Keruvala v Rose [2000] SBHC 23; HC-CC 106 of 2000 (25 May 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 106 of 2000

JEMAIMA KERUVALA & OTHERS

-V-

AUGUSTINE ROSE

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 25 May 2000
Date of Judgment: 25 May 2000

Judgment Ex tempore

Mr. G. Suri for the plaintiffs
Mr Apaniai for the defendant

JUDGMENT

(LUNGOLE-AWICH J): Background: The plaintiffs in the originating summons case before this Court were respondents in the Central Islands Customary Land Appeal Court (CICLAC) in its appeal case No. 6 of 1996. The defendant now, was the appellant and the spokesman or representative of a group of people who had claim of timber right on customary land, rivaling the claim of right of the respondents (the plaintiffs now). The appeal was against the determination of the Local Area Council, in favour of the plaintiffs, as to the persons who were entitled to grant timber right and related matters under s.8 of the Forest Resources and Timber Utilization Act, Chapter 40 in the Statute Laws of Solomon Islands. Appeal against timber right determination lies to the Customary Land Appeal Court by authority of s: 10 of the Act.

When the appeal came before the CICLAC for hearing, objection was taken to the appellant (defendant now), having audience in the CICLAC on the ground that he was a qualified legal practitioner. The objection was grounded on s: 255(6) of the Lands and Titles Act, Chapter 133, which provides:

“(6) No legal practitioner shall be permitted to appear before a customary land appeal court.”

Instead of ruling on the objection and proceeding with the appeal to conclusion, the CICLAC adjourned the appeal to allow parties to have the question in the objection brought to the High Court for determination first. As the result, the present originating summons was filed at the High Court for determination of the question as to whether the defendant should be allowed audience at the CICLAC and an added question as to whether witnesses may testify at Customary Land Appeal Court when it hears appeal against timber right determination.

Determination

I know not of a procedure whereby a Local Court or Customary Land Appeal Court may suspend hearing to enable parties to present particular questions to the High Court to be determined first. If the CICLAC was thinking about case stated procedure, that is available only when it is specifically provided for by Rules of Court or by the specific statute in point. Examples are s: 298 of the Criminal Procedure Code, Chapter 7, which provides for a magistrate to state a case for the opnion of the High Court, and s:14 of the Court of Appeal Act, Chapter 6, which provides for the High Court to state a case for the opinion of the Court of Appeal. The opinion is on point of law not of fact. Under s: 14 of the Court of Appeal Act, Palmer J stated a case for the opinion of the Court of Appeal in the 1994 constitutional crisis case, Francis Billy Hilly and Others v Moses Puibangara Pitakaka and others, SICOA No. 10 of 1994. The case involved a complex point of law about which the Constitution was silent, and there was a constitutional crisis to be resolved most urgently. Moreover, Palmer J was sitting alone under pressure of very little time to determine the case. There were very strong good reasons for Palmer J to state a case.

It is seldom indeed that the Magistrates’ Court or the High Court states a case. It is usual, even when the power is given, for the trial court to decide the point and leave it to parties to take it on appeal or apply for review. Use of case stated procedure sometimes leads to prolonging a case, and too frequent use of it may undermine confidence in the trial court. Moreover, it does not replace the right of appeal which may in the end still be exercised.

Customary Land Appeal Court is required to sit with a Clerk and in practice the Clerk is a magistrate. Almost all our magistrates are Law graduates. It is about questions such as have arisen in this case that advice from the Clerk is required.

The Originating Summons is dismissed. The order that this Court makes is as follows: The CICLAC is to proceed with the hearing of its appeal case No. 6 of 1996 in the normal way, and to decide one way or the other whether it will allow Mr. Rose’ audience and whether it will hear testimonies from witnesses. After having decided the questions, the CICLAC is to proceed and decide the appeal. It is to be left to the parties to decide after the appeal has been decided, whether they will appeal against the decision of the CICLAC to the High Court on any point, including the CICLAC’s decision to hear or not to hear Mr. Rose’, subject to s:255 (3) of the Lands and Titles Act. I have made these orders pursuant to the supervisory power of the High Court. The substance of the case which involves questions of right over customary land is left to the Local Court and the Customary Land Appeal Court as intended in ss: 254 and 256 of the Lands and Titles Act.

Costs

Costs of this proceeding in the High Court are awarded to the defendant against the plaintiffs who have come to the High Court prematurely.

Delivered this Thursday the 25^th day of May 2000
At the High Court
Honiara

Sam Lungole-Awich
Judge