Meke v Tavasi [2011] SBHC 190; HCSI-CC 261 of 2010 (26 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Land Appeal Case No. 261 of 2010

BETWEEN:

PETER MEKE and JOHN PEGONI
Appellants

And:

ISMAEL TAVASI and JOHN LOKU
Respondents

Public Solicitors for the Appellants
Mr Rano for the Respondents

Date of Hearing: 31st May 2011
Date of Judgment: 26^th July 2011

RULING

1. The application before the Court is relatively straightforward. The case involves the water source which supplies the township of Tulagi in Central Province. When I first heard the case in November 2010 I was concerned that the appeal related to registered land rather than customary land. The parties were asked to clarify the details and the matter adjourned for mention. No one appeared on the mention day. It was left for the parties to apply for a new hearing date. An application was made and the matter came before the court on 15^th April. No one appeared for the Appellants. However, a submission had been made by the Appellants identifying the land under dispute as being customary land. The Respondents asked for their application to strike out to be heard but that request was declined on the basis that any order would have been made in the absence of Appellants and the likelihood was they would simply apply to set aside any order made^[1]. The hearing of the Respondents application to strike out was listed for 31st May 2011.

2. Fortunately all parties were represented on 31st May and the application to strike out proceeded. The basic facts of the case are not in dispute. The parties even agreed as to the location of the land. Exact boundaries were a little confused but it was confirmed the land the subject of the appeal was customary land. Other land had been compulsorily acquired and was registered but this case is not concerned with any questions as to the former ownership of it except in a very peripheral sense. It seems there was no dispute as to who the customary owners of the registered land had been, at least no appeal arising from the acquisition procedure was ever mentioned in this case. However the parties began to argue about the customary land adjoining the registered land. In 1997 the Chiefs heard a dispute about ownership. The Chiefs made their decision and an unaccepted settlement form was lodged in the Ngella Local Court. The Local Court heard the case in October 1999. It decided that Valevila Land (which included the water source) was owned by the Gaubata tribe. The Local Court went on to say the dam (which is on registered land) was within Valevila land and the boundaries of the land "starts from about 5 metres below the dam". The Ngella Local Court then said, "The ownership of the dam and the land 5 metres surrounding it is awarded to the plaintiff as it was. This is due to the fact that this court lack jurisdiction to determine the registered land or compulsorily acquired land".

3. The Respondents in this case appealed the Ngella Local Court decision. The appeal to the Central CLAC was filed on 6th October 1999. Unfortunately the appeal was not heard until April 2010, ten years later. The Respondents successfully appealed the Local Court decision and the Central CLAC decided the water source was the Maeiali water source and that it was owned by the Kaukau Bala clan.

4. The Appellants, they belong to the Gaubata tribe, lodged an appeal against that decision. It was filed in the High Court on 20th July 2010. The Respondents say the appeal was filed out of time and should be struck out. That is the application presently before the court. Various reasons are set out in sworn statements by the Appellants explaining why the appeal was not filed until 20th July. They are précised in the written submissions filed by the Appellants on 12th November 2010.

5. The Respondents point to the provisions of section 256(3) of the Lands and Titles Act [Cap. 133] ("the Act"). That section says;

"(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 Respondents argue that an appeal must be lodged or filed within three months and that there is no discretion to extend that period of time. The Appellants argue the court does have discretion because the Act says a person may appeal within three months.

6. The Appellants' argument is unsustainable. There is a long line of cases going back to Seselono v. Kikiolo [1982] SILR 15 which clearly hold that without express power in the Act to do so a court is unable to extend the time for appeal. The "may" in s 256(3) refers to an aggrieved person's right to bring the appeal, it does not qualify in any way the timescale set out in the Act within which such a person must lodge their appeal.

7. The only relevant questions in this application are what was the date of "order or decision" of the Central Customary Land Appeal Court and on what date was the appeal lodged? There is no dispute the order or decision was made on 17th April 2010. The parties, if they were aggrieved, had three months from that date to lodge their appeal. The Interpretation and General Provisions Act [Cap. 85] says, at section 16(1) " "month" means calendar month". Later at section 55 it says;

"55. - (1) In computing time for the purposes of an Act-

[(a), (b) are not relevant in this case]

(c) where a period is expressed to begin after or to be from a specified day, the period shall not include that day

So the three month period actually starts on 18th April. The next question is when does it end? What the deadline for filing an appeal? Put another way, when something has to be done within 3 months when is the last day for doing that something?

8. It is a simple question but the answer, dressed in legal language, can appear confusing. For example an answer to the question in an "old" English bankruptcy case was couched in these words^[2];

"I am of opinion that this appeal must be allowed. It seems at first sight to be a somewhat fine point, but then there must be fine points in cases like this. The Act says that the petition must be filed within three months from the act of bankruptcy, and the act of bankruptcy relied upon here is the not doing of something, that omission to do something was complete at the last moment of 27 November. On 28 November anyone could have presented a petition on the act of bankruptcy, and though for convenience it would be alleged on the 28th, it was, in fact, complete on the last moment of the 27th. This was the first day, and then the last day of the three months was 27 February, because, if you give also the 28th, you give three months and one day, in other words, you have four 28th's in the three months. My opinion is that, when 27 February had gone and no petition had been presented, a petition presented on the 28th was too late."

In a much later case involving Landlord and Tenant the answer was set out more clearly^[3]. The case involved a notice to quit which was served on the tenant on 22nd May and Kerr LJ had this to say;

"The word "within"' used in the context of a period of time, was capable of meaning "before or at the expiry of" that period, it is not necessarily shorter than the period itself.

Accordingly, all that one is left with is the question whether the words used in this notice, to vacate the premises 'within a period of three months; excludes the stroke of midnight on 22-23 August. To my mind the word 'within', used in the context of a period of time, is capable of meaning 'before or at the expiry of 'that period, as counsel for the landlord submits, it is not necessarily shorter than the period itself."

As Nourse LJ said later in the same case;

The question is a short one. It is also an exceedingly simple one. The landlord has the right to determine the lease by giving to the tenant 'not less than 3 months' previous notice in writing expiring at any time'. On 22 May the landlord serves a notice on the tenant requiring it to vacate the premises 'within a period of three months from the date of service of this notice'.

It is not in dispute that a period of three months from 22 May expires at midnight on 22-23 August. What then is the effect of a requirement that the tenant shall vacate the premises 'within' that period? Does it have the effect of giving to the tenant less than three months' previous notice? The tenant answers that question in the affirmative, contending that if someone is required to do something within a period of months he must to it before midnight on the last day of the period and that he may not do it at midnight on that day. To put it in another way, the tenant contends that the import of the word 'within' is that there is to be some outside wall of time, however thin, on the near side of midnight.

Like Kerr LJ, I reject the tenant's contentions on grounds both of language and of common sense. The precise meaning of a preposition such as 'within' depends on the context in which it is used. Here it is used in a legal document and it is applied to a period of three months' notice. In such a context I see no difference between the meanings of 'within' and 'during'. In my view if someone is required to vacate premises within or during a specified period, he will comply with the requirement by walking out of the door either before, or on, the stroke of midnight on the last day of that period. So much for language pure and simple. As for common sense, I need say no more than that the tenant's contentions, if correct, would attribute to the landlord the extremely bizarre intention to differentiate between midnight on the one hand and the nearest measurable point of time before midnight on the other. "

9. In pure and simple language then the Appellants in the appeal before this court had until 18^th July 2010 to file their appeal. The above quoted case refers to "the stroke midnight" but of course when dealing with the filing of court process the time for filing must be related to the opening hours of the High Court Registry. The normal closing time is 3:30 in the afternoon. The Appellants had until 3:30 on 18th July to file their appeal. If the High Court of Solomon Islands had sophisticated systems for electronic filing court process, the deadline might well run to "the stroke of midnight" but it does not and so the time limit must expire at the close of normal business. There is no dispute the appeal was actually filed during normal working hours on 20th July 2010.

10. There is one more piece of the puzzle needed before an answer can be given to the question posed earlier. That results from the provisions of our current Rules^[4]. Rule 26.4 says, "Where the last day for doing a thing is a day on which the Registry is closed for that day, the thing may be done on the next day the registry is open". A quick check of the diary for 2010 reveals that 18th July was a Sunday. The Registry was closed for the day. That means the Appellants in fact had until 3:30 pm on Monday 19th July to file their appeal. They failed to do so. They filed their appeal on Tuesday 20th July.

11. The upshot of all this is the appeal was filed too late. As from the close of business on 19th July there was nothing, under the provisions of section 256(3), which was lawfully justiciable before the court. Whilst it may seem harsh to strike out an appeal that was a day late, there is no discretion the court can exercise that would mitigate such a result. The appeal is struck out and the Central Customary Land Appeal Court decision handed down on 17th April 2010 stands.

12. I see no reason why costs should not follow the event and therefore the Appellants are ordered to pay the Respondents' costs, such costs to be taxed if not agreed.

Chetwynd J

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^[1] See Rule 17.55 Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] Re Maud; Ex parte Townend [1891-4] All ER Rep Ext 2054 (Per Cave J).
^[3] Manorlike Ltd v Le Vitas Travel Agency and Consultancy Services Ltd [1986] 1 All ER 573.
^[4] Solomon Islands Courts (Civil Procedure) Rules 2007.