Ngasukana v Leketo [2020] SBHC 56; HCSI-CC 104 of 2019 (6 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ngasukana v Leketo
Citation:
Date of decision:	6 July 2020
Parties:	Charles Ngasukana
Date of hearing:	15 May 2020
Court file number(s):	104 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona J
On appeal from:
Order:	1. Order is hereby made striking out the notice of appeal filed by the Appellant on 1st March 2019. 2. Costs incidental to this application and appeal be payable to the Respondent.
Representation:	Mr. J Taupongi for the Appellant Mr. B Kaehuna for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, R 7.95, Land and Titles Act, s 256 (3), Interpretation and General Provisions Act [cap 85], s 55 (1), s 15.55 (1) (c), s55 (1) (b), s16 (1)
Cases cited:	Taupongi V Paia[2011] SBHC , Vikasi v Vunagi [2016] SBCA 14

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 104 of 2019

BETWEEN

CHARLES NGASUKANA
(representing himself and the Mamala Tribe of East Choiseul, Choiseul Province)
Appellant

AND:

LEO LEKETO
(resenting himself and the Bapoqo tribe of Northeast Choiseul, Choiseul Province)
Respondent

Date of Hearing: 15 May 2020
Date of Ruling: 6 July 2020

Mr. J. Taupongi for the Appellant
Mr. B. Kaehuna for the Respondent

RULING ON APPLICATION TO STRIKE OUT APPEAL

Faukona PJ: his is an application filed by the Respondent on 7^th May 2019, to strike out the Appellant’s notice of appeal filed in the High Court on 1^st march 2019, against the decision of the Western Customary Land Appeal Court (WCLAC) formally delivered on 17^th December 2018.

2. The content of which the application premise is that the appeal was filed out of time, hence, was a frivolous and vexatious proceeding by virtue of Rule 9.75 of Solomon Islands Court (Civil Procedural) Rules 2007, therefore was statute barred.
3. On 28^th November 2018 the WCLAC heard the land dispute between the parties in Civil Case No. 33 of 2017, at Gizo, Western Province.
4. On 30^th November 2018, WCLAC delivered its verbal judgment in favor of the Respondent (Leo Leketo). On 17^th December 2018 both parties received their copies of the written judgment. The formal orders were: allow the appeal and set aside the Local Court decision and declared the true owner of the disputed land as the Respondent.
5. The Appellant then on 1^st March 2019 commenced these proceedings by filing notice of appeal in the High Court.
6. On 7^th May 2019, the Respondent filed this application to strike out the appeal for being filed late after the 3 months appeal period set out in S.256 (3) of the Land and Tittles Act had lapsed.
7. The contentious issues relate to the limitation as expressed by S.256(3) of Land and Titles Act which states that an aggrieved party appealing to the High Court must file notice of appeal within three months from the date of such order or decision.
8. The Respondent in this application contests and states that the notice of appeal filed by the Appellant was one day late, therefore barred, and no extension of time can be given. In such circumstance it follows that there is no justifiable matter before this Court having jurisdiction to consider therefore should be struck out.
9. The Appellant argues that the notice of appeal was filed on 1^st March 2019, was not out of time but was filed on the last date of the appeal period.
10. What now ought to be considered is the question of interpretation and computation of time.
11. The current case reflected a scenario which confer obligation upon this Court to interpret and calculate when the appeal period begin to run and when it should end. The circumstance permits that the period begins to run as prescribe by S. 256(3) as “within three months from the date of such order or decision.”
12. Though there were two modes as to how the determination and orders of the WCLAC were delivered, the first is by way of oral delivery of the decision the other is serving copies of the written decision upon parties. The Court of Appeal ruled in favor of delivering a written judgement in the case of Vikasi V Vunagi.^[1] That where a CLAC first pronounce an oral decision and subsequently delivers a written judgment, the appeal period starts running from the date of the service or delivery of the written decision.
13. In applying the ratio in this particular case the appeal period started from 30^th November 2018, the date WCLAC serve a copy of the its written decision which should expectedly run for the next three months. Noted it is not easy to calculate the period. As the saying goes on, it’s easy to say than done.
14. However, to be as near to the exact, S. 55(1) of Interpretation and General Provisions Act (Cap.85) as amended offers assistance.
15. S.55 (1) provides significant and interesting basis when the period should start. The Appellant is favoring 15.55(1) (c) of the Act as appropriate in the circumstance of this case.
16. In my observation S. 55 (1) (c) is not appropriate in this case. The appropriate section is S. 55(1) (b). The reason is plain and clear. In S. 55(1) (c) expressly started where a period begin after as a specified day, then the period shall not include that day. Simply by accepting S. 55 (1) (c) it could further prolong the period by one day.
17. In S.55 (1) (b), it is simple where the period expressed to begin.., as in this case, the period which S. 256 (3) expressed to begin is from the date of such order or decision which was on 30^th November 2018. However, the intrusion of S. 55(1) (b) states that the period shall exclude that day that is 30^th November 2018.
18. I do not think the definition of months expressed in S. 16 (1) of the Interpretation and General Provisions Act is applicable in this case. If the principle on computing the three months period is used, would likely to produce some bizarre results. Either the period will be shorter or longer in some sense.
19. I do note the hypothetical scenario the Counsel for the Appellant intended to pursue. In the case he refers to Taupongi V Paia,^[2] the Court started to count from 17^th April 2007, a day after the decision of CLAC on 16^th April 2007. This Court had decided the count to start from the next day 17^th April 2007. The first month ended on 17^th May 2007, the second month ended on 17^th June 2007, and third month ended on 17^th July 2007. The Court then held the appeal was out of time.
20. If we count number of days, the first month should be counted from 17^th April to 17^th May, then the second month be counted from 18^th May to 17^th July 2018, and third month should be counted from 18^th June 2018 to 17^th July 2018, a total of 92 days. This is possible because two months have 31 days and one month has 30 days.
21. In that case the appeal notice was filed on 6^th May 2010; it was 2 years 11 months and 11 days late. On the outset it was more than 92 days therefore the appeal was late.
22. If we count number of days, which make up a month, then the scenario exhibited here is more appropriate. There is no doubt the counts starts from 1^st December 2018. From 1^st December 2018 to 31^st December 2018 is 31 days that forms one month. From 1^st January to 31st January 2019 is 31 days, that’s the second month. Then from 1^st February to 28^th February 2019 which is 28 days that’s one month. When you add all of the days you come to 31 + 31 + 28 = 90 days, that’s exactly three months. So the final day to file a notice of appeal in this case is 28^th February 2019, and not 1^st March 2019. The count is simple and very easy to understand. I do not understand why Counsels wish to fiddle around with numbers of the calendar months to arrive at different conclusions.
23. I cannot figure out why when the count starts at 1^st December 2018, the end of that month could be 1^st January 2019. That is impossible. The month of December starts at 1^st December and ends at 31^st December. No more question, but simple. To add one more day to 31^st December could mean extra day to make up for the one day late in filing the appeal. At the end of the day, one day will shift forward to allow for the appeal which in my view was late by one day.
24. I would not agree with the Counsel for the Appellant in his computation technique. After all if the month of February is one of the three months, the maximum numbers of days in a leap year is 91 days. It is two days below 93 days which the Counsel had calculated. Even in a leap year there can never be 93 days in three months where February is included.
25. With those computation and analysis, I must therefore uphold the application and strike out the appeal. Counsels have agreed in the law that this Court has no jurisdiction to extend the appeal period. The appeal was late by one day therefore barred and cannot be extended.

Orders:

1. Order is hereby made striking out the notice of appeal filed by the Appellant on 1^st March 2019.
2. Costs incidental to this application and appeal be payable to the Respondent.

The Court.

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^[1] [2016] SBCA 14; SICOA-CAC 02 of 2016 (October 2016).
^[2] [2011] SBHC; HCSI-CC 168 of 2010 16 September 2011.