Hikinao v Hou [2007] SBHC 23; HCSI-CC 357 of 2005 (10 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 357 of 2005

MATHEW HIKINAO

v

SILAS HOU, GEORGE HOU, AUGUSTINE TATAMWANE,
PAUL MARITA AND PATTERSON NGALIHESI
(As representatives of their tribes/tribes) and
ATTORNEY-GENERAL (Representing the Malaita Local Court)

Date of Hearing: 10th May 2007
Date of Ruling: 10th May 2007

Public Solicitor for the Plaintiffs
No appearance of the Defendants

RULING

Application for prerogative writ of certiorari to quash decision of Local Court given in customary land dispute

Brown J: An application to quash the decision of the Local Court given on the 16 June 2005 was originally filed on the 26 July 2005 when an ex parte summons seeking leave to proceed was filed. Leave was granted, but eventually since there was no appearance by the applicant, the earlier proceedings were dismissed. These fresh proceedings were instituted and I propose to accept that they may be treated as having been commenced at that earlier time. I note that the Attorney has not appeared and while the 1st respondents may have notice, I have waived strict compliance with the rules relating to service so as to enable these proceedings to come to trial today.

Mr. Saramo says the Local Court has erred in law for that the procedural propriety of the Chiefs settlement are questions of law which can only be challenged by judicial review, and do not constitute grounds of appeal to the Local Court. That is wrong for the reason that the Chief’s conduct their proceedings in accordance with procedure adopted by them and that any question of law affecting their deliberations are questions going to customary law. The HC has no role to play in the functioning of the chiefs’ deliberations.

That is made plain from the terms of s. 256 of the Land and Titles Act (Cap. 133) where sub section (3) says –

"Any person aggrieved by any order or decision of a customary land appeal court may within here months from the date of such order or decision, appeal there from to the High Court on the ground that such decision or order is erroneous in point of law (which expression for this purpose shall not include a point of customary law) or on the ground of failure to comply with any procedural requirement of any written law".

There is consequently no right of review in this court of the decision of the Local Court where it has been required to consider an earlier decision of the Chief’s. The Land and Titles Act provides a statutory regime for review where customary issues arise for determination. It cannot avail a person to seek to intervene in that statutory regime for review by claiming a right to judicial review of a Local Court decision when this HC has no jurisdiction to entertain matters of custom.

The Court of Appeal has made that plain in a series of decisions, perhaps well expressed by paragraph 14 of the judgment of Steven Veno and Gordon Young v Oliver Jino anors (Court of Appeal No. 2/04 dated 12 April 06).

"It is clear that customary land disputes do not fall within the jurisdiction of the HC to determine except to the limited extent to which an appeal, on a pure question of law or concerning procedural requirements lies to the HC from the decision of the CLAC".

In this case, no appeal has been made to the CLAC. This court has no jurisdiction to entertain an application for judicial review in the 1st place.

The orders are refused. The summons must be dismissed.

I make no order as to costs.

THE COURT