Bollen v Sade [2001] SBHC 113; HC-CC 051 of 2001 (21 May 2001)

HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 51 of 2001

FRANK BOLLEN AND PATSON BARUA

-V-

STANLEY SADE AND OTHERS

HIGH COURT OF SOLOMON ISLANDS
(Palmer J.)

Hearing: 14th May 2001
Judgment: 21st May 2001

P T Legal Services For the Applicants

PALMER J.: This is an ex parte application for leave to apply for orders of certiorari to quash the decision of the Central Island Customary Land Appeal Court ("the CI/CLAC") delivered on 22nd April 2001. Application is made pursuant to Order 61 Rules (1) and (2) of the High Court (Civil Procedure) Rules 1964 ("the Rules").

Background facts

This matter came to the CI/CLAC via the Bapa Area Council (“the BAC”) under section 10 of the Forest Resources and Timber Utilisation Act (Cap. 40) ("the FRTU Act"). Mavingbros Timber Company Limited ("Mavingbros") had applied for consent from the Commissioner of Forest Resources ("the Commissioner") under section 7 of the FRTU Act to negotiate for timber rights with the Central Islands Provincial Government, BAC and owners of Pavuvu customary land. A timber rights hearing was held at Yandina on 20th and 21st March 1996 under section 8 of said Act. On 30th March 1996 the BAC issued its determination (see Exhibit "P2" annexed to the affidavit of Patson Barua Moran filed 10th April 2001). A copy of the minutes of the BAC is annexed as Exhibit "P3". Three tribes (Keruval, Kaiseleng and Sevev) were not satisfied with the determination of the BAC and decided to appeal to the CI/CLAC. The CI/CLAC delivered judgement on 2nd April 2001 (see Exhibit "P8"). The Applicants now come to Court seeking orders of certiorari to quash the decision of the CI/CLAC. The Applicants have come by this way for relief as section 10(2) of the FRTU Act provides that a decision of a customary land appeal court "shall be final and conclusive and shall not be questioned in any proceedings whatsoever”.

Certiorari

It is important to bear in mind, that certiorari issues to quash a decision, which is ultra vires or vitiated by error on the face of the record. It is used to bring up into the High Court decisions of some inferior tribunal or authority in order that it may be investigated. If it doesn’t pass the test, it is quashed. The underlying rationale is that all inferior tribunals have limited jurisdiction or powers and must keep within their legal bounds. There are three distinct heads recognised under this remedy: they lie in cases of (a) ultra vires, i.e. excess of jurisdiction, (b) error on the face of the record, and (c) exceptional cases (Administrative Law H.W.R. Wade sixth edition page 629). What we are concerned with here are the heads on ultra vires and errors on the face of the record; that is, the CI/CLAC had exceeded its jurisdiction on a number of grounds and or committed errors on the face of the record. These have been grouped together under two heads.

Ground (a) reads:

"The Central Island Customary Land Appeal Court was wrong in law in that:

1. It allowed production of witnesses during the hearing of the appeal against the determination of the Bapa Area Council
   
2. It accepted evidence of matters which are not produced during the Bapa Area Council hearing,
   
3. By allowing witnesses to give evidence on matters not presented during the Bapa Area Council hearing, the said Customary Land Appeal Court had taken into account irrelevant matters in its judgment rather than considering the merits of each appeal points and if the Central Island Customary Land Appeal Court had considered the merits of each appeal point, it would have dismissed all the grounds of appeal."
   

What the Applicants allege is that the CI/CLAC had exceeded its jurisdiction or committed error on the face of the record by permitting witnesses to be called during the appeal hearing. This had resulted in the acceptance of evidence, which was not produced before the BAC and thereby amounting to the consideration of irrelevant matters. If I am satisfied this ground raises jurisdictional issues or possible errors on the face of the record, leave would have to be granted. If however it is clear this is a matter within jurisdiction and manifests no error on the face of the record, leave should be denied. To determine this issue recourse must be made to the jurisdiction of the customary land appeal court under the FRTU Act.

Jurisdiction of the customary land appeal court.

The jurisdiction of the customary land appeal court is set out in section 255 of the Land and Titles Act (Cap. 133) ("the LTA"). Subsection 255(1) sets out the geographical area of its jurisdiction:

"(1) The Chief Justice may by warrant establish in Solomon Islands such customary land appeal courts as he shall think fit which shall have jurisdiction over the area or areas of such local court or courts as the Chief Justice may in the warrant, or by order provide."

Subsection 255(4) sets out its jurisdictional powers:

"(4) A customary land appeal court shall have and may exercise all the powers of a local court."

The powers of the Local Court inter alia, to deal with customary land disputes in turn are set out in sections 12 and 13 of the Local Courts Act (Cap. 19) ("the LCA"). Section 13 provides:

"When hearing and determining any dispute it has jurisdiction to hear and determine, the local court may-

1. have regard to the decision made by the chiefs in connection with the dispute;
   
2. hear evidence from-
   
   1. any or all of the witnesses who gave evidence before the chiefs at the hearing of the dispute; or
      
   2. any other witness called by the parties;
      

100. call one or more of the chiefs who took part in making the decision to give evidence on the customary law which-
     
     1. is applicable within the locality of the land in dispute; and
        
     2. governs the issues in the dispute;
        

4. substitute for the decision made by the chiefs such decision as may to it seem just; or
   
5. refer the dispute to the chiefs with such directions as it may consider necessary."
   

The power vested in a customary land appeal court accordingly pertaining to customary land, is the power to determine customary land disputes. It is important to bear in mind this power of the customary land appeal court when dealing with its jurisdiction under section 10(1) of the FRTU Act. That whilst it is required under said section to deal with an appeal pursuant to the matters set out in paragraph 8(3)(b) of the FRTU Act, its jurisdiction is not necessarily confined to the matters set out in therein. This distinction is important to appreciate. An area council on the other hand, does not have jurisdiction to determine customary land disputes. It is an administrative body set up under the Provincial Ordinances. Its task under section 8(3)(b) is confined to determining whether the persons proposing to grant timber rights were the persons or not, lawfully entitled to grant such rights. How it does that is more a matter of discretion, common sense and logic. When the matter comes before the customary land appeal court however, it enters the arena of a court set up purposely to deal with customary land disputes. Justices that sit in the customary land appeal courts are those that have received some form of training and have experience in dealing with disputes. They also have a qualified Magistrate sitting as one of the members. In dealing with an appeal under section 10(1) of the FRTU Act it must be borne in mind that the customary land appeal court has wider powers than an area council. It can hear evidence from any witnesses called by the parties. This simply means it can consider evidence that might not have been available to an area council if it deems it appropriate. Even if there might be evidence of the existence of a land dispute, the customary land appeal court has jurisdiction to deal with such matters for purposes of determining who are the persons lawfully entitled to grant timber rights.

Grounds of relief.

This brings me to address the grounds of relief relied on for leave. With respect, grounds 3(a)(i), (ii) and (iii) all fall within the jurisdiction of the customary land appeal court. The decision whether to allow witnesses to be called are matters within its discretion. This would include considering evidence, which were not available before the BAC. The decision as to what evidence to accept is a matter solely within its discretion. I am not satisfied the CI/CLAC had acted beyond its powers or committed an error on the face of the record.

Under Ground 3(b), the Applicants claim:

“The said Customary Land Appeal Court had further erred in law in that:

(i) It failed to consider or take into account the whole BAC proceedings an all evidence given or produced during the hearing by the parties.

(ii) It conducted the hearing for the purpose of determining primary and secondary ownership over Pavuvu Customary land which it has no jurisdiction to do as so that function vests on the BAC under the FRTU Act.

(iii) It failed to consider the grounds of appeal during the hearing and having done so it made it’s decision outside on the grounds of appeal.

(iv) In all circumstances, the decision made by the CI/CLAC has no basis in law for the reasons aforesaid.”

Under paragraph (i), the question whether the CI/CLAC failed to take into account the whole BAC proceedings is again a matter within its discretion. The CI/CLAC obviously cannot be confined to the proceedings of the BAC alone. Where it deems appropriate it can consider evidence and matters which would better enable it to address the issues on appeal for the purpose of determining the matters spelled out in section 8(3)(b). It is obvious this was what the CI/CLAC did. At paragraphs 2 to 6 of page 2 of the judgment of the CI/CLAC, the court said:

“The appellants have submitted a number of grounds in support of their appeals some of which we do not intend to address in view of our jurisdiction. Hence, we do not think we should address the issue of whether or not the Bapa area council was a proper council to conduct the timber hearing in view of its constitution at the time of the hearing.

There were grounds to the effect that the Bapa area council’s determination was bias and not properly conducted. If we were to address this ground, there was no string of evidence adduced to this court to prove biasness (sic) on the part of the Council.

As to the conduct of timber right proceeding we must say that there is no set procedure laid down in the Act as you have in the courts including the CLAC. Rather it is a public inquiry to try and identify persons who in custom are entitled to the timber rights to give their consent for the issue of a licence in favour of the applicant. By nature of the hearing there is a tendency of disorderly presentation and when the situation arises the persons controlling the hearing must be on foot.

We now focus our mind on the question of whether the persons proposing to grant timber rights on Pavuvu customary lands as identified by the Bapa area council on 30/3/96 represent all the persons, lawfully entitled to grant such rights.

We had the opportunity to hear evidences on all parties concerned in this appeal. Their evidences relate mostly on their genealogies (or genealogies of their clan) the basis on which they claim customary ownership over Pavuvu. The parties’ cases can be summarised as follows.”

It concluded its decision at page 4 as follows:

“Accordingly, we find that the persons identified by the Bapa area council in its determination on 30/3/96 did not represent all persons lawfully entitled to grant timber rights on Pavuvu customary lands.”

The CI/CLAC then went on to make findings as to who those persons were.

The question of determining primary and secondary ownership is also with respect a matter within its jurisdiction. It can consider the question of primary and secondary ownership over Pavuvu customary land if that would assist it in determining who were the persons entitled to grant timber rights.

Paragraphs (iii) and (iv) with respect are without merit. It is clear on the material placed before this Court that the CI/CLAC did consider the grounds of appeal and did make a reasoned decision. There is nothing ultra vires or erroneous about what the CI/CLAC did.

In the circumstances the application for leave must be denied.

ORDER OF COURT:

Application for leave denied.

THE COURT