IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of the High Court of Solomon Islands (Faukona, PJ)	

Court File Number:	
Civil Appeal Case No. 22 of 2015
(On Appeal from High Court Civil Case No.  423 of 2014)	

Date of Hearing:
	
19 April 2016	

Date of Judgment:
	
22 April 2016	

The Court:	
Goldsbrough P 
Ward JA
Hansen JA	
Parties:
Appellant

1st Defendant
2nd Defendant
3rd Defendant	
Rini 
- v - 
Silas & Others 	
ADVOCATES:
Appellant

2nd respondents

 3rd respondent	
Mr. Chris Hapa

Mr. Philip Tegavota

Mr. Donald Marahare	

KEY WORDS:		
Ex
Tempore/reserved:
	
Reserved	

ALLOWED/DISMISSED
	
Allowed	

PAGES	
1-5	

JUDGMENT OF THE COURT

This is an appeal from the decision of the High Court in an application for interlocutory orders brought by the first respondent, as first claimant, against the appellant, as defendant, under rules 2.9 and 7.5 of the Civil Procedure Rules.  The applicants sought two declarations and two consequential orders.  The learned judge described the proceeding as an “application purposely to achieve Summary Judgment” pursuant to those rules which arose out of a category C claim previously filed by the claimants.

It arises from a long running dispute between the appellant and the first respondent over ownership of customary land on the islands of Porepore and Hirihove in New Georgia and the timber rights of that land.

The history of the dispute prior to the application was explained by the learned judge in the introduction to his judgment:

“There is a dispute between the first Claimant and the Defendant over the ownership of Porepore and Hirihove islands commenced way back in 1993.  It started after the Commissioner of Forests issued a Milling Licence … to the first Claimant with a permit to export round logs.  About July 1994, the first Claimant commenced felling and extraction of logs on Porepore island.  The Defendant responded by filing a Civil Case No 247 of 1994.

Whilst the case was still pending, the first Claimant went through the timber rights processes and obtained determination in his favour on 26 September 1995.  The Defendant then appealed to the Western Customary Land Appeal Court [from the determination of the Marovo Area Council which had awarded the timber rights over the two islands to the first claimant] on 25 October 1995.  Since then, the WCLAC is yet to hear the appeal until now of which 19 years had already passed.

The dispute over customary ownership of Porepore and Hirihove islands was referred to the Marovo Council of Chiefs.  The determination was in favour of the first Claimant.  The defendant as an aggrieved party referred the case to Marovo Local Court in 1996.  Since then, the Local Court has not heard the referral case for the last 18 years or so.”

The judge summarised the claimants’ case as “a persuasion to invoke the inherent power of the [High] Court” to declare the appeal to the WCLAC and the referral to the Marovo Local Court of the Council of Chiefs decision null and void and of no effect due to lapse of time and delay in prosecuting both the appeal and the referral. 

The defendant’s case, he explained, was basically focused on “the issue of customary land dispute, an issue falling outside of the High Court jurisdiction [which] is limited to aiding lower courts in dealing with matters of custom before them”.

The judgment deals with both the question of the jurisdiction of the High Court in such cases and of the timber rights and then concludes, “In all the circumstances which I have considered in this case, it is wise, logic and prudent to grant the relief sought in the application with costs”.

There follow orders to strike out the appeal to the WCLAC and the referral to the Marovo Local Court apparently on the basis of the terms of the declarations sought in the application.  These are followed by consequential orders for summary judgment in the category C claim previously filed and to release proceeds from the sale of logs previously exported.

It is clear, as Mr Hapa for the appellant has submitted, that this appeal hinges entirely on the question of the jurisdiction of the High Court and whether or not it can extend to the strike out orders of the much delayed appeal and referral.

Section 77(1) of the Constitution provides:

77 (1)  There shall be a High Court of Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or by Parliament.

This is subject to section 75 which provides that Parliament shall make provision for the application of laws including customary laws and to section 76 that, until Parliament makes other provision, the provisions of Schedule 3 determine the operation of customary law.

Provisions to this effect are found in sections 254(1) and 255(4) of the Land and Titles Act:

254 (1) A local court shall, subject to the provisions of this section, sections 12, 13 and 14 of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than-
	(a) any such matter or proceeding for the determination of which some other provision is 		expressly made by this Act; and
	(b) any matter or proceeding involving the determination of whether any land is or is not 		customary land.

  255 (4) A customary land appeal court shall have and may exercise all the powers of a local court.

The issue, as was recognised by the judge in the present case, is over the ownership of customary land which can only be determined by the local court.  However, section 84(1) of the Constitution gives the High Court jurisdiction “to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.”  This does not give the High Court unlimited power to intrude on the lower court’s jurisdiction. It is sometimes described as giving the High Court an aiding supervision.  Where there is evidence that the courts are not being administered in a manner which provides the proper standard of justice, it may intervene by its power to order injunctive relief.

As we have explained in the appeal this session of Attorney General v Solomon Maui and another, Civil Appeal No 24 of 2015, whilst section 77(1) gives the High Court original jurisdiction, it does not extend to unlimited rights to impose remedies in other courts.  If it is to have such power in respect of other courts, it can only be prescribed by statute.  The limit on its power and the reason for any such interference is found in section 84(1) namely that it may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is being duly administered by any such court.  Section 77 goes to jurisdiction not to remedies and so it does not give the High Court power to make any orders which intrude on the exclusive jurisdiction of the lower court to determine issues of customary land.

The declarations requested by the claimants were to determine whether the proceedings in the relevant courts were null and void.  It would have required a determination of an issue that went solely to the lower courts’ jurisdiction.  The order the judge made that the appeal in the WCLAC and the referral to the Marovo Local Court be struck out clearly usurped the power of those tribunals to make a decision which should have been in their exclusive domain.

We can understand the concern of the claimants at the manner in which these cases have been allowed to remain unpursued and thus impeding their use of customary land which has already been adjudged to belong to their tribes.  The judge found that “the length of delay and inaction was clearly an abuse of process used to achieve an end which is improper in itself and which is a wrong condemned in law” and concluded that the remedy was that the referral and appeal ought to be struck out.  

In such cases, the High Court’s supervisory power may be invoked by seeking injunctive relief even though the foundation of the case requires the determination of matters arising from ownership of customary land. As was explained in Simbe v Eagon Resources Development Company and others; Civil Appeal Case No 8 of 1997, 09/02/99:

“ The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by local court or customary land appeal court of its jurisdiction to decide such dispute.  An injunction of that kind is designed not to facilitate determination of ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary land appeal court specifically invested by Parliament with the power to decide it. Pending determination of that dispute in the local or customary land appeal court, proceedings in the High Court would ordinarily be stayed on appropriate terms.”

The learned judge in the present case appears to have based his decision to strike on his consideration that the local court and customary land appeal court did not have jurisdiction to deal with issues of delay and inaction. However, that disregards the terms of section 254, which gives those courts the exclusive jurisdiction in all matters and proceedings affecting or arising in connection with customary land as did these delayed matters.  If such a court is dealing with a matter before it in a manner which does not appear to be duly administering justice the remedy may be to seek some suitable form of injunctive relief through the High Court. The error of the learned judge in this case was to make an order which intruded on the jurisdiction of the lower courts and the orders must be set aside.

The two consequential orders depend, like the declarations, on a determination of the ownership of customary land and must also be set aside. 

The parties should understand that the result in this case was the consequence of the intrusion into the jurisdiction of the lower courts. A similar application in the High Court proceedings would be within the court’s general jurisdiction to control its own proceedings.

Orders

1.  Appeal allowed.
2.  Orders made in the judgment on13 August 2015 are set aside 
3.  In light of the learned judge’s unchallenged finding that the length of delay and inaction by the appellant was used to achieve an improper end, we do not consider the usual rule that costs follow the event should apply and order that the parties bear their own costs

  
……………………………………………………
Goldsbrough P

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Ward JA 

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Hansen JA