Saru v Sipolo [1994] SBHC 64; HCSI-LAC 6 of 1994 (13 October 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.6 of 1994

LEONARD SARU

-v-

JOEL LEDIA SIPOLO

High Court of Solomon Islands
(Palmer J.)
Land Appeal Case No: 6 of 1994

Hearing: 11th October 1994
Judgment: 13th October 1994

J. Wasiraro for the Appellant
T. Kama for Respondent

PALMER J: On the 20th of November 1992, the Malaita Local Court handed down its decision in favour of the Respondent. At the conclusion of its judgment, it explained the right of appeal to the parties and then stated that the right of appeal was to be exercised by 20th March, 1993, a total of 120 days or 4 months, as opposed to the time limit of 3 months required by section 231 B( 1) of the Land and Titles Act.

In reliance on the advice of the Local Court, the appellant filed an appeal to the Malaita Customary Land Appeal Court (CLAC) on the 18th of .March, 1993. The appeal fees were also paid on the same date. This was obviously some 25 to 26 days after the time limit, as allowed by law had expired; the expiry date being on the 20th of February, 1993.

In its ruling, the Malaita Customary Land Appeal Court held that it had no jurisdiction to entertain appeals that had been lodged out of time as prescribed by law, and dismissed the appeal. It however, advised the Appellant to file an appeal to this Court for purposes of rectifying the error committed by the Local Court under Order 60 Rule 3 of the High Court (Civil Procedure) Rules, 1964; the view being that only this court can rectify errors of law and procedural errors.

The grounds of appeal as filed in the Notice of Appeal on the 18th of May, 1994, state as follows:

“(1) That the Local Court has erred in procedure by advising the appellant that the time limit for the Appellant appeal from the Local Court to the Customary Land Appeal Court is from 20th November 1992 to 20th March 1993, which is a total of one hundred twenty (120) days.

(2) That the Customary Land Appeal (sic) should have allowed the appeal by the appellant in consequence of procedural failure or error by the Local Court.”

The law governing appeals from the Local Courts to the Customary Land Appeal Court is contained in section 231 B (1) and (2) of the Land and Titles Act. Those provisions read:

“(1) Any person aggrieved by any order of decision of a local court given in exercise of its jurisdiction under section 231 may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction.

(2) On appeal to it under subsection (1) a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just.”

The main contention of learned Counsel for the Appellant is that subsection 231 B(2) of the Land and Titles Act gives very wide powers to the Customary Land Appeal Court to “.....make such order, as to it may seem just.” This, he says would include the power to rectify the error committed by the Local Court, in giving the wrong advice to the parties. He submits that because injustice had been committed against the Appellant, that therefore, the CLAC would have the power to rectify it.

The submission of Mr Wasiraro, when considered in its legal context, simply is to argue that the CLAC had the power to extend the time limits for filing an appeal out of time where an error had been committed by the Local Court. This in essence is the crucial question before this court. Does the CLAC have jurisdiction to extend the time limits for filing an appeal, and under what circumstances can that be done, if any?

The jurisdiction of the CLAC and their powers are derived from statute, being, section 231 B (1) and (2) of the Land and Titles Act. In order therefore to get the correct interpretation of what that phrase “.....may make such order, as to it may seem just”, referred to by Mr Wasiraro, might mean, it must be construed in the context of subsection 231 B (1) and (2) of the Land and Titles Act.

The construction of subsection 231 B(1) had been considered in two of the cases referred to by the Customary Land Appeal Court, namely; Patatoa -v- Talanai (1983) SILR 112, and Kaupoi -v- Principal Magistrate (Malaita) 1985/1986 SILR 95, albeit in slightly different circumstances. What is clear however, from those two cases is that they both recognise that any appeals lodged must be duly brought within the 3 months time period prescribed by law. At no time did the Court state that leave may be given to extend the period for which an appeal can be lodged or that the Court had power to compel the CLAC to accept an appeal filed outside of the 3 month period.

In Patatoa’s case (ibid) at page 113, Daly C.J.referred to his previous judgment in the case of Seselono-v-Kikiolo 1982 SILR 15 at page 18, in which he had held that in the absence of express power in the Land and Titles Act, it was not open to a court to consider the grant of an extension of the period of time within which an appeal must be brought in order to comply with the provisions of that Act.

In Seselono’s case, although the issues raised related to the rights of appeal to the High Court from the Customary Land Appeal Courts, the provisions providing for the rights of appeal are couched in similar terms to the provisions of subsection 231 B (1). A common limitation in subsection 231 B (3) and 231 B (1) is the requirement of the period of 3 months for the rights of appeal to be exercised.

At page 17 of Seselono’s case, the learned Chief Justice stated:

“.....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 only the terms of section 231 B (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 above comments were applied by the learned Chief Justice in Patatoa’s case at page 116. At the same page he concluded:

“In the course of argument we all agreed that the Appellant was entitled to some sympathy as he was not informed of the necessity to pay a fee until a year too late. This is regrettable and, until rules are made which make the matter clear, I suggest that appellants be informed that an appeal will not be entered or processed until the fee is paid. But it remains, in the final analysis, the burden of the appellant to take all necessary steps whether or not he is informed of them by the court. Hence the sympathy one feels can have no effect on the position in law.”

I think the above comments are so pertinent to the facts of this case.

The clear limitation imposed on appeals from the Local Courts to the Customary Land Appeal Courts, is that such appeals must be lodged within 3 months from the date of such order or decision. Once an appeal has been duly lodged within that time period, then and only then, is the jurisdiction of the CLAC invoked, to “.....substitute.....such decision......and make such order, as to it may seem just.”

This is where the submission of learned Counsel for the Appellant went astray. If no appeal was lodged within the 3 months period, then the CLAC could not consider the appeal. If the provisions of subsection 231 B (2) were to be construed as giving power to the CLAC to be able to rectify the error of the local court by way of extending the time period for the appeal to be lodged beyond the 3 months period, then it would be giving power to the CLAC which was not provided for by Parliament.

It was wrong to rely on subsection 231 B (2) of the Land and Titles Act as giving the necessary power to the CLAC to allow an extension to be made to the time limit allowed for appeals. The way subsections 231 B (1) and (2) are phrased simply cannot allow that construction.

This would simply dispose of the appeal because apart from subsection 231 B (1) and (2), there is no other provision or law relied on to support the Appellant’s contention. However, for the sake of completeness, I will go on to consider the alleged error of the Local Court and its effects.

What is the effect therefore of a wrong advice by the Local Court as to the time limits prescribed by law? The effect would be in my view to render the advice of the Local Court a nullity. It was contrary to the law. That wrong advice however, cannot somehow by some mysterious common law rule or principle be elevated to a position above what the statute says. It must submit to the law.

The result therefore would be the same as if no advice had been given as to the time period for appeals. So what then is the position where·no·advice is given on the time period for appeals.

It is not in dispute that the right to appeal was explained by the Local Court to both parties. The Appellant therefore was aware of his right to appeal if he was not satisfied with the decision of the Local Court. So his legal position would be that of a party who had not been specifically informed of the time period allowed for appeals. Is there such a right to be informed of the time period for appeals?

With respect to the submissions of Mr Wasiraro, the provisions of subsection 231 B (1) and (2) say nothing about any requirement that the parties must be notified of the 3 months appeal period. What subsection 231 B (1) makes clear is that the appeal period starts to run from the date of such decision or order. The mistake committed by the Local Court in its advice therefore would not affect the position in law in any way. The law remains and is there for the Appellant to find out for himself.

The actions of the local courts in informing the parties as to the period of appeal allowable, is one done more as a rule of practice, but not as a requirement of law. So even if no advice is given by the local Court as to the time period for appeals that would not give rise to any cause of action which would entitle the Appellant to argue that a right in law had been violated. There is no such legal right in existence and none therefore could have been breached.

Was the Appellant entitled to rely on the advice of the Local Court? On one hand yes, but that would not and cannot exculpate him from his responsibility as an aggrieved party to take such reasonable steps as are necessary to inform himself of the relevant law pertaining to his rights of appeal. As is commonly said, ignorance of the law is no defence to a failure to comply with its requirements.

In the words of Daly C.J: “.....it remains, in the final analysis, the burden of the appellant to take all necessary steps whether or not he is informed of them by the court.”

So whether the appellant was wrongly informed by the Local Court, or whether he was not informed at all of the time period on which such appeals are to be made, Parliament had in its wisdom, considered the period of three months, sufficient for an aggrieved party to take such necessary steps as would be sufficient for purposes of filing an appeal to the Customary Land Appeal Court. Hence, the absence of any discretionary power for the Courts to extend the time limits as prescribed by law. If no appeal is lodged within the time limits, then that is the end of the matter.

The words of his Lordship, Muria C.J. in the land Appeal Case No.7 of 1994, Teddy Hitukera v Ole Maepeza Gina, unreported, judgment delivered on the 31st of August, 1994, are also applicable to the provisions of section 231 B (1) of the Land and Titles Act:

“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 as section 231 B (3) and (4) [and also section 231 (B) (1) & (2)] 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 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....section 231 b (3) [and also section 231 B (1)] simply do not give the court discretion to permit an appeal to be lodged outside the time limit provided by law.”

(Words in brackets are my additions).

The above words are equally applicable to the circumstances of this case, that no amount of sympathy can alter the position in law. So even in the case where a wrong advice or instruction had been given by the court, that does not give the court discretion to permit an appeal to be lodged out of time. Where the courts powers are derived from statute, its jurisdiction must necessarily be confined to what the statute says. Anything beyond that is ultra vires and void.

The fear raised by learned Counsel for the Appellant as to possible abuses by the local Courts and manipulations in the kind of orders or decisions that it gives in my view is misconceived. It is based on the false assumption that what the Local Courts says is always correct and according to law, and that the parties to disputes have no responsibility or part to play once a decision has been delivered. It assumes that whatever the local court says must be relied on, even if it is wrong in law or procedure. That cannot be correct. The very fact that there are rights of appeal provided recognises the fallibility of the courts, though they try to minimise those mistakes as much as possible.

The parties to a dispute therefore cannot plead ignorance of the law when relying on the wrong advice or ruling or orders of the courts. They must demonstrate reasonable diligence, vigilance and alertness. They must act responsibly and take such reasonable steps as are necessary to avail themselves of their rights and to exercise them within such reasonable time as may be prescribed. Failing which, they lose the benefit of that right and except where there is specific provision allowing for extensions or leave to file an appeal out of time, the matter can be regarded as finally, at an end.

The error of the Local Court in terms of the wrong advice given is no basis for an extension or leave to be given to file an appeal out of time. No appeal having been filed within the 3 months prescribed period, there was no lawfully justiciable matter before the Customary Land Appeal Court at the end of the 3 months period, and accordingly the CLAC was correct in ruling that it had no jurisdiction to entertain the appeal.

The CLAC had not committed any error of law or failed to comply with any procedural requirement of any written law, and accordingly this appeal must be dismissed with costs.

Finally, as a matter of practice, for future purposes, lower courts should simply indicate the time period allowable for appeals; such as 3 months, 14 days or 30 days, rather than trying to be specific, but if they do so, then care should be taken to ensure that the dates given correspond with the period of appeal allowed by law.

A.R.Palmer
JUDGE