Sina v Matupiko [2001] SBHC 65; HC-CC 082 of 2001 (6 September 2001)

class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 082 of 2001

JOH">JOHN SINA

of Iriqila Village

ass=lass="MsoNormal" align="center" style="margin-top:.75pt;margin-right:0cm; margin-bottom:.75pt;margin-left:0cm;text-align:center">v

JOHN MARK MATUPIKO

Representing Kubongava Tribe

Before: Frank O. Kabui, J

Hearing: 4^th September 2001

Judgment: 6^th September 2001

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom Mr. G. Suri for the Appellant

Mr. J. Sullivan for the Respondent

JUDGMENT

(Kabui, J): This is an appeal by Mr. John Sina of Iriqilriqila village, Vella La Vella, in the Western Province representing the Sauro Tribe. The appeal was filed on 15^th May 2001 under section 256 of the Land and Titles Act (Cap. 133). The appeal is against the decision of the Western Customary Land Appeal Court (the Western CLAC) made on 15^th February 2001 at Gizo in the Western Province. The grounds of appeal are these-

1. &nbssp;&nnbsp;&nsp; tsp; that the Wester CLA CLAC CLAC misdirected itself on the principle of natural justice, in particular, the audi partem rule, and was thereby wrong in law in dismissing the Appellant's appeal.

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2. &nnbsp; the finding of the W Western CLAC that the "appellant did not produce any evidence nor he made a strong submission to show thal Coreache prie of natural justice orce or the the appelappellant lant was nwas not given the opportunity of a fair hearing" was against the weight of evidence.

3. & p; the West Western CLAC erred in concluding that the Appellant could have received his Notice of Hearingr to ocal hearn 29^th July 1996 without any or sufficient eent evidenvidence toce to show show that he (the Appellant) did actually receive his notice prior to the Local Court hearing.

4. &nbbsp; the Wehe Western CLAC erred in concluding that the mailing system between Gizo Post Office, t Leona Postal Atal Agency and the Iriqila and other nearby villages were sufficient without any material before it to much conclusion.

class="Mso="MsoNormal" style="text-indent: -35.45pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> 5.  p; the We tern LAC err erred in upholding the Local Court decision in default of appearance without considering fthe lprinc releto denation of setting aside judgment obtained in d in defaudefault oflt of appe appearancarance.

lang="EN-GB" style="font-size: 12.0pt">6. &nnbsp; the Wthe Western CLAC erred in upholding the Local Court's procedure in allowing the Appellant therein (the Respondent herein) to adduce his evidences without hearhe esponthere (Appellant lant hereiherein) inn) in his substantive defence before Local Court.

ass="Mso="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 7. &nbssp; &nsp; the Western CL C dec decision was unjust in that its practical effect is to unjustly deprive the Appellant of his right to defend the case before the Local Court and be heard th.

The Facts

tter dated 1^st April 1996, the Local Court Clerk based in Gizo wrotewrote to the Respondent informing him of the date of the hearing of his case against the Appellant. The Respondent's address is Zutapati Village, Dovele Postancy, Vella La Vella. lla. This letter was copied to the Appellant. The Appellant's address is Iriqila Village, Leona Postal Agency, Vella La Vella. The letter and its copy were sent from Gizo. The date of hearing as stated in that letter was 17^th June and 8 am was the time time for commencement of the hearing of the Respondent's case. Both parties attended at Dovele Village but the Court Clerk did not. The hearing did not take place for that reason. The next date of hearing was 29^th July 1996 scheduled to take place at Uzamba Village. This information was contained in a letter dated 11^th July 1996 written byLocal Ccal Court Clerk based at Gizo, addressed to the Respondent at his usual address. A copy was also sent to the Appellant at his usual address. The Respondent received his lettd attended the hearinearing at Uzamba Village on 29^th July 1996. The Appellant d not attend and the hearing proceeded in his absence resulting in a decision being made against him on 31^st July 1996 by the Vea Vel Local Court. The Appellant filed an appeal agal against the Vella La Vella Local Court decision on 28^thth February resulting in the dthe dismissal of the Appellant's appeal on 15^th February 200pan>

"> This Appeal

In my view, thieal is misconceived. It is misconceived in that it assumes that the Western CLAC did have jurisdiction to hear an appeal on a point of law arising from the decision of the Vella La Vella Local Court made on 31^st July 6. A Customary Lany Land Appeal Court is a court established to hear appeals from the decision of any Local Court on the qon of ownership of customary land. It’s membership consists of men who are knowledgeaedgeable about customary law governing the ownership of customary land. It has no power to decide legal issues such as the breach of natural justice. The correct forum that has jurisdiction to decide such issue as the breach of natural justice is the High Court under section 84(1) of the Constituency. That is to say, ...

"The High Court shall have jurisdicto supervise any civil or criminal proceedings before any ny subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court"... .

The High Court clearly has supervisory jurisdiction over subordinate courts suring that justice is duly administered by subordinate courts. Breach of natural justice is one of the causes for judicial review. In this jurisdiction, breach of natural justice attracts a writ of certiorari under Order 61 of the High Court (Civil Procedure) Rules 1964, (the High Court Rules). The Notice of Appeal filed by the Appellant on 28^th October 1996 seekingWesternstern CLAC to set aside the decision of the Vella La Vella Local Court for breach of natural justice was wrong. The Western CLAC should have rejected that appeal on the ground that it had no jurisdiction to hear an appeal on a point of law. What the Appellant should have done was to apply to the High Court for a writ of certiorari to quash the decision of the Vella La Vella Local Court. Evidently, that he did not do, apparently attracted by the prospect of an appeal under section 256(2) of the Land & Titles Act (Cap. 133). As I have said, the Appellant had made a mistake in this regard. The fact that the Western CLAC had dealt with the appeal apparently without jurisdiction has created for the Appellant double hurdles. The decisions of the Vella La Vella Local Court and the Western CLAC are both against him. The Appellant is faced with the double task of having to remove the decision of the Western CLAC as well as doing the same to the decision of the Vella La Vella Local Court. On the basis that the Western CLAC had exceeded its jurisdiction by entertaining a matter beyond its jurisdiction, its decision in that regard cannot be removed by an appeal under section 256 of the Land & Titles Act. The reason is that an appeal on a point of law from a decision of a Customary Land Appeal Court to the High Court does not envisage incidents of judicial review. As Lord Brightman said,

"Judicial review is concerned, not with the decision, but with the decision-making process" (See Chief Constable of North Wales Police v Evans [1982] A.E.R. 141 at 152).

What is of concern to the Appellant in this case is the decision-making process employed by the Vella La Vella Local Court in reaching it decision and not its decision. The appropriate remedy lies in judicial review and not in an appeal to the Western CLAC. Unfortunately, the Western CLAC got sucked up into the process of judicial review for which it had no power to do. The Western CLAC in so doing committed an error of law itself. Its erroneous decision may also be corrected by judicial review. An appeal to the High Court would not do. There are cases in this jurisdiction where certain decisions of the CLAC were quashed by way of judicial review and not by way of appeal under section 256 of the Land & Titles Act (see R v W CLAC exparte Simi Pitakana [1985/86] SILR 69 (certiorari), Kaupoi v Principal Magistrate, Malaita [1985/86] SILR 25 (mandamus) Siope v M/CLAC [1985/86] SILR 255 (certiorari) and Liufaifo'oa v M/CLAC [1988/89] SILR 70 (mandamus)). Clearly, the Appellant cannot succeed in this appeal. I accordingly dismiss this appeal. I feel that in the circumstance of this appeal, each party should meet his own costs.

F.O. KABUI

JUDGE