Regina v Customary Land Appeal Court (Western) ex parte Ulekesa [1990] SBHC 105; [1990] SILR 197 (5 October 1990)

[1990] SILR 197

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 268 of 1989

REGINA

v

CUSTOMARY LAND APPEAL COURT (WESTERN) EX PARTE ULEKESA

High Court of Solomon Islands
Ward CJ
Civil Case No 268 of 1989

Hearing: 19 June 1990 at Gizo
Judgment: 5 October 1990

Customary Land Appeal Court - certiorari - refusal to allow notice of appeal out of time - whether appeal lodged in time.

Facts:

On 26 May 1989 the Choiseul Area Council issued a certificate under section 5C of the Forest Resources and Timber Utilisation Act, based on a decision made the previous day. The applicant sent a letter appealing from that decision with the appropriate appeal fee of $100 to the Principal Magistrate (Western) by registered mail on 20 June 1989. The letter of appeal was received by the Principal Magistrate on 26 June 1989 and the appeal fee was receipted on 28 June 1989. On 6 November 1989 the Customary Land Appeal Court ("CLAC") (Western) decided that the appeal was out of time. The applicant applied for an order of certiorari to remove and quash the CLAC's decision.

Held:

The appeal period was one month from the date of issue of the certificate on 26 May 1989 and that period started to run as from 27 May 1989. Consequently the appeal letter received on 26 June 1989 together with the appeal fee were received in time.

Cases referred to:

None

Legislation referred to:

Forest Resources and Timber Utilisation Act 1977, sections 5C and 5D(l) (now Forest Resources and Timber Utilisation Act Cap 40)

Forest and Timbers Appeal Regulations 1985, regulation 3 High Court (Civil Procedure) Rules 1964, 0.61 r.2

J. Hardiker for Applicant

WARD CJ: This is an application for an order of certiorari to remove and quash a decision of the Customary Land Appeal Court (Western) made on 6 November 1989.

The decision complained of was the refusal to allow an appeal on the grounds it was out of time and that the CLAC had no power to extend the time. The grounds for relief in the statement pursuant to 0.61 r.2 are:

That the Customary Land Appeal Court clearly erred in law in that it directed its mind to the question of whether it should extend the period of time within which the applicant could appeal rather than to the question of whether a valid appeal was lodged within the one month time limit as prescribed by as amended

The facts are simply stated. On 25 May 1989 the Choiseul Area Council held a meeting on Taro Island and, on 26 May, issued a certificate. The applicant in this case was a person aggrieved and appealed under section 5D (1) which reads:

Any person who is aggrieved by any act or determination of an area committee under section 5C. may, within one month from the date of the determination, appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.

Accordingly, the applicant wrote a letter of appeal to the Principal Magistrate (Western) on 20 June 1989 and sent the appropriate appeal fee of $1 00 on the same date by registered mail.

The letter of appeal is signed by the Principal Magistrate as having been received on 26 June and a receipt, dated 28 June 1989, was issued for the appeal fee. On 29 June, the Principal Magistrate wrote to the applicant stating:

The intention of your letter seemed to serve as an appeal to the Customary Land Appeal Court. However, before any appeal could be entertained by the customary land appeal court the following items need to be submitted to this office before 10 July 1989:

1. A map or sketch plan of the disputed land.

2. Genealogical table or family tree.

3. $250 security fee.

Should those requirements reach this office later than the deadline mentioned above your appeal will be struck out accordingly.

In fact, for various reasons arising from postage and misunderstanding, only $78 fee was paid by the date the appeal was listed before the CLAC on 6 November 1989.

At the hearing, the applicant was told his appeal was out of time. The record then continues:

Clerk/Sec explains that the question to consider here is why this appeal should not be struck out for appeal out of time. It is a preliminary point which we have to consider and if the Appellant satisfies this court then we would grant him leave to appeal out of time and proceed with the appeal.

Having then heard the explanation of the applicant the record shows, "Case struck out, appeal out of time, with costs of $580".

By section 5D (1) the time for appeal is clearly one month from the act that causes the grievance. In this case it was the issue of the certificate on 26 May. Thus the period of one month started to run on 27 May and so the appeal letter was received in time. It is not clear when the appeal fee was received but, as it was posted at the same time, I consider that the appeal and the appeal fee were in time.

Much of the decision of the CLAC seems to have revolved around the failure fully to pay the security. Provision is made for this by the Forest and Timbers Appeal Regulations, 1985. By these, the appeal must be by way of a public enquiry and, by regulation 3, when the clerk to the CLAC has received an appeal under section 5D, received the appeal fee and given notice to the appropriate Government as provided by section 5D(3) he has to proceed to give notice that an enquiry may be held.

At that stage, an appeal has been lodged. One month after the notice has been given, the clerk must assess the probable cost of a public enquiry and require the applicant for acquisition of the timber rights to deposit the sum as security within three months. If the timber operator should fail to pay, the clerk must give, in turn, each of the Appellants, each of the claimants and each of the Respondents the chance to pay. If all those fail to provide the security, the appeal shall stand adjourned generally. It should be noted that it is the timber operator and not the Appellant who must, initially, be asked to deposit the security.

In this case, the appeal was lodged in time and the clerk should have followed the procedure under the Regulations.

I order that the procedures of the CLAC in case number 7 of 1989 be removed into this court for the purpose of quashing the decision made on 26 May 1989. I order that the clerk to the CLAC accept the appeal of Jacob Ulekesa and proceed under the Forest and Timbers Regulations 1985.