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Duko v Kile [2019] SBCA 12; SICOA-CAC 27 of 2017 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Duko v Kile


Citation:


Decision date:
18 October 2019


Nature of Jurisdiction
Appeal from Judgment of The High Court of Solomon Islands (Faukona J)


Court File Number(s):
27 of 2017


Parties:
Lise Duko v Nelson Kile


Hearing date(s):
9 October 2019


Place of delivery:



Judge(s):
Goldsbrough P
Lunabek JA
Gavara-Nanu JA


Representation:
Mrs A Tongarutu for the Appellant
Mr. C Hapa for the Respondent


Catchwords:



Words and phrases:


Legislation cited:
Land and Titles Act, s66 [chap 133]
Land and Titles (amendment) Act (Chap.133).


Cases cited:
Patatoa v Talauai [1983] SBHC 13, Joshua v Valahoana [2014] SBCA 8
Attorney General v Maui [2016] SBCA4.


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Appeal allowed. The Orders of the High Court of 4th July 2017 are set aside. The application of the Judicial Review is dismissed


Pages:
1-14

JUDGMENT OF THE COURT

I. Introduction

  1. This is an appeal dated 14 July 2017 against the judgment of the High Court to the same date allowing the respondent to pay his appeal fee out of the prescribed statutory period.

II. Background facts

  1. An acquisition hearing was conducted at Baolo village to acquire Saraei land (disputed land) for registration on 9th December 2009.
  2. Following the acquisition on the 19th December 2009, the Acquisition Officer published his findings and determined that Lise Duko (Fourth Defendant) and one Mr John Sike were the rightful persons to claim ownership over Saraei land.
  3. Section 66 of the Land and Titles Act [Chap 133] provides for an appeal process against the findings and determinations of the Land Acquisition Officer. Section 66 provides
  4. Following the acquisitions determination, two appeals were filed against the determination of the Acquisition Officers. The first Respondent, Mr Nelson Kile, filed an appeal in the Central Magistrates Court on the 9th March 2010. One Wycliffe Ene filed the other appeal in the Central Magistrates Court on the 17 March 2010.
  5. However, the First Respondent’s appeal was not registered and considered due to the First Respondent not paying the appeal fee. The other appeal by Mr Wycliffe Ene was later withdrawn.
  6. As a result of that, by letter dated 7th October 2010, the Chief Magistrate wrote to the Commissioner of Lands and certified that there is no appeal in respect of the land acquisition over Saraei land.
  7. On 25th November 2010, the Commissioner of Lands made a vesting order vesting the perpetual estate title in the Saraei land with the Appellant and Mr Late John Sike.
  8. On the 17th December 2010, a grant of profit was executed by the Appellant Lise Duko and Fifth Respondent (Sia Enterprises Ltd)
  9. On 3rd March 2011, the Commissioner of Forests issued felling Licence to the Appellant (Lise Duko) to undertake logging operation in saraei land.

III. (A). Pleadings and Relief sought

  1. The First Respondent (Claimant), felt aggrieved, filed a judicial review claim (“the Claim”) in the High Court on 23rd May 2012 seeking for the following relief:
    1. A declaration that the First Respondent’s Appeal against the determination of the acquisition officer made on December 19, 2009 in respect of Saraei land was filed within the time prescribed by section 66(1) of the Land and Titles Act [CAP 133].
    2. A declaration that the entire acquisition process under Division 1 of part V of the Act (purchase or lease of Customary land) in respect of Saraei land was void and of no effect by reason of the non - hearing of the First Respondent’s appeal against the determination of the Acquisition Officer made on December 19, 2009 by the Central Magistrates Court.
    3. A mandatory order directing the Central Magistrates Court to hear the First Respondent’s (Claimant) appeal against the determination of the Acquisition Officer of December, 19 2009, in respect of Saraei land.
    4. Order for rectification pursuant to section 229 of the Act removing:
      • (i) The profit registered in favour of the Appellant (Fourth Defendant) in respect of the Saraei land;
      • (ii) The Appellant (fourth Defendant) and the late John Sike as the registered owners of the Perpetual estate in the saraei land; and
      • (iii) Removing Saraei land from the land register;
    5. A consequential declaration that the land comprising of parcel number 072-002-3 (“the Saraei land”), is and for all material purposes to be treated as customary land for the purpose of the Act;
    6. A Consequential declaration that the Fifth Defendant’s felling licence numbered A1011101, in so far as it relied on the grant of profit given by the appellant (First Defendant) and the Registration of Saraei land is void and unlawful
    7. Permanent injunction restraining the appellant (First Defendant), this servants and/or agents from entering the Saraei land for the purposes of conducting logging operations and other related activities.
    8. That the appellant (Fourth defendant) and Sia Enterprises Ltd jointly and severally pay the following damages;
      1. USD 3,559, 191.45 being the total FOB value of sound logs exported after February 24, 2011.
      2. Damages to be assessed for total FOB value of round logs exported after February 24, 2011.
      1. Environment damages (to be assessed, and
      1. Exemplary damages (to be assessed).
    9. Costs, and such further or other relief as the court thinks fit.
    10. The Respondents filed their defences denying the claim and also denied that the First Respondent is entitled to the relief sought in the claim.

III. (B). Related Interlocutory matters and orders connecting the claim

  1. The judicial review claim was filed in the Court on 23 May 2012. While the claim was pending for hearing and determination, applications including interlocutory applications were filed and the learned Judge dealt with them respectfully.
  2. The first application was an application filed by the Appellant (Lise Duko) asking the Court to strike out the claim as it disclosed no cause of action as there was no appeal in the Central Magistrates Court and the judicial review claim is an abuse of court process. In his ruling dated 6 June 2013, the judge dismissed the application.
  3. On 11 April 2014, on the application of the First Respondent, the learned Judge issued restraining orders against the appellant, his servants and agents from felling trees and or conducted any development on the Saraei land, to remove their machines or equipment out of Saraei land and order the applicant and the Respondent company to provides the Court with accounts of the logging activities with supporting evidence.

IV. Ruling on delay and Judgment appealed from

  1. Requirements of Rule 15.3 18 of Civil Procedure Rules
  2. We noted that on the requirements of Rule 15.3.18 of the Rules, the learned Judge stated in his ruling of 9th October 2014 and in his judgment under appeal that, except for Rule 15.3.18 (c) (of no undue delay), the requirements of Rule 15.3.18 (a) – (the claimant has an arguable case, and (b)-(the claimant is directly affected by the subject matters of the claim, and (d)-( whether there is no other remedy to resolve the claim fully and directly) have been satisfied by the first Respondent (claimant) as Counsel and parties agreed on these. The delay aspect is to the only point that had to be decided.
    1. Was there not undue delay on the facts?
  3. The learned Judge dealt with the issue of delay or undue delay specifically and separately from other requirements of Rule 15.3.18 9 (a) (b) and (c). He made a separate ruling on the issue of delay on 9th October 2014.
  4. He raised the issue and argument in the High Court as to whether by filing the claim on 7th October 2010, nineteen and half months (19 ½ months) after the Chief Magistrate decided that there was no appeal left, a delay in the sense which Rule 15.3.18 and in particular sub-rule (c) militates against. The Rule specifically states that any claim for judicial review must be filed within six months (R15.3.8).
  5. He questioned whether a delay of nineteen and half months (19 and 1/2 months) before filing the claim amounted to undue delay? He conceded it was late. But to decide whether the delay is reasonable, unreasonable, undue delay or inordinate delay considerations must be given to facts rooted from the appellant’s (claimant) appeal to the Magistrates’ Court from the Acquisition Officer’s determination.
  6. He recognised there was a delay but he was concerned that the Chief Magistrate as Chief administrator of the Magistrates Courts having acknowledged receipt of the appellant’s appeal, should have checked whether an appeal fee was paid.
  7. He then considered Rule 15.3.9 which states that the court may extend the time within or outside of the prescribed period for making a claim if it is satisfied that substantial justice requires it. He concluded that to refuse to hear the claim and strike it out at this stage on the ground of delay alone, is substantial injustice to the claimant.
  8. He was satisfied the Respondent (Claimant) had fulfilled the requirements under Rule 15.3.18. The case should proceed to the next stage with the hearing of the claim. The learned Judge concluded, there was no undue delay.
  9. The learned Judge heard the claim and issued his judgment on 14th July 2017 in favour of the Respondent.
  10. The learned Judge started his view and considerations with section 77(1) of the Constitution when he noted that that section confers both power and jurisdiction upon the High Court to perform its judicial authority to supervise procedures and decision made by lower courts, tribunals and other arms of government. Following cases on the principal issue similar to these before him which outline that non-payment of appeal fee within the prescribed period renders an appeal defective, were put before the learned Judge: Patatoa v Talauai [1983] SBHC13; Joshua v Valahoana [2014]SBCA8; and Attorney General v Maui [2016] SBCA4.
  11. The learned judge stated that these case authorities form the basis upon which the Appellants (Defendant) rely on to respond to the claim. He stated there is no doubt in his mind that is the current law in this jurisdiction.
  12. He then exercised his discretion to permit the Respondent (Claimant) to complete paying his appeal fees and direct the Magistrates Court to set the appeal of the respondent (claimant) for hearing. He then made the following orders:
  13. The judgment of the learned judge and orders made on 14 July 2017 are then appealed to this court on the grounds set thereunder.

V. Grounds of Appeal

  1. The appellant filed seven (7) grounds of appeal against the judgment of the High Court dated 14 July 2017 as being null and void. Quashing orders were sought in lieu on the basis of the grounds set out below that:
    1. The Learned judge erred in his decision in allowing extension of time for the Respondent to pay the appeal fee in connection with his letter of appeal against the acquisition officer’s determination dated 19th December 2009.
    2. The learned judge erred in his judgment in side-stepping the legal position in Solomon Islands on the mandatory requirements for payment of appeal fess within the statutory time period. The principle of non-payment of feed established in Patatoa v Talauai [1983] SBHC 13, and Joshua v Valahoana is established law, that there is no appeal within the 3 Months period if no appeal fee is paid on the appeal.
    3. The Learned judge erred in his judgment in exercising his discretion to allow for the payment of the appeal fee considering that on four (4) occasions the Respondent was late in processing his claims namely; (i) omitting to pay the appeal fee at the Magistrate Court within the required time period; (ii) omitting to file an application at the Magistrates Court seeking extension of time to file his appeal or to pay the appeal fee; (iii) omitting to file an appeal against the Magistrate’s decision within the 3 months period allowable under part 5 of the Land and Titles Act Chapter 133 (amended) to file an appeal to the High Court and, (iv) late or overdue by 19 1/2 months in bringing his claim under a judicial review proceedings (Rule 15.3.8 of the SI Civil Procedure Rules 2007).
    4. The Learned judge erred in allowing the Claim in High Court Civil case 163 of 2012 proceed as a judicial review case considering that the claim filed was in connection with the determination of the Magistrates Court on a land acquisition proceedings governed by part V of the provisions of the Land and Titles Act (Chapter 133), as amended sets out the statutory requirements in which an aggrieved party may challenge the determination of an acquisition officer or an order or decision of the Magistrate Court.
    5. The learned judge omitted to consider the relevant statuary provisions in the Land and Titles act (Chapter 133, as amended) that the proper process to challenge a Magistrates order or decision in a land acquisition proceedings is by way of an appeal to the High Court within or by 3 Months statutory time period required to file an appeal to the High Court. By this omission, and in contravening and in breach of the statutory requirements the learned judge erred in allowing the Claim to proceed under Rule 15.3.8 of the SI (CPR) 2007.
    6. The learned judge erred in allowing for the Claim in the High Court Civil case no. 163 of 2012 to proceed and be entertained under the auspices of a judicial review proceeding after 19 1/2 months overdue under the required statutory process for an appeal from the Magistrates Court to the High Court in any acquisition proceedings amounts to an abuse of the court process.
    7. The learned judge erred in his judgment in discussing the substantial issues in connection with the acquisition process and the Respondent’s letter of complaint/appeal against the acquisition process and determination.
  2. On appeal, the appellant seeks the following orders:
    1. Declaration that the Claim in HCC No. 163 of 2012 was wrongly brought under rule 15.3.8 of the SI (CPR) 2007.
    2. An order dismissing the proceedings and judgment in HCC NO 163 of 2012.
    3. Dismiss Court Order No. 1,2,4,6 and 7 in the judgment in HCC No. 163 of 2012 delivered on 14th July 2017.
    4. Costs in favour of the Appellant.

Discussions on appeal

  1. We say from the outset that the notice of appeal relates to the judgment and orders of the High Court issued on 14th July 2017.
  2. We note also that grounds 3, 5 and 6 of the appeal are challenging the findings and decision of the Judge on the issue of delay (as overdue), although it is not specifically appealed against. We consider the issue of undue delay is part of the main consideration of the claim in the High Court which is the subject of this appeal and we consider and deal with it as such.
  3. We say, from the outset, that Order 1 of the Judgment of the High Court of 14 July 2017 that “Order that the claimant paid his appeal fee within 2 weeks from the date of this judgment” is the principal and only order under challenge in this appeal.
  4. It is extraordinarily surprising to see how Judicial Review mechanism was used in this case before the High Court and the judge seems to entertain that approach.
  5. We return to the grounds of the appeal. As they are all directly interrelated and directed against Order 1 of 14 July 2017 and related findings and reasoning of the Judge on 9 October 2014 and in particular on the issue of undue delay, we consider that it is appropriate that all grounds of appeal are joint and considered together.
  6. We consider first whether the Learned Judge’s finding and conclusion that there was not undue delay in the situation of the Respondent from the decision of the Chief Magistrate on 7 October 2010 to the filing of the claim in the High Court on 23 May 2012 was correct.
  7. The effect of the letter of the Chief Magistrate of 7 October 2010 is that there was no appeal after 3 months period as prescribed under Part V of the Land and Titles (amendment) Act (Chap.133).
  8. Mr. Hapa informed the Court when he was asked as to the reason why the Respondent filed the judicial review claim on 23 May 2012 in the High court was that he received instruction in 2012 and had considered all options and the only option is to file a claim for judicial review in the High Court, knowing that 19 months and half time delay had passed since the letter from the magistrates court.
  9. Rule 15.3.18 (c) is the starting point that the claim must be filed within 6 months from the impugned decision. The claim was filed on 23 May 2012. There was a delay of more than19 months when the claim was filed.
  10. We consider that it was an undue delay. The learned Judge should have stopped the case there and then. He was in error when he continued with the judicial review claim despite the clear provision of the rule (Rule 15.3.8). This error was exemplified when knowing the rule, the case authorities on the point (as he explained in detail in his judgment under appeal), he side-stepped these case authorities, amongst others, the judgment of this Court in the case of Joshua v Valahoana [2014] SBCA 8 where the Court of Appeal held: “...the question arises as at that time no appeal hearing fee had been paid. It is now recognised that an appeal........is not effective until all conditions precedent are complied with, one which is payment of the prescribed fee”.
  11. The court cannot permit its own individual view of justice to intrude on the duty of any court to do justice according to law.
  12. We need to stress that the payment of appeal fee is not just technicality of law or procedure, but an essential requirement for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subjection matter of the action, and the decision or final order sought to be appealed from be final and executory.
  13. We further emphasize that the right to appeal is not a natural right or part of due process. It is purely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law when the language of the statute is unambiguous. Well-rooted is the principle that perfection of an appeal within the statutory period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court of jurisdiction to act or the final judgment as there is no appeal matter to entertain the appeal.
  14. This is what is reflected in the case of Patatoa v Talauai [1983] SBHC 13 when the court stated (at paragraph 18):
  15. We consider that this is sufficient to dispose of this appeal. There is no need to consider any other points or grounds of appeal.

Result

  1. We allow the appeal. The orders of the High Court of the 14th July 2017 are set aside.
  2. The application of the Judicial Review is dismissed.
  3. The respondent shall pay the costs of the appellant in this court and in the Court below on the standard basis.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member

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