Taupongi v Puia [2011] SBHC 85; HCSI-CC 168 of 2010 (6 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, J)

Civil Case No. 168 of 2010

BETWEEN:

MATHIAS TAUPONGI
Appellant

AND:

JACK PUIA
Respondent

Date of Hearing: 29th August 2011.

Date of Decision: 6th September 2011.

Mr Fa'aitoa for the Appellant
Mr M Konofilia representing the Respondent.

JUDGMENT ON APPEAL FROM CLAC ON ANGOHI, KAGUA AND SA'AMOA LANDS

Faukona, J: This appeal was filed on 6th May 2010. It is an appeal against the decision of the Central Islands Customary Land Appeal Court; refer to as "CICLAC", dated 16th April 2007. Actually the hearing was to show cause why the appeal from Bellona Local Court should not be strike out on the ground that it was lodged outside of time limit.

2. The appellant relies on three grounds to advance this appeal; and they are;

(1). The CICLAC erred in fact in holding that the appellant's appeal in that instance was filed out of time.

(2). The CICLAC erred in law in striking out the appellant's appeal without due consideration of the relevant facts balancing with the interest and cause of justice.

(3). The CICLAC in the alternative was biased since the Secretary of the said Court Mr Flickson Samani is a kinfolk or relative of certain persons who are presently residing and benefitting from part of the land in dispute.

3. I will deal with grounds 1 and 2 together. Section 256 (1) of the land and Titles Act states;

"Any person aggrieved by an order or decision of a local Court given in exercise of its jurisdiction under Section 254 or Section 13 (d) or (e ) of local Courts Act may, within three months from the date of such order or decision, appeal there from to the customary land appeal Court having jurisdiction"

4. Appeal period in this case runs from 16th April 2007 to 17th July 2007. The issue as appear from evidence is whether Mr Maui paid the relevant fees within the three months period as required by law. After the Bellona Local Court had delivered its decision, Mr Paul Ngaingeri, Local Courts Officer, issued a letter dated 22nd May 2007 to both parties disclosing a copy of the decision and reiterated that right of appeal was within three months from the date of judgment.

5. Mr Maui who by then represented the appellant, affirm by his letter dated 19th June 2007, in replied to Mr Ngaingeri's letter and expressed his party's inclination to lodge an appeal against the decision. He also disclosed under the cover of the letter grounds of appeal. The letter eventually was received by the Central Magistrates Court on 12th July 2007, note page 35 of Appeal Record. It was on the same date in the afternoon Mr Maui said he paid the appeal and security for costs fees totalled up to $350-00; $100.00 for appeal fee and $250.00 for security for costs, paragraph 15 on page 14 of Appeal Record. This supposed to corroborate with the entry in his diary book on page 33 of the Appeal Record.

6. However there were notes on the letter which appeared to be a receipt copy by the Central Magistrate Court. One of the entries indicated that fees were paid on GTR No.1155526. Upon turning to the actual receipt on page 37 of Appeal Record it was dated 7th August 2007 and was receipted by a clerk in the High Court. The stamp received 12th July 2007 on the letter showed that the grounds of appeal were received on that date but without fees.

7. The previous arrangement administered by the Central Magistrates Court in collecting Government revenue was that when a person paid an amount of money they will issue temporary receipt and a list of names was prepared for issuant of actual official receipts from the High Court. This will take a day or two. Upon issuant of all the receipts they will be dispatched to the payers immediately. Not at any one time those revenue be kept under control of the Central Magistrates Court for more than a week.

8. This administrative management policy was an initiative to control and oversee Government revenue was collected at one central point, that was, at the High Court. It was a short term physical financial measure.

9. In latter course of time another change was experienced. This time all payments of fine, fees, appeal fees and costs be paid by the payers directly to the accounts section in the High Court.

10. If Mr. Maui did not pay any money to the High Court and yet received a High Court GTR receipt then that was probably during that time when the financial policy was changed. I doubt the Central Magistrates Court would have custody of revenue for 26 days before delivering it to the High Court for issuant of receipts. That is totally out of financial physical measure put in place at that time.

11. The only evidence available to proof Mr Maui had paid the appeal fees to the Central Magistrates Court was an entry into his diary on 12 July 2007 page 33 of Appeal Record. I noted there were prior conversation with Mr Ngaingeri or the Chief Magistrate. They did not prove anything. They showed Mr Maui's eagerness to get the appeal completely filed.

12. The evidence of record in the diary is subjected to and limited to other short falls. One of which Mr Konofilia has suggested and submits, it can be manipulated. Since it is a personal diary, it was controlled by the hands of Mr Maui himself to the extent of his own benefit. There is possibility that the entry was made to substantiate his case; raises multiple questions than answers.

13. If Mr. Maui is someone keen to record important events he experienced in life then why did he not record the date he received the receipt for $350-00. Was it not important to him?

14. I noted from the submissions the background facts about Mr Maui's carrier path. Whilst I appreciate his commitment and diligence; and respect for this achievements; his short comings as financial controller cost him some set back. Why, as a financial controller; someone who deals with money did not ask for a receipt for the $350-00 he paid, a temporary would suffice. Or at least obtain a confirmation when he will expect a receipt, or alternatively obtain a note to affirm that he had paid the appeal fees. None of those ever being thought of. If he was not given a receipt what was the process in place; he would have received an explanation, and in this Court he would have narrated how the receipt was issued by the High Court. In his sworn statement there was nothing, hence, a financial controller could not bother to know what will occur to his money. I noted from the submissions that Mr. Ngaingeri assured the appellant that he would forward the payment to the High Court and a receipt will be issued in due course. That is not enough. Mr. Maui had all the privilege in the world to check for the receipt. High Court is few steps away from any Government Ministry in Honiara.

15. He raises the issue about his name and distinguish it from the names appear in his passport. This evidence does not advance his case much; nothing can be obtained out of it. The same Mr Maui appeared in the correspondences also appeared in the passport and receipt. There is no two Maui's.

16. The appellant cannot rely on the case of Patotoa v Tolauai[1]. In this case the Court had sympathy to the appellant because he was not informed of the necessity to pay a fee until a year too late. Being regretted the Court suggest that appellants be informed that an appeal will not be entered until the fee is paid. But it remains a burden on the appellant to take all necessary steps whether or not he is informed of by the Court. Hence the sympathy one feels can have no effect on the position of law.

17. In this case the appellant was well informed prior to expiration of three months. He lived in Honiara close to Central Magistrates Court a few steps away. A civil servant in high rank with funds. Why did he not take reasonable steps to comply with the law; the burden is on him.

18. The appellant cannot also rely on the case of Nano and another v Riringi [2]. He was given privilege to explain and make submission at the CICLAC proceedings. Mr Fa'aitoa and Mr Konofilia agreed it was done. In my view justice had been explicitly seen done. He was not deprived of his rights to attend and explain his situation why the appeal fees were not paid within time limit. The same argument raised at the CICLAC hearing is also raise in this court. He said that he paid the fees in time, however, there is no evidence to prove that money was paid prior to the date appeared on the GTR receipt. Even at this Court there is no evidence to prove that the required fees were paid in time. Grounds 1 and 2 have not been proved and must be dismissed accordingly.

Ground 3

19. Mr Fa'aitoa also submits in the alternative the issue of bias; alleging that the Secretary of the CICLAC Mr Flickson Samani is a kinfolk of certain persons benefitting from part of the land. Apparently, though no particular person is identified, Mr Konofilia submits that he is from Tobaita and Mr Flickson Samani from Lau with no genealogical connections at all.

20. The law is clear on this principle. There are two tests to establish bias. One is "real likelihood of bias" and secondly "reasonable suspicion of bias". Mr Fa'aitoa prefer the first test which grounded in the case of Metropolitan Properties Co.(F.G.C) Ltd v Lennon & Others[3]. His Lordship, Lord Denning (the master of Rolls) formulated an authority which stood past in time, that the application of the test is based on what right minded or reasonable person would think in the circumstances.

21. In this case it is not established in evidence that Mr Flickson Samani has kinfolk's relationship with the respondent or Mr Konofilia for that matter. Suffice to say that the appellant cannot rely on the case of Maenu v Lamani[4]. In that case it was established that Justice Daka had close association and togetherness to the late Jimmy Ratu through marriage. And there were also evidence to establish there was collusion between the two. Nothing prove of such in this case. This ground must fail as well.

22. From the evidence before me, I am satisfied that the appellant has failed to substantiate each ground of appeal. It therefore render that this appeal be dismissed with costs.

Orders.

1. Appeal is dismissed.

2. Cost of this appeal is awarded to the respondent.

The Court.

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^[1] [1983] SBHC 13; [1983] SILR 112 [2 May 1983]
^[2] [1984] SBGC 16; [1984] SILR 9 [23 January 1984]
^[3] [1968] 3 All.F.R.304
^[4] [1992] SBHCI; HC-LAC 002 of 1992 [January 1992].