In or about June 1995 (see
paragraph 2 of afit of Selwyn Dika), Pla, Plaintiff held preliminary
discussions with Eastern Development Enterprises Limited (a logging
company) to negotiate possible grant of timber rights under the
Forest Resources and Timber Utilisation Act (hereinafter referred to
as “the Forest Act”). Proceedings under the Forest Act were
commenced and a public hearing held on or about 23rd August
1995. One of the claimants at the public hearing was the First Defendant
(David Lenga Somana) representing
his tribe, the Eti Eti Clan, claiming
timber rights over part of Rakata Land. The First Defendant claims to be
the owner in custom of land known as FUFUANA LAND and stretches from
Pukuhoghelera to Ghozi. The area is also described
as LR 674 with an
area of 4000 hectares it seems (see Exhibit “SD3-Document no. 3.2”).
It will be seen from “Document 3.2” that there is an area of land
which overlaps between Rakata Land and Fufuana Land claimed by the
parties. That
area of land, which is the subject of the dispute of
timber rights between the parties, stretches from Fufuana River to
Ghozi
along the coast.
At the public hearing
convened at Toelegu Village on 23rd August 1995, the claims
of both clans were considered by the Havulei/Kokota Area Council (hereinafter
referred to as “the HKA Council”) and determination made in favour
of the Plaintiffs Clan as follows:
“The area council having
considered the evidence and the documents produced by d by both Mamara and
Eti Eti clans
determined that the Mamara clan is entitled to grant
timber rights on the LR 675 Rakata/Fufuana land”
[See Exhibit “SD3-Document
No. 3.5”]
The FDefendant did not
agree with that determination and appealed to the Isabel Customustomary Land
Appeal Court
(hereinafter referred to as “the ICLAC”). Five
grounds of appeal were raised (see Document marked “4.2”). The
ICLAC allowed the appeal and quashed the decision of the HKA Council. It
stated inter alia, the parties
were at liberty to take appropriate
actions to address their disputes.
The Plaintiff now comes to Court seeking order for Certiorari to have the judgemedgement of the ICLAC
removed to this
Court and quashed and consequential order remitting the
matter to the ICLAC for re-determination according to law.
The grorelied on by
the Plaintiff can be summarised as follows. Plaintiff submits the IChe ICLAC
was obliged under
section 10 of the Forest Act “to determine whether
or not the decision of the Area Council, as to who were the persons
entitled to grant timber
rights, was correct.” Instead the ICLAC
merely dealt with the appeal as if it were a land dispute case.
Plaintiff argues the ICLAC
had no jurisdiction under section 10(1) of
the Forest Act, to deal with a customary land dispute on appeal.
POWERS OF THE CUSTOMARY
LAND APPEAL COURTn>
A customary land appeal
court is set up by warrant under the hand of the Chief justice pursuant
to Section 255(1)
of the Land and Titles Act (hereinafter referred to
as “the LTA”). Its jurisdiction is similar to that of the local
courts as provided for in its warrant or by order. Its powers are also
similar [see Subsection 255(4) of the LTA]. These include power
to administer the rule of custom prevailing within the jurisdiction of
the court in so
far as it has not been modified by any Act.
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
SECTION 1OF THE FOREST
ACT
Any person aggrieved with
the decision of the Area Councy appeal “to the Customastomary Land
Appeal Court having jurisdiction for the area in which the customary
land concerned
is situated” [subsection 10(1)]. On appeal, such
court is obliged to “hear and determine the appeal” [subsection
10(1)]. A decision of the Customary Land Appeal Court (hereinafter
referred to as “the CLAC”) is final and conclusive (see subsection
10(2)). This has been held to create an estoppel by judgment as between
parties (see Beti v Allardyce Lumber
Co. Ltd
(1992) CAC 5/92 at p. 9; endorsed in Gandly
Simbe v East
Choiseul Area Council & Otrs
CAC No. 8 of 1997 at p. 6). See also the Court of
Appeal decision in Akuila Talasasa & Otrs v Rex Biku & Otrs CAC 2/87
at p. 9/10, which held:
“...that
an error of law by a customary land appeal court in arriving at a
decision or determination on a matter within
its jurisdiction cannot be
challenged before the High Court by certiorari even though that error
appears on the
face of its record. This conclusion will have the
beneficial effect that decisions of a customary land appeal court on
questions of custom will not be open to challenge in the High Court by
bringing appeals under the legislation
under the colour of applications
for certiorari.”
The decision does not
exclude errors of law that go to jurisdiction. This Court’s in’s inherent
jurisdiction
is not ousted by the no certiorari clause where it is
alleged on appeal, an error of law that goes to jurisdiction had
been
committed. This is the situation alleged on appeal before this Court.
THE ISSUE
The crucial issue in this
case revolves around the question what is meant for the CLAC “to hear
and determine the appeal” pursuant to section 10(1) of the Forest
Act. Mr. Kama for the Appellant argues it entails determining whether or
not the decision of the Area Council was correct or not. He submits the
ICLAC did not perform what was required of
it under the said provision,
and to that extent, committed an error of law that went to jurisdiction.
Mr Ashley
and Mr. Manetoali argue otherwise, that the ICLAC had
jurisdiction to make such determination which was open to it and
therefore even if an error appears on the face of the record, a
determination had been made which cannot be interfered
with by this
Court.
To answer the question
posed above, how those appeal points were addressed by t by the ICLAC must be
enquired into.
Appeal point 1 reads:
“That the Havulei/ Kokota
Area Council erred in their determination when they failed to accept
our firm objection
that LR 675 as indicated on the “publicly displayed
area of the land” (map of area, attached to form 9), constituting
the
same LR 675; overlapped LR 674 which is our land - the Fufuana land.
Hence, by treating LR 675 Rakata
land and a portion of LR 674 of the
customary Fufuana land as one unit of land, the new LR 675 is not the
same customary land known as LR 675.”
The objection raised by the
First Defendant before the ICLAC was that Rakata Land (LR 675) claimed
by the Plaintiff
overlapped into Fufuana Land (LR 674). He argues the
HKA Council failed to take into account a material factor (namely
evidence produced by the First Defendant of the correct boundaries of LR
674 as compared to LR 675) and thereby committed an error of law
that went to jurisdiction. Had the HKA Council taken that material
evidence
into account, it would have found in favour of the First
Defendant as to the correct boundary of LR 674.
The issue facing ICLAC
therefore, was whether this submission was correct, in the sense that
the HKA Council would
have been obliged to rule in favour of the First
Defendant, in the light of the First Defendant’s evidence. If that was
so, the ICLAC would have been obliged to allow ground (1) of the appeal,
then go on and make determination that
the correct area of LR 674 was
such as that described by the First Defendant. That in turn would have
had consequential
effects on the area which the Plaintiff would have
been entitled to grant timber rights over. If, on the other hand, the
ICLAC were to come to the conclusion that even in the light of that
evidence, it was still open to the HKA Council
to accept the boundary
description of the Plaintiff as correct, it need not interfere. If the
ICLAC felt it required
further evidence to assist it reach a conclusion
on that question, I see no impediment in calling further witnesses for
that purpose.
What then did the ICLA
in respect of Appeal ground 1. Did it hear that appeal and make a
deterdetermination? The
ICLAC acknowledged there were opposing claims on the
boundaries of LR 675 and LR 674. It acknowledged there was evidence
to
support the boundary claims of the Plaintiff (note it had the various
documents produced before the HKA Council). Unfortunately, it failed
to go on and determine, in the light of that evidence, whether the HKA
Council was
obliged to make findings in favour of the First Defendant,
or whether it was open to the said Council to find in favour
of the
Plaintiff and therefore need not interfere. The ICLAC went so far as to
acknowledge there were earlier
decisions over Rakata Baitfish Grounds
which shed light on the issues of ownership over the respective
boundaries
claimed, but failed to go on and determine that issue. All it
did was merely say, “we recognise no binding decision exists
between the
parties in respect of the boundary dispute, but the parties should take
the matter up under the Local
Courts Act”. It failed to realize it was
obliged to determine the appeal point there and then, rather than
leaving
it in suspension. The ICLAC accordingly did hear appeal point
no. (1), but failed to go on to the second part and make
determination
on it. Therein lie the error of law committed by the ICLAC.
JURISDICTION TO DETERMINE
BOUNDARY DISPUTE
That the ICLAC has general
juction to determine questions of boundary disputes involvinglving
customary land is
beyond dispute (see Sections 254(9) and 255(4) of
the Land and Titles Act). The crucial question before this Court is
whether, under section 10(1) of the Forest Act, that general
jurisdiction
is excluded, and if so, what jurisdiction is being retained
or is being exercised when dealing with such appeal? It is
my respectful
view, the general jurisdiction of a Customary Land Appeal Court is not
excluded in any way, under
section 10(1). To the contrary, section 10(1)
makes specific reference to the fact that appeals may be made to such
court “having jurisdiction for the area in which the customary
land concerned is situated ”. In other words, the Forest Act
actually provides in my respectful view, that the appeal is being made
to such
a court with all its jurisdictional powers intact. The only
distinction to be noted is that in dealing with the appeal,
the issue
for determination is necessarily confined to the question of
identification of the persons lawfully
entitled to grant timber rights
over the area of land which the logging investor intends to carry out
logging
in. Now, if it so happens there are disputes on boundary or
ownership, which needed to be determined on appeal, the CLAC
has
jurisdiction to deal with those issues, if that would facilitate the
determination on appeal of the question
of persons lawfully entitled to
grant timber rights. Quite contrary therefore to what was submitted by
Mr. Kama,
it is my respectful view the CLAC would have jurisdiction to
deal with issues of ownership or boundaries, for the purpose
of
determining the ultimate question as to who are the persons entitled to
grant timber rights. For the purposes
of this case therefore, I see no
impediment why the ICLAC should not deal with the question of boundary
disputes
between the parties for the purpose of addressing appeal point
no. 1 raised by the First Defendant. In so doing it would
have addressed
the ultimate questions as to the areas of land over which the Plaintiff
and the First Defendant
were entitled to grant timber rights over. The
issue before the HKA Council was identity of the persons lawfully
entitled to grant timber rights over LR 675. On appeal the issue raised
under ground (1) was question of boundary dispute
between Rakata Land (LR
675) and Fufuana Land (LR 674). The ICLAC in my respectful view not only
had jurisdiction
to deal with that issue, but was obliged to
determine that issue in the circumstances of this case for the
purpose of identifying the boundary of land over which Plaintiffs Clan
held timber rights. The ICLAC did not do that. It failed accordingly
to carry out its obligation specified under the Forest Act and thereby
committed an error of law that went to jurisdiction.
The second ground of
appeal. This reads:
“That the Havulei/Kokota
Area Concil erroneously determined and idnd identified certain persons who
are not the
true persons lawfully able and entitled to grant timber
rights in either LR 675-customary land or the “new” LR 675 which
includes a specific portion of LR674-customary land.”
The First Defendant es
the HKA Council committed an error in its determination that the
Pla Plaintiff’s Clan
were the persons entitled to grant timber rights. This
required the ICLAC to identify what was the error alleged, address
it
and then make a determination on it. Again the ICLAC failed to do that.
What it did do was to acknowledge
there were previous decisions over
Rakata Baitfish Grounds, but held these did not relate to the land
inland,
and therefore took the view there had been no previous
determinations on the land in dispute before it and felt this should
be
pursued under the Local Court Act. It failed again to realise it was
obliged (it had duty), to make a determination
on the appeal presented
before it rather than pass the matter on. The ICLAC therefore committed
an error of law,
when it ruled the parties were at liberty to take the
matter up under the Local Court Act, forgetting it had jurisdiction
and
was actually required by provisions of section 10(1) of the Forest Act
to determine the issues raised on
appeal before it, whether pertaining
to disputes on boundary or ownership rights in custom. As pointed out in
this judgment, if the ICLAC felt it needed to call further witnesses,
there is no impediment for that to be done. The
ultimate task was to
determine whether the findings made by the HKA Council should be
disturbed or not, and if
so, to what extent and in what manner.
The third ground of appeal
raised beforeICLAC reads:
ockquotequote>
“That the Havulei/Kokota
Area Council did not include persons who are lawfully able and
entitled to grant
timber rights in the overlapped portion of LR 674 -Fufuana
land.”
