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Afuno v President of the Malaita Customary Land Appeal Court [2022] SBHC 36; HCSI-CC 59 of 2020 (14 June 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 59 of 2020

BETWEEN

RAPHAEL AFUNO
Appellant

AND:

PRESIDENT OF THE MALAITA CUSTOMARY LAND APPEAL COURT
First Respondent

AND:

PATRICK LONE
Second Respondent

Date of Hearing: 9 June 2022
Date of Decision: 14 June 2022

Mr L Puhimana for the Appellant
Ms P Rofeta for the First Respondent
Mr N Laurere for the Second Respondent

Lawry; PJ

RULING

Introduction

1. The dispute in this matter has been protracted. On 18 May 1998 the Malaita Local Court sitting in Malu’u gave a ruling in relation to customary land called Takwa in Malaita. The Appellant appealed that decision to the Malaita Customary Land Appeal Court which is the First Respondent. The Appellant is now deceased and is represented by Placid Sale. The First Respondent heard the appeal and delivered its judgment in favour of the Appellant on 4 October 2011. The Respondent appealed to the High Court which on 13 September 2013 upheld the appeal and directed that the matter be referred back to the First Respondent to be heard by a differently constituted panel.
2. The appeal was listed for hearing in November 2019. Notice of the hearing was given by radio broadcast. Placid Sade was not aware of the broadcast nor the hearing date. On 29 October 2019 he made enquiries of the First Defendant about the hearing of the appeal and learned that it was scheduled for 7 November 2019. That was only 9 days before the hearing. He was unable to be available for the hearing at such short notice because of the commitments he had as a school principal. From the advice he received from the clerk of the First Respondent, it was unknown whether the appeal would be able to proceed. The clerk advised him to write a letter explaining his position which he did. He indicated that he would be available on 15 November 2019 when the First Respondent was still scheduled to be sitting. He did not attend on 7 November 2019. There is conflicting evidence about whether representatives of the Appellant attended on that date.
3. On 7 November 2019 the Second Respondent opposed any further adjournment. The First Defendant then did not hear the appeal but dismissed it in a written decision given on 8 November 2019. The appeal was dismissed without considering the merits of the appeal but on the basis that Placid Sale was not in attendance to present the appeal.
4. Placid Sade attended the Court on 15 November 2019 being the date that he had requested the First Respondent to hear the appeal and received a copy of the decision dismissing the appeal at that time.
5. On 12 February 2020 Placid Sade filed an appeal to this Court.

Application

6. The Second Respondent has filed an application to determine a preliminary issue of law. He submits that the appeal is filed out of time.
7. The Second Respondent relies on the time limitation set out in section 256(3) of the Land and Titles Act [“the Act”]. That section 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 therefrom 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.”
8. The Appellant argues that the time limit for filing the appeal should commence on 15 November 2019 being the day he was served with a copy of the decision.
9. His second argument is that time should begin to run from the time he became an aggrieved party. The submission is that he could not be an aggrieved party until he had knowledge of the decision.
10. The Appellant then argues that an aggrieved party must be afforded the right to be heard. He argues that as he was not properly notified of the hearing he has been denied that right.
11. The Appellant then argues that procedural rules must be the servants of the Courts and not frustrate the administration of justice.
12. Finally, the Appellant submits that because of the importance of customary land to the people of Solomon Islands should not apply procedural rules rigidly. He relies on the case of Heritage Park Hotel Ltd v Commissioner of Lands [2016] SBHC 146 which emphasised that custom is an on-going process and able to accommodate changes to ancient rules.

Discussion

13. The Court of Appeal in Vikasi v Vunagi [2016] SBCA 14 considered when the three month time limit commences. In that case, the Customary Land Appeal Court gave an oral decision on 26 July 2013 dismissing an appeal with its written judgment being given on 8 August 2013. The Court said:
    • “We are satisfied the decision of the CLAC on 26 July dismissed the appeal and therefore was a final order. That conclusion is reinforced by the CLAC’s decision of 8 August which specifically refers to its decision of 26 July as dismissing the appeal. Time therefore began running for any appeal to the High Court on 26 July. When the Appellant filed his appeal on 8 November he was beyond the three month appeal period and so out of time.”
14. The Court then referred to Rule 16.12 of the Solomon Islands Courts (Civil Procedure) Rules 2007 [“the Rules”] determining that the rule applied to an appeal from the CLAC. The Rule provides:
    • “16.12 A notice of appeal from a decision of the Magistrate's Court or a tribunal must be filed in the court:
    • (a) not later than the time provided by the relevant law or any further time the court allows in accordance with the relevant law; or
    • (b) if no time is provided by the relevant law - not later than 28 days after the day the decision appealed from was made, or not later than any further time the court allows on application at any time; “
15. At paragraph [18] of Vikasi the Court concluded:
    • “The Lands and Titles Act as the “relevant law” allows 3 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 no extension could be given. For the reasons given the appeal is dismissed.”
16. In the present case, the appeal was called on 7 November 2019 and in the written decision delivered in Court the following day, the appeal was dismissed. The decision recorded that the right of appeal was within 3 months of the judgment. Applying the principles of Vikasi the time would run from the date of the written decision so that any appeal must be filed by 9 February 2020. The appeal to the High Court was in fact filed on 12 February 2020.
17. The Appellant attended Court on 15 November 2019 and received a copy of the ruling from the First Respondent. His counsel argued that the three-month time period should not commence until 15 February being the date that he received the judgment. It is submitted that he had not become an aggrieved person until he had knowledge of the decision when it was given to him on 15 November 2019.
18. The Appellant further argues that rule 26.5 of the Rules excludes the period from 24 December till 14 January the following year. That rule provides:
    • “26.5 In calculating the time fixed by these rules or by any order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, as is the period from Good Friday to Easter Tuesday, unless the court otherwise orders.
19. In addition, Rule 26.1 provides that unless the context otherwise requires ‘month’ means calendar month.
20. Rule 26.5 refers to time periods fixed by the Rules or by an order which fixes, extends or abridges time. There is no rule in the Rules that fixes the time for filing an appeal from a decision of the First Respondent. That time limit comes from the Act itself as set out in paragraph [7] above. Rule 26.5 therefore has no application to the time for commencing this appeal.
21. In submitting that the Court should take the starting date of the time period as 15 November the Appellant relied on the Court of Appeal decision Kokoro v Piko [2021] SBCA 14. That decision does not assist the Appellant as the reason that the date of the written decision was taken as the commencement period was that there had been no sufficient evidence to show that the CLAC had made an oral ruling before the written decision. Kokoro does not overturn the decision in Vikasi which is binding on this Court. Kokoro is not an authority for the proposition that the appeal period does not commence until the aggrieved party receives a copy of the decision, as submitted by counsel.
22. The Appellant submitted that the appeal period commences form the time a party becomes an aggrieved person. That is inconsistent with the wording of section 256(3) of the Act. It is also inconsistent with the decision of Vikasi. The Appellant referred the Court to the decision of Nano v Riringi; Katovai v Lumukana [1984] SBHC 16. That decision in fact is consistent with Vikasi. The Court said:
    • “If the decision had been announced in public after due notice then there would be no difficulty; the three-month period would start to run from that date.”
23. The Appellant had been advised of the hearing when he visited the Court on 29 October 2019. He therefore had due notice. The decision was announced in public on 8 November 2019. That is the time the appeal period commenced. Counsel has raised a concern about the notification of the hearing being given by radio broadcast. Counsel has referred the Court to the decision of Pita v Qoloni [1997] SBHC 116 where former Chief Justice Muria allowed an appeal on finding the Appellant had not heard a radio broadcast service message and directed the next notice to the parties to be served by Police with affidavit evidence of the service to be filed in Court. Had the Appellant in the present case not received notice when he attended the Court on 29 October there would have been a strong basis for the submission that he had not received due notice. However, he knew that the case was scheduled for hearing and accordingly had due notice.
24. The argument of the Appellant is that as he was given inadequate notice of the appeal to the First Respondent he has been denied the right to be heard. In the High Court his right to be heard was dependent on providing the High Court with the jurisdiction to hear the appeal by filing his notice of appeal within the prescribed time. It is not a consequence of not being given adequate notice of the CLAC hearing but was a result of not complying with the statutory time limit for filing an appeal.
25. The submission that the Court should take a flexible approach to time limits in the interests of justice may have some relevance if there was jurisdiction to extend the time limit set by the Act. There is no power to extend that time. This argument must therefore fail.
26. While recognising the importance of land to the people of Solomon Islands, a final order was made in public by the First Respondent on 8 November 2019. The three-month appeal period commenced on that date. There is no power to extend that period. The Christmas Court vacation period does not extend the three-month period. The appeal was therefore filed out of time.
27. The consequence of filing the notice out of time is that the Court lacks jurisdiction to hear the appeal. The appeal is therefore dismissed.

Orders

1. The Appeal to the High Court was filed out of time.
2. The Appeal is dismissed
3. The Appellant is to pay the costs of the First and Second Respondents on this Application on the standard basis.

By the Court
Justice Lawry
Puisne Judge