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William Automobile and Marketing Agency v Attorney General [2009] SBCA 16; Civil Appeal 19 of 2008 (17 February 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Leonard Williams

Civil Appeal Case Number 19 of 2008

(T/A Williams Automobile and Marketing Agency

V

THE ATTORNEY-GENERAL

AND

MINISTER OF FINANCE
(Representing The Comptroller Of Customs).

Date of Hearing: 17TH November 2008
Date of Judgment: 17th February 2009

B. Etomea for the Applicant
Palmer CJ.:

This application for leave to appeal against the decision of the High Court issued in April 2008 is based on a claim for the balance of the price of three vehicles sold by the Comptroller of Customs in or about September 1999 to recover customs duties and related costs.

The applicant is a vehicle dealer involved in the importation and sale of used vehicles in the country. In 1999 he imported five units of vehicles. He managed to clear off two vehicles but by then the tragic effects of the ethnic tension had set in and he was forced to flee the country as he feared for his life. No issue has been raised about this it seems. He fled to Fiji and remained there until he felt it was safe for him to return; he did so in 2004.

In the meantime, the three vehicles were impounded by the State and sold by public auction at the Queens Warehouse in or about September 1999. He alleges that about $200,000.00 was paid for those vehicles. He avers he was never informed of the intention to sell those vehicles to recover duty and related costs. He avers the total cost for duty owed to Government would have come to only about $33,373.05. He says he is owed therefore in the minimum the sum of about $166,626.95. He says he did not make any claim for the balance within the statutory time limit of 12 months as he was never aware of the actions of the Government to sell those vehicles. He claims he has not only lost out on his rightful entitlements and loss of money but as a consequence has not been able to repay moneys owed to his clients in relation to those vehicles.

The applicant also points out that he is permanently disabled and so affects his mobility. He says this has hampered his ability to have his case lodged and processed in time. He points out that when he returned in the country in 2004, he immediately pursued his case with the Comptroller of Customs but did not realise that the time limit was catching up on him. By the time he eventually did lodge his application on 29th December 2006, he was already time barred under the Limitation Act.

I have carefully considered the reasons given for leave to appeal against the decision of the High Court and for the following reasons grant leave to appeal.

The circumstances affecting the applicant in my view are capable of amounting to exceptional circumstances.

(i) He is a disabled person. While that is no excuse for failing to lodge his claim within the period of six years, I do bear in mind the fact that an able bodied person would have greater mobility compared to a disabled person. Solomon Islands does not have facilities which cater for the mobility of disabled persons. Accessibility to many offices therefore is not easy. Such a person would have relied a lot on an able bodied person to do things for him.

(ii) The effects of the ethnic tension must also be taken into account. He had to flee the country to Fiji where he felt much safer. He only returned after he was sure his life would not be threatened and that he was satisfied normalcy had returned sufficiently to the country. He had business interests which were affected. While the Courts in the country remained open throughout the ethnic tension period and he could have lodged or pursued his case from Fiji throughout that period, this factor coupled with his disability would have made things even more difficult for him.

(iii) If what he alleges is correct that he was never informed of the actions of the Comptroller of Customs to auction his vehicles, then his rights may not have accrued until on his return when he discovered that the vehicles had been sold. It should be borne in mind that the situation which applied to the applicant from 1999 to about 2003/2004 was not normal. He had left the jurisdiction out of fear for his safety. Any notice to the public therefore would not have been within his reach of accessing. It could be argued to that extent he never had notice of sale of his vehicles and therefore could not have lodged any claim for the balance within the statutory period of twelve months.

(iv) According to the applicant, the delay in lodging his application was also partly due to the delays in response to his queries when he returned. He lodged his claim only after hearing from the Comptroller that he was out of time in so far as his claim for relief was concerned.

In the circumstances I am satisfied his right to relief has been prejudiced. In contrast, any prejudice to the rights of the Comptroller of Customs would have been minimised by the fact that any balance would have been paid into the Consolidated Fund.

Leave to appeal accordingly is granted as sought.

The Court