Seizama v Nano [2000] SBHC 91; HCSI-LAC 09 of 1994 (27 April 2000)

LAC, 9, 94.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.9 of 1994

BOAZ SEIZAMA

V

SIMEON NANO·AND LUKE POLOSO

High Court of Solomon Islands
(Lungole-Awich, J)

Land Appeal Case No.9 of 1994

Date of Hearing: 18th April 2000
Date of Judgment: 27th April 2000

P Lavery for the Applicant/ Respondent
T Kama for the Respondent/Appellant

JUDGMENT

(LUNGOLE-AWICH, J): This is judgment in the application of the respondent, asking that the appeal of Mr Boaz Siam be dismissed for want of prosecution. It is the second time the respondent has applied for dismissal on the same ground; the first was on 19.8.1997. The Court dismissed the first application for the reason that the appellant who since lodging his appeal had died, had appealed on behalf of himself and his tribe, and the subject matter of the case, the land, was customary land. During the hearing of the first application, nobody attended Court in place of the deceased appellant. Learned counsel, Mr Kama, was good enough to attend Court to explain that since the death of the appellant he had not received instruction from the administrators of the estate of the appellant or from another representative of the tribe.

At the hearing of the present application, Mr Kama again attended Court; this time he had instruction from Mr Rodney Seizama, the son of the appellant. The Court was informed that Rodney Seizama had been appointed administrator of the estate of the appellant; and had given instruction that the appeal be proceeded with.

Learned counsel, Mr P Lavery for the applicant, has raised argument that Rodney Seizama cannot take over land interest of the appellant because Marovo inheritance system is a matrilineal one. I do not think that stops Rodney Seizama in acting purely as administrator of the estate, he will not be pursuing a claim for his own benefit. Indeed anybody can be appointed administrator subject only to the rules in the law concerning deceased estate and he does not take over the estate, but administer it. In any case it is a question not directly relevant to the issue in the application.

Extraordinary circumstances obtain in the appeal of Mr Seizama. He contested the hearing by the Acquisition Officer when the land was being identified so that a medical clinic could be built on. He contested on behalf of his tribe or line as well as on his behalf, there are two beneficial interests to be represented in the appeal. After the solicitor for Mr Boaz Seizama had filed notice of appeal at the Magistrates’ Court, Mr Boaz Seizama later attempted to commence proceeding for determination of customary right in the larger customary land area including the land parcel the subject of acquisition or leasing. The Clerk of the Local Court then wrote to Boaz Seizama a letter dated 26.10.1994, advising him how to proceed. Unfortunately Boaz Seizama died. I can appreciate his apparent lack of vigilance in pursuing his appeal, he was not knowledgeable in the law, and might have taken the advice of the Clerk of the Local Court, an official in the Magistrates’ Court as covering the pending appeal I find that any apparent want of prosecution was excusable. I dismiss the application to have the appeal dismissed for want of prosecution.

Now that the affairs of Mr Seizama are being administered and the appeal has been brought to the forefront by this application, the Court and indeed the respondent will expect expeditious conduct of the appeal. Some orders will be appropriate. It is ordered that:

1. Any fees and other payments required in the appeal be made within 30 days of today’s date.

2. Appellant is to file notice of payment at the High Court and to serve a copy on the respondent within 35 days.

3. It is the duty of the appellant to ensure that the records of proceedings are sent to the High Court early.

4. If the tribe of Mr Seizama would like to substitute someone else to represent them, they are to file their application within 30 days. Even if someone else is substituted, Mr Rodney Seizama will continue to represent the beneficial interest of his father since he has been appointed administrator of the father’s estate.

5. It is clarified that any proceeding intended at the Council of Chiefs or later at the Local Court is not stayed or stopped by the fact that this appeal is pending and is being proceeded with.

6. Costs of this application are reserved.

Delivered this Thursday the 27th day of April 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge