Kile v Central Magistrates Court [2014] SBHC 104; HCSI-CC 163 of 2012 (9 October 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CIVIL CASE NO 163 OF 2012

BETWEEN:

NELSON KILE
(Representing Baehai Clan)
Claimant

AND:

CENTRAL MAGISTRATES COURT
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

AND:

LISE DUKO
Fourth Defendant

AND:

SIA ENTERPRISES LTD
Fifth Defendant

Date of Hearing: 17th September 2014
Date of Decision: 9th October 2014.

Mr C. Hapa for the Claimant
Mr B. Etomea for the fourth Defendant
Mr D Lidimani for the fifth Defendant

DECISION ON CHAPTER 15 CONFERENCE.

Faukona J: This is a pre-trial conference as required under Rules 15.3.16 -15.3.21. Often it refers to as Chapter 15 Conference. This conference is a mandatory process required under the Rules in all cases of claim for judicial review. Requirements under R 15.3.18 (a)(b) and (d) have been agreed upon by the parties as being fulfilled by the Claimant. The only issue is undue delay.

2. On or about 9th December 2009 an acquisition hearing was conducted to acquire sareai customary land (disputed land) for registration. Following that process the Acquisition Officer determined on 19th December 2009 two persons Lise Duko (fourth Defendant) and John Sike as rightful persons to claim ownership over sareai customary land.

3. The Claimant as a person aggrieved of that determination filed an appeal on 9th March 2010 in the Central Magistrates Court against that determination. By reasons stated herein, the Claimant's appeal was not registered and considered due to failure by the Claimant not paying the necessary appeal fees. As a result the Chief Magistrate by his letter dated 7th October 2010 wrote to the Commissioner of Lands certifying that there was no appeal pending in respect of land acquisition hearing over sareai customary land.

4. As it appears the Chief Magistrate may have been waited for six months for the Claimant to pay, at last issued a letter on 7th October 2010 certifying there was no appeal pending. In deed the Chief Magistrate had in mind at that time that because of non-payment of the appeal fees there was no appeal at all. The notice of appeal filed by the Claimant was of no effect and one which could not be considered as an appeal at all.

5. On 23rd of May 2012, the Claimant filed this proceeding seeking judicial power to review the decision by the Chief Magistrate certifying that there was no appeal pending adjudication by his Court.

6. The argument/ issue before this Court is whether by filing this claim on 7th October 2010, nineteen and half months after the Chief Magistrate decided that there was no appeal left, a delay in the sense which R 15.3.8 advocate against. The Rule specifically states that any claim for judicial review must be filed within six months. Notably, was nineteen and half months (19½ months) before filing this claim tantamount to undue delay? Of course it was late.

7. I noted the two cases, which Mr Etomea and Mr Kii refer to. In the case of John Mark Tatavua and Simon Tonavi and Others V Attorney-General and Others[1] the Court found that twenty three months late in filing the claim is undue delay and it was late. In the second case of Galokamake V Irvin Ngai and Others[2]. His Lordship stated at paragraph 8;

"Rule 15.3.8 specifically applies to a quashing order. A person seeking a quashing order must seek his remedy promptly. It would be wrong to allow someone to sit back and do nothing about challenging a decision whilst others, legitimately, relied on the decision. Those relying on the decision would be prejudiced by the delay. The longer the delay in bringing the matter before a Court, the greater the possible prejudice"

8. The reliefs sought by the Claimant in his claim comprised of declarations and mandatory order. The mandatory order sought is one which would direct the Central Magistrates Court to hear and determine the Claimant's appeal.

9. Mr Hapa argues that R 15.3.8 concern a claim for quashing order which must be filed within 6 months. However, His Lordship further stated in paragraph 8 of Qalokamake case.

The question of delay is therefore an important issue not just in proceedings where a quashing order is asked but in all judicial review proceedings. Rule 15.3.18 (с) reinforces that view".

10. The delay being the subject matter of this case is not a delay that the Claimant as an experienced litigant fully aware of all developments relating to sareai customary land and yet failed to follow up his appeal with the magistrates Court. Nor a delay as expressed by Mr Kii in paragraphs 27-29 of his submissions which confine to non-action by the Claimant though fully aware of logging operations and issuant of felling licence. The delay here confines to the delay by the Claimant not to file a claim for judicial review in time after the Chief Magistrate had decided not to record his appeal hence not considered and was treated as non-existence or not pending because of lack of payment of prerequisite appeal fees. By resuming to what he did this claim was filed to judicially review the Chief Magistrate's action. And the question whether the claim was filed within 6 months is a matter now before this Court.

11. In deciding whether the delay is reasonable, unreasonable, undue delay or inordinate delay consideration must be given to facts rooted from the claimants appeal to the Magistrates Court from the Acquisition Officers determination.

12. There is no dispute there was delay. But Mr. Hapa submitted delay is not a significant issue here. The Claimant is not someone who sits back and does nothing and failed to seek his remedy, promptly. He filed an appeal on 9th March 2010 by hand delivery in good time. On or about 13th March 2010 the Chief Magistrate acknowledged receipt of the appeal. Thereafter, was a void period until the Chief Magistrate issued a certificate of no appeal to the Commissioner of Lands on 7th October 2010. Following the issuant of the certificate the fourth and the fifth Defendants took further steps and processes resulted in execution of a timber rights agreement over the land on 23rd November 2010.

13. What ought to have been done by the Chief Magistrate as the Chief administrator of the Magistrate Court, is, having acknowledged of and in receipt of the Claimant's appeal, should have checked whether an appeal fee was paid. If not, with the same acknowledgement note informed the Claimant that he had to pay an appeal fee and other prerequisite appeal costs by a date. This was not done. And the Chief Magistrate had overlooked an administrative function vested on him. He should have diligently performed better. Public at large and people of this country expect more from such a public office. His failure did prejudice rights of the Claimant to have his appeal heard.

14. Having said that it would be misconceived to consider the cases in Taupongi V Puia.[3] I came from that office to the High Court bench. I understand fully the responsibilities of the Chief Magistrate. An appellant is not expected if the person in that office failed to inform him must take all necessary steps to inquire himself. I think the mandatory responsibility is vested on the Chief Magistrate. Failing his duty mean prejudicing the Claimant in this case.

15. The approach whether the Claimant is an educated person or a frequent litigant has no effect in this case. Therefore, it is not necessary to consider the case of Taupongi V Puia at all.

16. Perhaps the most significant point to note is Rule 15.3.9 which states that Court may extend the time within or outside of the prescribed period for making a claim if it is satisfied that substantial justice requires it. The question is what may amount to substantial justice. Substantial justice without prejudice. This rule calls for high performance justice to prevail.

17. On 11th April 2014, I made a ruling in an application for restraining orders by the Claimant. I noted as evidence (paragraph 7) of that ruling, that there was a final determination by Isabel customary land Appeal Court in relation to sareai customary land. That Mr. Nelson Kile (Claimant) and Dorah Kikolo for and on behalf of baehai clan have primary rights over sareai customary land LR681. The decision was dated 28th Aprils 1999. In fact that determination affirmed the Local Court decision dated 7th September 1998.

18. On 19th December 2009 an Acquisition Officer determined that Lise Duko (4th Defendant) and John Sike were the rightful person to claim rights of ownership over sareai customary land (LR681). That decision was absolutely contrary to the LC and CLAC determinations, which no appeal was filed to that effect. The Claimant was completely out of scene by then and taken over by the fourth Defendant who was identified by the Local Court record as one of the six spokes people for sesehu tribe and had been lost.

19. To refuse to hear the claim and strike it out at this stage on the ground of delay alone is substantial injustice to the Claimant. The Claimant indeed has a case and that ought to be tried at an appropriate time. The overall justice of the situation entitles the Claimant to have the claim heard and determined on the merits. Justice I perceive in this case is justice that indeed outweighs the element of delay.

Orders:
1. The Claimant has fulfilled the requirements under Rule 15.3.18. The case should proceed to the next stage.

2. Case adjourn to next motion day 16th October 2014.

3. Cost in the cause.

The Court.

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^[1] (2013) HC-SI, Civil Case No. 7 of 2012 (11^th December 2013)
^[2] (2011) HC-SI Civil Case No. 358 of 2010 (27^th June 2010)
^[3] (2003) SBHC 85,