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HIGH COURT OF SOLOMON
ISLANDS
Civil Case No: 082 of 2001
JOH">JOHN SINA
of Iriqila Village
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JOHN MARK MATUPIKO
Representing Kubongava Tribe
Before: Frank O. Kabui, J
Hearing: 4th
September 2001
Judgment: 6th
September 2001
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Mr. G. Suri for the Appellant
Mr. J. Sullivan for the
Respondent
JUDGMENT
(Kabui, J):
This is an appeal by Mr. John Sina of Iriqilriqila village, Vella La Vella, in
the Western Province representing the
Sauro Tribe. The appeal was filed on
15th May 2001 under section 256 of the Land and Titles Act (Cap.
133). The appeal is against the decision of the Western Customary Land
Appeal Court (the Western CLAC) made on
15th February 2001 at
Gizo in the Western Province. The grounds of appeal are these-
1. &nbssp;&nnbsp;&nsp; tsp; that the Wester CLA CLAC CLAC misdirected itself on the principle of natural justice, in particular,
the audi partem rule, and was thereby wrong in law in dismissing the
Appellant's appeal.
<
2. &nnbsp; the finding of the
W Western CLAC that the "appellant did not produce any evidence nor he made
a strong submission to show thal Coreache prie of natural justice
orce or the the appelappellant lant was nwas not given the opportunity of a fair
hearing" was against the weight of evidence.
3. & p; the West Western CLAC
erred in concluding that the Appellant could have received his Notice of
Hearingr
to ocal hearn 29th July 1996
without any or sufficient eent evidenvidence toce to show show that he (the Appellant) did
actually receive
his notice prior to the Local Court hearing.
4. &nbbsp; the Wehe Western CLAC
erred in concluding that the mailing system between Gizo Post Office, t Leona
Postal Atal Agency and the Iriqila and other nearby villages were
sufficient without any material before it to much conclusion.
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5. p; the We tern
LAC
err erred in upholding the Local Court decision in default of appearance without
considering
fthe lprinc releto denation of setting
aside judgment obtained in d in defaudefault oflt of appe appearancarance.
lang="EN-GB" style="font-size: 12.0pt">6. &nnbsp; the Wthe Western CLAC
erred in upholding the Local Court's
procedure in allowing the Appellant
therein (the Respondent herein) to adduce his evidences without hearhe
esponthere (Appellant
lant hereiherein) inn) in his substantive defence before Local
Court.
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7. &nbssp; &nsp; the Western CL C
dec decision was unjust in that its practical effect is to unjustly deprive the
Appellant of his right to defend the case before the Local Court and be
heard th.
The Facts
tter dated 1st
April 1996, the Local Court Clerk based in Gizo wrotewrote to the Respondent
informing him of the date of the hearing
of his case against the Appellant.
The Respondent's address is Zutapati Village, Dovele Postancy, Vella La
Vella. lla.
This letter was copied to the Appellant. The Appellant's address is
Iriqila Village, Leona Postal Agency, Vella La Vella. The
letter and its
copy were sent from Gizo. The date of hearing as stated in that letter was
17th June and 8 am was the time time for commencement of the
hearing of the Respondent's case. Both parties attended at Dovele
Village
but the Court Clerk did not. The hearing did not take place for that reason.
The next date of hearing was 29th July 1996 scheduled to take
place at Uzamba Village. This information was contained in a letter dated 11th
July 1996 written byLocal Ccal Court Clerk based at Gizo, addressed to the
Respondent at his usual address. A copy was
also sent to the Appellant at
his usual address. The Respondent received his lettd attended the
hearinearing at Uzamba
Village on 29th July 1996. The Appellant
d
not attend and the hearing proceeded in his absence resulting in a decision
being made
against him on 31st July 1996 by the Vea Vel
Local Court. The Appellant filed an appeal agal against the Vella La Vella Local
Court decision
on 28thth
February resulting in the dthe dismissal of the Appellant's appeal on 15th
February 200pan>
">
This Appeal
In my view, thieal is
misconceived. It is misconceived in that it assumes that the Western CLAC
did have jurisdiction
to hear an appeal on a point of law arising from the
decision of the Vella La Vella Local Court made on 31st July
6. A Customary Lany Land Appeal Court is a court established to hear appeals
from the decision of any Local Court
on the qon of ownership of
customary land. It�s membership consists of men who are knowledgeaedgeable about
customary
law governing the ownership of customary land. It has no power to
decide legal issues such as the breach of natural justice.
The correct forum
that has jurisdiction to decide such issue as the breach of natural justice
is the High Court under
section 84(1) of the Constituency. That is to say,
...
"The High Court shall have
jurisdicto supervise any civil or criminal proceedings before any
ny
subordinate court
and may make such orders, issue such writs and give such
directions as it may consider appropriate for the purpose of ensuring
that
justice is duly administered by any such court"... .
The High Court clearly has
supervisory jurisdiction over subordinate courts suring that justice is
duly administered
by subordinate courts. Breach of natural justice is one of
the causes for judicial review. In this jurisdiction, breach of
natural
justice attracts a writ of certiorari under Order 61 of the High Court
(Civil Procedure) Rules 1964, (the High
Court Rules). The Notice of Appeal
filed by the Appellant on 28th October 1996 seekingWesternstern
CLAC to set aside the decision of the Vella La Vella Local Court for breach
of natural
justice was wrong. The Western CLAC should have rejected that
appeal on the ground that it had no jurisdiction to hear an appeal
on a
point of law. What the Appellant should have done was to apply to the High
Court for a writ of certiorari to quash
the decision of the Vella La Vella
Local Court. Evidently, that he did not do, apparently attracted by the
prospect of
an appeal under section 256(2) of the Land & Titles Act (Cap.
133). As I have said, the Appellant had made a mistake in
this regard. The
fact that the Western CLAC had dealt with the appeal apparently without
jurisdiction has created for
the Appellant double hurdles. The decisions of
the Vella La Vella Local Court and the Western CLAC are both against him.
The Appellant is faced with the double task of having to remove the decision
of the Western CLAC as well as doing the same
to the decision of the Vella
La Vella Local Court. On the basis that the Western CLAC had exceeded its
jurisdiction by
entertaining a matter beyond its jurisdiction, its decision
in that regard cannot be removed by an appeal under section 256
of the Land
& Titles Act. The reason is that an appeal on a point of law from a decision
of a Customary Land Appeal
Court to the High Court does not envisage
incidents of judicial review. As Lord Brightman said,
"Judicial review is
concerned, not with the decision, but with the decision-making process" (See
Chief Constable
of North Wales Police v Evans [1982] A.E.R. 141 at 152).
What is of concern to the
Appellant in this case is the decision-making process employed by the Vella
La Vella Local Court
in reaching it decision and not its decision. The
appropriate remedy lies in judicial review and not in an appeal to the
Western CLAC. Unfortunately, the Western CLAC got sucked up into the process
of judicial review for which it had no power
to do. The Western CLAC in so
doing committed an error of law itself. Its erroneous decision may also be
corrected by
judicial review. An appeal to the High Court would not do.
There are cases in this jurisdiction where certain decisions of
the CLAC
were quashed by way of judicial review and not by way of appeal under
section 256 of the Land & Titles Act
(see R v W CLAC exparte Simi
Pitakana [1985/86] SILR 69 (certiorari), Kaupoi v Principal
Magistrate, Malaita [1985/86] SILR 25 (mandamus) Siope v M/CLAC
[1985/86] SILR 255 (certiorari) and Liufaifo'oa v M/CLAC [1988/89]
SILR 70 (mandamus)). Clearly, the Appellant cannot succeed in this
appeal. I accordingly dismiss this appeal. I feel that in the circumstance
of this appeal, each party should meet his own costs.
F.O. KABUI
JUDGE
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