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

Biku v Talasasa [1985] SBHC 8; [1985-1986] SILR 42 (15 April 1985)

1985-1986 SILR 42

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.5 of 1985

BIKU & OTHERS

v

TALASASA & ZINIHITE

High Court of Solomon Islands
(Wood C.J.)
Land Appeal Case No.5 of 1985

25 March 1985 at Gizo
Judgment: 15 April 1985

Appeal from Lands Acquisition Officer to Magistrate’s Court - whether fee payable for appeal made under s.65(1) of Land and Titles Act - time for appeal - meaning of “date of record or determination”.

Facts:

The Lands Acquisition Officer held a public hearing under s.63 of the Land and Titles Act on 17 April 1984 and at the end of the hearing orally announced that the respondents had “won the case” and that the appellants had to appeal within three months. The Lands Acquisition Officer then sent a written record of his determination to the appellants on 21 May 1984. The appellants filed their appeal with the Magistrate’s Court (Western) on 19 June 1986 but did not pay their appeal fee until 17 August 1984.

The Principal Magistrate (Western) held on appeal that the appeal was time barred because the appeal fee was not paid within three months of 17 April 1984, the date the Lands Acquisition Officer orally announced his decision.

The appellants appealed to the High Court on the grounds that:-

(a) no fee is payable for an appeal from the determination of the Lands Acquisition Officer to the Magistrate’s Court under s.65 of the Land and Titles Act; and

(b) the time for appeal actually began to run on 21 May 1984, the date of the written record of the Lands Acquisition Officer’s determination.

Held:

1. Although no fee has been prescribed under s.235 of the Land and Titles Act for an appeal to a Magistrate’s Court under s.65(1) of the Act against the determination of a Lands Acquisition Officer, an appeal fee is payable for such an appeal under s.79(f) of the Magistrate’s Court Act and Appendix B of the Magistrate’s Courts (Civil Procedure) Rules made thereunder which provide fees for appeals to that Court.

2. The time for appeal from a determination of a Lands Acquisition Officer begins to run on the date the determination is recorded in writing in accordance with s.64 of the Land and Titles Act, in this case 21 May 1984, and so the appeal was filed in time. Accordingly, the Principal Magistrate (Western) was ordered to hear the appellant’s appeal under s.65(1) of the Land and Titles Act.

Cases considered:

Patatoa v. Talauai (1983) SILR 112

R. Hughes for the Appellants
The Respondents in person

Wood CJ: This is an appeal from the decision of the Magistrate’s Court made under s.65(1) of the Land and Titles Act Cap. 93 (hereinafter referred to as “the Act”) whereby the learned Principal Magistrate (Western) held that the appellants were time barred by the said section and accordingly struck out their appeal. The appellants now appeal to this Court in terms of s.65(2) of the Act on the following grounds:-

1. That the learned Magistrate erred in law in holding that the appeal before the Court lodged by the Co-appellant was time-barred, in that -

(a) no fee is payable for an appeal from the determination of the Lands Acquisition Officer to the Magistrate’s Court under s.65 of the Land and Titles Act and/or alternatively

(b) the learned Magistrate erred in holding that the time for appeal began to run on 17 April 1984.

These grounds were argued fully before the learned Principal Magistrate who stated the facts to be as follows in his ruling:-

“It is agreed by both parties that Mr David Church Gina, the Lands Acquisition Officer, held a public hearing under s.63 of the Act on 17 April 1984. It is agreed that at the end of the hearing he informed those persons present that the respondents had “won the case”. Mr Rex Biku for the appellants said in evidence .... ” He told us we had to appeal within 3 months against his determination. He announced the decision by mouth. He gave us nothing in writing.” It is also agreed that the respondents signed some papers at the end of the hearing although the appellant says that he does not know what these documents were. I am satisfied, however, that he must have known they were related to the determination in the respondents’ favour. There is no evidence before me that the Lands Acquisition Officer gave reasons for his decision.

In his affidavit, the contents of which are not disputed by the respondents Mr Gina stated that the Land Acquisition Officer sent a copy of Form CL 6 to the appellants on 21 May 1984. The appellants claim they received this in the last week of May.

As a matter of record, the Appellants’ letter of appeal was received by the Magistrate’s Office on 19 June 1984. However an “appeal feel” of $5 receipted on GTR A45458 was not received until August 1984”.

S. 65(1) of the Act states:-

“Any person aggrieved by any act or determination of the Acquisition Officer may within three months from the date of the record or determination appeal to a Magistrate’s Court and such court may make such order as it considers just.”

It was not in dispute that a letter of appeal was received within the three month period as from April 17, 1984 on June 19, 1984 but that the $5 fee was not received until August 17, 1984 which was four months after the date of the hearing. Following Patatoa v. Talauai [1983] SILR 112 the learned Chief Magistrate ruled that failure to pay the prescribed appeal fee within the period allowed for appeal prevented the appeal from being brought but went on to decide whether or not an appeal fee was payable. In his view a fee of $5 was payable in terms of s.79 of the Magistrates’ Courts Act Cap.3.

Insofar as it is relevant to this appeal S.79 of the Magistrates’ Courts Act Cap. 3 reads as follows:-

“79. The Chief Justice may make Rules of Court under this Act for all or any of the following purposes-

(a) for regulating the practice and procedure of of the Magistrates’ Courts in matters not specifically provided for in this or any other Act

.................

(f) for prescribing fees, costs and amounts for service of process which may be demanded and received by clerks of court and others in connection with the practice and procedure of the Magistrates’ Court;

.................”

A similar point arose in the case of Patatoa v. Talauai [1983] SILR 112 in which Daly CJ held that appeal to be valid must be properly brought as prescribed by any provision applying to it within the three month period set out in s.231B(1} of the Act. There was no power to extend that period. The appeal was not duly brought within the three month period as the fee had not been paid. Although no fee on appeal was prescribed by the Land and Titles Act for appeals brought under s.231B the Local Courts (Fees in Civil Cases) (Amendment) Rules 1976 fixes a fee of $50 “on appeal from local court to customary land appeal court”, which has subsequently been raised to $100. S. 231B(1) of the Act expressly provides for appeals from a local court in the exercise of its jurisdiction under s.231 to the Customary Land Appeal Court and s.24 of the Local Courts Act Cap. 46 provides:-

“The Chief Justice may make rules governing the procedure and practice of local courts, and generally for the effectual exercise of jurisdiction by such courts and may by such rules prescribe the fees payable in such courts.”

In terms of that section the Local Courts (Fees in Civil Cases) (Amendment) Rules 1976 were made providing for the fee payable on appeal from the Local Court to the Customary Land Appeal Court referred to above.

As the learned Principal Magistrate correctly observed s.24 of the Local Courts Act Cap.46 contains no limiting provision as does s.79(a) of the Magistrates’ Courts Act Cap.3 which includes the words “in matters not specifically provided for in this or any other Act”. He held however that the words of limitation contained in subsection (a) had no application to subsection (f) which allows the Chief Justice to make rules of court for prescribing fees ... which may be demanded and received by clerks of courts and others in connection with the practice and procedure of the Magistrates’ Courts. Appendix B of the Magistrates’ Courts (Civil Procedure) Rules, as amended, made under s.79 of the Magistrates’ Courts Act Cap. 3 read as follows:-

S.235(1) of the Act empowers the Minister to make such regulations as may seem to him expedient for carrying into effect any of the purposes or provisions of this Act and s.235 (2)(a) reads as follows:-

“(2) In particular and without prejudice to the generality of the foregoing, such regulations may–

(a) regulate the practice to be followed on any application made to, or in any proceedings before, the Commissioner, or the Registrar, Settlement Officer, or an Adjudication Officer, or an Acquisition Officer, or a Clerk to Provincial Assembly, or, after consultation with the Chief Justice, any court other than the High Court, under or arising out of this Act, and in particular make provision–

(i) as to the form in which any decision thereon or therein is to be given;

(ii) as to the fees chargeable in respect thereof;

..........”

Although regulations have been made prescribing various forms and fees no regulations have been made “after consultation with the Chief Justice” in connection with regulating the practice to be followed in any proceedings before any court under or arising out of this Act and more particularly as to fees chargeable in respect thereof. There is accordingly no prescribed fee for an appeal from the Acquisition Officer’s determination to the Magistrate’s Court under s.65(1} of the Act. There is a clear provision in the Act for a fee to be prescribed for appeals under s.65(1) but no such fee has in fact been prescribed. Is it therefore possible to import from the Magistrate’s Court Rules the fees prescribed therein for appeals to the Magistrates’ Court in order to remedy this omission? It could be argued I would have thought that there is no omission because the Magistrates’ Court Rules provide a fee for appeals to that court and that is the situation here. As far as the enabling s.79 is concerned I would agree with the learned Chief Magistrate that subparagraphs (a) and (f) cannot be read as one. If that had been the intention of the legislature the words of limitation would have been included in the body of the opening paragraph and not in one of the subparagraphs. Subparagraph (a) deals with the practice and procedure of the Magistrates Courts in general terms whereas subparagraph (f) deals expressly with fees, costs and other accounts recoverable by the clerks of court. It is in fact not unknown for fees or fines to be provided for under different acts with different amounts payable in which case it has been held that action may be taken under either the larger or smaller amount levied as considered appropriate. I am therefore unable to uphold ground 1(a) of this appeal.

The second ground of appeal raises the question as to when did time begin to run against the appellants. The learned Principal Magistrate held that the operative date was April 17, 1984 the Acquisition Officer held the public meeting and orally announced that the respondents had “won the case” and informed the appellants that they had to appeal within three months. It is common cause that the Acquisition Officer’s decision was not committed to paper in terms of s.64 of the Act until May 21, 1984. The relevant Form CL 6, which does not appear to be a prescribed form, was according to Mr Gina’s affidavit completed by him on May 21, 1984 and sent to the parties but that he “backdated” the date thereon to April 17, 1984. Whatever the effect of that may be the appellants agree that they received the Form CL 6 towards the end of May and filed their appeal on June 19, 1984. It seems to me immediately apparent that they suffered no prejudice thereby and that the only reason that the appeal under s.65(1) of the Act was not accepted as being in time returns to ground 1(a) of this appeal with which I have already dealt.

However that may be Mr Hughes has submitted that the Acquisition Officer is bound by s.64 to record in writing his determination of the claims and to date such record or determination. As the record in writing was made on May 21, 1984 that is the true date of the record and not April 17, 1984 which was the date noted by the Acquisition Officer on Form CL 6. The Acquisition Officer was unable to effectively backdate his record to a date earlier than the day on which he in fact recorded his determination. Mr Hughes’ argument is that reading ss.63 to 65 of the Act together the record or determination must be dated and in writing and that the three months period for an appeal can only start to run from the date of such record or determination in writing.

As far as is relevant to this appeal ss64 and 65(1) reads as follows:-

“64. The Acquisition Officer shall-

(a) record in writing ..... his determination of the claims ...;

(b) date such record or determination of the claims;

(c) .................

(d) as soon as practicable bring the record or determination to the notice of the ... claimants in such manner as he considers appropriate.

65. (1) Any person who is aggrieved by any act or determination of the Acquisition Officer may within three months from the date of the record or determination appeal to a Magistrate’s Court ......”

It is therefore clearly mandatory for the Acquisition Officer to record his determination in writing and to date such record or determination. The evidence is that he did so on May 21, 1984 and not at the date of the hearing which was April 17, 1984. In terms of s.65(1) the appellant was then given three months in which to appeal from the “date of the record or determination”. Even if I were to hold that the date of the “determination” was April 17, 1984 I would still hold that the date of the “record” was May 21 1984. There would then be two dates from which the appeal period runs, April 17th and May 21st.

However the substantive decision was recorded on May 21, 1984 and in any event the date most advantageous to the appellant must be taken to be the correct one in all fairness to him. I would therefore hold that the appeal period of three months only started to run from May 21, 1984 and that this appeal was therefore filed in time.

I accordingly order the Principal Magistrate (Western) to hear the appellant’s appeal in terms of s.65(1) of the Land and Titles Act Cap. 93.