D
Hou for the tiff
JUDGMEpan>
(LUNGOLE-AWICH,
J):
The application of the intending plaintiff is on behalf of himself and his
tribe; it is for leave of the Court to apply
to the High Court for order of
certiorari. Applications for orders of certiorari, mandamus
and prohibition are made by prior leave under the High Court (Civil
Procedure) Rules, at Order 61 rule 2. The effect of an order of
certiorari is to remove proceeding or determination of a subordinate
court, tribunal or such other authority, charged with the duty to
decide, to
the High Court and quash the determination on the ground of error on the
face, not error of facts or law perfectly
within the jurisdiction or
authority of the decider. The latter is a matter for appeal. In the subject
matter of this
case, an appeal from Customary Land Appeal Court, the CLAC,
the appeal would be only on grounds limited by s:256 of the Lands
and Titles
Act, Chapter 133 of the Laws. The order of certiorari is of course
not available when appeal or review are available.
The applicant, if successful, intends to ask the High Court to remove the
decisions of the Malaita Customary Land Appeal
Court, the MCLAC and of the
Malaita Local Court, in appeal case No.6/85 which was originally Local Court
case No. 2/84,
and quash them on the ground described by the applicant as
fraud, in his statement supporting the application for leave. The
fraud
alleged were based on three main allegations of facts. The first was that in
the case in issue, the respondent,
the intended defendant, testified before
the Local Court that he was obligated to customary prayers or rites of
Siubongi
and Lagwaeano tribes, but in a subsequent case between him and
another party, he disowned the obligation. The second was that
he denied in
the case in issue that there was at the time, hostility between Siubongi and
Lagwaeano, but in the latter
case parties acknowledged that there was
hostility. The third was that when the case was being tried, the respondent
instructed that physical inspection of the land by the Local Court was to be
prevented. There were other allegations which
were connected to the three.
When Court May Grant Leave
For the applicant to obtain leave, his application must disclose recognised
grounds upon which the High Court may exercise
its supervisory jurisdiction
over subordinates under s:84 of the Constitution - see R -v- Customary
Land Appeal Court (Western) Ex Parte Simi Pitakaka [1985-86] SILR 69 and
compare s:27 of the Local Courts Act, Chapter 19 of the Laws. The well known
grounds are: errors on the face of the record such as, error the result of
lack
of jurisdiction, disregard for or breach of established rules of
justice such as the rule against bias and the rule to be afforded
opportunity to be heard, or on the ground that the decision was obtained by
fraud or perjury of the defendant.
It is doubtful whether the facts ed to do constitute fraud -aud - see R
-v- Customary Land Appeal Court (Western) Ex Parte Simi Pitakaka
[1985-86] SILR 69 in which Ward CJ adopted the definition of fraud as stated
in the English case, Barclay's Bank Ltd -v- Cole [1966] 3 All ER 948.
Fraud is defined therein as a false statement made knowingly or without
belief in its truth, or recklessly, carelessly,
whether it be true or false
- and I add, such statement being intended to deceive and has been acted
upon.
Leave Granted
The allegation of facts presented, however, appear to have substance if
perjury is relied on for the application for the
order of certiorari.
Perjury is good ground - see R -v- Ashford Kent JJ Ex Parte Richley
[1956] 1 KB 167. This, however, should not in anyway be regarded as an
assessment of the value of the evidence in support of the application,
it is
only sufficient for the purpose of deciding whether leave is to be granted.
There was also allegation that the
respondent instructed that inspection of
the land, the subject of the case, was to be prevented. If the Local Court
or
Customary Land Appeal Court was obstructed during its proceeding, there
may be ground to apply for order of certiorari. My view is that the
applicant has made sufficient case for leave and I grant leave; he may apply
for order of certiorari.
Costs are reserved to the determination of the application, should the
applicant proceed to make his application.
Delivered this Wednesday, the 6th day of October /span>
At the High Court
Honiara
Sam Lungole-Awich
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1999/102.html
