Leana v Legaile [1997] SBHC 17; HC-CC 002 of 1996 (9 April 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 2 of 1996

ter">WILLIE LEANA

-v-

SAMUEL LEGAILE

e: Palmer,lmer, J

Hearing Date: 13th March, 1997 - Judgment Date: 9th April, 1997

Couns. Lavery for the Appellant; A. Radclyffe for the Respondent

PALMER J.:

Judgment:

This is an appeal against the judgment of the Guadalcanal Customary Land Appeal Court (the "G/CLAC") in striking out the appeal of the Appellant on the grounds that the Appeal had been filed out of time and thereby statute barred pursuant to section 231B(l) of the Land and Titles Act.

The facts as found by the G/CLAC are not in much dispute. Judgment was delivered by the Ngella Local Court on or about 19th December, 1994. The statutory time period of three months started to run with effect from that date and lapsed on 19th March, 1995. No document which could be regarded as an appeal was filed or lodged within that three months period. The Appellant however did pay the appeal fees on 15th March, 1995. A document containing the appeal grounds of the Appellant were subsequently filed on 25th April, 1995; approximately a month after the time limit had lapsed. The G/CLAC ruled that no appeal had been made within the statutory period and declined jurisdiction to hear the appeal.

Mr Lavery for the Appellant contends strongly before this Court that it is not necessary for appeal grounds to be filed within the statutory time period, provided it is clear on the records that an appeal had been made in that time period. He points out that section 231B(1) of the Land and Titles Act does not require grounds of appeal to be filed as is the case in section 231B(3) the Land and Titles Act. Section 231B(1) does not contain any restrictive words which would render an appeal void if not complied with. It is couched in general terms and that accordingly all that the court needs to be satisfied with is that an "appeal" had been made to the G/CLAC. This is evidenced by an appeal fee having been paid within the time limit and accordingly an appeal must be deemed to have been made.

Mr Radclyffe for the Respondent on the other hand contends that there must in essence be a document of appeal which activates the appeal. It need not contain the grounds of appeal in detail, but at least there must be a written document which can be regarded as an appeal. If no document of an intention to appeal has been filed, as in this case, merely an appeal fee paid, then it should not be construed as sufficient for purposes of an appeal. He concedes that it would not be necessary for the grounds of appeal to be filed within the said time period; only some sort of document demonstrating clearly an intention to appeal would suffice. And this can be in the form of a letter. He contends that payment of the appeal fee is not sufficient.

Mr Lavery relies on the judgment of Wood CJ in Marina v. Kinisita (1985/1986) SILR 129, in support of the appeal. The brief facts read as follows. The Malaita Customary Land Appeal Court had declined jurisdiction to hear the appeal of the Appellant on the ground that he had failed to file his grounds of appeal within the statutory period of three of months. The decision of the Local Court had been delivered on 2nd February, 1985. The Appellant however had paid all fees, costs and charges of the appeal by 12th April, 1985. In his judgment the learned Chief Justice made the following statement:

"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."

In the case of Katovai -v- Lurnukana (1984) SILR 9, the facts were slightly different. The Local Court had made a decision on 26th July, 1982. The Appellant had then filed a document headed "Notice of Appeal" on 24th October, 1982. As well, the Clerk to the CLAC had accepted part payment of fees and given credit for the balance to be paid at a later date. The issue before the Court was whether the document filed was sufficient to be an "appeal" for the purposes of subsection 23 1B(1). In his judgment the learned Chief Justice made the following statement:

"But there is no restriction on 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)."

The difference in Marina's case is that the Court had expressly observed that despite the absence of a written document it accepted as fact that an appeal had been made. The only evidence of this however, was contained in the payment of fees, security for costs and typing charges. It found nevertheless that the requirements for an appeal in terms of section 231B(1) had been complied with by the Appellant.

The issue before this Court in this case is whether an appeal had been made to the G/CLAC in terms of section 231B(1). Katovai's case is authority for the proposition that a document which expresses in general terms that it is an appeal against a specified decision even in the absence of detailed grounds is sufficient to invoke the jurisdiction created by section 231B(1). Katovai's case however still leaves open the question whether it is mandatory that the an appeal be evidenced in writing. Marina's case takes the matter further by recognising that what is important is that there is evidence of an appeal having been made to the Customary Land Appeal Court within the statutory time period allowed. And that this need not necessarily be confined to a written document expressing an intention to appeal. As long as there is evidence of an appeal having been made to the Customary Land Appeal Court then that would be sufficient provided of course that the necessary fees and costs have been paid or credit arrangements made.

In the circumstances of this case, I am satisfied that an appeal had been made to the G/CLAC within the statutory time period. There is clear evidence to show that appeal fees had been paid on 15 March, 1995, well within the time limit prescribed. I am satisfied this is evidence in support of an appeal having been made to the G/CLAC. Following the judgment of Daly CJ in Katovai's case, the filing of grounds for this appeal within the statutory period was not essential. Also following the judgment of Wood CJ in Marina's case, the absence of an actual document which can be said to be an appeal is not fatal to this appeal. The test is whether there is sufficient evidence to show that an appeal has been made to the Customary Land Appeal Court. If so, then that would be sufficient. In the circumstances of this case, the payment of appeal fees within the time period is sufficient evidence of an appeal having been made in the terms of section 231B(1) of the Land and Titles Act.

I am satisfied the appeal should be upheld, and the orders of the G/CLAC set aside. The G/CLAC is hereby directed to hear the appeal of Willie Leana, the Appellant.

Each party to bear their own costs.

>ORDERS OFRS OF THE COURT:

1. Appeal upheld.

2. Set aside orders of the G/C/b>

3. Direct G/CLAC to hear the appeal of Willie Leana.

4. Each party to bear their own costs.

ter">ALBERT R. PALMER
THE COURT