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

Kile v Rahukolo [2020] SBHC 49; HCSI-CC 73 of 2017 (23 June 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 73 of 2017

BETWEEN

NELSON KILE
First Respondent

AND:

DAVID RAHUKOLO
First Respondent

AND:

ATTORNEY GENERAL
Second Respondent

Date of Hearing: 16 June 2020
Date of Judgment: 23 June 2020

Hite L. for the Appellant
Tabo S. for the First Respondent
Soma R. for the Respondent

JUDGMENT

Kouhota PJ:
Introduction

This is an appeal under section 256(3) of the Land and Title Act (LTA), Cap133 against the decision of the Isabel Customary Land Appeal Court judgment delivered on 25^th November 2016. The Appellant also made an application to join a third party to the proceeding. I will deal with the appeal first. The grounds of appeal are set out the notice of appeal filed on 24^th February 2017, they are;

1. That the CLAC erred in procedure in failing to enquire into allegation (bribery) raised by the Appellant at the court hearing, and
2. That CLAC erred in upholding the decision of a biased tribunal.
3. That the decision of the Local Court is impartial and is void.

Background.

The Appellant appealed to Isabel CLAC against the Isabel Local Court decision of 5^th December 2008. The appeal grounds that the Appellant submitted were dated 14^th February 2009, which is well within time allowed for appeals from the Local Court to the Customary Land Appeal Court (CLAC). A copy of the grounds of appeal was annexed to the sworn statement of the 1^st Respondent, Mr David Rahukolo, filed on 4^th February 2020, exhibit “DR2”. Among others, the Appellant alleged bribery in appeal ground No.1, he stated that the Defendant was seen continually drinking with some of the court officials. The appeal was listed to be heard at Buala in September 2015. At the September hearing, the CLAC adjourned the matter and advised the Appellant to redraft his appeal grounds in a format CLAC, said would be suitable for the court but on the same appeal.

Following the CLAC advice, the Appellant redrafted the grounds, the redrafted grounds were dated 12^th September 2015, a copy of the redrafted grounds of appeal was annexed to the sworn statement of David Rahukolo filed on 4^th February 2020, exhibit “DR 3”. The matter returned to the CLAC for hearing on 23^rd November 2016. At the said hearing the Appellant tendered his redrafted grounds of appeal and seek leave to proceed. The spokesman for the Respondent, Mr Ene, however, submitted the redrafted grounds submitted by the Appellant were totally new grounds of appeal

The Isabel CLAC, therefore, held that if the court accepts the grounds of appeal it will be new grounds of argument that have nothing to do with the content of the Isabel Local Court decision. The CLAC examined the Appellant and said the Appellant accepted the appeal grounds are new concepts. Appellant, however, said that although it seems to be new grounds they reflect the same argument concerning the land dispute between him and the Respondent’s party.

The CLAC then ruled that the Respondent failed to adhere to the court instructions. The CLAC further said that its previous ruling was simple in that the Appellant was urged to redraft his grounds of Appeal that will contain the same argument on the land dispute. The CLAC, therefore, held that the grounds of appeal would be misleading and amount to a fresh appeal which means appeal was out of time. After making reference to section 256(1) of the LTA accepted Respondent submission and struck out the redrafted grounds of appeal submitted by the Appellant which the CLAC said were new grounds of Appeal.

The Law on Appeal from Local Court to CLAC

I had the opportunity to read the decision of CLAC but was unable to find the reasons why the CLAC advice the Appellant to redraft his appeal grounds. I also fail to see what the CLAC considers as a format suitable for the court. Section 256(1) of the LTA, Cap 133, provides no guidance as to the format Appellant must follow in an appeal from the Local Court to the Customary Land Appeal Court. All that section 256(1) says is that any person aggrieved by any order or decision of a local court to appeal to the Customary Land Appeal Court, within three months from the date of the order or decision. It says nothing or required that the grounds to be drafted in any particular format. Thus in Katovai v Lumukana [1984] SBHC 16; [1984] SILR 9 Daly CJ held, “In the absence of rules, in my judgment, a document which expresses in terms that it is an appeal against a specific decision, even without detailed grounds, is sufficient to invoke the jurisdiction of the court created by section 231 B (1) (now section 256 (1) of the LTA. No doubt on receipt of such document the appropriate court officer would require detailed grounds to be filed so that both the court and 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 provide inadequate details of the grounds of his appeal or prefers to leave them vague relying on the wider jurisdiction granted by section 231B (1) (now section 256(1) will be at risk to cost even if he succeeds. But it would, in my judgment, be going too far to say such a course of conduct, however unattractive, deprived the CLAC of jurisdiction.” (Emphasis added)

What his Lordship said in Katovai v Lumukana is, there is no rule requiring a particular format as long as the document filed by the Appellant expressed he is appealing against the decision of the Local Court. I had read the original grounds of appeal filed by the Appellant and his redrafted grounds which the CLAC considered new grounds of appeal but I find it difficult to agree with the CLAC decision. In fact, I consider the redrafted grounds as detailed version of the original grounds rather than new grounds of Appeal. It was the CLAC that advise him to redraft his grounds and he did but add more details. In that respect, my judgment is the redrafted grounds filed were not new grounds hence could not be out of time.

In particular, the issue of bribery was alleged in both the original appeal grounds and the redrafted grounds of appeal and the CLAC should have enquired into the allegations. By failing to inquire into the allegations of bribery and other grounds, the Isabel CLAC erred in law and procedure when it dismissed the Appellant’s appeal hence the appeal must be allowed. This is enough to dispose of the appeal and is not necessary to go on and consider the rest of the grounds of appeal.

Application for Joinder

The purpose of joining parties are set out in Chapter 3 of the SI Civil Procedure Rules. Rule 3.5 of the rules stipulates that the court may order that a person becomes a party to the proceeding if the person’s presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding. If a person does not consent to be added as a claimant, he shall be added as a defendant. Rule. 3.6 goes on to state, a person affected by a proceeding may apply to the court for an order that the person be made a party to the proceeding. The third-party was not present but has indicated they will abide by the court decision.

The materials before the court show the third-part is currently carrying out logging operation on the disputed land the subject of this Appeal. On that basis having considered the submission of counsel for the applicant and the materials before the court I find there is sufficient grounds to add MSIL Development as party.

Orders

1. Appeal allowed
2. Matter remitted for rehearing by a different constituted Isabel CLAC
3. Further order that Mas Solo Investment Ltd disclose to the parties on request records of logs harvested from the land in dispute and sold and proceeds of the same to the parties and are restrained from paying out any royalties derived from its operation on the land to any person until this proceeding is complete or until further orders of the court.
4. Cost is awarded to the Appellant against the 1^st and 2^nd Respondent to be tax if not agreed.

The Court
Emmanuel Kouhota
Puisne Judge