Laro v Attorney General [2020] SBHC 125; HCSI-CAC 719 of 2019 (21 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Laro v Attorney General
Citation:
Date of decision:	21 August 2020
Parties:	Stephen Laro v Attorney General, FR. George Taliave, Ezekel Neing, Christian Neing, Harry Malock and Simon Peter Ka’ake, Lonsdale Nodie
Date of hearing:	12 August 2020
Court file number(s):	719 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:	Magistrate Court
Order:	Accordingly, the appealed decision became final and executory and deprives this appellate court (High Court) of any jurisdiction to act, there being no appeal matter to entertain after 15/10/2019. The NOA is therefore dismissed under Rule 9.75(b), as disclosing no reasonable cause of action and or abuse of court process (Rule 9.75(c)). Cost follow the event. Order accordingly.
Representation:	Mr. L. Puhimana for the Applicants/Second Respondents No Appearance for the First and Third Respondents (Acquisition Officers) Mr. D. Nimepo for the Respondent/Appellant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133], Section 66 (1) and (2), 66 (2), Solomon Islands Courts (Civil Procedure) Rules 2007 9.75 (a-c), 16.2, 9.75 (2), 9.75 (b), 9.75 (c)
Cases cited:	Duko v Kile [2019] SBCA 12; Vikasi v Vunagi [2016] SBCA 14

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Appeal Case Number

BETWEEN

STEPHEN LARO
Appellant

AND:

ATTORNEY GENERAL
(Representing the Acquisition Officers: Waipora and Nodei)
First Respondent

AND:

FR. GEORGE TALIAVE, EZEKEL NEING, CHRISTIAN NEING, HARRY MALOCK AND SIMON PETER KA’AKE
Second Respondent

AND:

LONSDALE NODIE
Third Respondent

Date of Hearing: 12 August 2020
Date of Ruling: 21 August 2020

Mr. L. Puhimana for the Applicants/Second Respondent
No Appearance for the First and Third Respondent/Appellant

Keniapisia; PJ:

RULING ON APPLICATION TO STRIKE

1. By Notice of Appeal filed 20/12/2019, Appellant, Mr Laro, wants this Court to quash the decision of learned Deputy Magistrate Iomea delivered on 15^th July 2019. And for this Court to order that there be a fresh an proper land acquisition over Nga’aule Land (Oktamn land), pursuant to the Land and Titles Act ( Cap 133)- “ the LTA 133”
2. Customary land acquisitions are governed under the LTA 133. Once a customary land is acquired under the relevant provisions of the LTA 133, the process to challenge the acquisition of customary land is to be found under Section 66(1) and (2) of LTA 133. Firstly under Section 66(1) of LTA 133, a person who is aggrieved by any act or determination of the Acquisition officer (“AO”) may within three (3) months of the AO’s decision appeal to the Magistrate Court. Secondly, under Section 66(2) of LTA 133, any person who is aggrieved by a decision of the Magistrate Court may within 3 months of the Magistrate’s decision appeal to the High Court.
3. Appellant herein, in the Notice of Appeal is aggrieved by a decision of Deputy Magistrate Iomea, in Land Acquisition Appeal Case No. 230 of 2017, not Land Acquisition Appeal Case No. 230 of 2019, as erroneously pleaded in the Notice of Appeal (“NOA”). I had to clarify this error with Counsel Nimepo at oral submissions, as the NOA clearly pleaded that Land Acquisition Appeal Case No. 230 of 2019, was delivered on 15^th July 2019. Learned Deputy Magistrate Iomea decision of 15^th July 2019 covered the acquisition made by both Waipora and Nodei (the two AOs) involved in the acquisition of the land complained of by Mr Laro. That land is Nga’aule Land (Oktamb Land).
4. Mr Puhimana for the Second Respondents applied to dismiss the NOA because it was file outside of the 3 months appeal period allowed under Section 66 (2) of the LTA 133, exposed in paragraph 2 above. Because of the 3 months legal obstacle, the NOA is not valid. And the NOA should be dismissed under Rule 9.75 (a) – (c), Mr Puhimana submitted. That the NOA was not properly brought, having been filed well beyond the 3 months period, allowable for appeal under Section 66 (2) of LTA 133.
5. Regrettably for the Appellant, I have to concur with Counsel Puhimana. The case authorities, Counsel Puhimana cited were too many and too clear that I cannot even entertain any reasons for the delay in filing the NOA, as Counsel Nimepo tried to negotiate for at oral submissions. I would not even consider the reasons for delay, because the NOA, is not an application to extend time. Even an application to extend time would run foul against the Vikasi Court of Appeal decision Mr Nimepo seek to rely on. The NOA is the substantive appeal which was filed outside the 3 months grace period for appeal, not an application to extend time. Any valid NOA should have been filed in 3 months by 15/10/2019.
6. Accordingly, the NOA have been filed after 15/10/2019, cannot be entertained by this Court. The NOA filed on 20/12/2019, offends against Section 66(2) of the LTA 133 read with Rule 9.75 (a) – (c). Under the latter, the NOA is dismissed because it is an abuse of court process, frivolous or vexatious and does not disclose a reasonable cause of action. There is no reasonable cause of action running in terms of any “valid appeal rights” after 15/10/2019. For the appealed decision became final and executory and this Court lacks jurisdiction to scrutinise it, as of 15/10/2019. One of the cases Counsel Puhimana cited relevantly stated:-
   • “We further emphasise, that the right to appeal is not a natural right or part of due process. It is purely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law when the language of the statute is unambiguous. Well rooted is the principle that perfection of an appeal within the statutory period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory and deprives the appellate court of jurisdiction to act or the final judgment as there is no appeal matter to entertain the appeal”^[1](underlined – my emphasis)
7. Even the Court of Appeal decision Counsel Nimepo seek to rely upon to submit that time can be extended because there were noble reasons why the NOA was filed late did not support Mr. Nimepo’s position. The said Court of Appeal case^[2] relevantly stated :-
   • “We are satisfied the decision of the CLAC on 26^th July dismissed the appeal and therefore was final order. That conclusion is re-enforced by the CLAC’s decision of 8^th August which specifically refers to its decision of 26^th July as dismissing the appeal. Time therefore begun running for an appeal to the High Court on 26^th July. When the appellant filed his appeal 8^th November he was beyond the three months appeal period and so out of time.”
   • “ Rule 16.12 of Civil Procedure Rules provide that an appeal from ( as relevant here a tribunal) to the High Court is to be (16.12(a) “ not later than the time provided by the relevant law or any further time the Court allows in accordance with the relevant law”
   • “The Lands and Titles Act as the “relevant law” allows three months to appeal from CLAC to the High Court. But it provides for no extension of time. In those circumstances the appeal was out of time and extension could not be given. For the reasons given the appeals is dismissed” (underlined- my emphasis)
8. Accordingly, the appealed decision became final and executory and deprives this appellate court (High Court) of any jurisdiction to act, there being no appeal matter to entertain after 15/10/2019. The NOA is therefore dismissed under Rule 9.75(b), as disclosing no reasonable cause of action and or abuse of court process (Rule 9.75(c)). Cost follow the event. Order accordingly.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Duko v Kile [2019] SBCA 12; SICOA-CAC 27 of 2017 (18^th October 2019), at paragraph 41.
^[2] Paragraphs 16,17 and 18 of Vikasi V Vunagi [2016] SBCA 14;SICOA-CAC 02 of 2016(12^th October 2016)