(Lungole-Awich,
J):
The applicants are respondents in CLAC appeal cases, Nos: 5/96, 6/96, 7/96
and 9/96, pending before the Central Islands
Customary Land Appeal Court,
the CICLAC. The respondents in the application are the appellants, their
appeals were filed
in terms of section 5E(1), of the Forests Resources and
Timber Utilisation Act, Chapter 40 in the Laws of Solomon Islands.
In the
1996 Revised Edition of the Laws, the section is now 10(1). The appeals are
against the determination made by
Bapa Area Council under section 5C(3),
naming 13 persons as the persons entitled to grant timber rights in the
areas
covered by a map attached to a "Certificate of Customary Ownership."
The new section is 8(3). The certificate was
issued under s.5C (now
s:9(2)(a)). The certificate stated further, that the persons entitled were
"landowners"
willing to negotiate the transfer of their timber rights in the
areas to Mavingbros Timber Company Limited, a logging company.
Each of the
four appeals is against a particular group of the 13 people determined as
entitled in respect of a particular
area within the areas in the map. The
appeal points are, not surprising, identical because the determination about
all
the areas was one determination.
The grounds of the application are also identical, namely, that the appeal
points raised by the appellants were matters
outside the jurisdiction of the
Bapa Area Council and therefore will be outside the jurisdiction of CICLAC.
During the
hearing of the application, learned counsel Mr P. Tegavota, for
the applicants, dropped his submission of lack of jurisdiction
against some
of the appeal points. His submission about the remaining appeal points was
that under s. 5E(1), Customary
Land Appeal Court is empowered to hear appeal
only against a determination as to who are entitled to grant timber rights
and the incidental matters in section 5C(3). That, Mr Tegavota said, derives
from the fact that the jurisdiction of the
Area Council is, by section
5C(3), limited to only determining the question of who are entitled to grant
timber rights
and the incidental matters in the section and no more. He
argued that CICLAC therefore had no jurisdiction to consider and
to decide
questions of matters such as genealogy, clans or tribes of the persons
determined as persons entitled or question
as to which clans belong to the
land areas because the Area Council is not authorised to determine those
questions. He
suggested that those matters are for the Local Courts proper
when the Local Courts determine ownership in customary land. Mr
Tegavota
cited the two judgments of Palmer J in David Livingstone and Others -v-
Isaac Napata and Others, HCCC15 of 1997.
lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
Substance aside, I asked Mr Tegavota to state the law by which he is
authorised to come to the High Court by an application
such as this one,
when appeals have been filed and are pending at the CICLAC. His answer was
that he relied on David Livingstone case.
lass="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0">
Learned couMr J Hauirae, for two of the respondents, submitted that that the
application is an abuse of process because
the arguments of the applicants
can be raised during the hearing of the appeals before the CICLAC. He also
submitted
that it would amount to an abuse of process because there has
already been an earlier case in the Court by the respondents
in which the
respondents obtained interim injunction order restraining Mavingbros and the
present applicants from proceeding
with the logging venture. He said that
the case is pending on a different case file.
<
Lack of jurisdiction can be ground for the High Court to exercise iise its
supervisory powers - see R -v-Electricity Commissioners Ex parte London
Electricity Joint Committee C. [1924] 1 KB 171, and Anisminic Ltd -v-
Foreign Compensation Commission [1968] UKHL 6; [1969] 1 All ER 208. In view of the need
to decide this application quickly, it is not necessary for me to decide the
question as to whether
the matters raised in the appeal points are matters
outside the jurisdiction of the Area Council or of the Customary Land Appeal
Court. The first determinant question here is whether the present applicants
are authorised and are entitled to come
to the High Court while appeals have
been filed and are due to be heard by the Central Islands Customary Land
Appeal
Court.
Even if the facts about lack of jurisdiction were to be found suff sufficient to
warrant the application being made at
the High Court to stop the appeal
proceedings, the law of procedure in Order 61 rule 2 would require the
applicants to
obtain leave in the first place. That in fact is what had
happened in David Livingstone case cited by Mr Tegavota - see the
first sentence in the judgment of Palmer J. dated 10.10.1997. The orders
that the
applicant seeks are in fact the orders of prohibition and of
certiorari, to stop the CICLAC proceeding to hear the appeal and to
remove the appeal from the CICLAC to the High Court. This application
ought
not to have been made before leave had been obtained.
It is convenient to decidequestion of leave just in case an application
is rush rushed to Court immediately after this
Judgment. I would refuse to grant
leave on the ground that the Forest Resources and Timber Utilisation Act, at
section 10(1) provides for the remedy of appeal, first to the CLAC and from
there to the High Court, even if only
to a limited extent. The orders of
prohibition and certiorari are discretionary orders, and
discretion to make the orders is normally not exercised where statute
provides for remedies
such as appeal and review - see R -v- Paddington
Valuation Officer ex parte Peachey Property Corporation Ltd [1965] 2 All
ER 836 and R -v- Minister of Health ex parte Ellis [1967] 2 All ER
65.
The result of my determination is that the aption is dismissed. No
order is made to interfere with the appeal proceedings
in the CICLAC appeal
cases Nos. 5/96, 6/96, 7/96 and 9/96. On the facts of this case, the
questions of jurisdiction are
such that may be raised before the CICLAC. If
there has been inordinate delay by the CICLAC, to hear the appeals, the
legal action to take is not by this application which has the effect of
prohibiting the CICLAC from hearing the appeals or
removing the appeals to
the High Court, on an order of certiorari.
Costs of thisication are to be paid by the applicants to the first and
and
second respondents in the application, represented
by Mr Hauirae, and to Mr
Manedika. No order for costs is made for the respondents who did not attend
this hearing.
During the hearing Mr Tegavota requested the Court to hear and determine the
application speedily because the CICLAC was
due to sit during this week to
hear the appeals, the subject of this application. I appreciated the
urgency, and at the
close of submissions, I decided to state in writing
straight away in Court, the outline of this judgment leaving out case
citations, and I dictated to counsel a summary of the orders in the
judgment.
Delivered this Tuesday the 9th day oember 1999
At the High Court
Honiara
Sam Lungole-Awich
Judge
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