Pitabelama v Biliki [2006] SBCA 11; CA-CAC 004 of 2006 (20 September 2006)

COURT OF APPEAL OF SOLOMON ISLANDS

Civil Appeal Case No. 04 of 2006

FRANCIS PITABELAMA AND OTHERS

-v-

MOSES BILIKI, AMOS QURUSU AND OTHERS

Date of Hearing: 14th July 2006
Date of Ruling: 20th September 2006

Michael Pitakaka for the Applicants
Andrew Radclyffe for the Respondent

RULING
on application for leave to appeal the decision of the Chief Justice in Civil Case No. 537 of 2005 given on the 30 December 2005

Brown PJ: The application for leave is supported by the affidavit of Michael Pitakaka, an Associate Lawyer who acts for the 1st and 2nd Appellants so named in these proceedings and the plaintiff’s so named in the proceedings sought to be taken on appeal to the Court of Appeal. Those originating proceedings involved logging matters and the Chief Justice dismissed the plaintiff’s application. When giving reasons, the Chief Justice recited the history of the proceedings leading to the plaintiff’s claim which he declined to accept, applying the doctrine of laches for that the plaintiffs were guilty of accepting in full knowledge, actions of the various defendants, without complaint, until seeking to stop the defendants by the institution of proceedings in the High Court.

Mr. Pitakaka says, in his affidavit in support filed on the 13 April 2006 that by judgment delivered on the 4 March 2006, Mr. Justice Kabui, sitting as a single judge of the Court of Appeal held that leave to appeal the Chief Justice’s ruling dismissing the plaintiffs original application was not necessary under s. 11(1)(a) of the Court of Appeal Act. It is a consequence, Mr. Pitakaka says, that the Appeal Courts jurisdiction was enlivened in any event by the fact of that application for leave to appeal.

That argument apprehends the nature of the judgment given by the Chief Justice on the 30 December 2005, to be a final judgment so that the issue dealt with by the Chief Justice was related to the plaintiff’s claim, out of time, about the status and effect of the decision of the Western Customary Land Appeal Court given on the 26 August 2003. I say out of time, for that CLAC decision is final unless varied or overturned on point of law, after appeal lodged with-in 3 months of the judgment date. The Chief Justice, relying on Gandly Simbe’s case (Court of Appeal 8 of 1997 Judgment dated 9 February 1999) said, of the plaintiff’s claim before him, that the plaintiffs "are estopped from reopening or commencing a land dispute case afresh under the Local Courts Act arising from the similar issues and facts which had been agreed to and previously raised in an earlier case". For it stands to reason in the hierarchy of decisions, affecting customary land, a subsequent finding by the Local Court on issues determined by the CLAC is nugatory (s. 256 Land and Titles Act (Cap. 133)).

No leave to appeal is required, however, in any decision of the High Court which is filed in time prescribed by r. 10.

Now the appellant come again seeking leave to appeal pursuant to notice dated 10 April 2006, since the time limited for appeal by r. 10 of the Court of Appeal Rules ("within thirty days of the decision complained of....") has passed. By notice of application dated 12 January 2006, the first leave application, dismissed by Justice Kabui, came before this Court and in the circumstances, I accept the jurisdiction, invoked by that earlier application, to consider an appeal following leave enables these appellants to now rely on the earlier notice of appeal brought before Justice Kabui.

It can be seen that the judgment refusing leave to appeal (since Justice Kabui thought leave unnecessary) given on the 24 March 2006 impliedly referred to the notice of grounds of appeal to be relied upon, for the judge in Order 2 said;

"2. Leave is not required for an appeal to be filed in this case"

I direct that the Notice of Appeal annexed to and forming part of the affidavit of Michael Pitakaka filed on the 13 April 2006 shall in terms of r. 10 be the relevant notice of appeal and that the time for filing such appeal shall date from this order.

THE COURT