Seselono v Kikiolo [1982] SBHC 9; [1982] SILR 15 (8 January 1982)

1982 SILR 15

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No. 25 of 1981

SESELONO

v

KIKIOLO

High Court of Solomon Islands
(Daly C.J.)
Customary Land Appeal Case No.25 of 1981

8th January 1982

Customary Land - appeal to High Court - time limit for appeal - ineffective grounds filed within limit - effective grounds filed outside limit - whether jurisdiction to hear appeal - Section 231B (3) Land and Titles Act.

Facts:

The Appellant sought to appeal to the High Court against a decision of the Malaita Customary Land Appeal Court. Within three months of the decision he filed grounds of appeal which did not allege that the decision was erroneous in law or there was a procedural failure. The Registrar of the High Court struck out all the grounds of appeal. The Appellant thereupon outside the three months filed further grounds of appeal alleging procedural failures:

Held:

Section 231B (3) of the Land and Titles Act which created the jurisdiction required, first, that the appeal must be brought within three months and second, that the appeal must be on the basis that the decision was erroneous in law or that there was a procedural failure. An appeal filed within three months which did not allege such error or failure did not give the court jurisdiction and therefore was a nullity. The filing of grounds of appeal alleging such error or failure outside the three months could not give the court jurisdiction.

Appeal struck out for want of jurisdiction.

Appellant in person.
Respondent in person.

Daly C.J.: In this case the appellant (Joseph SESELONO) and the father of the present Respondent (Ezekiel KIKIOLO) went to the Local Court at LUANIUA on 18th Oct. 1979 about land known as KUAHARE land in Ontong Java. The Local Court held that the Appellant had the power to control the land.

The Respondent, acting for his father who was ill, appealed to the Malaita Customary Land Appeal Court. The Customary Land Appeal Court gave judgment on 27th September 1980 allowing the appeal and deciding that the father of the Respondent Shadrack ALAU was the custodian of the land. Having read the records of those two courts it is quite clear that the decisions turned entirely on questions of fact and custom.

On 24th December 1980 appeal points were filed seeking to appeal against that decision to this court. Those appeal points are short and read as follows:

"1. The land we both arguing was not belongs to the descended of the person called Manuhea the father of Alua and Kekupa.

2. Akua was the strong and braved man, whom he had destroy all evil spirits and customary ways. He had claimed the land for his sons and daughters and grandsons and granddaughters.

3. I am not really believed or even satisfied that S. Alua was from the descend of the heathen priest (Akua).

4. Akua was the heathen priest and Kekupa was not seen in Family tree, attached with the letter."

The jurisdiction of this court to hear an appeal against a decision of a Customary Land Appeal Court is limited by Section 231B (3) of the Land and Titles Act (‘the Act’) which creates that jurisdiction reads:-

"(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."

It will be observed that none of the grounds of appeal filed on 24th December 1980 contained any ground claiming that the decision of the Malaita Customary Land Appeal Court was erroneous in law (not being a point of customary law) or that there had been a failure to comply with the procedural requirements of any written law.

In those circumstances the Registrar of the High Court struck out all the grounds of appeal under Order 60A Rule 2 (2) of the High Court (Civil Procedure) Rules 1964 on the 6th Oct 1981.

On receipt of notice of this striking out, the appellant, on the 13th November 1981, filed five new grounds of appeal some of which are difficult to understand but others of which complain about procedural failures (although it is not clear by which court).

The Appellant appears today to show cause why his appeal should not be struck out altogether. He accepts that the grounds of appeal filed or 24th December 1980 contain no point as defined in section 231B (3) of the Act but asks that the appeal be allowed to proceed on the basis of the grounds filed on 13th November 1981. The Respondent objects. His argument is that these grounds were filed well outside the time provided by section 231B (3) of the Act.

I have already read the terms of that subsection. There are two limitations in that subsection. First, that an appeal must be brought within three months from the date of the order or decision of the Customary Land Appeal Court. Second, that the appeal must be on the basis that the order or decision was erroneous in law or that there was a failure to comply with a procedural requirement of a written law. It will be noted that there is no provision in the Act giving this court discretion to extend the limit so specified.

To be a valid appeal then the appeal must comply with both these limitations. In other words to give this court jurisdiction an appeal must be commenced within the three months and this appeal must show that there is a matter raised which gives this court jurisdiction to hear the appeal. If there is no such matter raised within the three months then at the end of that period there is no valid appeal before the court. There is nothing that the court can properly consider as it is only the terms of section 231B (3) of the Act which gives the court jurisdiction.

If there is nothing that is lawfully justiciable before the court at the end of the three month period then no act by anyone thereafter can cure the matter as that act would constitute bringing an appeal outside the period of limitation.

In this case, then, at the end of the three months period there were no grounds of appeal filed which gave this court jurisdiction and therefore there was nothing before the court for the court to consider. In effect the appellant endeavoured to start a new appeal on 13th November 1981 by filing grounds within the subsection. As this is clearly out of time then that act fails too to give the court jurisdiction. I therefore have no alternative but to uphold the decision of the Registrar to strike out all the grounds filed within the three months and therefore to strike out the appeal for want of jurisdiction.

I should add that it was suggested that this appellant was not aware that he was restricted to appealing only on points of law. But the record shows that this was explained to him when judgment was given in the Customary Land Appeal Court. It is also suggested that he did not know the difference between points of law and fact. However as I have indicated this could at best be a matter to take into consideration upon exercise of discretion to extend the time for filing valid grounds of appeal. As the Act does not give such discretion to the court it is not a matter which it is open to me to consider.

Order Appeal struck out for want of jurisdiction.