Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Nano v Riringi; Katovai v Lumukana [1984] SBHC 16; [1984] SILR 9 (23 January 1984)

[1984] SILR 9

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Cases 9 and 10 of 1983

NANO AND ANOTHER

v

RIRINGI

&

KATOVAI

v

LUMUKANA

High Court of Solomon Islands
(Daly CJ)
Land Appeal Cases 9 and 10 of 1983

January 1984 at Honiara
Judgment 23rd January 1984

Appeals from Local Court to Customary Land Appeal Court - time for - what constitutes a valid appeal - S. 231B (3) of Land and Titles Act – “date of decision” meaning of what is effective date.

Facts:

1. NANO’S CASE

The Local Court heard a land case on 29th April 1982. No decision was given at the conclusion of the case and sometime in May the decision was posted to the parties, the appellant receiving his copy of it on 25th June 1982. The appellant then wrote to the clerk of the CLAC (Western) saying he wished to appeal and on 26th July 1982 the clerk wrote back to him asking for grounds of appeal which the Appellant submitted on the 15th of September 1982. When the CLAC considered the case they summarily dismissed the appeal on the advice of the clerk that the appeal was time barred.

2. KATOVAI’S CASE

The Local Court heard a land case concluding on 26th July 1982. At the end of the case a short oral judgment was given saying the Respondent was successful. The Appellant indicated his desire to appeal but stated he wished to see the reasons for the Local Court decision first. He called at the (CLAC) clerk’s office on many occasions for a copy of the judgment which was not supplied and so on the 24th October 1982 he delivered a letter to the clerk indicating he was appealing. The letter did not specify any grounds of appeal. He paid part of the appeal fee, the balance by arrangement with an assistant clerk to be paid later. On 3rd February 1983 a copy of the Local Court decision and record was sent to him and on the 6th March 1983 he submitted detailed grounds of appeal. On the CLAC considering the case they summarily dismissed his appeal on the advice of clerk that it was time barred.

The Appellants appealed.

Held:

1. In the absence of express rules for appeal an appeal need not take any specific form or even give the grounds of appeal and that according to the Appellant’s letter of the 26th of October 1982 was therefore a valid appeal (Seselono -v- Kikiolo [1982] SILR 15 distinguished).

2. That where a statute granted a general right of appeal against a decision that did not restrict the appeal to specific grounds the appeal need not contain any grounds and the appellate jurisdiction was invoked by a document making it clear that there was an appeal being made. (Seselono -v- Kikiolo [1982] SILR 15 distinguished).

3. If an arrangement was made with the court to pay part of the appeal fee after the expiration of the appeal period and the appellant was effectively given credit for part of the fee then this was an arrangement the court would recognise so as to find that the fee was in fact properly paid (Patatoa -v- Talauai [1983] SILR 122 considered and distinguished).

4. That the “date of decision” is either (1) when the decision is announced in the presence of both parties or (2) where it is announced in the absence of both or either of the parties if they have been given notice of the announcement but are absent or (3) when it is received by a party if sent by post; and that time cannot run against a party until he has actual or deemed notice of the decision. (dicta of Lord Scarman in Griffiths v. Secretary of State [1983] 1 All ER 439 considered and approved).

5. That in view of S. 10(9) of the Constitution the decision must be given in public unless all the parties to the proceedings agree to another method and that time can only begin to run against a party after an announcement of a decision which complies with S. 10(9).

6. Where a court is to take adverse view of one party’s position in court proceedings the court must explain to him its view and allow him to make submissions upon it before reaching a decision and should also invite the other party to address the court.

Accordingly both appeals were allowed and the cases remitted to the C.L.A.C. (Western) for hearing on the merits.

Cases referred to:

Seselono -v- Kikiolo [1982] SILR 15
Patatoa -v- Talauai [1983] SILR 112
Griffiths -v- Secretary of State [1983] 1 All ER 439

John Muria, Public Solicitor’s Office, for the appellants
The first respondent in person
Andrew Nori for the second respondent

Daly CJ: As these two cases both involve points of law on the time and method of appealing against a decision of a Local Court to a Customary Land Appeal Court (“the CLAC”), by consent of the parties the two cases were heard together and both are dealt with in this judgment.

In Case No.9 of 1983 (Nano’s Case) the Marovo Local Court heard a case between the appellant and respondent on 29th April, 1982. Although the record gives a contrary impression, no decision was given by the court that day. Sometime in May the decision of the court was posted to the parties. The respondent says his copy arrived on 21st May 1982; the appellant says his copy arrived on 25th June 1982. On 21st May, 1982 the appellant wrote to the respondent declaring that he intended to appeal if the case went against him.

The decision did go against the appellant and on 25th June, 1982 he wrote to the clerk to the CLAC stating he was dissatisfied with the decision and wished to appeal. On 26th July 1982 the clerk wrote asking the appellant to provide him with detailed grounds of appeal. These were provided in a formal notice of appeal on 15th September, 1982.

On 18th August, 1983 the CLAC sat to consider the case. The clerk/member of the court gave his advice that the appeal was out of time and this advice was accepted by the court who “summarily” dismissed the appeal. Neither the appellant nor the respondent was invited to make submissions on the question of whether or not the appeal was time barred. The nature of the advice tendered shall consider in detail later in this judgment.

In Case No. 10 of 1983 (Katovai’s Case) the parties appeared before South Choiseul Local Court in July 1982. On the final day of the hearing, that is the 26th July 1982, the Court gave a short oral judgment announcing the respondent to be successful and little more. The appellant said he intended to appeal but before doing so wished to see the full reasons of the Local Court. He went to the Magistrates’ office on ten occasions between August and October to see if he could get a copy of the judgment and finally on 24th October 1982 he delivered a letter in the following terms to the clerk to the Customary Land Appeal Court:

“I have indicated to the South Choiseul Local Court when the Court gave its decision to a Civil Case between me (Wilson Katovai - Plaintiff) and Nelson Lumukana (Defendant) on July 26, 1982 that I am appealing against the decision and requested a copy of the judgment to be sent to me as soon as possible. Up to date I don’t receive neither a copy of the Judgment and decision nor the Court Record. As the closing date for appeal is coming up (26/10/82) I am issuing my Notice to Appeal to you and request that my Appeal Case be kept open after the closing date (26/10/82).

I have paid part of the Appeal fees ($60) on 20/9/82 and will pay another ($40) when I submit my appeal points. Please inform me when the Judgment and Court Records of my case (Kibi Tribal’s Genealogy) between Wilson Katovai (Plaintiff) Nelson Lumukana (Defendant) is available in your office.

I will submit my complaints against the South Choiseul Court Justices handling my case at Halangono on July 15 - 26 in separate letter. Grateful if you could inform me if my Notice of Appeal is accepted.”

The part payment of the court fee was, the appellant said in evidence, as a result of an arrangement reached with the court clerk.

On 3rd February 1983 the Appellant was sent a copy of the Local Court record and reasons for decision and was invited by the clerk to the magistrate to submit his “grounds of appeal” as soon as possible. On 6th March 1983 the appellant filed detailed grounds of appeal.

The hearing before the Customary Land Appeal Court was on the 16th August 1983. It took the same form as in Nano’s Case, that is, the clerk/member offered advice to the Court; that advice was accepted and the Court “summarily” dismissed the appeal as being time-barred. Neither the appellant nor the respondent were given the opportunity of making submissions on the point.

Both appellants now seek to have the dismissals set aside and their appeals heard on the merits by the CLAC.

The jurisdiction in these cases is statutory and it therefore becomes necessary to examine the appropriate legislation; in this case section 231B (1) of the Land and Titles Act (“the Act”). This reads:-

“231B(1) 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.”

No rules have been made concerning such appeals and therefore those words stand alone. The way the appeals were argued was that each turned upon the meaning to be given to the words “within three months from the date of such order or decision” and in particular what date one should assign to the decision of the Local Court in each case. However, with respect, it seems to me that the factual circumstances of the two cases do not allow both to be approached in the same way.

I deal first with Katovai’s Case. It is, to my mind, beyond argument that the Local Court made “a decision” when it announced upon the 26th July 1982 that the respondent was successful. Brief reasons were given for this decision. It is also clear that if the document headed “Notice of Appeal” and filed on 24th October 1982 was a valid “appeal” within the meaning of section 231B (1) of the Act, then that appeal was within time as being within three months from 26th July 1982. The question for decision, then, in Katovai’s Case is was the document dated 24th October, 1982 a valid ‘appeal’?

In his advice to the CLAC the learned clerk/member referred to the decision of this court in Seselono v. Kikiolo [1982] SILR 15. That case concerned an appeal from a C.L.A.C. to the High Court. The learned clerk/member quoted the following passage from the judgment (page 17):-

“I have already read the terms of that subsection. There are two limitations in that subsection. First, that an appeal must be brought within three months from the date of the order or decision of the Customary Land Appeal Court. Second, that the appeal must be on the basis that the order or decision was erroneous in law or that there was a failure to comply with a procedural requirement of a written law. It will be noted that there is no provision in the Act giving this court discretion to extend the time limit so specified.

To be a valid appeal then the appeal must comply with both these limitations. In other words to give this court jurisdiction an appeal must be commenced within the three months and this appeal must show that there is a matter raised which gives this court jurisdiction to hear the appeal. If there is no such matter raised within the three months then at the end of that period there is no valid appeal before the court. There is nothing that the court can properly consider as it is only the terms of section 231B (3) of the Act which give the court jurisdiction.

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.”

It is, then, apparent that that case turned on the term of section 231B (3) of the Act. The learned clerk/member in his advice said that the language of that subsection and subsection 231B(1) “is similar so far as providing a time limit is concerned” and went on to advise the court as follows:-

“The learned Chief Justice also pointed out that to be effective the appeal must show that there is a matter raised which gives the court jurisdiction. In this instance the appellant asked that his case be left open after the closing date. Gentlemen the appellant has raised no matter which can give you jurisdiction and there is no power by which you can extend the time in which he might do so.”

It is quite correct to say that the wording in relation to time limits is similar in the two subsections; indeed it is identical. However on the question of jurisdiction of the two appellate courts the wording is different. Subsection 231B (3) reads as follows:-

“231B (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.”

Thus as the court said in Seselono, to give the High Court jurisdiction the appeal must be on the basis that the order or decision was “erroneous in law or that there was a failure to comply with a procedural requirement of a written law.” Without such a basis the High Court would have no jurisdiction.

But there is no such restriction on the jurisdiction of the CLAC; subsection 231B (1) enables an aggrieved person to “appeal” and, in the absence of restrictive words, that appeal can be on any basis. Thus to apply Seselono to an appeal from a Local Court to the CLAC is to put restrictions in the wording of subsection 231B (1) which do not exist. In the absence of rules, in my judgment, a document which expresses in terms that it is an appeal against a specified decision, even without detailed grounds, is sufficient to invoke the jurisdiction created by subsection 231B(1). No doubt on receipt of such a document the appropriate court officer would require detailed grounds to be filed so that both the Court and the respondent would have notice of the points to be presented and, in the case of the respondent, an opportunity to meet those points. An appellant who provides inadequate details of his grounds of appeal or prefers to leave them vague relying on the wide jurisdiction granted by subsection 231B (1) will be at risk as to costs even if he succeeds. But it would, in my judgment, be going too far to say that such a course of conduct, however unattractive, deprived the CLAC of jurisdiction.

Applying these tests to this case, I must ask was the document dated 24th October 1982 in terms sufficient to be an “appeal” for the purposes of subsection 231B (1)?

The lack of detailed grounds was explained by the fact that the appellant had not had a sight of the court record or its reasons. Indeed the appellant was doing no more nor less than is common form on appeals, that is putting in his notice of appeal and undertaking for good reason to forward detailed grounds when he was in a position to do so. In my judgment this notice of appeal should have been ruled to be in time and sufficient to invoke the jurisdiction granted by subsection 231B (1).

A further point is taken in relation to the part payment of the appeal fee in Katovai’s Case. In Patatoa v. Talauai (Customary Land Appeal Case No.4 of 1983: judgment given 2nd August 1983), this court ruled that a failure to pay the appeal fee on appeal from the Local Court to the CLAC within the three month period prevented the appeal from being duly brought. It is argued here, in Katovai’s Case, that a part payment is insufficient. However the court said in Patatoa (at page 3):-

“If there was some arrangement for credit to be given for the fee then it might be argued that the fee was ‘paid’ ...”

On the facts of the present case when the clerk reached the arrangement with the appellant for payment of $60 on 20th September1982 and payment of the balance on filing of the appeal points, he was offering the appellant credit for the balance. In my judgment, then, there is sufficient evidence on which to form the view that the fee was ‘paid’. I therefore conclude that the appellant in Katovai’s Case has brought himself within subsection 231B (1) and is entitled to have his appeal heard on the merits by the CLAC.

Nano’s Case raises a difficult and interesting question of law. In that case no oral judgment of any kind was given at the end of the hearing on 29th April, 1982, but the decision of the court was posted to the parties some time in May and, as I find on the evidence given, only received by the appellant on 25th June 1982. The formal notice of appeal (and the only document which it is accepted could be a notice of appeal) was filed on 15th September 1982. If the date of the decision was a date before 14th June, 1982 the appeal would be out of time. However if the date of the decision could be said to be the 25th June 1982 the appeal would be in time. Thus the question for determination in Nano’s Case is what is the “date of decision” of the Local Court for the purposes of section 231B (1) of the Act?

A similar provision has very recently been considered by the House of Lords in the U.K. In Griffiths v. Secretary of State [1983] 1 All E.R. 439, the House considered section 245(1) of the Town and Country Planning Act, 1971 which provided:-

“If any person ... is aggrieved by any action on the part of the Secretary ,of State to which this section applies ... he may, within six weeks from the date on which..., the action is taken ... make an application to the High Court.”

In that case the decision of the respondent Secretary had been date stamped on 8th December 1980 and posted to the appellant. The letter was received on 13th December, 1980. If the 8th December 1980 was the date on which the action was taken, the application to the High Court was out of time; if the 13th December 1980, it was in time. The majority of the House of Lords, by four to one, held that the date of the action was when the decision was recorded in a formal letter, signed and date stamped. The reasons were given by Lord Bridge of Harwich and the crucial passage is at pages 446 and 447 where the learned law lord says:-

“Like s 242(3) (b) all the other kinds of action listed under the subsection, except that in para (c), consist in ‘a decision by the Secretary of, State’ under various provisions of the 1971 Act. As a matter of language, when the generic term ‘action’ is used to refer to various categories of decision, it seems to me that it can only refer to the making of the decision, not to its notification to third parties. Coupled with the instances cited from ss 51 and 39 this makes it impossible, in my opinion, even if one could imply a statutory obligation to give notice of the decision, to hold that compliance with that obligation is part of the taking of the relevant action or can affect the date on which the action is taken within the meaning of s 245. If this is right, this appeal cannot succeed on the ground that the decision letter was not proved to have been sent by registered post or recorded delivery, nor, a fortiori, on the ground argued by the appellant.”

Thus it is the juxtaposition of the words ‘action’ and ‘decision’ in the 1971 Act upon which the reasoning of the majority turns. As there is no such juxtaposition in our Land and Titles Act it follows that that reasoning is not applicable to the case before me. However the following passages in the speech of Lord Bridge on page 447, where he tests the validity of the conclusion to which I have referred by considering the consequences which would result from a contrary construction, do have a bearing on the question before me; although the examples drawn, from planning hearings with their multiplicity of parties are not strictly appropriate.

However when it comes to reasoning based on the practical results of the interpretation favoured, I must say that I prefer the reasons advanced in the dissenting speech of Lord Scarman where he says at page 441:-

“In the Court of Appeal Cumming Bruce LJ offered a concise summary (which I gratefully borrow) of Mr Griffiths’ argument, only to reject it as having to yield to the specific words of the subsection. The learned Lord Justice noted that Mr Griffiths began, as he did in your Lordship’s House, by asking the question: how can anyone be ‘aggrieved’ by action on the part of the Secretary of State until he is told what it is? Therefore in construing the subsection it can only be feasible to place on it a construction that time begins to run from the date on which the owner or occupier of the land affected by the decision had his first opportunity of knowing that he was aggrieved, i.e. the date on which he learns, or has a proper opportunity of learning, what is the action taken by the Secretary of State.

This is a powerful and attractive submission. It is difficult in terms of justice to justify a conclusion that Parliament, when conferring a right of access to the courts, has used language which can result in the right being lost before the aggrieved landowner even knows or has a proper opportunity of knowing he has a grievance in respect of which he might wish to avail himself of the right. At the very least, Parliament could be expected to have enacted some safeguard against so unjust an eventuality.”

It was submitted by counsel for the appellant that, not only was this argument more attractive in itself, but also it was one which was more consistent with our own constitutional provisions and in particular section 10(9) of the Constitution which reads:-

“10 (9) Except with the agreement of all the parties thereto, all proceedings for the determination of the existence of extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public.”

It will be seen that this provision requires the announcement of a decision in public, unless the parties consent to it being announced in another way. There can be no doubt that this provision applies to the Local Court and was not strictly observed on this occasion as there is no record of consent to postal announcement being given. Although it is too late for the appellant to rest an appeal on that failure, section 10 (9) does however indicate what approach should, in my judgement be adopted in a case such as Nano’s Case.

If the decision had been announced in public after due notice then there would be no difficulty; the three months would start to run from that date. If consent to postal notification of the decision had been given it would seem to me that the decision was only given when it is “announced”. That is when the parties are made aware of the decision. This flows from the fact that section 10(9) of the Constitution regards as crucial not the making of the decision (that is “the action” in the U.K. Town and Country Planning Act 1971) but the announcement of it. Accordingly what must be looked for in deciding what is the date of a decision of a court in Solomon Islands is the date when that decision is announced. Where a decision is in writing and forwarded to the parties it cannot be said to be announced until it reaches the party; or is deemed to have reached him as is the case where a party is served by post or other means and the provisions relating to such service operate to fix the time of service. It is also “announced” when a party is given due notice of an oral announcement but does not attend.

This conclusion achieves the result advanced as desirable in the submission described by Lord Scarman as “powerful and attractive” that is, that the words “person aggrieved” are given a real meaning in that the person concerned must have actual or deemed knowledge of the decision before time runs, he may realistically be described as a “person aggrieved” throughout that period.

Thus in Nano’s Case I hold that the “date of ... decision” was the date when it was announced to the appellant which, on the facts, was on the 25th June, 1982. As there was no consent by the appellant to postal announcement, I do not consider I would find attractive arguments addressed to a deeming provision such as, for example, section 46 (4) of the Interpretation and General provision Act, 1978.. If there had been such consent then such a provision might well be applicable.

In those circumstances I hold that the Appellant’s Notice of Appeal of the 15th September 1982 was in time and this case, too, shall be remitted to the CLAC for hearing on its merits.

I should also add that where a court might take an adverse view of one party’s position in the proceedings before the court, it is incumbent on the court to explain the position to that party and allow him to make submissions upon it before making any direction. Ex abundante cautela, the other party should also be invited to address the court on the matter.

Order

Both appeals allowed and cases remitted to the Western Customary Land Appeal Court for hearing on he merits.