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Lumolu v Havea [2009] SBCA 24; Civil Appeal Case 03 of 2009 (23 July 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is appeal against an order adjourning generally an application for judicial review. The decision sought to be reviewed is that of the Western Customary Land Appeal Court (WCLAC) in a timber rights hearing.
   
2. An order adjourning generally is not an order often appealed, and even less often will such an appeal be successful. The effect of a successful appeal would be to require the High Court to hear and determine a matter, almost akin to an order formally referred to as mandamus, without any option to postpone the hearing. Since the High Court must be able to control its own proceedings, a Court of Appeal is unlikely to intervene to fetter that power.
   
3. The reason given in the High Court for the adjournment was to allow the parties, and others, to pursue land matters either in the Local Court or possible within the WCLAC. This, it was submitted by the respondents, would facilitate a final resolution of this land matter, otherwise not possible, so it was submitted, due to a lack of definition of land boundaries and the existence or not of a portion of land within the total area being a separate area.
   
4. By adjourning the matter generally without indicating that any particular course should be taken or outcome achieved, it is difficult for the parties to determine at what stage the matter might return to the High Court for further mention. Liberty was given to the parties to seek restoration of the matter in the High Court, but at what point should that application be made?
   
5. There are several alternative ways that this matter could be progressed. For the appellant, it is submitted that the hearing and determination of the judicial review may result in some finality in the event that the matter is determined in favour of the appellant. Such a decision would give the appellants a final decision not only as regards timber rights but effectively as against all others claiming land ownership. This comes about following a decision of this court in Majoria v Jino & the Clerk to the WCLAC Civil Appeal 36 of 2006 Finality in the judicial review in favour of the appellant will, it is submitted, raise issue estoppel.
   
6. For the 1st respondent it is submitted that a determination should be made by the WCLAC. This is in accord with a submission made in this court in a previous case, but is contrary to an order made by consent vacating a direction that the matter be heard by that same body.
   
7. For the 2nd respondent it is submitted that the judicial review should be postponed until after a local court determination on land ownership as between the 1st and 2nd respondents to this appeal. The appellant is not a party to that application at this stage, nor indeed is the 2nd respondent a party to this application for judicial review, although leave was granted in the High Court for the 2nd respondent to be heard.
   
8. This court has also been told by counsel of a number of other pending matters in the High Court concerning this same land. There is also currently an order of this court, not yet perfected, made in March 2009 in proceedings between the 1st and 2nd respondents but not the appellant, referring issues pertaining to this land back to the WCLAC. That order has not been perfected as counsel did not tell this court in March 2009 that the previous order of this court referring the matter back to the WCLAC has been vacated by consent. Given that prior to its order being effected, this court was told of the pending judicial review, it was determined that the reference back to WCLAC should be suspended pending the determination of that review.
   
9. In dismissing this appeal, and making no orders as to costs, we are of the view that the appellant should exercise that right given to him to seek restoration of the matter to the lists. In that way further consideration may be given to this matter and at the same time, we feel, of all other pending litigation. Whether the High Court in those circumstances will again adjourn these proceedings or determine that the judicial review application proceed will be a matter for that court to determine. However, it is to be hoped that whatever order that is made by the High Court will be specific in setting out what is to be achieved, what steps are expected of the parties and within what timeframe those actions are to be expected. Prior to any decision to adjourn, if such a course is again suggested to the High Court by any of the parties, the High Court may well find it useful to consider first the issue of whether a decision on judicial review would in law raise the issue estoppel as submitted by the appellant.
   
10. We understand that the judge who made this order has been assigned to criminal trials for the remainder of this year. Since his only order was that of adjournment, we feel that there is no need for the matter to be put before that same judge in the event that liberty to restore is sought. That would have the potential of causing further delay and the postponement of long scheduled criminal trials. In our view it would be perfectly acceptable for the matter, if it is sought to be restored, to be placed before any judge currently assigned to civil matters by the Registrar in the normal course of listing.
    

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Goldsbrough PA
President

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McPherson JA
Member

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Williams JA
Member