Felix v Korutalaumeimei [2001] SBHC 97; HC-CC 001 of 2001 (19 January 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 001 of 2001

FELIX AND SIWA’AHU

V

KORUTALAUMEIMEI AND ALICK MAEHAU

High Court of Solomon Islands
(F. O. KABUI), J)

Hearing: 18th January 2001
Ruling: 19th January 2001

J. Apaniai for the Plaintiff
Defendant not present

RULING

(Kabui, J): This is an application for extension of time under Order 64, rule 5 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). The relief sought is stated in the Plaintiff’s Summons filed on 10th January 2001 in these terms -

1. An order for enlargement of time for the Plaintiff to apply for an order of certiorari to quash the decision of the First Defendant dated the 20th June 2000 whereby it was decided that the Second Defendant was the customary owner of Tangiliu land.
   
2. Such other orders as the Court deems fit.
   
3. That the cost of this application be costs in the cause.
   

The 1st Defendant was served with copies of the Summons and affidavits on 12th January 2001 in Honiara. The Secretary to the 1st Defendant is currently in Honiara. The 2nd Defendant has not been served. Mr. Apaniai, Counsel for the Plaintiff, however said that the 1st Defendant was served out of courtesy as this application was ex parte although the Summons did not say so. Whilst I was not too sure of the correctness of that remark, I proceeded to hear the Plaintiff’s application under Order 57 rule 8 which allows a matter in Chambers to be proceeded with ex parte if in the view of the Court, it is expedient to do so. I was also satisfied that the 1st Defendant was duly served on the 12th January 2001. The 1st Defendant chose not to attend Court on the date of the hearing of the Plaintiff’s Summons.

The Facts

In Civil Case No. 173 of 2000, the Plaintiff and another Plaintiff, Mr. George Kiriau Noa filed a Writ of Summons together with a Statement of Claim against Omex Limited, the Commissioner of Forest Resources and Loi Family Project (the Defendants). By consent Order dated 2nd June 2000, the Plaintiffs undertook to expeditiously prosecute their case in the Malaita Local Court to determine the ownership of Tangiliu and Walaihenue Lands in custom. In pursuance of this undertaking, the Plaintiff immediately set out to put his dispute before the Chiefs. The dispute is between himself and Mr. Maehau, the Second Defendant. The Hoasiteimane Chiefs were to constitute the Chiefs Panel for the hearing of the dispute, the disputed land being within the jurisdiction of the Hoasiteimane Chiefs. The hearing date for the dispute was set down for 21st and 22nd June, 2000 at Afio at 9 am. However, in the meantime, two members of the Hoasiteimane Chiefs Panel being Messrs Lie and Horoimarau were seen being picked up by the supporters of Omex Limited in an outboard motor canoe owned by Omex Limited and taken to the log pond at Tauranikuma. For this reason, the Plaintiff objected to his dispute being heard by the Hoasiteimane Chiefs Panel. The Plaintiff then contacted the Hutohuto Chiefs Panel for the purpose of hearing his dispute. The hearing date was set down for 21st June 2000 at Afio at 9:30 am. The hearing however did not take place as planned. Messrs Meie and Tohupo who are of Mr. Maehau’s group (the Second Defendant) had objected to the Hutohuto Chiefs Panel because, they said, it had no jurisdiction to hear the dispute. The Plaintiff was then told that the Korutalaumeimei Chiefs Panel would be the body to hear the Plaintiff’s dispute. The Secretary Mr. Pipi to the Korutalaumeimei Chiefs Panel told the Plaintiff this fact. He also told the Plaintiff that the hearing date was 20th June 2000 at Matangasi village. The Plaintiff refused to attend the hearing because he had already paid $100.00 fee for the Hutohuto Chiefs Panel to hear the dispute. Secondly, the 2nd Defendant and his group had paid $500.00 fee to the Korutalameimei Chiefs when the proper fee was $100.00 for such dispute. Thirdly, the paramount Chief of Korutalaumeimei Mr. Laealaha was a signatory to the Logging Agreement with Omex Limited the First Defendant in Civil Case No. 173 of 2000 above. By letter dated 23rd June 2000, the Plaintiff wrote to the President of the Malaita Local Court complaining about the conduct of the Chiefs’ Panels and asking the Local Court to take over his case. Since then, the Plaintiff has not received any response from the President of the Malaita Local Court. The President of the Hutohuto Chiefs Panel also wrote to the President of the Local Court at Auki about the same matter. He too received no response from the President of the Malaita Local Court. In the meantime, the Plaintiff’s Civil Case No. 173 of 2000 had been dismissed by the High Court. On being informed of this dismissal, the Plaintiff came to Honiara to find out about this from his solicitor. The solicitor for the Plaintiff at that time was Miss Barber of the Public Solicitor’s Office in Honiara. She unfortunately had left the country due to the ethnic tension. The Plaintiff was however able to obtain a copy of the Order dismissing his action from the Public Solicitor Office in Honiara. After many attempts to see Mr Lavery about his case, the Plaintiff was able to retrieve his file from the Public Solicitor’s Office on 8th December 2000. The Plaintiff then saw for the first time, copies of the Korutalaumeimei determination of his dispute.

Immediately, the Plaintiff consulted A & H Lawyers in Honiara about his case. The process of giving instructions to A & H Lawyers ended on 18th December 2000 by which time, the High Court had closed for business for the Christmas holidays.

The Relief Sought

Clearly, there is a time limit of 6 months within which leave may be granted by the Court for an order for certiorari to remove any order, judgment etc or other proceeding for the purpose of its being quashed. Rule 3 of Order 61 of the High Court Rules states

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any written law; ...”

However, rule 5 of Order 64 of these same Rules states

“Subject to any provisions to the contrary in these Rules the Court shall have power to enlarge or abridge the time appointed by this Rules, or fixed by an order enlarging time for doing any act or taking any proceeding, upon such terms as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: ...”

The relief sought can therefore he granted under Order 64, rule 5 above. (See Kalesoa’s Application [1983] SILR 174 and Reef Pacific Trading Limited v Island Enterprises Limited (Civil Appeal No. 1 of 1992)).

The Evidence and Conclusion

There is no dispute that the Koruitalaumeimei Chiefs Panel heard the dispute in the absence of the Plaintiff on 20th June 2000. According to the record of hearing (Exhibit FAS 6), the determination of the dispute was also made on that same date. That being the case, the 6 months period would have expired on 20th December 2000. Clearly, by that date, the High Court was already in recess and therefore had closed for business. Had the High Court not been closed for business as from 18th December 2000, the Plaintiff would have had no difficulty in seeking leave for an order for certiorari in time under rule 3 of Order 61 above. I therefore see no difficulty in extending time for the Plaintiff to seek leave under rule 2(2) of Order 61 of the High Court Rules. The Plaintiff’s application is accordingly granted. I therefore order that the Plaintiff be given liberty to apply for leave under rule 2(2) of Order 61 of the High Court Rules within 7 days from today. Costs be in the cause. Order accordingly.

F.O. Kabui
Judge