Tavea v Paripao House of Chief [1999] SBHC 145; HCSI-CC 196 of 1999 (22 June 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 196 of 1999

ERIC TAVEA & GORDON LEUA

-v-

PARIPAO HOUSE OF CHIEF & ERIC KUTA

High- Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 196 of 1999

Hearing: 21st June 1999
Ruling: 22nd June 1999

G. Suri for the Plaintiffs
Defendants not present

RULING

MURIA CJ: This is an application by the applicants for leave to issue Certiorari proceedings against the respondents. The applicants seek to quash the decision of the Paripao House of Chiefs made on 29th March 1999 on the ground of the breach of the rule of natural justice. In addition, there is also the alleged collusion among the Chiefs themselves resulting in the awarding of the land in question, Tenakura/Kokomu/Telonga/Maraka Land to the second respondent’s line.

In support of his contention Mr. Suri relied on Order 61 r 2(1) of the High Court (Civil Procedure) Rules which provides :-

“(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this Rule.”

In addition Mr. Suri also relied on the inherent jurisdiction of the Court to supervise subordinate Courts under the Constitution. Section 77 of the Constitution provides the High Court with unlimited jurisdiction and section 84 empowers this Court to supervise the actions of the subordinate courts. In order, therefore, for this Court to consider the applicants’ application in this case, it must be demonstrated that the Court has jurisdiction to so. In other words, the question is whether the writ of certiorari sought in this case would lie to quash the decision made by the Paripao House of Chiefs.

As to the Court’s power under section 84 of the Constitution, such supervisory power can only be exercised over any “subordinate court.” The House of Chiefs is not such a Court and therefore the supervisory power of the Court does not extend to such a body. In this context, the supervisory jurisdiction of the Court can only be exercised upon a body which exercises judicial power.

It must be accepted, however, that this Court has inherent jurisdiction. The existence of the Court’s inherent jurisdiction is imperative, so that the Court can exert its authority to protect the rights of the individual where it would otherwise be available. Thus within the Court’s inherent jurisdiction comes the review powers of the Court. This is wider than that of the supervisory power of the Court. It enables the court to review decisions of tribunals or bodies whose actions affect the rights of a citizen. It is in the context of the review power of the Court that the present application can be considered.

Traditionally, certiorari can only lie against a body which was obliged to act judicially or quasi-judicially. However, it has now been made clear that this ancient remedy of certiorari must be adaptable to meet the changing conditions of our time. Decisions of tribunals or bodies established by acts of government and are of public, as opposed to private, character and which although not obliged to act judicially, are required to act fairly are reviewable by certiorari. This is the modern approach. The only constant limit is that the body concerned must be performing a public duty. See Reg. v Criminal Injuries Compensation Board, Ex. p. Lain [1967] 2 Q.B. 864; Reg. v Take-over Panel, Ex p. Datafin Plc [1986] EWCA Civ 8; [1987] 2 W L R 699.

The Paripao House of Chiefs in this case had constituted itself for the purpose of enquiring into the dispute over the land in question between the applicants’ line and second respondent’s line. This is in line with the Local Courts Act which provides, inter alia, that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless that dispute is first dealt with by the chiefs: section 12(1), (Cap.19, Revised Edition of the Laws). One is therefore disposed to see that the authority of the Chiefs (or a body of them) stems, not only from an act of government but also from an Act of Parliament. The manner in which the Chiefs constitute themselves into a body and the procedure employed at the hearing of disputes before them are, however, not formalised by statute. Nevertheless the Chiefs are a recognised authority for the purpose of determining the rights of the disputing parties to a customary land dispute. The Chiefs have, by the nature of their authority, exercised at least some judicial-type duty. The remedy we are concerned with here would therefore lie against their decision.

Again, not only is their authority derives from the statute, the performance of their functions forms an integral part of the system of dispute adjudication applicable to customary land disputes in Solomon Islands. This gives them a public law character with sanctions thereof enforced publicly. They, therefore, also exercise important public law functions. Again in such a situation, the remedy of certiorari will lie.

Having given this matter some consideration, and in the light of what had been said, am of the firm view that this is a proper case for leave to be granted.

I therefore grant leave to issue certiorari proceedings in this matter.

(GJB Muria)
CHIEF JUSTICE