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Toto v Samani [2011] SBCA 13; HCSI-CAC 8 of 2011 (12 September 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL
(Mwanesalua J)

BETWEEN:

STEPHENUS TOTO
(Representing the Fiu Tribe)
Applicant

AND

DAVID SAMANI AND STEPHEN KUNI
(Representing the Descendants of the
deceased Tege)
First Respondent

AND:

JOHN LUSIMANI
(Representing the Descendants of the Deceased
Maenasi)
Second Respondent

Date of Hearing : 30 August 2011
Date of Ruling : 12 September 2011

Mr. Fa'aitoa for the Applicant
Mr. Dausabea for as Representatives for the Respondents

RULING

1. The Applicant and the Respondents were parties to disputes over rights to customary land in Malaita, Malaita Province. There were previous decisions by the Local Courts and Chiefs on these disputes. The decisions clearly say that the primary owner in custom to the land is the Applicant's tribe. It is also clear that the Respondents have secondary rights to the land.
   
2. The Applicant filed Civil Case No. 380 of 2005 in the High Court, seeking orders, inter alia, to evict the Respondents from the Land for causing problems, with violence threatened and used against the members of the Fiu tribe.
   
3. The court heard the case on 4 April 2011 and granted orders which were perfected on 7 April 2011. By those orders, the court issued an injunction against the Respondents, permanently restraining them, their servants, agents or family members from threatening, using or inciting violence against the members of the Applicant's tribe and family. And awarded costs to the Applicant. The court refused to grant an eviction order against the Respondents because they also have secondary rights to the land.
   
4. The Applicant filed this application on 3 May 2011 for leave to extend time to file notice of appeal. At that time, the Applicant is yet to receive written reasons for the orders of the court perfected on 7 April 2011. Counsel for the Applicant wrote letters on 26 April 2011 and 3 May 2011 to the office of the Registrar for the written reasons for the orders which are contained in His Lordship, Hon. Justice Chetwynd's decision of 4 April 2011. A copy of that decision was received by the Applicant after he filed his application.
   
5. The Applicant needed to give his grounds for extension of time. The sworn statement of 3 May 2011 was aimed more at obtaining the written decision of the High Court. It seemed to be implied in that statement that the court below has failed to consider an earlier chief's determination on relevant custom upon which to ground an eviction order against the Respondents. That alone is insufficient to consider the merit of this application when there is no accompanying ground for leave to appeal. I will refuse to give leave to extend time. However, if the Applicant is aggrieved by this ruling, he may still go to the full court. [1]
   

THE COURT

^[1] Section 19 of the Court of Appeal Act [Cap. 6]