Afu v Farobo [1990] SBHC 51; HC-LAC 002 of 1990 (11 October 1990)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 2 of 1990

THOMAS AFU AND ROCKY TISA

v.

BILLY FAROBO

In the High Court of Solomon Islands
(M.W. LODGE)

Hearing: 4 October 1990
Ruling: 11th October 1990

A.H. Nori for Appellant
M.B. Samuel Respondent

RULING

This is a motion for striking out under O.60A r.2(3). The notice of appeal contains two grounds of appeal. The first alleges that the CLAC erred in procedure in determining the case without establishing the identities of the appellants (who were the respondents in the CLAC) in relation to earlier decisions.

It is quite clear from the record that the CLAC did consider the identities of the parties as a preliminary issue. Whether the CLAC came to a correct finding on this issue is a question of fact and custom, not a question of law. This ground of appeal does not claim any error of law or any failure to comply with a procedural requirement of any written law and it is struck out.

The second ground of appeal does allege an error of law. I am of the view, however, that it does not disclose any reasonable ground of appeal. It is alleged that the CLAC erred in law in determining the issue of res judicata which is a matter of law and falls outside its jurisdiction as a custom court.

There is in fact no statutory provision which states that a CLAC is a custom court and cannot determine issues of law. In any event the question of whether estoppel per res judicatem applies in any particular case is invariably a mixed question of fact and law. The CLAC is a judicial tribunal and clearly has jurisdiction to consider and determine issues going to the root of its jurisdiction such as estoppel.

In so far as ground 2 is a point of law I find that no reasonable ground is disclosed thereby and the whole of the notice of appeal is struck out under O.60A r.2(3).

Costs to the respondent.

Right of appeal to a Judge in chambers within 7 days.

Dated this 11th day of October 1990

(M.W. Lodge)
Registrar of the High Court