Daudau v Oneone [2023] SBHC 74; HCSI-CC 440 of 2020 (1 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Daudau v Oneone
Citation:
Date of decision:	1 September 2023
Parties:	Michael Daudau, Jacob Ohai, Stephen Siale and John Morrikana v Sam Oneone, Fr John Tome, William Samu, Bartholomew Dolonati, Henry Tabusu and Daniel Lioneno, Attorney General
Date of hearing:	25 May 22023, 12 & 14July 2023
Court file number(s):	440 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1 Appeal is dismissed. 2 Cost is awarded against the Appellant.
Representation:	Pitakaka M for the Appellants To’ofilu J for the 1st Respondents Pitry B for the 2nd Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 256 (3), S 256 (1), S 256 (1) [cap133]
Cases cited:	Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6, Filo v Totoi [2002] SBHC 100, Katovai v Lumukana [1984] SBHC 16, S 231 B (1)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

CIVIL CASE NO. 440 OF 2020

BETWEEN

MICHAEL DAUDAU, JACOB OHAI, STEPHEN SIALE AND JOHN MORRIKANA
Appellants

AND:

SAM ONEONE, FR JOHN TOME, WILLIAM SAMU, BARTHOLOMEW DOLONATI, HENRY TABUSU AND DANIEL LIONENO
First Respondent

AND:

ATTORNEY GENERAL
(Representing the Clerk to the Malaita Customary Land Appeal Court)
Second Respondent

Date of Hearing: 25 May 2023, 12 & 14 July 2023
Date of Judgment: 1 September 2023

Pitakaka M for the Appellants
To’ofilu J for the 1^st Respondents
Pitry B for the 2^nd Respondent

JUDGMENT

Kouhota PJ:

This is an appeal under section 256(3) of the Lands and Title Act (LTA), Cap 133 against the decision of the Malaita Customary Land Appeal Court (MCLAC) dated 5^th of June 2020 and written judgment dated 15^th June 2020. The Appellant’s grounds of Appeal are;

1. That the CLAC was wrong in law, Facts and Procedure.
2. The Malaita Customary Land Appeal Court was wrong in law and fact to accept and rely on the Respondent’s Amended Notice of Appeal dated 14^th of January 2020 and filed in the Malaita CLAC on the 25^th of March 2020 because the said Amended Notice was filed outside of the Statutory time to file an Appeal within three months pursuant to section 256 (1) Land and Title Act (LTA).
3. The Malaita CLAC was wrong in procedure for failure to comply with requirements set out in section 256(1) of the Land and Title Act [Cap 133] (LTA) when it accept and rely on the Respondent Amended Notice of Appeal dated 14^th of January 2020 and filed in the CLAC on 25^th of March 2020
4. Appellant seeks the following judgment in lieu of that Appeal from
5. That the Appeal is allowed
6. That the Judgment of the Malaita Customary Land Appeal Court dated (verbally 5^th June 2020 (Written on 15^th of June 2020) be set aside
7. That the Malaita Customary Land appeal Court reconstituted and rehear the Appeal that was properly before it
8. The Respondent pays cost of the Appellant in this Court
9. Such further Orders as the Court thinks fit.

Background.

This appeal is in respect of the Decision of the Malaita Customary Land Appeal Court over Harifafa and Bubuni Customary land

On 15^th June 2020, the MCLAC delivered its decision in an appeal against the Malaita Local decision on Harififi and Bubuni Customary Land and referred the matter back to the Local Court for rehearing.

The Appellant was aggrieved by that decision and filed this appeal.

All the Appeal grounds can be dealt with as one as they are basically on the same issue, that is the Malaita CLAC was wrong in Law and Procedure for failure to comply with requirements set out in section 256(1) of the Lands and Title Act [Cap 133] (LTA) when it accept and rely on the Respondent Amended Notice of Appeal dated 14^th January 2020 and filed in the CLAC on 25^th of March 2020.

Counsel for the Appellant submits that section 256(1) is clearly in mandatory terms since there is no discretion to entertain any appeal outside statutory period of 3 months. He therefore submit that the decision of the CLAC is therefore based on an erroneous view of law. He cited that the case of Vunagi v Palmer CAC on the 11^th of 2018 where the COA remarked that the principle in Anisminic Ltd V Foreign Compensation Commission [1968] UKHL 6; 1969] 2 AC 147 apply in this jurisdiction.

I had taken into consideration the Submission of Counsel and the Authority cited but in this case, the simple question this Court must consider is whether an amended appeal can be out of time by virtue of section 256(1) of the LTA.

Counsel for the First Respondent submitted that the MCLAC did not erred in law and the fact when it accept the Amended Notice of Appeal filed on the 25^th March 2020. He submit that under section 256(1) of the LTA, Cap 133, dictates that an Appeal from the Local Court to the CLAC must be made within a period of three months. However he submit that section 256(1) is silent on the issue of amending an appeal after filing in the Customary Land Appeal Court within three months.

Counsel refer the Court to the Case of Filo V Totoi [2002] SBHC 100, HC-LAC 106 of 1996 that the Case, like this case an Appeal from the Decision of the CLAC to this Court. In that case Counsel for the Respondent opposed the Amend Notice of Appeal on the grounds that they were out of time and contained new grounds, so he submitted that the CLAC has no jurisdiction to hear them. Kabui J in his judgment said

“The original Notice of Appeal was within time. I do not think the Amended Notice of Appeal is out of time. “Mr Hou cited no authority to support the assertion that new grounds of Appeal by way of amendment to the Original Notice of Appeal would also be subject to three months’ time limit under section 256(3) of the LTA. His Lordship went on and said “This is a customary Land dispute and I do not think the legislature would have intended technicalities to defeat the spirit of section 256 of the Lands and Title Act”

Section 256(1) of the LTA Cap 133 provide no guidance as to the format appellants must follow in an appeals from the Local Court to the Customary Land Appeal Court. All that section 256(1) says is that any person aggrieved by any order or decision of a Local Court may appeal to the Customary Land Appeal Court, within three months from the date of the order or decision. It says nothing on any requirement of any format or about amending the grounds of appeal after the original appeal has been filed.

In Katovai v Lumukana [1984] SBHC 16; [1984] SILR 9 Daly CJ held

“In the absence of rules, in my judgment, a document which express in terms that it is an appeal against a specific decision, even without detailed grounds, is sufficient to invoke the jurisdiction of the Court created by section 231 B(1) (now section 256 (1) of the LTA.

What his Lordship Daly CJ said in Katovai v Lumukana is, there is no rule requiring an appeal from the Local Court to be in a particular format or contain detail of the grounds of appeal, as long as the original document filed by the Appellant expressed he is appealing against the Decision of the Local Court that is sufficient and constitute a valid appeal.

I consider section 256(1) of the LTA is more concern with the time of filing an appeal as opposed to the particulars of the appeal including any amendments to the appeal. In that respect as long as the Original appeal was filed in time there is no rule about amending the Appeal grounds. I therefore consider that there is no restriction on amending the grounds of appeal so long as an original appeal has been filed in time.

Based on the reasons state above, the Appeal must be dismissed and the Decision of the Malaita Customary Land appeal Court upheld.

Orders

1. Appeal is dismissed.
2. Cost is awarded against the Appellant.

The Court
Emmanuel Kouhota
Puisne Judge