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Williams v Attorney-General [2009] SBCA 5; CA-CAC 19 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Pursuant to special leave granted by a single Judge on 17 February 2009, the appellant appeals the Judgment of the High Court delivered on the 10th April 2008.

Background Facts

The appellant was an importer of motor vehicles. In 1999 he imported 5 secondhand motor vehicles from Japan that were unloaded at the port of Honiara on 10th May 1999. Because the goods were not cleared within 10 days as required by section 83 of the Customs and Excise Act they were deposited in the Queen’s Warehouse. Two of the vehicles were ultimately cleared by the appellant paying the requisite duty. The other three were not and were ultimately sold pursuant to the provisions of section 84 of the Customs and Excise Act.

Because of the ethnic tension in the Solomon Islands the appellant left for Fiji on 4th day of September 1999. The appellant has been a paraplegic since 1985. He suffered a further motor accident in Fiji which caused serious injury. Ultimately he returned to Solomon Islands on 27 February 2004. He has been endeavouring since his return to recover what he said was due to him from the sale of the vehicles.

When other methods failed he attempted to issue proceedings in the High Court. His first Writ dated 29 December 2006 was rejected by the Registrar. Ultimately a writ was filed dated 12 September 2007 with the Generally Endorsed Writ of Summons dated 19 October 2007. It was apparently served on 22 October that year.

The appellant, when the respondent failed to take steps, attempted to enter a default judgment. It was refused by Goldsbrough J on the ground that it was barred by the provisions of the Limitation Act.

As we noted leave was granted by a single Judge for him to appeal that decision. Before this Court the appellant sought special leave to adduce further evidence pursuant to rule 22 (3) (a) of the Court of Appeal Act. Mr Woods who appeared for the Respondents, for the limited purposes of this hearing, took no objection to the application for special leave. Accordingly we allow that application. So there was before us additional evidence as follows:-

(a) of the failure of the Respondent to return original copies of important invoices and the bill of lading of the imported vehicles;

(b) that the Appellant had an accident in Fiji in year 2003 and has not fully recovered when he returned to Solomon Islands in 2004 and had difficulty in moving about;

(c) that a Customs application form required to claim a refund of duty was out of stock from the potential supplier and Government Printers when he tried to obtain it in early 2005;

(d) that the appellant was not able to get legal aid assistance as he did not have enough money to pay for private lawyers and the office of the Public Solicitor was upstairs.

We will return to the relevance of these grounds of evidence in due course.

Discussion

It is appropriate to make some general comments relating to the Appellant. The Appellant has been physically disabled and confined to a wheelchair for many years. Notwithstanding that significant disability he has, to his credit, been able to conduct the business of vehicle importer for a number of years. It is also clear as an importer of motor vehicles that he can be expected to have an understanding of the workings of the Customs and Excise Act and the obligation to clear vehicles by the payment of duty within 10 days in terms of Section 83 of that Act. It is also apparent that he would be aware of the provisions of the section 84 which provides for the sale at auction of vehicles that are in Queen’s Warehouse for more than a month.

This appeal must be viewed against that background.

Firstly, we agree with Mr. Woods’s submission that the one year period set out in section 84 (3) of the Customs and Excise Act for an owner to apply for the refund of the balance left after an auction sale is not a limitation period. Rather as Mr Woods described it is a condition precedent. The sale at auction and the payment into the consolidated fund pursuant to the Act does not in itself found a cause of action. S:84 requires that goods deposited in the Queen’s Warehouse not entered for warehousing or delivery within one month are to be sold and all charges for removal, freight, rent and duty to be deducted from the sale proceeds. It is required that the sale of such goods be advertised by public notice. The net balance of the sale proceeds is to be paid to the owner of the goods on application for the same provided such an application is made within 1 year of the sale of such goods. If not the money is to be paid into the consolidated fund.

It seems to us that a right of action could arise in two circumstances. The first would be an action against the Government for money had and received by the Consolidated Fund. The other would be in relation to a wilful act or negligence of a Customs Officer which is covered by Section 83 (4) of the Act. We are content to assume for the purposes of these proceedings that the appellant has alleged negligence on behalf of Customs Officers in the Writ he has filed. The particularity of the acts relied on are not clear and in an answer to questions from the bench they were not clarified further. As we understand the complaint it is, firstly, a failure to notify the appellant of the intended sale and, secondly, a failure not to grant him more time to clear the three units he having managed to clear the first 2 units prior to the event of the auction sale. Such grounds cause significant difficulties given the requirements in the Act to enter or deliver goods within 10 days, (in the case of the appellant by the payment of duty), and, secondly, in relation to the fact that the sale clearly followed the statutory regime (Ss: 83 and 84). In our view the appellant’s evidence relating to difficulty in obtaining funds from clients is misguided. It may well be that he intended to rely on deposits and payments from clients to pay the duty owing on the vehicles imported. But the clear statutory duty to pay duty and clear the vehicles is imposed on the importer, i.e. the appellant.

Assuming that he could make out particulars of negligence that resulted in loss the next question to consider is when does the cause of action accrue.

Section 17 of the Limitation Act provides that the cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first arises. In this case the right of action accrued on the basis of the appellant’s allegations, when the auction sale of the vehicles took place. But his Counsel maintained that it did not accrue until he returned to the Solomon Islands and discovered what had occurred.

For the reasons advanced by Mr. Woods such a submission is untenable. As Mr. Woods demonstrated this is made clear by a perusal of the appellant’s own evidence. We will detail that evidence.

First, there is the appellant’s own affidavit in support of his claim dated 29 December 2006. Clause 11 of that affidavit reads:-

"[11] the defendant was ignorance and negligence on their part by failing to consider the positive attempts and steps towards clearance of all my vehicles from the Queen’s warehouse, and plead for more time, given the seriousness of the situation in the Solomon Islands at that time, that I, the plaintiff, have shown signs of commitment on my part that I managed to clear the first two units weeks/days prior to the event of the auction sale, which I only came to realize the Defendants action when I approached the Queen’s warehouse for clearance then."

This seems to us a clear statement that in 1999 before he left for Fiji he was aware of the fact that three of the vehicles were in the Queen’s Warehouse and were facing auction sale.

In a further document dated 10 February 2005 headed "Statement of Claims" which appears in the form of a legal document but was addressed to the Ministry of Finance, Clause 12 reads:-

"12. A reliable source from the Customs Queen’s warehouse at that time admitted to us that the Queen’s warehouse collected almost two hundred thousand dollars ($200,000.00) from the said vehicles."

Again an acknowledgement that he was aware of the sale by auction at the time it occurred.

A further document exhibited to his most recent affidavit is headed "Department of Home Affairs Property Loss Assessment Form". It is dated the 12 March 2002. It is a claim relating to losses suffered during the ethnic problems in the Solomon Islands. It includes under "general assets lost" 3 vehicles sold at auction by the Customs Department. It is inconceivable to us, given the contents and date of that document, that the appellant can continue to maintain he was unaware of the sale of the vehicles by auction until his return to the Solomon Islands in 2004.

Annexed to that application is a document headed "To Whom It May Concern". Clause 5 of that reads:-

"5. PROPERTY SOLD ON AUCTION BY CUSTOMS DIVISION

I have one Toyota commuter 15 seater, 1 Nissan caravan 15 seater and 1 Toyota Corolla Car that were auctioned by the Customs Division because we were not able to clear them due to the crisis. My three clients to whom the vehicles were ordered for are displaced Malaitans and Guadalcanal and we could not locate them to clear the vehicles so they had to be auctioned. Total marketable value (155,000.00)."

This is again a statement by the appellant that makes it clear he was aware the vehicles would be auctioned because of his failure to clear them by paying duty.

Finally there is the appellant’s letter of 21 February 2005 to the Comptroller of Customs. It will be remembered that central to the appellant’s complaint is that the Customs Department have lost their files and could produce no documents. In view of that we set out this letter in full:-

"Date: 21st February 2005

The Comptroller of Customs

Customs & Excise

Ministry of Finance

Honiara

Dear Sir

RE: ADDITIONAL INFORMATION ON MY CLAIMS FOR REFUND OF DUTY"

In response to your request for additional information on my claims for refund of duty, I am pleased to submit the following details:-

1. The Queens Ware House sold my three vehicles. 2 x 15 seater mini buses and 1 x Toyota Corolla Van on 20th August 1999 at an "Auction Sale";

2. I do not know what kind of numbers you are asking but the following numbers were notably being used by the customs at the time:

(i) Rotation No. S160/99;

(i) Queens Warehouse No. 90700660;

(iii) Warrant Numbers for the other two vehicles that we managed to clear were: Toyota Hilux for 012039 & Toyota Sprinter Wagon for 009562;

(iv) My GST Number at the time: GST00240;

3. The vehicles were transferred from the Solomon Islands Port Authority to the Queens Ware House on 01st June 1999.

4. If somehow, the file for the Auction Sale has not been found in the Queens Ware House Filing Registry, one notable staff of the Queens Ware House that did the Auction Sale at the time was Mr. Bonefesi. He should be in a good position to help with the information that you’ve required, if he is still there with the Customs Department.

I hope that the above information would be of help in your consideration.

Your prompt and favourable response shall be very highly appreciated.

Yours faithfully,

LEONARD WILLIAMS

Proprietor (Williams & Associates)"

Although this letter is dated February 2005, the detail contained in the letter shows a plethora of detail within the appellant’s command. On his own evidence he cannot claim to have obtained it from Customs. He does not give evidence any other source. Clearly it gives considerable detail, including the date of sale, the Queen’s warehouse number and the officer responsible for the sale. We are satisfied this confirms that the appellant had this information all along. It also confirms that the true date of sale is 10 August 1999 before he left the Solomon Islands. All this evidence satisfies us that the appellant was aware before he left for Fiji on 4 September 1999 that the vehicles were to be auctioned by Customs. It also satisfies us he had notice of the auction sale.

On that basis it is clear that a cause of action founded on negligence or money had and received accrued on 10 August 1999. The statutory period expired on 10 August 2005.

That leaves the remaining issue which is whether or not this Court should allow the appellant to issue proceedings and seek the application of section 39 of the Limitation Act. We are conscious that in the normal course of events such a matter could be expected to be remitted to the trial Court to consider whether or not the matters set out under the Act warrants the Court exercising its discretion in the appellant’s favour.

Counsel for the Appellant, understandably, relied heavily on the appellant’s disability and the difficulties that created for him. As we understood the submission he considered that the appellant’s physical condition amounted to a disability in terms of section 39 (2) (d) of the Limitation Act. However, disability in the Act is quite different from the disability suffered by the appellant. It is defined in section 2 of the Act [CAP 18]:-

""disability" in relation to an individual means –

(a) that he is under infancy; or

(b) that he is of unsound mind, that is to say, by reason of any mental disease, defect or disorder he is incapable of managing and administering his property and affairs, or he is liable to be detained or subject to guardianship under the Mental Treatment Act;"

It does not apply to the appellant.

Generally, counsel submitted that the circumstances of this case fitted within the provision of section 39 (2). In particular he submitted the most recent evidence admitted by leave supported the application of s:39. We will deal with those matters. The first relates to the return of the original copies of these important documents. It has not been suggested by the appellant that he does not have copies of these documents and Mr Woods properly takes issue with whether or not such documents are returnable by the Customs Services. The second related to the appellant’s accident in Fiji. The reality is that he returned to Solomon Islands on 22 February 2004 and despite his condition has had ample time to issue proceedings before September 2005. Also while in Fiji he was able to file the "Lost Property" form. The same point relates to the evidence of the Customs form and not being able to get legal aid or not being able to pay for a private lawyer. The appellant has failed to explain what private lawyers he approached and why he could not contact them by telephone given his difficulties. The evidence in relation to the forms highlights the reality of this case. The appellant made a conscious choice to attempt to get the refund by pursuing the Customs Department directly. That he made that choice may well have had unfortunate consequences for any claim he may have had but as Goldsbrough J stated in his judgment:-

"5. In between the time he returned in 2004 and September 2005, no reason has been given for failure to file a writ save that the plaintiff was trying to persuade the Department to agree to his claim without the need to issue proceedings. Nothing else prevented the claim being made. It should have been made and was not.

6. That has not force majcure. It is a failure for no reason other than perhaps lack of knowledge or lack of good legal advice. It cannot be reason for setting aside the provisions of the Limitation Act. Those provisions are for good reasons and must be respected. This claim is statute barred and cannot be subject of any judgment against the defendants."

In that we concur. The appellant has failed to make out any compelling, unusual or exceptional features that warrants the exercise of the discretion under section 39 the Limitation Act.

The appeal is dismissed with costs.

However, we are conscious of the appellant’s physical disability and the ethnic tension at the time the vehicles were sold. In the absence of the Custom’s file we do not know the sale price, the allowable statutory deductions and whether there was any surplus. But if there were surplus moneys paid to the Consolidated Fund, in all the circumstances, including that the appellant approached Customs within the 6 year period, we would recommend the Government make him an ex gratia payment.

Sir Albert R. Palmer
Chief Justice

Vice-President

Williams JA
Member

Hansen JA
Member.