Kalesoa's Application [1983] SBHC 14; [1983] SILR 174 (5 July 1983)

[1983] SILR 174

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 56 of 1983

KALESOA's APPLICATION

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 56 of 1983

5th July 1983

Practice - judicial review - time limits for application for certiorari.

Facts:

On 25th September 1982 the Savo Local Court gave Judgment in a customary land case. On 24th June 1983 an application was filed in the High Court for leave to proceed for an order of certiorari to quash the judgment. Allegations were made as to the due appointment of the clerk to the Court.

Held:

The court has a discretion in the matter and consideration should be given to the fact that section 231B(1) of the Land and Titles Act gives a right of appeal which expired on 29th December 1982 and which was not exercised. Further, Order 61 rule 3 provides that leave shall not be granted unless it is made within six months of the proceeding and, although there is power to do so, this period should only be extended if the Applicant made out a strong case. On the facts a strong case had not been made out for an extension to allow proceedings to be brought outside that period.

For Applicant: A. Radclyffe.

Daly CJ: In this case an ex parte application was made in Chambers on the 29th June 1983 for leave to issue proceedings seeking an order for certiorari to bring up and quash a decision of a local court. As this is the first such application the Court has considered in relation to a court hearing a customary land matter, the case has been adjourned to open court for judgment.

The application is made in relation to a judgment of Savo Island Local Court given on 25th September, 1982. The judgment was given in relation to customary land. The affidavits in support rely on two matters. First it is said that the Court was not properly constituted as the record was not kept by a duly appointed clerk. Second, it is said that the person who signed the record as clerk and translate the record into English (although he did not make the original record) was personally interested in the matter before the court and therefore there was a breach of the rules of natural justice; presumably the rule as to impartiality of tribunal.

Section 231B (1) of the Land and Titles Act gives an unlimited appeal from a local court in exercise of its jurisdiction in relation to customary land to a customary land appeal court. However such right must be exercised within three months. It follows that the applicant could have appealed to such a court on or before 29th December, 1982, (allowing for public holidays). He did not do so due, as his affidavit reveals, to a failure on the part of the person to whom he entrusted the task of filing the appeal.

Failure to appeal does not exclude the right to apply by way of prerogative order. It is however relevant to the question of the discretion which the court undoubtedly possesses whether or not to grant leave to pursue such a remedy. Another factor of relevance is the delay in bringing the application. This factor is partly enshrined in the High Court (Civil Procedure) Rules, 1964. Order 61 rule 3 provides: -

“3. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”

The Court has general power under Order 64 rule 5 to enlarge the time so provided. However the purpose of the time limit in Order 61 rule 3, as I see it, is to provide a degree of certainty in court proceedings so that parties may regulate their affairs on the basis that, if no proceedings are brought within six months, no proceedings are likely to be permitted.

When, as in this case, the possibility of appeal is restricted to a three month period by statute with no power to extend, then there is an even stronger case for regarding the six month time limit contained in Order 61 rule 3 as something more than advisory. In my judgment, an applicant must make out a strong case for an extension of the time specified in the rule. I should add that I regard Order 61 rule 3 as containing the extreme limits of the period within which the application must be brought; there maybe a case for saying that an application brought within that period might still be regarded as delayed so as to give the court concern as to whether it should exercise its discretion in such an instance. But that would depend on the facts of the case.

In the present case judgment was given in the Local Court on 25th September 1982. These proceedings were filed on 24th June 1983; that is nine months later. The enlargement of time is sought on the basis that “the court record has only recently become available for inspection.” It is said that the Clerk of the Court was asked six times by the applicant’s party to produce the record but failed to do so. Other matters were raised by counsel but as they were matters of fact unsupported by affidavit the Court cannot take cognizance of them. The prerogative order of certiorari of itself involves an order removing the proceedings into this court, so failure to produce a record of those proceedings is not fatal to the application. No evidence was before the court that any steps other than requests were made to force the clerk to produce a record. In all the circumstances, I do not consider that a strong case has been made out for I this court to enlarge the time limit imposed by Order 61 rule 3 and do not enlarge it. It follows that this application is out of time and must, as I indicated in Chambers, be dismissed.