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Patatoa v Talauai [1983] SBHC 13; [1983] SILR 112 (2 May 1983)

[1983] SILR 112

IN THE HIGH COURT OF SOLOMON ISLANDS

Customary Land Appeal Case No.4 of 1983

PATATOA

v

TALAUAI

High Court of Solomon Islands
(Daly C.J.)
Customary Land Appeal Case No.4 of 1983

2nd May 1983

Practice - fee payable on appeal to Customary Land Appeal Court - failure to pay within appeal period - effect of s. 231B(1) Land and Titles Act - Local Courts (Fees in Civil Cases) Rules.

Fact s:

On 18th December 1981 the Appellant lost a land case before the Local Court. On 23rd February 1982 the Appellant wrote to the clerk (the magistrate) to the Customary Land Appeal Court stating he wished to appeal. No mention was made in subsequent correspondence of the need to pay an appeal fee until 29th February 1983 when a letter required payment of fee on or before the 31st March, 1983. On 25th March 1983 an appeal fee was sent. This was returned by the magistrate who stated his view that a notice of appeal was ineffective without payment of the fee and the appeal was therefore out of time. The same advice was given to the CLAC who dismissed the appeal. On appeal to the High Court:

Held:

An appeal, to be valid, must be properly brought as prescribed by any provision applying to it within the three month period set out in section 231 B (1) Land and Titles Act. There was no power to extend that period. As the Local Courts (Fee in Civil Cases) Rules required payment ‘on appeal’ of a fee that meant that the appeal was not duly brought within the three month period as the fee had not been paid (Batt -v- Price (1875-76) Q.B. 264 followed). No action outside the three month period could cure the defect (Seselono v. Kikiolo (1982) SILR15 followed).

For Appellant: K. Brown
For Respondent: A. Radclyffe

Daly CJ: On the 18th December 1981 the present Appellant (Paul PATOTOA) was Plaintiff in a case concerning KAPI land before the North Choiseul Local Court. The Defendant was the present Respondent, Levi TALAUAI. The Local Court dismissed claim of the Appellant.

On the 23rd February 1982 the Appellant to the Magistrate West stating that he wished to appeal against that decision to the Customary Land Appeal Court for Western Province (“the CLAC”). The letter was received in the Magistrates’ Office on 8th March, 1982. There are some correspondence between the Court office and the Appellant but, as far as this Court is aware, the first mention of a fee is in a letter dated 29th February 1983 from a clerk to the Appellant. The letter states that a date in April 1983 had been fixed for the hearing and continues: -

“You are therefore ordered to pay into this Court your appeal fee of $100.00 on or before 31st March 1983. It appears that you have not yet paid your fee and this had to be done before the hearing.”

On 25th March 1983 the Appellant sent $100 which was received on 28th March 1983. On the same day the fee was returned by the Magistrate. In the accompanying letter the Magistrate said:-

“In my opinion a notice of appeal without the appropriate fee is incomplete.

He would, he said, advise the CLAC to dismiss the appeal as the Appellant “failed to comply with the Land and Titles Act by filing a notice of appeal without paying the appropriate fee.”

At the hearing on the 26th April 1983 the Appellant did not appear. The Magistrate member gave his advice in open court that the appeal was time barred by virtue of the Appellant’s failure to pay the appropriate fee in three months. The Court accepted that advice and concluded that the failure to pay the fee “rendered the notice of appeal... incomplete and ineffective.” The appeal was dismissed.

The Appellant now appeals to this Court against that decision. He submits that the notice was not “incomplete and ineffective” by virtue of the failure to pay the fee and that therefore the appeal was not time barred. In his Notice the Appellant also sought to argue that an extension of time for payment of the fee should have been considered by the court below. But having considered certain English authorities that point has been abandoned. Indeed this Court has itself previously held in Seselono v. Kikiolo (1982) SILR 15 at page 18 that, in the absence of express power in the Land and Titles Act, it is not open to a court to consider the grant of an extension of the period of time within which an appeal must be brought in order to comply with the provisions of that Act.

So this case turns on a short point, that is, was the learned magistrate member of the CLAC right in his opinion that the failure to pay the appropriate appeal fee within three months was fatal to the appeal?

Section 231B (1) of the Lands and Titles Act provides: -

“Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 231 may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction,”

As I indicated to counsel in argument it seems to me that that section must be read as requiring an appeal to be brought, that is, brought in compliance with any provisions which specify the mode of appeal. Section 235 (2) (a) gives power to make regulations to regulate the practice to be allowed in any proceedings but such Regulations have not, as yet, been made. However fees have been prescribed. These are contained in the Local Courts (Fees in Civil Cases) Rules. At their inception in 1969 (LN 107/1969) these Rules contained no reference to appeals to the Customary Land Appeal Court as that court did not come into existence until 1975. However L.N. 17/1976 introduced into the Schedule the following item: -

“9. On appeal from local court to customary land appeal court.....$50.”

By amendment coming into effect on 12th Feb. 1982 this fee was increased to $100.

The body of the Rules is couched in neutral terms as far as time of payment is concerned: “there shall be charged and paid... the fees specified in the Schedule” (Rule 3) and “The fees prescribed in the Schedule to these Rules shall be paid to the clerk...” (Rule 5). Thus there is no specific provision in terms that if a fee be not paid then proceedings are not properly brought.

Counsel in their researches have been able to find only one case which touches upon the point and then only tangentially. This is Batt v. Price (1875-76) 1 Q.B. 264. In that case process was taken in a county court by a solicitor in relation to which a fee was to be paid “before such proceeding is taken” The appropriate fee was not, however, paid but the proceedings went ahead. Subsequently an action was commenced for the unpaid fee. The evidence was that it was “not unusual to delay demanding fees payable by solicitors”. Of this practice, Blackburn J. said (at page 268): -

“.... here it is quite clear that by the tacit understanding between the parties the registrar does not require from respectable solicitors the fees to be prepaid, but gives them credit, and consequently there is an implied promise on their part to pay the fees. It was argued that there is no fee payable on lodging the writ, and the registrar would be bound to make the return whether the fee were paid or not; but the fees are to be prepaid, and I doubt whether the non payment of the fee would not be an answer on the registrar’s part, if the party were to attempt to proceed against the registrar for his contempt in not making the return, and most likely the writ of certiorari would be quashed; but it is unnecessary to consider the position of the registrar in such a case. Here the defendant on lodging the writ tacitly asked for credit, and obtained it on his tacit promise to pay, in accordance with the usual practice, between the registrar and solicitors who are known at the office.”

There is a triple negative in the crucial part of this passage but I take it, that the learned judge was of the opinion that failure to prepay the fee where there was no tacit understanding as to credit would entitle the Registrar to refuse to proceed.

To return to the situation in this case. There is some assistance to be gleaned from the use of the “words on appeal” in Item 9 of the Schedule to the Local Courts (Fees in Civil Cases) Rules. As counsel for the Respondent suggests, this would appear to contemplate payment of the fee at least within a reasonable time of the appeal being made.

Taking this as a starting point I shall attempt a similar analysis to that touched upon by Blackburn J in Batt’s Case.

First if the appeal notice if filed and no fee is paid within the three month period, could the clerk to the CLAC have an answer if proceedings were brought against him to require him to process the appeal for hearing? In my judgment, the answer to that question would be ‘yes’. The clerk would be entitled to say that the Rules require a fee to be paid “on appeal” and, until that fee is paid, there is no matter for the Court to consider. There is, in other words, no duly brought appeal that is before the Court and therefore, to employ the expression used in Seselono’s case (ab. cit at p. 17), nothing that is ‘lawfully justiciable’. If there was some arrangement for credit to be given for the fee then it might be argued that the fee was “paid”, giving that word a wide interpretation as the Court in Batt’s Case (ab. cit) were apparently prepared to do. However in the present case there is no such arrangement and, indeed, it would be surprising if there were such an arrangement between a court and a litigant in person. The fact that the court did not require payment of a fee or at a subsequent date require payment cannot be said to constitute such an arrangement.

Second, can the situation be redeemed by payment of the fee outside the three month period? In Seselono’s Case (ab. cit. at p.17) the court said:-

“If there is nothing that is lawfully justiciable before the court at the end of the three month period then no act by anyone thereafter can cure the matter as that act would constitute bringing an appeal outside the period of limitation.”

These words apply equally to the present case; if failure to pay the fee within the three month period prevents the appeal from being duly brought then once the three month period has elapsed payment cannot cure the defect. To hold otherwise would be to enable an appeal to be brought outside the period specified by Parliament.

It follows that, in the judgment of this court the advice given to, and accepted the CLAC was correct and the appeal be dismissed.

In the course of argument we all agreed that the Appellant was entitled to some sympathy as he was not informed of the necessity to pay a fee until a year too late. This is regrettable and until rules are made which make the matter clear, I suggest that appellants be informed that an appeal will not be entered or processed until the fee is paid. But it remains, in the final analysis it remains the burden of the appellant to take all necessary steps whether or not he is informed of them by the court. Hence the sympathy one feels can have no effect on the position in law.

Order: Appeal dismissed.