Lomulo v Jino [2014] SBHC 84; HCSI-CC100 of 2012 (11 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 100 of 2012

BETWEEN:

BEN LOMULO
Appellant

AND:

OLIVER BIKOMORO JINO, SETH PIRUKU
and RAEVYN REVO
First Respondents

AND:

HAVEA MAJORIA
Second Respondent

AND:

ATTORNEY-GENERAL
(Representing the Western Customary Land
Appeal Court)
Third Respondent

Date of Hearing: 5th September 2014
Date of Ruling: 11th September 2014.

Mr C. Hapa for the Appellant
Mrs M. Bird for the First Respondent
Mr Hanu for the third Respondent
No one for the Second Respondent

RULING

Faukona J: The substantive case is an appeal to this court from Western Customary Land Appeal Court (WCLAC) determination. The process was commenced through a notice of appeal filed on 12th April 2012 by the Appellant. The appeal was in respect of a determination on timber rights by WCLAC.

2. The argument advance by Mrs Bird is one of point of law. She submits that there is no provision under the Forest Resourced and Timber Utilisation Act (FRTUA) that provides where a person aggrieved by the determination of CLAC to appeal to the High Court.

3. Section 10 (2) of FRTU Act only provides for any order or decision of CLAC on appeal shall be final and conclusive and shall not be questioned in any proceedings whatsoever.

4. Mr Hapa attempted to acquire another result by contrasting S.10 (2) FRTU Act to Section 254 (3) and Section 256(3) of the Land and Titles Act. One outstanding feature of Section 254 (3) is that although it provides for finality and conclusiveness equal with S 10 (2) of FRTU Act it also provides for an appeal under section 256(3) should a party aggrieved; a missing provisio from S.10(2) FRTU Act.

5. Mr Hapa further refers to the case of John Fera V Henry Ologa and Others[1]. The paragraph refers to canvas the power of the Court to strike out in circumstances where no reasonable cause of action is pleaded. That should be distinguished from this case where the issue circles around statutory processes and procedures.

6. Mrs Bird further submits that the only process available to an aggrieved party in a CLAC determination under FRTU Act is to file a claim for judicial review. In this case time has long gone. Should the Court incline to favour the option which is the only way forward, then application can be filed to bridge time for filing of a claim for judicial review.

7. There is no objection to the suggestion that a claim for judicial review is the only process forward. Time limit can be breached, there is provision for it.

8. I noted that this Court has inherent jurisdiction under section 27 (1) of the Constitution. But this Court can only be urged to hear and determined a litigation process that comes before it through the right path or channel. The Court will refuse to hear any substantive matter if the form is not complied with. It is a question of form. When that has been settled, there is no legal mischief about hearing and determining the substantive issue.

9. I find since the appeal was filed in time, the claimant's case ought to be heard but not through the current path. Hence, I must dismiss the appeal with option that the Claimant is allowed to apply to bridge time to file a claim for judicial review.

Orders.

1. The appeal is dismissed. Claimant is hereby given option to apply to bridge time limit to file claim for judicial review.

2. Cost to be paid by the Claimant to the Defendants.

The Court.

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^[1]Civil Case No. 268 of 2003, Ruling in 4^th March 2004.