Hitukera v Hyundai Timber Company Ltd [1994] SBHC 27; HC-LAC 007 of 1994 (31 August 1994)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 7 of 1994

TEDDY HITUKERA

-V-

HYUNDAI TIMBER COMPANY LIMITED & OLE MAEPEZA GINA

High Court of Solomon Islands
(Muria CJ.)

Hearing: 18 August 1994 at Gizo
Judgement: 31 August 1994

P. Lavery for Applicant
T. Kama for Respondent

MURIA CJ: The appellant intends to appeal against the decision of the Customary Land Appeal Court (Western) given on 24 November 1993. By virtue of S.231 B(3) of the Land and Titles Act (Cap. 93) such an appeal must be brought within three months from the date of the order or decision of the Customary Land Appeal Court. That is the provision which confers jurisdiction on this Court to hear such an appeal. Section 231 B(3) 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."

The Notice of Appeal filed on behalf of the appellant in this case bears the date 17 June 1994 and was filed on the same date. It alleges two grounds of appeal, namely, that:

"1. The Court decided the matter contrary to the rules of natural justice in placing excessive reliance on the evidence of one witness who is normally President of the Customary Land Appeal Court (Western) and rejecting the body of evidence relied on by the Local Court below.

2. One of the judges of the court, IAN MAELAGI, who sat as President of the Court is related to the Appellant's husband Maepeza Gina which either did or may have influenced the Court's decision."
   

The appellant, by his Notice of Appeal, also seeks leave of the Court to appeal out of time as it is clear, he was out of time by more than five months from the date of the Customary Land Appeal Court's decision. Thus the matter before the court now is only whether leave should be granted or not.

Before I deal with the appellant's application for leave, I feel I should mention one matter. Like many other cases concerning disputes over land brought about by logging operations in this country, one of the parties who are also affected by such disputes is the company which has the licence to carry out logging operations in the particular area or areas. But a foreign company in such a case is not a party to the disputes over the land relating to matters of customs between the customary land owning groups, except where the company consents to be bound by the jurisdiction of the Local Court in such a case.

It is therefore wrong to frame the actions in the Local Court or Customary Land Appeal Court between one group of landowners against another group of landowners joining the company as a party to those actions. The question of ownership or boundary of a customary land referred by the High Court to Customary Land Appeal Court or the Local Court to determine is an issue to be determined by those courts between the competing claimants in custom and the company concerned should not be included in those proceedings as a party.

In the Notice of Appeal filed by the appellant in this case, Hyundai Timber Company Limited has been included as the First Respondent. This is not correct. The appeal to the Customary Land Appeal Court was against the decision of the Local court and this appeal is against that of the Customary Land Appeal Court. The proceedings before the Local Court and Customary Land Appeal Court were entirely different proceedings to those in CC132 of 1992 and it would be wrong to frame the actions in Local Court and Customary Land Appeal Court as though there were part of the proceedings in Civil Case No. 132 of 1992 by including Hyundai Timber Co. Ltd as a party.

I now turn to the application for leave sought by the appellant in this case. The right of appeal in this matter is that as provided by section 231 B (3) of the Act. Under that provision, there are limitations placed on that right of appeal. Firstly the appeal must be brought within three months from the date of the order or decision of the Customary Land Appeal Court and secondly it must be on point of error of law or failure to comply with a procedural requirement of a written law. Subsection (4) then clearly provides that the decision of the High Court and Customary Land Appeal Court (subject to subsection (3)) in the exercise of the jurisdiction conferred by that subsection shall be final and conclusive.

In order for this Court to allow the appellant to bring his appeal outside the time fixed by the statue, there must be provision made under the law enabling the court to do so If the statute did not confer the Court with power to allow an appeal to be brought outside the time limit fixed by law, then the Court cannot permit such an appeal to be brought before it.

I have read section 231 B(3) of the Act and for there to be a valid appeal to this Court, it must be brought within 3 months from the date of the decision or order of the Customary Land Appeal Court. It is clear that under section 231 B(3) there is no power giving this Court discretion to extend the time limited fixed under the subsection. Therefore an appeal against the Customary Land Appeal Court decision brought outside the statutory period is invalid and leave cannot be granted to allow an invalid appeal to be pursued in this Court. See the case of Seselono -v- Kikiolo [1982] SILR 15 where the Court held that the filing of grounds of appeal (which in effect was an attempt to file an new appeal) outside the three months period could not confer jurisdiction on the Court.

Mr. Lavery told the Court that he prepared and sent a Notice of Appeal to the Public Solicitor's Office in Honiara in January, 1994 but for some reason, that Notice of Appeal was not filed in Court. Consequently, he drafted the present Notice of Appeal which was then filed on 17 June 1994. However one looks at it, the only Notice of Appeal before the Court was the one filed on 17 June 1994 and that clearly was more than five months outside the time limit allowed by law.

Other matters raised by Mr. Lavery include the fact that the Public Solicitor's Office was always under pressure of work and the importance of land as a commodity in Solomon Islands. However those matters are relevant for consideration on the exercise of the discretionary power of the Court. There is no such discretion given to the Court in the present case and so such matters are of very little effect on the appellant's application.

In Solomon Islands, there is the tendency that litigation over a customary land very often ends up with a series of other litigations over the same land. Parliament had therefore in its wisdom enacted provisions such s.231 B (3)&(4) of the Land and Titles Act(Cap. 93) which, while conferring the right of appeal on an aggrieved person, also imposes limitations on that right, and that the Courts must ensure that there must be finality in litigation.

In this case, I feel some sympathy for the appellant who may have a genuine desire to appeal against the decision of the CLAC. But sympathy does not give the court power in this case nor do the other matters urged upon the Court by Mr. Lavery. Section 231 B (3) simply do not give the Court discretion to permit an appeal to be lodged outside the time limit provided by law.

Leave to appeal out of time is therefore refused and the Notice of Appeal filed on 17 June 1994 must therefore be struck out.

Only Ole Maepeza Gina is the proper Respondent in this case. She had to attend this hearing because the appellant had brought this application to have an appeal, (a notice of which was served on her), brought long after the time limit allowed by law, determined by this Court. She had written to the Court expressing her objection to the accepting the appeal since it was lodged well after the expiry period. I feel in those circumstances she must have her costs.

Leave to appeal out of time is refused.

Notice of Appeal filed on 17 June 1994 be struck out.

The Appellant to pay the Respondent's (Ole Maepeza Gina) costs.

(G.J.B. Muria)
CHIEF JUSTICE