Marina v Kinisita [1985] SBHC 15; [1985-1986] SILR 129 (10 December 1985)

1985-1986 SILR 129

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.6 of 1985

MARINA

v

KINISITA

High Court of Solomon Islands
(Wood C.J.)
Customary Land Appeal Case No.6 of 1985
Re Dau, Murumuru and Abarafi Land

3 December 1985 at Honiara
Judgment: 10 December 1985

Appeal from Local Court to Customary Land Appeal Court - time for - what constitutes valid appeal.

Facts:

The appellant appealed from a decision of the Malaita Customary Land Appeal Court declining to hear his appeal from the Local Court on the advice of the Clerk to the CLAC that the appellant was out of time for failing to file his grounds of appeal within ninety days of the Local Court decision. The decision of the Local Court was given on 2 February 1985 and the appellant appealed, paying all fees, costs and charges of the appeal in full by 12 April 1985. Four times the appellant asked for a copy of the Local Court record, but it was never supplied to him and at the hearing of the appeal on 16 May 1985 he was told that his appeal was time barred for failure to file his grounds of appeal.

Held:

1. As 231B(1) of the Land and Titles Act gives a general right of appeal from a decision of the Local Court to the Customary Land Appeal Court not restricted to specific grounds, the filing of grounds of appeal is not essential as is the case for an appeal from the Customary Land Appeal Court to the High Court made under s.231B(3) of the Act. (Seselono v. Kikiolo (1982) SILR 15 distinguished). (Katovai v. Lumukana (1984) SILR 9 followed).

2. Although no document was produced which can be said to be an appeal, the appellant paid all his fees, costs and charges of appeal within the ninety day appeal period and so complied with all the requirements for appeal of s.231B (1) of the Land and Titles Act.

Accordingly, the appeal was allowed and the Malaita Customary Land Appeal Court was ordered to process and hear the appeal on the merits.

3. Obiter - It is difficult to say the appellant should have filed grounds of appeal when he was never supplied the Court record (for which he paid) to help him prepare such grounds.

Cases considered:

Seselono v. Kikiolo (1982) SILR 15
Kaupoi v. Principal Magistrate (Malaita) (1985/86) SILR 95
Katovai v. Lumukana (1984) SILR 9

John Muria for the Appellant
The Respondent in person

Wood CJ: This is an appeal brought by the appellant under s.231B(3) of the Land and Titles Act Cap. 93 against the decision of the Customary Land Appeal Court, Malaita who declined to hear his appeal from the decision of the Local Court. At the hearing before the Customary Land Appeal Court the learned Clerk advised the Court that as the appellant had failed to file his grounds of appeal within 90 days he was accordingly out of time. He and the Court relied on the judgment of Daly CJ in the case of Seselono v. Kikiolo (1982) SILR 15 where he said at page 17-

“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.”

The facts in this case, as far as this appeal is concerned are not in dispute. The decision of the Local Court was given on February 2, 1985 and the appellant appealed against that decision to the Customary Land Appeal Court. On April 2, 1985 he paid $100 appeal fee, $150 security for costs and $70 part payment of the typing charges. The balance of the typing charges were paid on April 12, 1985. After paying all fees and charges he asked for a copy of the record but this was not available and in spite of four attempts to obtain the record he was never supplied with a copy. He was than called to the hearing of the appeal by radio service message on May 16, 1985 when he was, in short, told that his appeal could not proceed because he had failed to file his grounds of appeal.

As I explained in my recent judgment in the case of Kaupoi v. Principal Magistrate (Malaita) Civil Case No. 50 of 1985 Daly CJ distinguished his judgment in Seselono in the case of Katovai v. Lumukana (1984) SILR 9. In Seselono’s case the matter was an appeal to the High Court under s.231B(3) of the Land and Titles Act whereas in this case and Katovai’s case they were appeals from the Local Court to the Customary Land Appeal Court under s.231B(1) of the Land and Titles Act. The different principles which apply to these two sub sections was clearly put by Daly CJ in his judgment in Katovai’s case at page 14 in the Law Report as follows-

“But there is no such restriction on the jurisdiction of the CLAC; subsection 231(B)(1) enables an aggrieved. person to “appeal” and, in the absence of restrictive words, that appeal can be on any basis. Thus to apply Seselono to an appeal from a Local Court to the CLAC is to put restrictions in the wording of subsection 231B(1) which do not exist. In the absence of rules, in my judgment, a document which expresses in terms that it is an appeal against a specified decision, even without detailed grounds, is sufficient to invoke the jurisdiction created by subsection 231B(1). No doubt on receipt of such a document the appropriate court officer would require detailed grounds to be filed so that both the Court and the respondent would have notice of the points to be presented and, in the case of the respondent, an opportunity to meet those points. An appellant who provides inadequate details of his grounds of appeal or prefers to leave them vague relying on the wide jurisdiction granted by subsection 231B(1) will be at risk as to costs even if he succeeds. But it would in my judgment, be going too far to say that such a course of conduct, however unattractive, deprived the CLAC of jurisdiction.”

In the instant case although no actual document has been produced which can be said to be an appeal the appellant obviously did appeal or his case would not have been called on for hearing on May 16, 1985. Furthermore the appellant has produced four receipts showing that he has paid a total of $425 for his appeal fee, security for costs and typing charges within the three month period allowed for his appeal. All the requirements for an appeal in terms of section 231B(1) had been complied with by the appellant and following the judgment of Daly CJ in Katovai’s case the filing of grounds for this appeal were not essential. It is indeed difficult to say he should have filed grounds of appeal when he has shown that he was never supplied with a typed record (for which he had paid) to assist him in preparing such grounds.

I would accordingly allow this appeal and order the Customary Land Appeal Court (Malaita) to process and hear the appeal of the appellant on the merits according to law.