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IN THE HIGH COURT OF SOLOMON
ISLANDS
Civil Case Number 082 of 2001
JOHN /span>
v
JOHN MARK MATUPIKan>
High Court of Solomon Islands
(FRANK O. KABUI, J)
Civil Case Number 082 of 2001
Hearing: 22np>, 23rd,
& 24th October 2001
Judgment: 6th
November 2001
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Mr Gabriel for the
Applicant
Mr John Sullivan for the
Respondent
JUDGMspan>
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(Kabui, J):
By ex parte Summons filed on 8th October 2001, the Applicant
seeks an Order from the Court in the following terms -
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1. the time limit under
Order 61, rule 3 for filing an application for leave to apply for
prerogative remedies be abridged
or enlarged under Order 64 rule 5. 2.
consequential upon leave for abridgement being granted, the Applicant be at
liberty
to make an application to this Court for the following Orders that:
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(1) the decision of the
Vella La Vella Local Coulivered on 1st Aup> August 1996 be
removed into this Honourable Court for quashing on the grounds of breach of
the rule of natural justice,
in particular, the audi partem rule.
(3) The saial Court
erred in assuming that the mailing system beem between Postal Agencies on Vella
La Vella and Gizo
was effective and efficient without any evidence at all to
that effect.
(ch
further
or other orders the Court may make as the nature of the case may require.
2. AND for aer that the
costs of and occasioned by this applicatiication for leave be costs in the said
application for
Orders of certiorari.
The second (3) in brackets
abn paragraph 2 should be (4) in brackets. The second paragraragraph 2
should be paragraph
3. These are typing errors.
Thimons being ex parte in
nature, the Respondent was not served with the notice of hearihearing but Counsel
for the Respondent,
Mr Sullivan, appeared and opposed the application. He
said his client was entitled to be heard since the application was for
extension of time under Order 61, rule 3 of the High Court (Civil Procedure)
Rules, 1964 (the High Court Rules). I must
say that Mr Sullivan was right
(see R v
Aashford, Kent, Justices Exp
Ex parte Richley [1955] 2. A.E.R.327). Counsel for the Applicant, Mr
Suri, did not oppose Mr Sullivan on this point and Mr Sullivan ably argued
his client’s case for the duration of the hearing.
One of the arguments advanced
by Counsel for the dant, Mr Sullivan, was that the High Court did not
ha have jurisdiction
to issue an order for certiorari in this case. I will deal
with this argument first. He based his argument on the premise that
the
Local Courts, as the Vella La Vella Local Court is one, is a Court that
administers a separate law being customary
law and therefore, he said, was
not amenable to the jurisdiction of the High Court.
He cited English authorities
for this propositionse authorities do say that certiorari can only be
ava available in matters
within the jurisdiction of the King’s Bench because the
King’s Bench cannot bring up matters and determine them, which matters
are
not within its jurisdiction. He cited ecclesiastical courts as a typical
example the decisions of which cannot be
touched by certiorari except in
cases of excess in jurisdiction. In this regard, he cited Gandly Simbe v
East Choiseul Council, Eagon Resources Development Company Limited, Steven
Taki and Peter Madada (Civil Appeal No. 8 of 1997) as being the
authority in Solomon Islands that the High Court of Solomon Islands does not
have jurisdiction to determine ownership of customary land. By analogy with
the English authorities on this point, the High
Court, he said, cannot issue
an order for certiorari to quash the decision of a Local Court because it
lacks jurisdiction
itself to determine the ownership of customary land. He
pointed out that although section 254 (3) of the Land and Titles Act
(Cap.133) was not conclusive in excluding certiorari, it would appear to be
a non - certiorari provision in view of the
Court of Appeal decision in
Aquila Talasasa, Jacob Zinghite, and Nathan Maisasa Losa v Rex Biku, John
Kevisi and WCLAC (Civil Appeal No. 2 of 1987). At page 9 of the judgment
delivered by P.D. Connolly, P, the Court said that it was
of the opinion
that section 5 D (2) (now section 10(2) of the Forest and Timber Utilization
Act (Cap.40) was to be regarded
as a non - certiorari provision except
errors of law going to jurisdiction. I did not have the benefit of being
aware
of this judgment by the Court of Appeal when I wrote my judgment
delivered on 6th September 2001. I dismissed the Applicant’s
appeal on a certiorari point. The words “shall be final and conclusive and
shall not be questioned in any proceedings whatsoever” in section 5 D (2)
(now section 10(2)) of the Forest and Timber Utilization
Act are very
similar to, or if not, the same with the words used in section 254 (3) of
the Land and Titles Act. Perhaps the intent of these words in both Acts is
the same. That is to say, they are both to be regarded as “non – certiorari”
provisions. In this regard, the Court of Appeal judgment is both persuasive
and binding in this jurisdiction. In my view,
care must however be taken
when applying the general principles enunciated in this Court of Appeal
judgment to the facts
of this case. The Court of Appeal judgment clearly
puts beyond doubt that the Customary Land Appeal Court’s jurisdiction in
section 5D (2) (now section 10 (2)) of the Forest and Timber Utilization Act
is not to do with the determination of the
ownership of customary land. It
says the CLAC’s jurisdiction is confined only to appeals arising from the
determinations
made by the Area Councils. It says to challenge the CLAC’s
decision reached in the exercise of its legitimate jurisdiction
conferred
upon it by section 5 D (2) (now section 10 (2) of the Forest and Timber
Utilization Act by certiorari would
be almost an act of nonsense. It was in
that context that the Court of Appeal treated section 5 D (2) (now section
10
(2)) of the Forest and Timber Utilization Act as a non - certiorari
provision. It concluded on that basis that no error of
law committed by the
Western Customary Land Appeal Court could be corrected by certiorari in the
High Court even though
that error appeared on the face of the record.
Despite the similarity between the language used in section 5 D (2) (now
section 10 (2)) of the Forest and Timber Utilization Act and section 254 (3)
of the Lands and Titles Act, I do not think
section 254 (3) above excludes
certiorari on the ground of lack of use of clear words to exclude
certiorari. (see
Aquila
Talasasa's case
cited above). The
use of the term “proceedings” in both cases may cause a problem because an
application for certiorari is clearly
a proceeding. (see Clement Tori
and Others v Wayne Morris and Others (Civil Case No. 007/2001).
However, as I said in my judgment on 6th September 2001, section
84(1) of the Constitution vests in the High Court a supervising jurisdiction
over any criminal
or civil proceedings before any subordinate court and in
so doing can make orders or issue writs etc. Neither this section
of the
Constitution nor the provisions of any legislation bars the High Court from
supervising proceedings in the Local
Court or the Customary Appeal Court
under the Land and Titles Act. The Customary Land Appeal Court exercising
its powers under section 5 D (2) (now section 10 (2)) of the Forest and
Timber
Utilization Act would be an exception because its jurisdiction
excludes the determination of the ownership of customary land.
The
exclusiveness of the jurisdiction of the Local Court to determine the
ownership of customary land under customary
law does not, in my view, stop
the High Court to intervene to exercise its supervisory powers under section
84 (1) of
the Constitution. The supervisory jurisdiction of the King’s Bench
in England is an inherent jurisdiction and as shown in the
judgments of Lord
Justices Singleton, Denning and Morris in R v Northumberland Compensation
Appeal Tribunal Ex. Parte Shaw [1951] EWCA Civ 1; [1952] 1 A.E.R. 122, that inherent
jurisdiction of the King’s Bench encompassed cases involving excess in
jurisdiction as well as cases where
an error of law appeared on the face of
the record. At pages 127 - 128, Denning L.J. said, ...
“The question in this case
is whether ourt of King's Bench can inan intervene to correct the decision
of a statutory tribunal
which is erroneous in point of law. No one has ever
doubted that the Court of King's Bench can intervene to prevent a statutory
tribunal from exceeding the jurisdiction which Parliament has conferred on
it, but it is quite another thing to say that
the King’s Bench can intervene
when a tribunal makes a mistake of law. A tribunal may often decide a point
of law wrongly
while keeping well within its jurisdiction. If it does so,
can the King's Bench intervene? There is a formidable argument against
any
intervention on the part of the King's Bench at all. The statutory
tribunals, like the one in question here, are
often made the judges both of
fact and law, with no appeal to the High Court. If, then, the King’s Bench
should interfere
when a tribunal makes a mistake of law, the King’s Bench
may well be said to be exceeding its own jurisdiction. It would be
usurping
to itself an appellate jurisdiction which has not been given to it. The
answer to this argument, however, is
that the Court of King’s Bench has an
inherent jurisdiction to control all inferior tribunals, not in an
appellate capacity, but in a supervisory capacity. This control extends not
only to seeing
that the inferior tribunals keep within their jurisdiction,
but also to seeing that they observe the law. The control is exercised
by
means of a power to quash any determination by the tribunal which, on the
face of it, offends against the law. The King’s Bench does not
substitute its own views for those of the tribunal, as a court of appeal
would do. It leaves
it to the tribunal to hear the case again, and in a
proper case may command it to do so. When the King’s Bench exercises its
control over tribunals in this way, it is not usurping a jurisdiction which
does not belong to it. It is only exercising
a jurisdiction which it has
always had” ...
(Also see O’Reilly v Mackman
1982] 3 W.L.R 604 at 616 - 617).
I am sure section 84(1) of the
Constitution derives its existence on the basis of nherent jurisdiction
described
by Denning L.J. above. The reason for the need in maintaining the
supervisory jurisdiction of the High Court is very obvious
indeed. The
reason is that
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... “there must be fgeling of dissatisfaction if it is recognized that a dt a decision of a tribunal
is wrong in law and yet
there is no powerorrect it - in other words, if
there is no right to obtain the opinion of the court”.urt”... (see as per
Singleton L.J. at 127). However, ... “it is plain that certiorari
will not issue as the cloak of an appeal in disguise. It does not lie in
order to bring
up an order or decision for re - hearing of the issue raised
in the proceedings. It exists to correct error of law where revealed
on the
face of an order or decision or irregularity, or absence of, or excess of,
jurisdiction where shown. The control
is exercised by removing an order or
decision, and then by quashing it”...
(see as per Morris L.J. at
133). In this jurisdiction, Muria, C.J. granted leave to apply for
certiorari to quash the
decision of the Paripao House of Chiefs in Eric
Tavea & Gordon Leua v Paripao House of Chiefs (Civil Case No. 196/99. In
the result, I reject Mr Sullivan's argument on this point. Ecclesiastical
Courts in England
and the Aquila Talasasa's case cited above can only be
regarded as exceptions to section 84(1) of the Constitution. In the
case of
ecclesiastical courts in England, the reason for being exceptions to
certiorari other than excess in jurisdiction
is clear on the authorities. In
the case of the CLAC under section 5 D (2) (now section 10 (2) of the Forest
and Timber
Utilization Act, the reason is stated in the judgment of Court of
Appeal in Aquila Talasasa’s case cited above. That is to
say, certiorari
does not lie against the decision of the CLAC under the section cited above
because it's decision does
not determine ownership of customary land but
rather it reviews the determination reached by Area Councils, which is not
determination of ownership of customary land.
<
I now move on to consider Mr
Sulls other arguments on the question of extension of time.
Extension of Time
This case is about extension of
It is about Order 61, rule 3 of the High Court Rules. Rule Rule 3 states
... “Leave shall not b granted to apply for an order of certiorari to remove anve any judgment, order,
conviction or other
proceeding for the purpo its being quashed, unless
the application for leave is made not later than six monthmonths after the
date
of the proceeding or such shorter period as may be prescribed by any written
law; and where the proceeding is subject
to appeal and a time is limited by
law for the bringing of the appeal, the Court may adjourn the
application for leave until the appeal is determined or the time for
appealing has expired” ...
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Clearly, there is a time-bar of
6 monther this rule.
However, under Order 64, rule 5
of the High Court Rules, time may be extended in the interest of justice.
(see Reef Pacific Trading Limited v Island Enterprises Limited (Civil
Appeal No. 1 of 1992). Extension of time is necessary in this case
because the Applicant is well out of 6 months time limit. There was
therefore
delay in this case.
Who bears the burden of
excusing delay?
The issue of which party bears
the burden of convincing the Court to grant the relief sought in the
exercise of its discretion
was discussed in R v Herrod, Ex p. Leeds
Council [1976] 2 W L R 18. Lord Justices Denning, M.R., James and Shaw
were all agreed that the burden of showing that the relief sought should be
granted lie squarely upon the shoulders of the party seeking the relief
although the opposing party would have to show by
evidence the facts
relevant to the exercise of the Court's discretion. In this case therefore,
the Applicant clearly
bears the burden of showing all the circumstances that
would satisfy the Court in the exercise of its discretion to grant the
relief he is seeking from the Court. If he fails to do so, he would not be
able to get that relief. However, in the light
of recent changes in Order
53, rule 4 of the Rules of the Supreme Court in England and section 31(6) of
the Supreme Court
Act 1981 of England this burden of proving delay by one
party is no longer necessary. The court can now act independently of
the
parties in the public interest. (see page 138 of Applications for
judicial Review Law and Practice of the Crown Office by Grahame Aldeus
and John Alder 1993, Second Edition). This is the position in England
and not in Solomon Islands
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What sort of delay can be
excused by the Courtan>
The authorities would seem to
suggest that there are two categories of cases. The first category of cases
involves delay
committed within the 6 months time - limit. The second
category of cases involves delay that goes beyond the 6 months time
- limit.
(see Kalesoa's Application [1983] S I L R 174, Reg v Crown Ct, Ex p.
Greenwich Council (D.C.) [1975] 2 W.L.R. 310, Herrod's case cited
above and Regina v Stratford - on - Avon (D.C.), Ex. p. Jackson
[1985] 1 W L R 1319). The authorities would also seem to treat delay in
both categories of cases in the same way. That is to say, the reasons for
refusing or granting leave in cases seeking an excuse for delay within or
outside the 6 months time - limit are the same,
always bearing in mind that
the Court has a discretion to decide one way or the other. In a nutshell, an
application
for extension of time must make out a strong case for relief.
The burden of doing so obviously involves showing to the Court
all the
relevant circumstances pointing in favour of the granting the relief sought.
This case obviously falls within
the second category of cases. That is to
say, in terms of Order 64, rule 5 of the High Court Rules, extension of time
may be allowed by the Court “as the justice of the case may require”. So, a
delay in a particular case must be justified on
the facts of the case. There
is therefore no hard and fast rule that applies to every case of delay.
Extension of time
is a matter for the discretion of the Court based upon the
facts of each case. No two or more cases can be the same unless
the facts in
all of them are exactly the same. It can however be said that a justified
delay is more likely to succeed
that a delay that cannot be justified by the
facts.
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How long is the delay on the
facts in this case?
There the Applicant filed
an appeal to the High Court on that same day. I heard the appealppeal on 4th
September 2001 and delivered my judgment on 6th September 2001. I
dismissed the appeal with costs.
Earlier in 1991, pplicant
on behalf of his tribe, the Sauro Tribe, had objected to logging on the land land
between Kazo
to Timbala. He was present at the Vella La Vella Area Council
meetings in 1991 and recorded his objection. He was however not
at the
second Vella La Vella Area Council Meetings in 1992 but Mr Vaevo of Sauro
Tribe objected on his behalf. The Applicant's
name was therefore not listed
in Form 2 being the certificate of determination made by the Vella La Vella
Area Council.
The Applicant did not appeal against the Vella La Vella Area
Council's determination within one month stipulated in the provisions
of the
Forest Resources and Timber Utilization Act (Cap. 40).
In this application, the
Applicant dowever seem to restrict his delay to the events affecting
ing
his inability to attend
the Vella La Vella Local Court hearing on 31st
July 1996 up to 28th October 1996 when he filed his appeal
against the Vella La Vella Local Court decision. In so far as the 3 months
time
limitation under section 256 of the Land and Titles Act (Cap. 133) is
concerned, the Applicant was in time. There was no delay in filing his
appeal against the decision of the
Vella La Vella Local Court. There is a
difference between the time limit for an appeal and the time limit for
seeking
certiorari as a discretionary relief. (see Reg v Herrod, Ex. p.
Leeds Council
(CA) cited above). The delay that is in issue here was the delay in coming
to Court to seek leave for application for
an order of certiorari to quash
the decision of the Vella La Vella Local Court on the ground that it was in
breach of
natural justice when it heard and decided the dispute between the
Applicant and the Respondent in the absence of the Applicant.
As a matter of
fact, the Applicant acted under Order 61, rule 3 of the High Court Rules
only after I delivered my judgment
dismissing his appeal on 6th
September 2001.
The Applicant is therefore
saying that his delay cannot be said to be inexcusable in the circumstances
of this case. His
application was filed on 8th October 2001, a
delay of only 35 days according to him.
The fact of this application is
that the Public Solicitor at Gizo was the Solicitor for the Applicant in
Civil Case No.
327/94, in which the Applicant is the Plaintiff. The appeal
against the decision of the Western Customary Land Appeal Court
made on 15th
February 2001 was filed by Mr Suri, Barrister and Solicitor, on 15th
February 2001 on the instructions of the Applicant. It would appear that Mr
Suri was not aware that Mr Lavery the Public
Solicitor was the Solicitor on
record for the Applicant in Civil Case No. 327/94. I say this because I have
not seen
any Notice of Change of Solicitor filed in Civil Case No. 082/2001.
This seems to be the case because when the Notice of Motion
and Summons
filed by the 1st and 2nd Defendants in Civil Case No.
327/94 came on for hearing before me on 27th September 2001, Mr
Lavery appeared on behalf of he Applicant as the Plaintiff in that case. Mr
Lavery told me that he
was no longer the Solicitor for the Applicant on the
instruction of the Applicant by letter dated 15th September 2001.
He told me that the Applicant had instructed Mr Suri as his Solicitor. He
told me that the Applicant’s
Case File was in the Public Solicitor’s Gizo
Office and that due to lack of communication between Gizo and Honiara, he
was not able to deal with the Applicant's case. I gave leave and Mr Lavery
withdrew from Civil Case No. 327/94. I adjourned
the hearing to allow Mr
Kama of Sol - Law to contact Mr Suri so that a new hearing date would be
fixed. The next hearing
date was 5th October 2001. At this
hearing, Mr Suri told me that he had been instructed only the day before and
asked for an adjournment.
He told me that he had contacted Mr Lavery and Mr
Lavery told him that the Applicant's Case File was in Gizo. He told me that
his client was prepared to travel down to Gizo to collect the File. He also
told me that he had been instructed to apply
for an order of certiorari. I
adjourned the hearing for 14 days as requested by Mr Suri and unopposed by
Counsel for
the Defendants, Mr McGuire. The Applicant filed his application
for leave to apply for an order for certiorari 3 days later.
The fact is
that the Applicant's previous Solicitor had said nothing about quashing the
Vella La Vella Local Court decision
by an order for certiorari nor his
present Solicitor, Mr Suri, until I stated that relief in my judgment on 6th
September 2001. I believe the Applicant seized that as an opportunity to
attack the Vella La Vella Local Court decision.
The period of 6 months under
order 61, rule 3 of the High Court Rules runs from the date of the decision
sought to be
removed. The 6 months period in this case would have lapsed at
the end of January 1997. From February 1997 to October 2001
is a period of
about 4 years and 8 months. It is a delay of 4 years and 8 months.
Is this delay justified?
First, the conduct of t Applicant must be considered. The Applicant is a member of the Sauro Tribe.
He waHe was an objector
to the grant of timber rights to Allardyce Lumber Company
Limited at the Timber Rights Hearing by the Vella La Vella Area Council
conducted on 8th October 1991. He was not however at the second
Timber Rights Hearing in 1992 but Mr Vaevo of the Sauro Tribe was there to
object on behalf of the Sauro Tribe. Mr Vaevo’s objection was accordingly
recorded. The Applicant however did not exercise
his right of appeal to the
Western Customary Land Appeal against the determination made by the Vella La
Vella Area Council,
which was against his interest. In Civil Case No.
327/94, the Applicant, the Plaintiff in that case was able to obtain
injunctive orders in 1995 against the Defendants in respect of the land
between Kazo to Timbala. The Applicant believed that
the land between Kazo
to Timbala was not included in Form 2. He took his claim to the Chiefs on 10th
January 1995 but the Chiefs made no decision because the Respondent failed
to appear. He did nothing more until he was
summoned by the Vella La Vella
Local Court to appear before it on 17th June 1996. He was the
Defendant at that hearing. However, when the next hearing took place on 29th
July 1996, he is absent. His excuse was that he had received the notice of
the hearing two weeks late. In cross - examination
by Mr Sullivan, the
Applicant said that he was aware of the Vella La Vella Local Court hearing
only on Wednesday when
some people in the village told him that Nelson Vaevo
and John Menisia had left on Sunday to attend the Local Court hearing
at
Uzamba which he said is about 30 miles from Iriqila. He said that due to
short notice, lack of finance and his inability
to collect his witnesses, he
did nothing further about the matter. He said that he had the feeling it was
too late to
attend the hearing anyway and so he did not go to Uzamba
village. It seems to me that the Applicant received the notice of
hearing 2
weeks after he heard on Wednesday that Nelson Vaevo and John Menisia had
left for Uzamba village on the Sunday.
I believe the Applicant although at
times he was confused and forgot dates etc but on the whole, he was not a
deliberate
liar in the witness box. He is an old man but his recollection of
main events was good. He had told Palmer, J. at Gizo in February
1995 in
Civil Case No. 327/94 that he would take action in the Vella La Vella Local
Court to establish his rights of
ownership in the land under dispute. In
fact Palmer, J. believed that the Applicant had commenced action in the
Chiefs'
forum based upon evidence of the Applicant as the Plaintiff in Civil
Case No. 327/94. As a matter of fact, nothing happened
until the Respondent
commenced action in the Vella La Vella Local Court in June 1996. The delay
on the part of the Applicant
was about 17 months since his appearance before
Palmer, J. in Gizo in February 1995. He had to be summoned to Court to
confront the issue of ownership of the land between Kazo to Timbala. He
seemed to have been satisfied that injunctions were
in place and chose to
sit on them. Or, he might have thought that he should do nothing until his
rights were sorted out
in Civil Case No. 327/94 and thereby change his mind
about taking action in the Vella La Vella Local Court. There is no evidence
for his motive for dragging his feet. The excuse that he had no money for
transport cannot be accepted. He said in Court
that the members of his Sauro
tribe numbered more than 200 most of whom lived in his own village Irigila.
He also said
he had sons and nephews working in Honiara. He himself had
travelled to Honiara several times. I find it hard to believe that
he was so
poor, alone and isolated that he could not have been able to take his
dispute to the Vella La Vella Local Court.
He had not attempted the second
time to get his case before the Chiefs. He could have challenged the
jurisdiction of
the Vella La Vella Local Court on the basis that it had no
jurisdiction to make the decision it made on 1' August 1996 unless
the
dispute had been first dealt with by the Chiefs. There is no evidence that
the Chiefs had dealt with the dispute
on the request of the Respondent. He
did not do this. On the whole, I find the conduct of the Applicant very
strange
indeed. Ignorance and lack of finance cannot be excuses because
there had been enough time to seek advice and financial assistance
from
others. When I say others, I mean members of his immediate family and his
extended family. The Local Court fee is
$50.00 plus cost of transport, food
etc. The cost is affordable. The Applicant somehow had not been in the
forefront
in his effort to determine his claim of ownership to the land
between Kazo to Timbala. He probably thought, as I have said,
that Civil
Case No. 327/94 would somehow hold the answer to his claim and having
obtained the injunctions he sought,
treated them as permanent injunctions.
If he thought this, it was a mistake because the injunctions are
interlocutory in nature and can be discharged. His
delay is inordinate and
cannot be justified.
The second matter to be
considered is the Applicant'sce of success if he went to the Local
Court and deniedenied the Respondent’s
claim. It is noted that the Applicant's
objection at the first Timber Rights Hearing in 1991 was only general in
nature.
That is to say, he was just one of a group of individuals who
objected to logging generally in the Dovele area. At the second
Timber
Rights Hearing in 1992, he was not present. Mr Vaevo who represented the
Sauro tribe did object but at the same
time realized that the Dovele people
had allowed the Dovele area to be logged. His opposition then was not much,
to say
the least. At this point, the Applicant seemed to have believed that
the Vella La Vella Area Council in 1991 excluded Irigila
registered land and
customary land from Form 2. (see page 11 of Area Council Minutes 1991). The
Area Council Minutes
in 1992 were not very clear on this point as regards
Kazo and its surrounding areas of customary land. In a letter addressed
to
the Commissioner of Forest Resources dated 18th September 1992,
the Secretary to the Vella La Vella Area Council, Mr Lonipitu, told the
Commissioner of Forest Resources
that the requirements of section 5 (3) (now
section 9) of the Forest and Timber Utilization Act had been complied with
and attached therewith the determination, the certificate of determination
and the public notice of the determination. The
Applicant was not one of the
persons named in Form 2 representing the Sauro tribe. However, Mr Lonipitu
in black ink
included the Applicant in Form 2 representing the Sauro tribe.
In the second determination by the Vella La Vella Area Council,
it excluded
the surrounding areas near Bae to Kazo. These areas were intended to be
settled later by agreement between
Allardyce Lumber Company Limited and the
objectors. These discrepancies seemed to have convinced the Applicant that
the
inclusion of the land from Kazo to Timbala was wrong. This is the basis
for Civil Case No.327/94 as it appears to me. The fact
however is that
Messrs Dululu, Kuekalo and Velopide had signed for Sauro tribe for areas of
land other than Kazo to Timbala,
which the Applicant claims he owns. When
one connects this fact with Exhibit 2, which was a kind of declaration in
1935
by members of the Sauro tribe that their land is from Soroto River to
Timbala River, they do match as regards the extent of
their land. It appears
that the Applicant's claim is over an area of land between Mundi Mundi and
Kazo. This is very
clear in paragraph 2 in his affidavit filed on 1"
February 1994 in Civil Case No. 327/94. The Applicant's true position
is not
very clear to me. I find it rather difficult to assess the prospect of
success in the Vella La Vella Local Court
without the guidance of the Chiefs
in the first place. As I have said, the Respondent had not gone to the
Chiefs in the
first place to obtain a finding in his favour. This omission
does not help me to reach a conclusive view on the question of
prospect of
success in the Local Court. The third matter to be considered is the
negative effect of the conduct of the
Applicant on the Respondent.
Obviously, the Respondent on behalf of his tribe has lost royalties that
should have been
due to them had the Applicant imposed no injunctions upon
the Respondent and Allardyce Lumber Company Limited. The Applicant
did not
dispute this fact although his Counsel, Mr Suri, argued that the timber
resource still remained intact. The argument
that log price in the world
market may rise is I think a mere speculation only at this stage. There is
no evidence suggesting
what the world price is now and is likely to be in
the near future.
Conclusion
I have already said that the delay by the Applicant is but inordinate. The true intention and spirit of
Order 61,r 61, rule
3 of the High Court Rules is that... “The time limit of
six months is not an entitlement. It is a maximum rarely to be exceeded.
...If a person comes to the
High Court seeking certiorari to quash the
decision of the Crown Court - or any other inferior tribunal for that matter
- he should act promptly and before the other party has taken any step on
the faith of the decision. Else he may find that
the High Court will refuse
him a remedy. If he has been guilty of any delay at all, it is for him to
get over it and
not for the other side”.. (see as per Lord Denning, M.R.
at 24 in Reg v Herrod Ex.p.
Leeds Council
(D.C) [1976] 2 W.L.R. 18). That
is to say ... “An applicant for a prerogative order (or, in earlier
history, a prerogative writ) is not in the position of a litigant who
seeks
to assert some right to which he claims he is entitled. He is rather a
suppliant who seeks to invoke those remedial
measures on the ground that the
High Court would wish to correct some irregularity in the administration of
justice which
has caused him to be aggrieved so that justice may be done.
Whether the order sought will be granted or refused is a matter
wholly
within the court's discretion; prerogative orders are not to be claimed as
of right” ... (see as per Lord Shaw
at 40 in Herrod's case cited
above).
However, the fact in this case
is that the Applicant had busted the 6 months time limit by almost 5 years.
Where then
does justice lie in this case in terms of Order 64, rule 5 of the
High Court Rules? In other words, in whose favour in this
case does justice
lie? Clearly, as stated by Shaw L.J. in Herrod's case cited above,
certiorari as a relief is not a right. It is merely a relief that is
available to any person who wishes
to invoke that relief on the ground that
the administration of justice needs to be corrected on the basis of
irregularity
so that justice can be done to the aggrieved party. It is a
matter of discretion that certiorari be granted or not depending
upon the
facts of the case. In cases of undue delay beyond the 6 months time limited,
Shaw L.J. in Herrod's case cited above continued at 40 in these terms
...
class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“Accordingly it is for an
applicant to show thaall the circumstances justijustice will be better
served if the order goes
than if it does not. ...It is true that the six
months can be extended, but only if the delay is accounted for to the
satisfaction of the court; and, if it is so accounted for, the question
whether the case is a proper one for granting relief
will only be answered
in the affirmative if the applicant shows that in all the circumstances the
demands of justice
are best served by that answer. It is for him to show
that on balance it is right to make the order and not for an opposing
party
to show it would be wrong to do so”...
Although the remarks made by
Shaw, L.J. above were based upon Order 53, rule 2 of tles of the
Supreme Come Court of England,
an update version of our Order 61, rule 3, their
accuracy and relevance to this case cannot be doubted. In this case, I
cannot placate the Applicant as a person who slept on his rights in so far
as certiorari is concerned. He does not know
what is certiorari about as a
relief that is available to him. Even his previous Solicitor had not
considered certiorari.
His present Solicitor was not probably aware of this
relief until I pointed it out in my judgment on 6th September
2001. My intention in doing so was not to encourage him to seek that relief
but to demonstrate the fact that
the Western Customary Land Appeal Court
made a mistake of law and ought to be corrected by the High Court. My
judgment
is a precedent for the CLAC in general on the issue of deciding
points of law in the nature of the prerogative writs. I do
sympathize with
the Applicant in his effort to attain justice but justice in my view also
has a limit. What is justice
for one man can be hell for another if the man
who seeks justice does not pursue justice earnestly and within a reasonable
time. Justice must be balanced on the scale of merit for each party in any
dispute. In this case, whilst I appreciate
Mr Suri's valiant effort to
secure certiorari as a relief for the Applicant, time is clearly against
him. The delay in
seeking certiorari was far too long because certiorari
could have been sought a long time ago. The Applicant had had 4 years
8
months to seek that relief. The fact is that had I not pointed out judicial
review in my judgment on 6th September 2001, the Applicant's
Solicitor would not have known about it and decided to make a rush for it.
Also the need
to quash the WCLAC's decision together with this application
and the possibility of quashing the same decision of Vella La
Vella Local
Court on the ground of excess in jurisdiction have been missed. The
Respondent cannot await forever the Applicant’s
indecision or lack of
knowledge on these matters. The Applicant had had the time to change his
previous Solicitor. He
had had over 4 years to do that but did not. There
must come a time when the Court will say “enough is enough”. Unfortunately,
I would have to exercise my discretion in favour of the Respondent in this
case. I accordingly refuse leave. The Apnt's
ap's application is therefore
refused. Each party will meet his own costs.
F.O. KABUI
JUDGE
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