Kolly v Bako [2010] SBHC 116; HCSI-CC 455 of 2009 (12 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 455 of 2010

BETWEEN

DEERICK KOLLY and JAMES MANEFORU
Claimants

And

BEN BAKO, JACOB MEREDI and FRANCIS SESI
(T/A Bugotu Lumber Company)
First Defendants

And

SUCCESS COMPANY LIMITED
Second Defendant

And

ATTORNEY GENERAL
(Representing Isabel Local Court)
Third Defendant

Mr Ipo for the Claimant
Ms Habru for First and Second Defendants
Mr Firigeni for the Third Defendant

Date of Hearing: 3rd August 2010
Date of Judgment: 12th August 2010
Judgment

1. This is a hearing, a conference, in accordance with Rule 15.3.16 [1]. The next rule, Rule 15.3.17, goes on to say the Claimant must satisfy the court as to certain matters before the claim can be heard and those matters are set out in Rule 15.3.18.

2. The first requirement [2] is that the Claimant must have an arguable case. The rule does not say the Claimant must prove his case at this stage, it requires the Claimant to show that he has an arguable case, that there is some question for the court to decide. The case put forward by the Claimant is set out in the Amended Claim filed on 21st October 2009. The claim is for an order from this court setting aside or quashing the decision of the Isabel Local Court dated 28th July 2007 relating to Garanga Land. The statement of the case is quite straightforward, it is to the effect the Local Court "made a decision" on 28th July 2007 indicating the first named Claimant (Mr. Kolly) and the Posamogo Tribe were primary owners of Garanga L and the third named First Defendant (Mr. Sesi) and the Vihuvunagi Tribe were secondary owners. However, when a written judgment came out it said Garanga Land was owned by Mr. Sesi and Kasera Land was owned by Mr. Kolly.

3. The Claimant has produced evidence in the form of Statements, both sworn and unsworn, from the members of the Local Court who sat and heard the case and they say, unanimously, the written decision does not accurately reflect what was decided by them. Whilst I accept the evidence of the Local Court Justices' has not been tested it is sufficient for me to say at this stage there is an arguable case. I do not accept the Third Defendant's interpretation of the claim before the court. I do not see the claim as saying the written judgment was not supported by the weight of evidence. I do not see the claim as mere assertion or raising hypothetical questions. If the evidence is accepted it shows that there has been a gross miscarriage of justice.

4. In addition to showing that they have an arguable case the Claimants must also establish that they are directly affected by the subject matter of the claim [3]. There can be no doubt Mr Kolly is directly affected, he was a party to the Isabel Local Court case. As for the second named Claimant (Mr. Maeforu) he is said to represent, with Mr Kolly, the Posamogo Tribe. If that is the case, and it does not appear to be disputed, then he too can be said to be directly affected by the subject matter of the claim.

5. Thirdly [4], the Claimants must also show that there has been "no undue delay in making the claim". This proviso must be considered together with Rule 15.3.8. That rule requires a claim for a quashing order to be made within 6 months of the decision which is being sought to be overturned, subject to Rule 15.3.9 which allows the court to extend time if it is satisfied that substantial justice requires it. The issue of time is slightly complicated because the claim for judicial review was originally filed in another case, No. 287 of 2002. Cameron J considered an extension of time in that case and made an order on 2nd October 2009. It specifically refers to Rule 15.3.9 and it says the time for the application for judicial review filed on 25th November 2008 is extended. The order goes on to require an amended claim to be filed by 21st October 2009. The Amended Claim for Judicial Review was filed on 21st October 2009. Subsequently Cameron J made an order that the application for the quashing order be allocated a separate case number [5].

6. It was not argued before me that either Cameron J was wrong to extend time as he did on 2nd October 2009 or that new evidence or information has since surfaced to show that the arguments considered by him were in some way defective or misleading. It seems clear to me that the rules do allow the court to consider the question of delay twice; once under Rule 15.3.9 and again under Rule 15.3.18 (c). It seems equally clear to me when it comes to Rule 5.3.18 (c) if the question of delay has previously been judicially considered it would be entirely wrong to go against the decision reached on an earlier occasion. If all or any of the defendants were unhappy with Cameron J's order of 2nd October 2009 they should have gone to appeal. It would be entirely different if at the Rule 15.3.18 stage in the proceedings it was shown the earlier decision had been reached without representations from the parties or had been reached on the basis of palpably wrong information. That is not the case here. In the circumstances I see absolutely no reason to interfere with what Cameron J has already decided. There has been no undue delay in this case.

7. The final consideration under Rule 15.3.18 (d) is whether the Claimant has recourse to any other remedy which resolves the matter fully and directly. The Claimants seek an order quashing the Local Court decision of 28th July 2007. I shall not take that literally because there are, according to the Claimants, two decisions of that date. There is the decision which the Local Court Justices say they reached and which they discussed late into the night of 28th July 2007 and the decision which was rendered into written form and delivered some time later. It is this latter decision, the written decision, the court is being asked to quash or set aside. The basis on which the court is being asked to quash it is that it is not what was decided on the night of 28th July 2007.

8. The court is not being asked to quash the Local Court decision and to substitute its own. It is being asked to nullify the written decision and substitute the correct decision as set out by the Local Court Justices in their various statements. That simplistic approach is complicated because the request, in colloquial terms, to put the "record straight" comes not from the Local Court Justices but from a party to the Local Court case.

9. Could that be achieved by recourse to any other remedy which resolves the matter fully and directly? Is the Claimant's remedy an appeal to the Customary Land Appeal Court (The CLAC) pursuant to s. 256 of the Lands and Titles Act? Alternatively should it be for the Local Court itself to amend the written judgment?

10. Dealing with those questions in reverse order, it is difficult to see how the Local Court could possibly change the judgment. This is not a situation where the slip rule would assist because it is not a minor administrative alteration which is required. From what the Justices say in their statements it is a reversal of the written, published judgment. In addition it must be born in mind that one of the Justices has died. It would be impossible to re-convene the original court.

11. As to the first question, an appeal to the CLAC is not without considerable problems. Not least, what would be appealed? It is a statement of the obvious to say the appeal would be against the judgment of the Local Court but what is that judgment? There is no real definition I am aware of which states what a "judgment" is. There is no provision in the Local Courts Act for the "entry of a judgment" as there is in the High Court. A judgment is usually defined by reference to it being the final decision of the court or tribunal. It would be difficult, but not impossible, to resist an argument saying the written judgment was the final judgment of the Local Court. Convention and logic suggest that a written judgment which is published is the definitive judgment of any court or tribunal. In a case such as this where there is evidence that what was published was not in fact the "decision" of the court, there is room for doubt. If there is doubt, what will the CLAC consider by way of appeal, the "decision" as set out by the justices in their statements or the written judgment?

12. Yet another way of looking at this problem is to consider an Indian case. Justice Vivian Bose said in a case before him in 1954 [6],

Judges may, often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the Court. That is what constitutes the "judgment".

I wholeheartedly agree with what Justice Bose says, but it poses another difficulty. In the Local Court case presently under consideration there was no declaration in open court by the Local Court Justices. I accept that the parties agreed to have the judgment delivered to them after it had been written up in Honiara, but that does not overcome the problem of there being no declaration or judgment given in open court.

12. I am told the Claimants have, in any event, lodged an appeal. It has been filed with the CLAC (which has appellate jurisdiction and not the Magistrates Court as has been suggested) and that raises another problem. Both the Local Courts and the CLAC's have been inadequately funded for a number of years now. The situation is definitely improving but there is no guarantee that an appeal will be heard by the CLAC any time soon. Protracted delay in hearing an appeal has a bearing on the issue of whether a remedy would fully and directly resolve a matter.

13. In light of the particular circumstances of this case it cannot, in my view, be said there is another remedy which would fully and directly resolve the matter. That is not to say I accept the submission by the Claimant that a litigant can choose his remedy. Whilst it may have been true under the old rules it is not the case under the new rules. The effect of Rule 15.3.18(d) is quite clear. If another remedy would fully and directly resolve the matter, that is the route a litigant must take. There is no discretion for the court to exercise. Rule 15.3.20 is equally clear, if there is another remedy that would fully and directly resolve the matter, the court must decline to hear the application and strike out the claim. In this case I accept the Claimant can lodge an appeal with the CLAC but, as I have said, I am satisfied that such appeal will not, given the particular circumstances of this case, fully and directly resolve the matter.

14. Having reached the conclusions set out above I feel I should also consider whether the involvement of the High Court would encroach upon the exclusive jurisdiction given to the Local Courts by the Lands and Titles Act [7]? I do not believe it would. Section 84 (1) of the Constitution grants the High Court wide ranging authority to supervise any subordinate court. Whilst the Local Court may have exclusive original jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land it is still subject to the supervisory powers of the High Court.

15. I am satisfied the Claimant is entitled to pursue his claim for Judicial Review. I am satisfied that the Claimant has met the "pre-conditions" set out in Rule 15.3.18 (a) to (d). I order a Directions appointment to take place at 9:30 am on Friday 20th August 2010. I expect the parties to be in a position at that hearing to identify the issues and to be able to agree facts. I anticipate fixing a hearing date for the application for a quashing order shortly after the next court vacation. I also order the costs of this hearing to be costs in the cause.

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Rule 15.3.18 (a)
^[3] Rule 15.3.18 (b)
^[4] Rule 15.3.18 (c)
^[5] Order perfected 19^th November 2009.
^[6] Surendra Singh v. State of UP (AIR 1954 SC 194) and see article in Vol 18 No. 3 June 2010 Commonwealth Judicial Journal at page 33
^[7] S 254 Lands and Titles Act [Cap 133]