Kaupoi v Principal Magistrate (Malaita) [1985] SBHC 23; [1985-1986] SILR 95 (9 August 1985)

1985-1986 SILR 95

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 50 of 1985

KAUPOI

v

PRINCIPAL MAGISTRATE (MALAITA)

High Court of Solomon Islands
(Wood (C.J.)
Civil Case No. 50 of 1985

5 August 1985 at Honiara
Judgment 9 August 1985

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

Facts:

The applicant moved for an order of mandamus commanding the respondent in his capacity as Clerk to the CLAC (Malaita) to accept an appeal lodged by the applicant against a decision of the Local Court sitting at Ontong Java given on 23 October 1984.

On 26 November 1984 the applicant wrote to the Respondent saying she wished to appeal and enclosing $150 for appeal fees. This letter was received by the respondent’s Senior Clerk on 3 December 1984 but it was not brought to the attention of the respondent until 2 January 1985. On 4 January 1985 the respondent wrote to the applicant acknowledging receipt of her letter and requesting her grounds of appeal and an additional $110 for security for costs by 23 January 1985. The applicant, however, did not receive that letter until 15 February 1985. She duly replied on 17 February 1985, but on 22 February 1985 the respondent informed her she was out of time.

The applicant’s grounds for relief were that, inter alia,

(1) the applicant’s letter of 26 November 1984, together with the payment of $150 for fees, constituted a valid appeal notwithstanding the absence of detailed grounds of appeal; and

(2) alternatively, any delays in submitting grounds for appeal were attributable to lack of shipping and inaction by the staff of the respondent.

Held:

1. Submission of grounds of appeal is not necessary to constitute a valid appeal from a decision of a Local Court to a Customary Land Appeal Court under s.231B(1) of the Land and Titles Act as is the case for an appeal from a CLAC to the High Court under s.231B(3) thereof. (Seselono v. Kikiolo (1982) SILR 15 distinguished). (Katovai v. Lumukana (1984) SILR 9 followed).

2. In bringing an appeal to a Customary Land Appeal Court the only relevant fee that must be paid within the three months time for appeal is the appeal fee; the payment of security for costs is not relevant to the three months prescription. (Patatoa v. Talauai (1983) SILR 112 followed).

3. Accordingly, the applicant was well within the three months time period when her letter dated 26 November 1984 giving notice of appeal and paying her appeal fee was received by the respondent on 3 December 1984.

Accordingly, the motion succeeded and the order was issued.

4. Obiter - It would surely have been most inequitable and unjust for the applicant to suffer because for nearly half the total time for appeal her notice of appeal lay dormant in the respondent’s office and was not dealt with promptly when it first arrived.

Cases considered:

Seselono v. Kikiolo (1982) SILR 15
Katovai v. Lumukana (1984) SILR 9
Patatoa v. Talauai (1983) SILR 112

Andrew Radclyffe for the Applicant
Paul Keyumi for Wilson Malama

Wood CJ: This is a motion pursuant to leave granted by this Court for an order of mandamus to command the Principal Magistrate (Malaita) in his capacity as Clerk to the Customary Land Appeal Court (Malaita) to accept an appeal lodged by the applicant against the decision of the Local Court sitting at Ontong Java given on October 23, 1984 concerning Halemarae Household and to process the said appeal.

The facts as they appear from the affidavits and correspondence filed in this case are as follows. On October 23, 1984 the Local Court at Ontong Java made a decision in a land case in favour of Mr Wilson Malama and against the applicant. The applicant was told that she could appeal to the Customary Land Appeal Court (Malaita) within three months by the Court and she indicated to the Clerk that she wished to do so. The Local Court Clerk Mr Edwin Akaa told her to wait until a copy of the court record and decision were available. She never received such record or decision in writing until April 1985 but it is accepted that time began to run as from October 23, 1984 for the purposes of s.231B(1) of the Land and Titles Act Cap. 93. On November 26, 1984 in any event she wrote to the respondent stating that she wished to appeal and enclosed $150 for the appeal court fees. In her letter she stated the following:-

"My name is Mrs Kaupoi of Luaniua village Ontong Java atoll.

Refer to Luaniua Local Court Civil Case No. 2/84 held at Luaniua village Ontong Java between myself and W. Malama.

I do wish to make an appeal through Customary Land Appeal section Malaita for my case.

..................

I enclose this letter with my appealing fee the sum of $150 ..........

Finally will you keep me informed if there is anything required before this case is heard."

This letter together with the $150 was received by the respondent’s Senior Clerk on December 3, 1984 but it was not brought to the attention of the respondent until January 2, 1985 because the Senior Clerk did not receive the court record from Ontong Java until the end of December 1984.

When the applicant’s letter was seen by the respondent he wrote to her on January 4, 1985 acknowledging receipt of the $150 and requesting her to send her grounds of appeal and a further sum of $110 (mainly security for costs) on or before Wednesday January 23, 1985. This letter was not received by the applicant in Ontong Java until February 15, 1985 and she replied to it on February 17, 1985 together with the $110 asked for. Her letter and money were sent by hand with the Area Council Clerk to Auki. The respondent replied on February 22, 1985 returning the applicant’s $110 and grounds of appeal stating that the appeal was outside the three month period prescribed by law. In deciding this course of action the learned clerk/magistrate no doubt had in mind the case of Seselono v. Kikiolo (1982) SILR 15 in which Daly C.J. at page 17 said the following:-

"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 time 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 on the terms of section 231B(3) of the Act which give 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."

The grounds for relief sought by the applicant from this Court are as follows:-

(1) that the respondent was wrong in rejecting the applicant’s appeal as being out of time in that the applicant’s letter dated November 26, 1984 and payment of $150 fees constituted a valid appeal notwithstanding the absence of detailed grounds of appeal;

(2) alternatively the Local Court Clerk in Ontong Java is the respondent’s agent for that purpose of receiving appeals and fees and that accordingly receipt by the Local Court Clerk for Ontong Java of the applicant’s appeal and fees constituted a valid appeal;

(3) alternatively any delay in submitting grounds for appeal and the fees was attributable to the staff at the Magistrates’ Court in Auki and/or to the lack of shipping from Ontong Java during the relevant appeal period, that being the only way of sending mail from Ontong Java.

In support of ground 1 of this motion Mr Radclyffe has submitted that this case is similar to Customary Land Appeal Case No. 10 of 1983 Katovai v. Lumukana which will be reported in the 1984 Law Reports. In Katovai’s case Daly CJ after citing the paragraphs I have quoted above from Seselono’s case went on to say at page 4 of his judgment:-

"But there is no such restriction of the jurisdiction of the CLAC; subsection 231B(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 in 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, how unattractive, deprived the CLAC of jurisdiction."

Applying this principle to the case before me it is not in issue that the applicant’s letter dated November 26, 1984 expressed in terms that she was appealing against a decision of the Luaniua Local Court made in favour of W. Malama in Civil Case No.2 of 1984 to the Customary Land Appeal Court Malaita. She also sent $150 for the Court fees. This notice of appeal together with the fees was received by the respondent well within the time limit of three months prescribed by s.231B (1) of the Land and Titles Act Cap. 93. The only further requirements made by the respondent to the applicant were for further fees and grounds of appeal. As far as fees are concerned the appellant had paid the correct filing fees of $100 plus $50 extra in her first letter and the extra fees required were $60 for copying charges and $100 security for costs.

In Patatoa v. Talauai (1983) SILR 112 Daly C.J. held that failure to pay the appeal fee on appeal from the Local Court to the CLAC within the three month period prevented the appeal from being duly brought. In this, case however the appeal fee of $100 was paid in full. The later payment of the costs is not relevant to the three month prescription.

In my judgment ground 1 of this motion must succeed as the applicant was within the provisions of s.231B(1) of the Land and Titles Act Cap. 93 when her letter dated November 26, 1984 and her appeal fee was received by the respondent on December 3, 1984. Mr Keyumi’s submissions on the facts were not pertinent to the questions of law raised by Mr Radclyffe in ground 1 of this motion.

There is accordingly no need for me to consider grounds 2 and 3 of this motion. I would only like to add that it would appear that apart from problems of shipping, distance and lack of airmail post it would surely be most inequitable and unjust for the applicant to suffer because for nearly half the total time for appeal her notice of appeal lay dormant in the clerk’s office at Auki and was not promptly dealt with when it first arrived.

An order for mandamus will issue commanding the respondent to accept and process the appeal lodged by the applicant against the decision of the Local Court at Ontong Java given on October 23, 1984 concerning Halemarae Household. I so order.