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Kere v Wore [2025] SBCA 1; SICOA-CAC 7 of 2024 (15 January 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an Application by the Respondent (“the Applicant” hereon) seeking review of the sum assessed and requested or set by the Registrar of the Court of Appeal for security for costs, pursuant to Rule 12 of the Court of Appeal Rules, 1983 in the sum of $10,000.00, on 5 March, 2024. The Appellant (“the Respondent” hereon) was to deposit this sum with the Registrar.
2. The Appeal itself is against the decision of the primary judge given on 2 February, 2024 in proceeding titled Civil Case No. 673 of 2021. The primary judge’s decision was related to the decision of the Guadalcanal Customary Land Appeal Court (“the Guadalcanal CLAC” hereon). The decision went against the Appellant who was the appellant in the appeal from the Guadalcanal CLAC.
3. The Appellant’s Notice of Appeal was filed on 16 February, 2024. It raises four (4) grounds, the last of which is consequential only. All four (4) grounds of appeal are set out below: -
   • The grounds of appeal upon which appeal should be granted (sic.) are: -
   1. The Court below erred in finding that the trial Judge uphold (sic.) the determination of the Guadalcanal Customary Land Appeal Court that:
   • (a) The Court below did not take into account the evidence of Guadalcanal Land Appeal Court that it did not have powers and jurisdiction to merge HC (sic.) Case 47 of 2020 and High Case (sic.) 47 of 2020 (sic.) when Appellant in HCC OF 2020 (sic.) was dismissed in the GCLAC (sic.).
   • (b) The court below erred in facts and law and custom in its ruling by upholding the decision of the Guadalcanal Customary Land Appeal Court by allowing and introducing of (sic.) fresh and new evidences (sic.) and witnesses in the proceeding from its original appeal from GLC (sic.). There was no application to hear and introduce new witnesses and evidences (sic.).
   • (c) The court below erred in facts and law and custom in its ruling by upholding the decision of the Guadalcanal Land Appeal Court by hearing the Respondent appeal (sic.) as ordered in High Court Case 5 of 2020 be heard within four (4) months and section 256 (1) of the Land and Titles Act provides appeals from Local Court to Customary Land Appeal Court within three (3) months as it is a judgment and order of the court and not administrative matter.
   • (d) The Appellants have reasonable prospect of success.

(Signed)

LIGHT LAWYERS
Solicitors for the Appellant

A Submissions
(i) By the Applicant (Respondent)

4. The counsel for the Applicant Mr Gabriel Suri submits that the sum of $10,000.00 assessed and set by the Registrar for security for costs is comparatively lower than the sums set in previous appeals which ranged from $25,000.00 to $40,000.00. Some of the appeals in which such sums were set have been produced to the Court by the Applicant as a guide for the Court in deciding whether $10,000.00 is a fair sum for security for costs.
5. The Applicant’s lawyers have through the affidavit of J’ann Bouro who is a junior Associate in Suri Law Practice, produced estimates of their legal costs for the Appeal to assist the Court determine what is a fair and reasonable sum for security for costs. The firm has estimated that the total number of hours for their professional services to the Applicant would be about 44 hours. They submit that applying the hourly rate chargeable by the principal of the firm for that many hours of professional service would amount to about $98,300.00.
6. It is submitted that the Registrar’s exercise of discretion in setting the sum of $10,000.00 for security for costs was incorrect and improper, thus resulting in the sum set, which they submit is insufficient and unreasonable.
7. The counsel for the Applicant submits that the total sum for security for costs should be increased to $40,000.00 with an order that $30,000.00 be paid within 14 days of the Orders being entered.

(ii) By the Respondent (Appellant)

8. The counsel for the Respondent (Appellant), Mr Desmond Nimepo disputes the estimated number of hours of professional services by the Appellant’s lawyers and their legal costs. Mr Nimepo estimates that the appeal should not take any more than a half day. He further submits that the issues raised in the grounds of appeal are straight forward and they do not raise any complex legal issues. Thus, it is submitted that $10,000.00 is sufficient, fair and reasonable for security for costs.

B Consideration

9. A single judge of the Court of Appeal has power generally to hear this type of application under s. 19 (g) of the Court of Appeal Act, (Cap.6). It is a discretionary power.
10. The power of the Registrar to assess and set security for costs is conferred by Rule 12 of the Court of Appeal Rules, 1983. The Rule provides as follows: -

Appeal fee and Security for Costs. 12.

12. (1) The appellant shall: -

• (i) forthwith upon the filing of any notice of appeal, pay to the Registrar the fee prescribed for the filing of such notice; and
• (ii) upon request of the Registrar made at any time after the filing of the notice of appeal -
• (iii) deposit with the Registrar such sum as the Registrar shall assess as the probable expenses of the preparation, certification and copying of the record; and
• (iv) deposit such further sum, or give security, therefor to the satisfaction of the Registrar, as the Registrar may fix as security for the payment of all such costs as may be ordered to be paid by the appellant.

(2) Unless the Court otherwise orders -
(a) the dismissal of the appeal shall be sufficient authority to the Registrar for the payment of such sum as may have deposited or secured under paragraph (1)(b)(ii) of this Rule to the successful respondent or respondents in the appeal;
(b) the allowance of an appeal with costs shall be sufficient authority to the Registrar for the payment of such deposit or security to the appellant;
(c) such payments may be made to the solicitors on record for the party entitled.

11. The way the Registrar should invoke this Rule and exercise the power conferred by the Rule is discussed below.
12. Under Rule 12 (1) (b) (i), the Registrar may “request” an appellant to deposit with the Registrar an amount or a sum the Registrar may determine and assess as the – “probable expenses of the preparation, certification and copying of the record”. Once the request is made (by the Registrar), the appellant has an obligation to deposit the sum requested or set, with the Registrar. This is plain from the word “shall” in Rule 12 (1).
13. Under Rule 12 (1) (b) (ii), the Registrar has power to “fix” such “further sum” for the appellant to deposit on top of the sum “requested” or set under Rule 12 (1) (b) (i) for the appellant to deposit or alternately, for the appellant to “give security” for the sum fixed. In either case, viz; whether for a further sum to be deposited or for the appellant to give security under Rule 12 (1) (b) (ii) (for the sum fixed), it must be to the satisfaction of the Registrar and must be fair and reasonable for the payment of all such costs as may be ordered to be paid by the appellant.
14. Thus, Rule 12 (1) (b) (i) and (ii) prescribe how the Registrar may exercise the power when ordering (requesting/setting or fixing) security for costs. It should be noted that the sum requested or set for an appellant to deposit to cover expenses for the preparation, certification and copying of records (transcript) under Rule 12 (1) (b) (i) is different from a further sum fixed by the Registrar for the appellant to deposit under Rule 12 (1) (b) (ii). Furthermore, the further sum to be deposited as security for costs fixed by the Registrar under Rule 12 (1) (b) (ii), pursuant to the word “or”, is alternative to the appellant giving security for the sum fixed. In either case, it must as I alluded to earlier, be to the satisfaction of the Registrar (for the payment of all such costs as may be ordered to be paid by the appellant). Thus, under Rule 12 (1) (b) (ii), the Registrar has an option to “fix” a further sum for the appellant to deposit on top of the sum the appellant deposited under Rule 12 (1) (b) (i) or for the appellant to give security for the sum fixed. The option regarding the appellant “giving security” for the sum fixed under Rule 12 (1) (b) (ii) is always open for the Registrar to consider. In this regard, the Registrar has the duty to explain which option is adopted, under Rule 12 (1) (b) (ii) and give reasons for the choice made.
15. In this case, it is unclear how the Registrar exercised the power conferred by Rule 12 (1) (b) (i) and (ii) when requesting or setting $10,000.00 for security for costs which the Respondent (Appellant) was to deposit with the Registrar.
16. In my view, it is therefore obligatory for the Registrar, to explain why and how security for costs is assessed and set or fixed either under Rule 12 (1) (b) (i) or (ii), for a further sum to be deposited by the respondent or for the respondent to give security for the sum fixed.
17. It should also be noted that, as a matter of law, the Registrar is not obliged to request or set security for costs in every case. In other words, security for costs is not compulsory in every case. Whether security for costs should be requested or set by the Registrar should depend on the circumstances of the case, and in my view, security for costs should be requested or set in the first place only if it is in the interest of justice to do so. Thus, requesting or setting a sum for security for costs by the Registrar is not as a matter of course. Furthermore, if it is decided by the Registrar that security for costs should be requested or set or fixed, the sum assessed must be fair and reasonable, to which full regard must be had to the overall facts and circumstances of the case.
18. In my view, when considering security for costs, the Registrar should have regard among others, to the following pertinent factors. First, whether the appellant is ordinarily resident outside the jurisdiction. See, s. 4 of the Electoral Act, 2018. Second, whether there is reason to believe that the appellant will or may not be able to pay the respondent’s costs. Third, whether the address of the appellant is known. Fourth, whether the appellant has changed address after the appeal is instituted with an intention to avoiding the consequences of the appeal not being successful. See, Rule 6 (d) and (e) of The Electoral Act Petition Rules, 2019. All these factors should nonetheless be considered subject to the overall interest of justice.
19. I turn now to consider whether, having regard to the principles discussed above, $10,000.00 constitutes a fair and reasonable sum for security for costs. I have considered submissions by the counsel for the Respondent (Appellant) that the appeal should not last for more than a half day and the grounds of appeal do not give rise to any complex legal issues. The case of Yam v. Wong [2003] SBCA 6; CA-CAC 017 0f 1999 (6 May, 2003), was relied upon by the Respondent. In that case, this Court when deciding a fair rate for a lawyer’s professional costs, which is a relevant matter to be considered, said - “it is important to reach a proper balance between the necessity of curbing the cost of litigation and preventing it from becoming so expensive as to make justice unattainable by many members of the public, and no less important factor of providing that solicitors and counsel shall be adequately remunerated for their services”.
20. Having regard to these principles, I find that there was an error in the exercise of the discretionary power under Rule 12 (1) (b) (i) and (ii) by the Registrar. The error occurred from an apparent lack of explanation and reasons being given by the Registrar as to why and how the sum of $10,000.00 was arrived at and set for security for costs. This point is pivotal given that the power exercised by the Registrar as to security for costs does not relate to a mere administrative function, it relates to a function which by its nature is quasi-judicial.
21. Consequently, given the overall facts and circumstances of the case, I consider that the fair and reasonable sum for security for costs is $30,000.00. I consider this sum to be fair and reasonable, given that the issues for judicial determination arise out of a dispute between two tribes, whose memberships comprise largely of ordinary people. The sum ordered is also within the range of security for costs provided by the counsel for the Applicant which the Registrar set in previous appeals. Thus, the Respondent (Appellant) is ordered to deposit a further sum of $20,000.00 for security for costs with the Registrar within 21 days from the date of the entry of these orders.
22. The Respondent will pay the Applicant’s costs of and incidental to this Application, which are to be taxed, if not otherwise agreed.
23. Thus, the Orders of the Court are as follows: -
    1. The Respondent (Appellant) shall deposit with the Registrar, a further sum of $20,000.00 within 21 days from the date of the entry of these Orders.
    2. The Respondent (Appellant) will pay the Applicant’s costs of and incidental to this Application which are to be taxed, if not otherwise agreed.
    3. The Registrar shall cause these Orders to be served on the parties forthwith.
24. Orders accordingly.

Gavara-Nanu JA