lass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
MARTIN SADE
Before:
Frank O. Kabui, J.
Hearing:
3rd Octob01
Ruling: 5th Octo001
Mr.
hley for the Appellant
Mr.
Leslie Kwaiga for the Respondent
RULING
(Kabui,
J):
The Appellant is Mr. Tafimae. He was the Respondent in the Malaita Customary
Land Appeal Court. The Appellant in the
Malaita Customary Land Appeal Court
was Mr. Sade. The Malaita Customary Land Appeal Court gave its decision on
the dispute
over Baeio Land on 29th February 1996. Mr. Tafimae
appealed to the High Court against that decision of the Malaita Customary
Land Appeal Court.
His appeal was dated 22nd May 1996 filed on 24th
May 1996. Mr. Sade also filed his cross - appeal against that same decision
of the Malaita Customary Land Appeal Court.
His cross - appeal was dated 22nd
May 1996 but filed much later on 3rd June 1996. Both these appeals
came up for hearing before Awich, J. at Auki on 14th June 1996.
Counsel for Mr. Sade, Mr. Ashley, did not attend the hearing.
Awich,
J. adjourned it for 8:30 am on 17thth June 1999
or on any other day and time. The appeals again came before Muria, C.J. on
31st August 1999 at Honiara. At that hearing, Muria, C.J. acceded
to a suggestion by Counsel for both parties that they made written
submissions. Muria, C.J. then directed that written submissions by Counsel
be made within 14 days from the date of that
hearing and that the
submissions be served upon the parties. Muria, C.J. also directed that if
there was any need for
a reply, the other side should do so within 7 days
after the expiry of 14 days. Finally, Muria, C.J. directed that if there
was
need for further submissions, such should be made at the date of hearing
which dated would be fixed. Counsel for
Mr. Tafimae, Mr.
Kwaiga, complied by filing his written submissions on 21st
September 1999. Counsel for Mr.
Sade, Mr. Ashley, failed to comply and sought leave to do so out of time.
Counsel for Mr. Tafimae did not oppose leave
and I granted leave. Counsel
for Mr. Sade told me that he had prepared his submissions but had not filed
them due to
an oversight. I had the impression that Mr. Ashley had his
written submissions in Court and would file them upon the rising
of the
Court. Mr. Ashley still has not filed his written submissions since the
rising of the Court. Upon my understanding
that Mr. Ashley was filing his
written submissions upon the rising of the Court, I directed that a reply,
if any, from
Kwaiga would be within 7 days from date of this hearing.
However, the issue before me is whether or not the Respondent�s cross
-
appeal filed on
3rd
June 1996 was out of time. This issue had been raised by the Appellant in a
letter dated 2nd July 2001, addressed to the Principal Magistrate
at Auki. This letter was also copied to the Registrar of High Court, Crystal
Lawyers and A & A Legal Services. The Registrar by letter dated 4th
September 2001, acknowledged the Appellant's letter and told the Appellant
that he (the Registrar) would leave the matter
in the hands of the
Solicitors for the parties. By letter of that same date, the Registrar wrote
to Crystal Lawyers pointing
out the need for the Court to consider first the
issue of whether or not the Respondent's cross - appeal was out of time as
a
preliminary point. This letter was copied to A
&
A Legal Services for attention. The
present hearing is for that purpose only and not the hearing of the full
appeal. I
do not see any reason why that should be the case at all because
the preliminary issue can be heard together with the full
appeal and decided
in the same judgment. In fact, Counsel for the Appellant, Mr.
Kwaiga, had already dealt with the preliminary issue in his submissions
filed on
21st
September 1999. Counsel�s argument was that the Respondent's cross - appeal
was out of time by 5 days. Counsel for the
Respondent, Mr. Ashley, conceded
this point on the cross - appeal by admitting that the cross - appeal was
out of time.
In terms of Section 256(3) of the Land and Titles Act (Cap.
133), the aggrieved party must file the appeal within 3 months from the
date of the Court's decision. In this case,
the period of 3 months began to
run from the date of the Court�s decision being 29th February
1996. The last day for the filing of the appeal was 28th May
1996. The Respondent's cross - appeal was clearly out of time. The authority
on this issue is
Seselono v Kikolo
[1982] S.I.L.R. 15. The Court lacks the
jurisdiction to entertain an appeal that is out of time. The result
therefore is that only Mr.
Tafimae�s appeal will be heard and decided by the
Court at a later date to be fixed. In view of Mr. Ashley�s inability to file
his written submissions on the date of this hearing, I order that he should
file his written submissions within 7 days
from today. Any reply, if any
must be filed within 7 days thereafter. The hearing date for the submissions
will be fixed
by the Registrar on the instructions of the Appellant. Costs
will be in the cause.
F.
O. Kabui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/72.html
