Vikasi v Vunagi [2016] SBHC 13; HCSI-CC 426 of 2013 (16 February 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 426 of 2013

BETWEEN:

HEDLEY VIKASI
Appellant

AND:

JOHNSON VUNAGI
Respondent

Date of Hearing: 16th February 2016
Date of Ruling: 16th February 2016

Ms. L. Ramo for the Appellant
Mr. W. Rano for the Respondent

RULING

Maina J:

An application to dismiss a Notice of Appeal was filed by the Respondent that the appeal was filed out of time and this Court has no jurisdiction to entertain the Notice of Appeal file out time. In alternative this matter should be struck out for want of prosecution.

Brief Fact

The Isabel Customary Land Appeal Court heard an appeal from the Isabel Local Court over the Furona/Varei Customary land and on 26th July 2013 orally delivered its decision dismissing the appeal. Appellant was aggrieved and or on his behalf of Gabriel Manelusi on 8th November 2013 filed a notice of appeal to the High Court against the decision of the Isabel Customary Land Appeal Court. Mr. Manelusi also attended the CLAC hearing and delivery of the decision on 26th July 2013.

Issue

The issue in this case is whether the appeal by the appellant was out of time.

The Appellant in the notice of appeal to the High Court alleges errors of law and procedures by the Isabel Customary Land Appeal Court.

Mr. Gabriel Manelusi in his sworn statement filed in Court on 8th July 2015 said that the Isabel Customary Land Appeal Court delivered the oral judgment of the appeal on 26th July 2013. He collected or obtained the written copy of the judgment on 16th August 2013 and the judgment was dated 8th August 2013. He said the right of appeal of 3 months commenced from the date in the written judgment and so the appeal is within the required time of appeal.

The Law

Appeal from Customary Land Appeal Courts to the High Court is in Section 254 (3) of the Lands and Titles Act (Cap 133) which provides:

"(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 there from 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".

It is important to note the requirements of appeal under this provision and in particular to file an appeal within three months from the date of such order or decision. And on the ground that such decision or order is erroneous in point of law or failure to comply with any procedural requirement of any written law.

For this case the fact simply is that Isabel Customary Land Appeal Court delivered the decision or judgment of the appeal on 26th July 2013 and Mr. Gabriel Manelusi filed the notice of appeal in the High Court on 8th November 2013.

As the law requires and for this matter the appeal against the decision of the Customary Land Appeal Court should commence on 26th July 2013, the date the decision was made or delivered. It is not on 8th August 2013, the date in the written judgment. This is so as Section 254 (3) of the Lands and Titles Act states that the decision of a customary land appeal court may within three months from the date of such order or decision. For this case the decision was delivered on 26th July 2013 and period of appeal should run until on or before 27th October 2013.

To my view the filing a notice of appeal by the appellant is out of time and therefore I rule that the appeal filed by Mr. Gabriel Manelusi on 8th November 2013 is out of time.

The related issue of the extension of time to be considered is not relevant as there is nothing for the Court to deal with or barred and as stated in Seselono-v-Kikiolo's 1982 SILR p15 and Kinista v Maemarine [200] SBHC89; HCSI-CC 3970 of 1999 (19th April 2000).

The appeal filed by the appellant on 8th November 2013 is out of time and therefore the appeal is struck out.

ORDER

(1) The order to struck out the appeal is granted.
(2) Appeal filed on 8th November 2013 is out of time and struck out.
(3) The costs of this application are awarded to the 1st Defendants on indemnity basis to be taxed if not agreed.

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge