�231(1) A Local Court shall have shall, subject to the prhe provisions of this
section and sections 8D, 8E and 8F of the
Local Court Act. Act 7/85 have
exclusive jurisdiction in all matters and proceedings of a civil nature
affecting or arising
in connection with customary land other than-
(2) A Local Court shall have jurisdiction to heao hear and determine any matter
or proceeding of a civil nature referred
to it by the High Court or a
customary land appeal court under this Ordinance.
(3) The decision of a Local Court given in exercise of its jurisdiction
under this section shall be final and conclusive,
and shall not be
questioned in any proceedings whatsoever save an appeal under section 231
231B.�
�5C (1) Upon receipt of a copy of the application forwarded to it under
section 5B, the area council shall fix a place
within the area of its
authority and a date, not being earlier than two months, nor later than
three months, from the
date of receipt of the copy of the application for a
meeting to be held with the appropriate Government, the customary landowners
and the applicant to determine the matters specified in subsection (3).
(2)ce of the meeting referred to in subsection (1) shall be gibe given
within one month of the receipt of the application
in a manner the area
council considers most effective, to persons who reside within such area and
appear to have an interest
in the land, trees, or timber in question.
lass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
ass="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(a) whether or not the landowners are willing to negotiate for the disposal
of their timber rights to the applicant;
(b) whether the persons proposing to grant the timber rights in quen question are
the persons, and represent all the persons
lawfully entitled to grant such
rights, and if not who such persons are;
(c) the nature and extent of the timber rights, if any, to be granted to the
applicant;
(d) thring of the profits in the venture with the landowners; and; and
(e) the participation of the appropriate Government in the venture of e of the
applicant.
(4) Any agreement reached pursuant to discussions held under subsection (3)
shall be reduced to writing and be forwarded
to the Commissioner with the
recommendation of the area council with particular reference to-
lass="MsoNoMsoNormal" style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(b) the extent of participation, if any, of the appropriate GoverGovernment,
in the applicants venture.
(5) Upon agreement being reached pursuant tont to subsection (3), the applicant
shall carry out such investigations as
necessary to identify and describe
the forest resources on the land and any areas which should be excluded from
the application
on grounds or environmental or social values.�
and
<
5E. (1) Any pewho is aggrieved by the dete determination of the council made
under section 5C(3)(b) or (c) may, within
one month from the date public
notice was given in the manner set out in section 5D(2)(b), appeal to the
customary land
appeal court having jurisdiction for the area in which the
customary land concerned is situated and such court shall hear and
determine
the appeal.
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(2) Notwithstanding rovision to the contrary inry in any other law, the
order or decision of a customary land appeal court
on any appeal entertained
by it under subsection (1) shall be final and conclusive and shall not be
questioned in any
proceedings whatsoever.
(3) It shall be the duty of the to any customary land appe appeal court to
forthwith notify the Commissioner of the lodging
in his court of an appeal
under this section and where such appeal is finally determined informed the
Commissioner and
the appropriate government of the result of the appeal and
forward to each of them a copy of the relevant judgement.�
Those provisions plainly show that the power to deal with matters over
customary land including the question of ownership
over such land vests in
the Local Court or where it involves logging on such land, the Area Council.
In either case,
there is a right of appeal to the CLAC. Subject only to the
right of appeal to the High Court under section 231 B(3) of the
Land and
Titles Act and the general review power of this Court pursuant to section
84(1) of the Constitution, the law does not invest the High
Court with power
to determine the question of ownership over customary land.
In Allardyce Lumber Company Limite Anor -v- Nelson Anjo�ss (�Anjo�s
Case�) CA8/96 the Court of Appeal held that the High Court has no
jurisdiction to deal with questions of ownership of customary land
for
purposes of a licence under the Forest Resources and Timber Utilisation Act.
The power to do so, of course being vested in the Area Council with a right
of appeal to the CLAC whose decision shall
be final and conclusive and
cannot be questioned in any proceedings whatsoever.
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The Anjo�s case has been followed in Simbe -v-
East Choiseul Area Council
(�Simbe�s Case�) CC33/97).
In a case involving logging timber on customary land, and the present case
is one such, case, the position in law must
be that the question of
ownership of the customary land as well as the question as who among those
landowners, including
disputing owners, are entitled to grant timber rights
for the purpose of the FRTU Act are matters to be determined by the Area
Council. A right of appeal against the Area Council�s determination lies to
the CLAC whose decision on such question
is final and conclusive and cannot
be question in any proceedings whatsoever. No power has been given to the
High Court
in respect of the matters set out in section 5C(3) of the Act.
Consequently, those who seek to invoke the jurisdiction of the
High Court
seeking remedy based on a claim under a right, including the right of
ownership, over a customary land must
be armed with such right or evidence
thereof. A mere assertion of the right is insufficient to found a basis for
invoking
the coercive jurisdiction of the Court.
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The plaintiff in the present case seeks a number of remedies including
declaratory orders as well as injunctive orders
against the 3rd
defendant and its servants or agents. He does so clearly on the assertion
that he is the landowner of
Johore Land.
He has yet to establish that and until he has done that, he would only be
asserting his right as such. See Mega Corporation Ltd -v- Nelson Kile,
CA1/97. If this Court heard him and grant him the orders he seeks it would
amount to allowing him to be heard without
establishing his locus standi
and granting him a right which he need not establish. This cannot be and a
claimant who merely rely on being a member
of a tribe purporting to have
right of ownership over a particular customary land would be better advised
to have that
right established at first either through the procedure under
the FRTU Act, in the case of logging timber, or through the procedure
under
the Local Courts (amendment) Act 1985. This, as I have already said, is
because the High Court, has no power to deal with ownership of customary
land. Once
that right has been established then a claimant can come to this
Court and ask to invoke the coercive jurisdiction of the Court
for the
purpose protecting his right.
The Court therefore declines to hhe plaintiff�s Notice of Moof Motion.
(GJB
Muria)
CHIEF JUSTICE
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URL: http://www.paclii.org/sb/cases/SBHC/1998/12.html
