (8 July 2022) and can only hear and determine matters which are properly brought before it under the Court of Appeal Act and Court of Appeal Rules. Put another way, this Court only has jurisdiction to hear and determine matters or issues that are properly brought before it.

No application to determine preliminary question

9. The appeal in this case has been fixed for hearing at this sitting of the Court. As stated at the beginning of this judgment, when the appeal was called for hearing, the respondent sought the Court, instead, to determine a preliminary question, which we also have already set out. In his submission, Mr. MacDonald agreed that no application has been filed with the Court for the determination of the preliminary question. Counsel, however, relied on section 19 of the Court of Appeal Act (Cap. 6), in particular, paragraphs (f) and (g) which provide as follows:

“Powers of a single judge of appeal

19. The powers of the Court under this Part of this Act -
—————
(f) to stay execution or make any interim order to prevent prejudice to the claims of any party pending an appeal;
(g) generally, to hear any application, make any order, or give any direction incidental to an appeal or intended appeal, not involving the decision of the appeal,
may be exercised by any judge of the Court in the same manner as they
may be exercised by the Court and subject to the same provision; but, if
the judge refuses an application to exercise any such power or if any
party is aggrieved by the exercise of such power, the applicant or party
aggrieved shall be entitles to have the matter determined by the court
as duly constituted for hearing and determining of appeals under this

Act.”

10. While we agree that section 19 of the Act sets out some of the powers of the Court of Appeal, when one reads the whole of the section, it will become obvious that the powers provided under the section are powers of the Court which are also exercisable by a Single Judge of the Court. So that where a Single Judge refuses an application or a party who is aggrieved by the Single Judge’s decision, the applicant or the aggrieved party is entitled to take the matter to the full Court to have it heard and determined.
11. We are, of course, also of the view that the powers under section 19 of the Act belongs to the Court and it can exercise them, irrespective of whether the Single Judge exercises or refuses to exercise the same in the first place. However, this presupposes that the matter before the Court for its determination is properly brought before it.
12. Of relevance, therefore, is Rule 16 of the Court of Appeal Rules, which states as follows;
    • “r.16 Except with leave of the Court, an appellant or respondent shall not be entitled at the hearing of an appeal to rely upon any ground of appeal or ground of contention under Rule 15 or to seek any order other than those set out in a notice filed by him;
    • Provided that the Court or a Judge may at anytime give leave to remind a notice upon such term as it or he may consider just.” (Underlining added)
13. Rule 16, in our view, is wide enough to support the general proposition that leave of the Court must first be sought and obtained before a matter or a point, in addition to those matters which have already been filed and placed before the Court, for its determination. Failure to obtain such leave will most likely result in the Court refusing to entertain a matter or request such as the one in the present case. The gist of the rule is that the parties are restricted to the terms of the document filed.
14. The expression “except with leave of the Court” has been discussed in so many cases in other jurisdictions. In Tzen Niugini Ltd v Yema Gaiapa Developers Ltd [2015] PGSC 64; SC 1471 (4 September 2015), the Supreme Court of Papua New Guinea stressed the importance, of complying with the requirement of the law and that a party who is in default of compliance, cannot take further steps in the proceedings “except with leave of the Court” which the respondent in that case failed to take. The Supreme Court had this to say:
    • “With the greatest of respect, we are of the opinion that given the ... findings of the learned primary Judge, his Honour fell into error in allowing the respondent to apply for a stay of the proceeding and to grant the stay without the respondent first obtaining special leave to make such an application. ... The only way it could be heard was with special leave of the Court...”
15. The practice and procedure as set out in the Rules must be followed. Where leave is required by the Rules, a party upon whom the obligation to seek leave falls, must make an application seeking leave, supported by affidavit. If he fails to do so, he is not entitled to proceed to seek the Court’s indulgence because he has not sought and has not been granted leave to be heard. Rules such as rule 16 of the Court of Appeal Rules are designed to regulate the practice and procedure to follow for the orderly conduct of judicial processes by the parties and the Court.
16. This Court had already emphasised the need to file an application for the determination of a preliminary question in Attorney General v Jui Hui Chan [2017] SBCA 5; SICOA - CAC 36 of 2016 (5 May 2017). The Court stated:
    • “Usually an application for the determination of a preliminary question should be filed and decided before argument on that preliminary question proceeds. Once an order for the determination of the preliminary question has been obtained, and, in the usual case, a date for the hearing of that preliminary question has been set, the parties can make their submissions on it. Those submissions should be strictly confined to the point in issue. The hearing of the preliminary question should not go beyond the preliminary question, and the Court’s decision should be confined to answering that preliminary question.”
17. That case is clear authority for the proposition that leave of the Court must first be sought and obtained before a preliminary question can be dealt with by the Court. Once an order for the determination of the preliminary question has been obtained, only then can the Registrar set the date for the hearing of the preliminary question.
18. As has already been stated, Counsel for the respondent conceded that no formal application has been filed with the Court for the determination of the preliminary question now put before the Court, nor has there been any evidence filed in support of the preliminary issue raised. Reliance was placed solely on the documents which are “within the Courts’ files.” The respondent, however, “assumed” that the Deputy Registrar has referred the matter to the Court so that the Court can exercise its powers under section 19 of the Court of Appeal Act.
19. We stressed the point that the exercise by a Single Judge or by the Court of the powers under section 19 is premised on the matter having been properly placed before the Court in the first place. In this case and as conceded by Counsel for the respondent, no application for leave to have the Court determined this preliminary issue. There is, therefore, no basis for the Court to exercise its powers under section 19 in this case.
20. We are also of the view that there is no basis for the respondent to assume that the Deputy Registrar has referred the preliminary issue to the Court. The respondent has not pointed to any provisions of the Court of Appeal Act or Rules, which point to the Registrar’s authority to refer a preliminary question to the Court where such a question has not been properly brought before the Court. It is one thing for the Registrar or Deputy Registrar to list before the Court a preliminary question for the Court to determine following an application having already been filed with the Registrar and leave having been obtained, but it is completely another thing to simply slot in a submission seeking the Court to determine a preliminary point when an appeal is listed for hearing.
21. There is a further aspect to this matter that is, that the Deputy Registrar was asked to “clarify” the question posed by the respondent as follows:
    • “Because the Leave to Appeal is expressed to be in case 541/2022 and not expressed to be in case 513/2015, that there is nothing in the appeal case which affect the order of 16^th August 2022 and consent orders of 2 November 2017 in case 513/2015 which remain valid and enforceable”
22. We simply wish to say that the way the clarification is sought, would require the Registrar to consider matters of both facts and law in order to answer the question or make the clarification. It would involve more than simply looking at the appeal papers only. We view this as asking the Registrar or Deputy Registrar to do something beyond their power to do under the Act or Rules. It is therefore not surprising that the Registrar or Deputy Registrar did not make any attempt to clarify the question posed and rightly so.
23. We note that in paragraph 20 of Counsel’s submission, there is the suggestion that this Court could conveniently deal with what appears to be an appeal against the decision of the Acting President made on 30^th October 2023 when determining the respondent’s preliminary question. We expressed our dismay that a challenge to the decision of the Acting President of this Court sitting as a Single Judge of the Court could simply be slotted into the respondent’s submission and ask the Court to consider it in such a manner. Not only that the preliminary question has not been properly brought before this Court, but that any challenge, whether expressed as an application or appeal, against the decision of a Single Judge of the Court in our view, cannot simply be dealt with, as part of a preliminary issue, as it is purported to be done here. This is clearly contrary to what this Court has laid down in Jin Hui Chan referred to earlier.
24. The respondent’s application under rule 18(3) of the Court of Appeal Rules to set aside the Order of the Acting President, filed on 7 November 2023, although expressed as an Application to the Full Court, is in fact an appeal against the Order of a Single Judge of this Court. If this application is properly placed before the Court, we could have proceeded to invite both Counsel to make submissions on the challenge to the Order made by the Acting President on 30 October 2023 and perfected on 1 November 2023. We decline to consider the challenge to the Acting President’s Order as part of the respondent’s preliminary question in this case.
25. The respondent’s application under rule 18(3), having been filed, it should be listed separately before the Court to consider. Mr Brenton Pitry of Counsel for the appellant correctly pointed out that this application has not been fixed for hearing. We direct that the respondent’s application brought under rule 18(3) should be listed for hearing at the next sitting of this Court.
26. On the materials before the Court, we have no doubt that the gist of the preliminary question now raised by the respondent will arise again at the hearing of the substantive appeal where we feel is the proper occasion for the question to be resolved.
27. For the reasons given we decline to consider and answer the preliminary question posed by the respondent.
28. The costs occasioned by this hearing shall be paid by the respondent to the appellant to be taxed, if not agreed.

Muria P
Gavara-Nanu JA
Lawry JA