Vunagi v Palmer [2019] SBCA 2; SICOA-CAC 11 of 2018 (12 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Vunagi v Palmer
Citation:
Decision date:	12 April 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona; PJ)
Court File Number(s):	CAC 11 of 2018
Parties:	Johnson Vunagi v John Palmer
Hearing date(s):	8 April 2019
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Goldsbrough P Ward JA Wilson JA
Representation:	Mr. T Matthews QC instructed by Mr. Rano for the Appellant Mr. J Taupongi for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, Local Court Act,s12,23 and 14, Civil Procedure Rule, Interpretation and General Provisions Act
Cases cited:	Anisminic Ltd v Foreign Compensation Commission, O’Reilly v Mackman
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-11

JUDGMENT OF THE COURT

1. This is an appeal brought against a decision of the High Court exercising jurisdiction under the Land and Titles Act [Cap 133] (LTA). The matter began (at least for the purposes of this appeal) in the Isabel Local Court in 2008 and from there progressed to the Isabel Customary Land Appeal Court (ICLAC).
2. ICLAC confirmed the decision of the Isabel Local Court in a decision published on 5 August 2013. That decision was the subject of an appeal to the High Court commenced in September 2013 but was heard on the basis of an amended notice of appeal filed 7 February 2017. The original notice of appeal set out six grounds of appeal. The amended notice of appeal included seven grounds of appeal, the additional ground seeking to address the question of minutes and related records.
3. In the decision of the High Court, all of the original six grounds of appeal were dismissed. There is no appeal against that part of the decision. The introduced ground of appeal was successful.

Legislative provisions

4. It is provided in LTA that:-
   • Jurisdiction of High Court
   • 257, (1) Except as expressly provided in this Act, the High Court shall have exclusive jurisdiction in all matters and proceedings of a civil nature arising under this Act or involving its interpretation.
   • (2) If in any matter or proceeding before any court, person, body or tribunal, other than a local court exercising its jurisdiction under section 254, the matter or proceeding cannot be determined without deciding a question involving the interpretation of this Act, that court, person, body or tribunal may, and if requested by any party to the matter or proceeding shall, state the question in the form of a case for determination by the High Court and adjourn the matter or proceeding until the question shall have been determined.
   • (3) Except where otherwise expressly provided, a decision, whether given in an original proceeding or on appeal, of the High Court given in any matter or proceeding arising under this Act or involving its interpretation, shall, subject to the provisions of subsection (4), be final and conclusive and not subject to any appeal.
   • (4) Any person aggrieved by any such decision as is referred to in subsection (3), may, within three months after the issue of the decision, appeal to the Court of Appeal, if, and only if
   • (a) the decision was not given by the Court in exercise of its jurisdiction under sections 19, 57, 66, 115(6) or 140(2); and
   • (b) some question other than a question of fact is raised by the appeal; and
   • (c) the person aggrieved obtains leave to appeal either from the High Court or from the Court of Appeal.
5. It is also provided that:-
   • Jurisdiction of local courts
   • 254 , (1) A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than;
   • (a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and
   • (b) any matter or proceeding involving a determination whether any land is or is not customary land.
   • (2) A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act. 18 of 1972, s.16
   • (3) The decision of a local court given in exercise of its jurisdiction under this section shall be final and conclusive, and shall not be questioned in any proceedings whatsoever save an appeal under section 256.
   • Appeals to and from customary land appeal courts
   • 256., (1) Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 254 or section 13(d) or (e) of the Local Courts Act may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.
   • (2) On any appeal to it under subsection (1) a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just.
   • (3) Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law.
   • (4) Any order or decision of the High Court, and, subject to subsection (3), of a customary land appeal court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever.

Preliminary matters

6. Preliminary matters raised are whether any appeal lies to this Court under LTA and, if so, whether this particular appeal was brought within time. Section 257 of LTA is prayed in aid by the Appellant. Section 256 is relied upon by the Respondent
7. From a factual perspective the notice of appeal against the decision of the High Court was filed on 27 April 2018, the decision having been handed down on 23 March 2018. The only evidence before this Court on that point is found in the affidavit sworn and filed by the legal practitioner for the Appellant on 3 October 2018.
8. In an affidavit of 3 October 2018, a legal practitioner for the Appellant sets out why, in his view, the appeal was filed within time, based inter alia on reliance upon intervening Public Holidays. That is not permissible under rules applicable to proceedings in the Court of Appeal, even if it may be under the rules applicable in the High Court. Public holidays are only to be taken into account in the Court of Appeal in accordance with the computation of time provisions in the Interpretation and General Provisions Act [Cap 85]. Different provision is made in the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) which apply to the High Court and the Magistrates’ Court. Perhaps it is time for the two sets of rules to be brought into harmony.
9. The same affidavit contains a statement that leave under s257 LTA is not necessary. Whilst it would be correct to assert that leave to appeal out of time would not be necessary, given that the appeal must be filed within three months of the decision, leave to bring the appeal is still necessary s257(4)(c).
10. Whilst there is generous provision to exclude Easter from computation of time under the CPR no equivalent provision exists under the Court of Appeal Rules (COAR). Nor does an excluded day falling within a thirty-day appeal period under Cap 85 assist. At best this notice of appeal was filed at least one day after a thirty-day period expired. We will now turn to the effect, if any, that this has on this appeal.
11. If we are to treat this appeal as an appeal brought under s257 (3) it was filed well within the three-month limit, but leave, until now, to bring the appeal was never sought. It is now beyond the three-month limit. This Court has previously allowed leave to be sought and obtained outside of that three-month period.^[1]
12. Submissions came from the Appellant, in the alternative, that this appeal falls under s256 as a decision made without jurisdiction and thus the ouster clause of s256 (4) was not effective.
13. Section 257 LTA provides for all matters and proceedings of a civil nature arising under the Act or involving its interpretation to be determined exclusively by the High Court except where express provision is made in the Act. Such an express provision can be found in section 254 and again in section 256. Both of those sections give jurisdiction to other tribunals to hear and determine customary land disputes or appeals from such determinations. Commencing with the Local Court a matter can progress to a Customary Appeal Court. Both section 254 and 256 contain finality provisions, albeit differently expressed.
14. Section 256 (4) is limited to decisions given in the exercise of jurisdiction given by the section itself. When that decision is given other than in the exercise of that jurisdiction, the subsection has no application and the provisions of section 257 may be brought into play. This will be the case when it is said that the decision is based on an erroneous view of law which should not be permitted to pass without further scrutiny.
15. In other areas of law, the Court has previously determined that the principles flowing from the line of authorities starting with Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 A C 147 apply in this jurisdiction^[2]. The effect of Anisminic is best described for the purposes of this appeal through the words of Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; [1983] 2 A C 237 at 278 as:-
    • “The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported 'determination', not being a 'determination' within the meaning of the empowering legislation, was accordingly a nullity."
16. The mistake of law raised on this appeal as a question, as discussed later in this judgment, is the notion that the law requires the taking of minutes during CLAC proceedings under s256.
17. Whilst this Court is satisfied that the appeal is properly before us under section 257, as opposed to s256, leave is required before it may proceed. That leave has not been sought until now. Having heard submissions on the question of leave, we determine that leave should be and is therefore granted to bring this appeal nunc pro tunc.

The sole question on this appeal

18. The Notice of Appeal, as amended, included the additional ground:-
    • “The ICLAC erred in law and/or procedure in failing to take minutes of its hearing of the appeal from the Local Court, or in failing to ensure that such minutes and related records are maintained and made available to parties for the purpose of appeal, and in so failing, caused serious prejudice to the Appellant’s appeal which, in turn, will result in a miscarriage of justice:”
19. Whilst in the High Court it was submitted that it would be impossible to prosecute the appeal, that submission clearly did not find favour with the judge given that he went on to discuss and make findings on each of the six grounds. He was not asked to determine, as a preliminary matter, whether the appeal should be determined on the sole ground of lack of minutes. Faced as he was with the lack of minutes, the learned judge at first instance nevertheless considered he had sufficient material available to him to make determinations on each of the six other questions raised on the appeal. We regard it of some significance that there is no complaint brought on this appeal by the Respondent seeking to challenge those findings.
20. In the course of his judgment, the learned judge notes that the power to make rules of procedure is set out in section 260 LTA. Those powers, in relation to courts and tribunals, are expressed to be exercisable by the Minister after consultation with the Chief Justice. He further notes that no rule of procedure has been made thereunder relating to the taking of minutes of proceeding on an appeal such as this. He notes that the matter may have previously been prescribed under rules now repealed, and looks to the present CPR for an alternative.
21. In that regard he turned to Chapter 16 CPR dealing with appeals and, in particular, Rule 16.21 which prescribes the documents to be included in an appeal book by the Appellant. Those documents include:-
    • (a) a copy of the decision appealed from; and
    • (b) if the Magistrate's Court or tribunal has given written reasons for its decision a copy of the reasons; and
    • (c) any transcript, or notes, of the proceeding in the Magistrate's Court or tribunal;
22. In this case both category (a) and (b) were included in the appeal book. Nothing in category (c) was, even after extensive inquiry, made available to the appellant to include in the appeal materials.
23. It is this factual matrix which the court below considered and on which it based its determination.

Discussion

24. The Solomon Islands Court (Civil Procedure) Rules 2008 were made by the Rules Committee established under section 90 of the Constitution. There it is provided that the Rules Committee may make rules to regulate proceedings in the High Court and the Magistrates’ Court. The power to make rules regulating the practice and procedure of inferior courts and tribunals lies elsewhere.
25. The effect of the decision made on this appeal, given how it was expressed in the judgment, as being fatal to the appeal before the High Court, is, in our view, to elevate a proposed procedural rule into the status of a rule of law. It is noted within the judgment that the power to make the procedural rule rests with the Minister after consultation with the Chief Justice. It is further noted that a substantial period of time has passed without the Minister making any rules. Then, in the absence of rules made by the proper authority, the rule is deemed to exist by virtue of this High Court decision.
26. The flaw of logic appears to be that the rule requires only those minutes which actually exist and are available. This is indicated by the use of the adjective ‘any’ at the beginning of r16.21 (c). The effect of the rule is only a requirement that any minute which does exist and is available be included in the appeal material. It cannot, in our view, be extended to require the taking of the minute in the inferior court or tribunal. That, as the learned judge correctly points out, is a power available to the Minster after consultation with the Chief Justice.
27. It is a matter of regret that such a rule has not yet been made. Even so we do not consider that the High Court in exercising its power under section 256 is entitled to impose the rule in lieu of the proper authority. In our view that is the end of the matter, but it may be helpful to set out that which we feel may be available in similar cases whilst awaiting a decision of the relevant Minister.
28. One of the members of a CLAC will be a magistrate. The magistrates in this jurisdiction fall under the administrative responsibility of the Chief Magistrate. In administrative, as opposed to judicial matters, magistrates are guided by his or her advice. In a broader sense, all judicial officers fall under the administrative authority of the Chief Justice. A Practice Direction issued by either or both of these officers might be issued as a temporary measure awaiting a consultation between the Chief Justice and the Minister, which consultation we feel sure may be initiated by the Chief Justice and need not await any invitation from the relevant Minister.
29. That is not to say that the absence of minutes may, in some circumstances, render a decision of the CLAC invalid. This is not one of those cases, as the High Court demonstrated by considering and determining all the appeal points raised in the original notice of appeal. Had it been the case, as at one time submitted by the Appellant in this matter, that the absence of minutes made any appeal impossible, then a different decision, not such as made here turning a rule of procedure into a rule of law, but a decision unique to the facts of the particular appeal, that the absence of minutes rendered any potential appeal impossible, might be made.
30. To reach the conclusion we have, we turned to consider how each of the original grounds of appeal were dealt with in the High Court. In his reasoned judgment, the judge at first instance expressed no concern whilst dealing with the individual ground of appeal. He made the findings which he set out in his judgment for reasons which he also sets out. We find no fault in either his reasoning or findings on those grounds.
31. Given his unchallenged findings on every ground raised before him save the procedural point, we consider the reference back to the ICLAC unnecessary. The Local Court made its determination followed by the ICLAC confirming it. The High Court considered the substance of the appeal to it and agreed that the ICLAC had made proper findings, albeit without following, what it considered to be the, correct procedures in minute taking. The question then must be how many times must a court or tribunal consider the same material and make the same findings before a matter is finally concluded.

Decision

32. Having granted leave to appeal under s 257 (4), the appeal is allowed. The decision of the High Court is quashed. The appeal against the determination of the ICLAC of 5^th August 2013 is dismissed and that decision of the ICLAC confirmed. Costs of and incidental to this appeal together with costs of the appeal in the High Court are to be paid by the Respondent such costs to be agreed or assessed including certification for QC.

Goldsbrough P
Ward JA
Wilson JA

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^[1] SMMS v Axiom [2016] SBCA 1
^[2] Governor General v Mamaloni [1993] SBCA 1