Khana v Isabel Local Court [2017] SBHC 36; HCSI-CC 149 of 2017 (10 October 2017)

PATERSON KHANA -V- ISABEL LOCAL
(Applicant) COURT AND OTHERS

(Respondent)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No. 149 of 2017

Date of Hearing: 6 September 2017
Date of Ruling: 10 October 2017

W. Poa for AG representing the Local Court
Nelson Laurere by Tabo for application

Brown J:

Application for leave to set aside a decision of a Local Court following refusal of the CLAC to entertain the appeal in the first instance.

This application is for relief to allow a claim for judicial review well out of time. The review is sought of a decision of the Local Court sitting at the Community Hall, Isabel on 5 June 2015. The decision was appealed to the Customary Land Appeal Court initially and leave was sought of that court since the appeal from the Local Court was also out of time. The CLAC refused leave to appeal and consequently this application comes before me.

The complainant claims to represent the Kefu Posomogo clan. By supporting sworn statement of Khana, speaking he claims, for Paterson Kikolo, named overall representative of Kefu Posomogo clan, and so authorised, Khana says the reason for the delay in appealing the decision of the Local Court was caused by need to await the written reasons. Those reasons were given on 20 August 2015 and referred to the court’s earlier decision of 5 June that year. The reason at the conclusion signed by the presiding clerk, stated “R/A is within three months from this date.”

The CLAC refused to entertain the appeal which was filed on 9 October 2015. The decision of the CLA C to refuse the appeal was not a decision on the substantive appeal but rather one reliant on the fact that the appeal had been filed beyond the three month period provided for in the Land and Titles Act, section 256 (1), the period expressed to commence running from the date of judgment, the 5 June [not the date of delivered reasons].

The reason for the appeal out of time can be seen from the notification on the bottom of the written reasons of the Local Court provided well after the decision handed down on the 5 June. A decision of the CLAC is not a decision which this court may address having regard to section 256 (3) of the Land and Titles Act. Its final decision may be unappealable.

The claimant comes however pleading a right to judicial review should he be able to show mistake in the exercise of the decision- makers powers referred to as, excess of jurisdiction by the CLAC, or a decision given without power. In fact the CLAC refused the appeal since it was beyond the 3 month period allowed by s. 256(1) of the Act. Neither mistake has been shown nor error by the CLAC refusal. No right of review arises in these circumstances.

For by Rule 15.3.8 this court has power to review a decision of an inferior court provided the claim has been made within six months of the decision complained of, in this case that of the Local Court. For it certainly cannot be seen to be a review of the CLAC decision.

Clearly this application is well out of time. By Rule 15.3.9 discretion is given to this High Court to extend time to make a claim if it is satisfied that substantial justice requires it.

The question of delay then is to be considered as an incident of the question whether substantial justice would be done were this claimant now to be allowed to pursue his review, have the earlier decision quashed and the original appeal re-heard by the Local Court. On a view of the judgement of the Local Court, “introduction”, it is clear that the Kefu Posamogo tribe was a party to those proceedings. The judgement was recorded in the introduction dealing with the referral from the Hograno House of Chiefs decision and referred to 3 tribes, KlomeKuana Dou, Pau Posamogo and Klome Vehe, as those tribes of appealing from the chief’s decision.

By annex C to the statement in support, Chief Eric Gnokoro Aujare [representing the Pau tribe] had by amended written statement pursuant to section 12(3) of the Local Court Act provided grounds to show why the complainant Chief Eric Gnokoro Aujare was aggrieved and why he sought relief by way of appeal. The further notice of appeal by the Khome tribe, representative Lanfranc Quilty has also been annexed to the statement of Khana to show he said that the Local Court had not addressed the issues raised on appeal from the House of Chiefs. But any alleged mistake by the Local Court affecting the Khome tribe does not afford Khana, of the Kefu Posamogo clan a right of review as an aggrieved party.

The difficulty of course, is the Kefu Posamogo clan, whilst named as an interested party in the judgement had not in fact been an appellant to the Local Court as these three named aggrieved tribes had been. On balance an inference may be drawn that the representative of the Pau tribe, Chief Eric, had represented capacity in relation to the clan Kefu Posamogo so that in the absence of his support to this application by Khana speaking for Paterson Kekolo, I am not satisfied this clan may come at this late stage to seek judicial review. The delay has been considerable.

Justice for now quashing the decision of the Local Court given in 2015 has not been made out. Those parties to that decision, apart from this applicant/claimant would after such time be seriously adversely affected.

Where custom is involved, it is appropriate for these aggrieved applicants to seek to resolve their difference through customary means. Using the words adopted by Justice Kabui (as he then was) the question is whether the cause is a proper one for granting relief, and it is for the applicant to show on balance it would be right to exercise discretion in his favour and not for the opposing party, the Attorney General to show that it would be wrong. Clearly there is a real issue on the applicants standing to bring these proceedings after such a length of time. For these reasons the application is refused and the claim is struck out. Each party shall pay their own costs.

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Brown J