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In the Higrt of Solomon
Islands
Before: FRANK KABUI, J.
Civil Case No. 179 of 1998
Hearing: 27th
January 1999
Judgment: 5th
February 1999
Bridge Lawyers for the
Applicant
Defendant in Person
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JUDGMENT
p cl
(Frank Kabui J):
This is an application by way of a Writ of Certiorari to quash the decision
of the Guadalcanal Customary Appeal Court
made on 17th July,
1998. The Applicant is Mr. Karahu who with three others are joint owners of
Lot 568 or Parcel No. 222-004-1 situated
on the beach front of the Marau
Airstrip on East Guadalcanal. The area of land in dispute is 11/2 acres on
1,478 hectares
of land. It was registered in the names of the Applicant and
three others on 19th July, 1974. This area of land is said to
have been acquired from customary owners some years ago together or as part
of the Marau Airstrip. The Applicant and his joint owners of this land are
owners in perpetuity. That is to say, they are owners
of this land for all
time. The Respondent, Mr. Paeva challenged the ownership of this land in the
Guadalcanal Local Court
in 1996 - some 22 years after the Applicant and his
Joint owners were registered as such. The Court heard the parties and made
its decision on 5th December, 1996 in favour of the Applicant and
his joint owners. The Respondent appealed to the Guadalcanal Customary Land
Appeal Court. The Court made its decision on 17th July, 1998 in
favour of the Respondent. Can this decision be quashed as requested by the
Applicant? I would say it is
possible for the Court to quash it provided it
is established that the Guadalcanal Customary Land Appeal Court does not
have jurisdiction to hear and determine the ownership of "registered land".
This is the central issue in this
case. That is to say, would the
Guadalcanal Local Court or its Customary Land Appeal Court or for that
matter, any Local
Court or Customary Land Appeal Court have jurisdiction to
hear registered land? In this case, it would seem to be the case
that the
customary land status of the property would have already been converted into
registered land through the acquisition
procedure under Part V of the Land
and Titles Act (the Act (Cap. 133). Once customary land has been converted
successfully under this procedure, it becomes registered land.
It has a new
legal status in law. The entry of the Applicant's name and those of the
other three persons in the Perpetual
Estate Register as joint owners is
evidence of absolute title to the land in dispute. The only way this title
may be
defeated is by way of rectification under Part XXIV of the Act on the
grounds of mistake or fraud. It is therefore obvious that neither any Local
Court or any Customary
Land Appeal Court should again meddle with the
question of ownership of any land already successfully acquired under Part V
of the Act. However, to fully answer the question I posed above, it is
necessary also to look to the definition of customary
land under section
2(i) of the Act. It states
“Customary land" means any
laot being registered land, ond, other than land registered as customary
land, or land
in respect of which any person becomes or is entitled to be
registered as the owner of an estate pursuant to the provisions
of Part III)
lawfully owned, used or occupied by a person or community in accordance with
current customary usage, and shall include
any land deemed to be customary
land by paragraph 23 of the Second Schedule to the repealed Act;”
This definition read togethe with sections 254 (the jurisdiction of the local court) urt) and 255 (the
jurisdiction of the
customary land appeal courts) of the Act, would
obviously show that the ownership of any registered land under the Act would
be a matter beyond the jurisdiction of both the Local Court and the
Customary Land Appeal Court. The only exception is
where the matter to be
decided by the Local Court is whether any land is or is not customary land
(s254(1)(b)). This
is not the case here although the Guadalcanal Local Court
should have done this in the first place in 1996. Finding that the
land is
registered land, it should have stopped there. It clearly has no
jurisdiction to decide ownership of registered
land. As is stated in the
Annual Practice 1961, Vol. 1. at 1726 - 1727,
“The prerogative writ of
ertiorari lay to remove proceedings from inferior Courts tots to the High Court
for a variety of
purposes, sometimes at common law, sometimes by statute,
sometimes at common law as restricted by statute”…
Excess
of jurisdiction is not shown
merely because the inferior Court has decided contrary to the facts, or
without evidence to
justify the decision, but only where in the
circumstances it had no jurisdiction (R v Nat Bell Liquors, (1922) 2 A.
C. 128): for example, where the Court has imposed a sentence in excess of
the statutory maximum (R v Willesden JJ. Ex p. Utley, (1948) 1 K. B. 397),
or where there has been a disregard of the fundamental conditions of the
administration of justice (R v Wandsworth
JJ., Ex p. Read, (1942) 1 K.
B. 281, (1942) 1 All E. R. 56), as where there is a real
likelihood of bias or prejudice on the part of the tribunal (R. v Rand,
L. R. 1 Q. B. 233; R. v. Camborne JJ., ex p. Pearce, (1955) 1 Q. B.
41; R. v Grimsby Borough Quarter Sessions, ex p. Fuller, (1956) 1 Q.
B. 36) and at common law a direct pecuniary interest in the subject
matter of inquiry raises a conclusive presumption of bias (R.
v. Barnsley
Licensing JJ., (1959) 2 Q. B. 276) or where the decision was obtained
by fraud (R. v. Gillyard, 12 Q. B. 527; R. v. Recorder of Leicester.
(1947) K.B. 726) or perjury of the party (R. v Ashford, Kent JJ., ex p.
Richley, (1956) 1 Q. B. 167). But certiorari also lies where it
appears on the face of the record that the decision was erroneous in point
of law
(R. v. Northumberland Compensation Appeal Tribunal, (1951) 1 K.B
711, (1952) 1 K. B. 338; R. v. Medical Appeal Tribunal, ex p. Gilmore,
infra; Baldwin & Francis. Lyd. v Patents Appeal Tribunal, (1959) A. C.
663)...
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Applying this to the facts of
this case, I find that on the evidence e me, the Guadalcanal CustoCustomary
Land Appeal
Court does not have the jurisdiction to determine the ownership
of LR 568 or Parcel No. 222-004-1 as registered land under
the Land Tiles
Act (Cap.133).
I therefore quash the deci
of the Guadalcanal Local Court. I order that the decision be set aside
accordinordingly.
No order to costsan>
F.O. KABUI
Judge
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