[1980-1981] SILR 150

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 36 of 1981

SIA

v

AMASIA

High Court of Solomon Islands
(Daly CJ)
Civil Case No. 36 of 1981

27th May 1981

Commissioner of the High Court - S. 79 of the Constitution - supervisory jurisdiction of High Court - S. 84 of the Constitution - does certiorari lie from High Court to Commissioner.

Facts:

A Commissioner of the High Court was appointed under section 79 (4) (a) of the Constitution to hear a case pending before the High Court. The Commissioner heard the case. Subsequently on application was made to the High Court for an order of certiorari to remove the decision into the High Court and quash it.

Held:

As the Commissioner was given the powers of a High Court judge, his was not "a subordinate court" within the supervisory jurisdiction of the High Court under section 84 of the Constitution. Therefore certiorari does not lie and the application for leave was refused.

Cases referred to:

In re the New Par Consols Ltd (No.2) (1898) 1 AB 669
Skinner v. County Court Judge of North Allerton (C.H.) (1898) 2 KB 68 (1899) AC 439
R. v. Justices of the Central Criminal Court (1925) 2 KB 43

For Applicant: T. Roberts

Daly CJ: In this case an application is made for leave to apply or an order of certiorari. I heard argument in Chambers but as the case involves a Question of law of some importance arising from the terms of the Constitution the matter was adjourned to open court for judgment.

The matter arises in this way. By Government Notice 267 of 1980 the appointment of a Commissioner of the High Court under section 79(4)(a) of the Constitution to hear three cases then pending before the High Court was promulgated, the appointment having been duly made under that section. One of the cases was a Customary Land Appeal Case to which the present applicant was a party. On 18th November 1980 the Commissioner of the High Court heard and determined the Appeal in exercise of the jurisdiction conferred by section 231B(3) of the Land and Titles Act (Cap. 93). If that determination was an effective one, then there can be no dispute that there is no further appeal as section 231 B(4) of that Act provides that:

"any order or decision of the High Court......given in exercise of the jurisdiction conferred by this section shall be final and conclusive and shall not be questioned in any proceedings whatsoever".

The appellant however claims that there was want of natural justice in the determination of the Commissioner of the High Court and therefore seeks leave to apply to the High Court for an order for certiorari to remove into the High Court and quash the decision of the Commissioner.

The question of law which then arises is, does the court have jurisdiction to grant such an application? If not, leave to apply should not be granted. I should perhaps add that I have not as yet considered the application for leave on its factual basis and should I find that jurisdiction exists I shall then invite counsel to address me on that aspect of the matter.

The jurisdiction of the High Court is to be found in the Constitution. In relation to the prerogative orders (of which the order of certiorari is one) we are concerned with what has been called the supervisory jurisdiction of the High Court. Specific provision is made for this jurisdiction in section 84 (1) of the Constitution:-

"The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court".

It might be argued that the strong words of section 231B(4) of the Land and Titles Act in themselves prevent the issue of an order of certiorari as this constitutes a proceeding "questioning" the decision of the High Court in the exercise of its jurisdiction under that section. Although I have not heard argument on: the point I should be disposed to regard that subsection as an existing law which section 5(1) of the Solomon Islands Independence Order requires me to construe in such a way as to preserve the powers of the High Court expressly granted by section 84(1) of the Constitution. Thus if a prerogative order is properly issued in accordance with that section it could not, in my present view, be defeated by reliance on section 231B(4) of the Land and Titles Act.

It will be observed that subsection 84(1) of the Constitution refers to "proceedings before any subordinate court". Therefore before the High Court may exercise the jurisdiction conferred by this subsection in this case it must be shown that a Commissioner of the High Court is a "subordinate court". Quite clearly he is a court, so the only question is whether the court constituted by this is "subordinate" to the High Court.

Counsel for the appellant submits that this word should be construed to include a court constituted by a Commissioner of the High Court. He concedes however that there is authority elsewhere that would-tend to support a construction which would mean that a court of a Commissioner of the High Court was not "subordinate" within the meaning of section 83(1) of the Constitution.

Section 79(5) of the Constitution deals with the position of the Commissioner. This provides:-

"Any person appointed under the provisions of the preceding subsection shall be styled a Commissioner of the High Court; all things done by him in accordance with the terms, of his appointment shall have the same validity and effect as if they had been done by a judge of the High Court; in respect thereof he shall have the same powers and enjoy the same immunities as if he had been a judge of the High Court; and, notwithstanding that the period of his appointment has expired or his appointment has been revoked, he may sit as a Commissioner of the High Court for the purpose of delivering judgment or doing any other thing in relation to any proceedings that were commenced before him whilst his appointment was subsisting".

The way that it is put by Counsel for the applicant is that firstly "subordinate" must be equated with the expression "inferior" used in the English Common Law. The Shorter Oxford Dictionary does indeed give the meaning of "subordinate" as "belonging to an inferior rank, grade, class or order, and hence dependent upon the power of another". Thus an element of inferiority is contained in the word "subordinate". Counsel goes on to submit that "inferiority" turns on the fact that jurisdiction of an inferior court is limited whereas of a superior court is unlimited (see para 713 of Vol 10 Halsbury Laws 4th Edition). Hence in this case, as the Commissioner of the High Court had jurisdiction limited to three specified cases he must constitute an inferior court.

Although the logic has a superficial attraction, like many arguments based on logic; it requires a common sense examination before accepting the conclusion. The problem here involves a question of statutory interpretation, that is, was it the intention of those who framed the Constitution that the acts and decisions of a Commissioner of the High Court be given equivalent status to acts and decisions, given by a judge of the High Court? If it was then certiorari will not lie as the court of the Commissioner would not be "subordinate". Whether in English law the court of the Commissioner would be "inferior" is only relevant insofar as it aids in this problem of interpretation.

Indeed the relevant decisions of the English Courts seem to be all one way against the argument urged by Counsel. In, the case of In re the New Par Consols Ltd (No 2) (1898) 1 QB 669 a County Court judge exercised jurisdiction in relation to which the relevant Act said, he had all the powers of the High Court. At page 672 A.L. Chitty L.J. said:-

"In this case the county court judge had jurisdiction to wind up the company in question under the Companies (Winding-Up) Act, 1890, and the effect of s.1 subsection 6 of that Act is that he has conferred upon him for the purposes of such a winding-up all the powers of the High Court, one which is the power to commit for disobedience of its orders. That being so, he is, in my opinion, with regard to his exercise of such powers, placed on an equal footing with the High Court, so that a writ of prohibition cannot go to him. That consideration is sufficient to determine the present appeal".

This case was followed in Skinner v. Count Court Judge of North-Allerton (C.H) (1898) 2 KB 68; H.L. (1899) A.C. 439 in which a writ of certiorari was refused on the same basis. In both these cases the jurisdiction of the County Court Judge to exercise the powers of the High Court was limited to a particular class of case. In neither was it suggested that this limitation in itself conferred "inferiority" on the decisions of the judge when exercising the powers of the High Court. These, and other, decisions were reviewed with approval by the Divisional Court in R. v. Justices of the Central Criminal Court (1925) 2 KB 43.

When one turns to the provisions in the Constitution it is, to my mind, quite, clear that a Commissioner of the High, Court, as his title suggests, is given all the powers of the High Court. He is appointed to perform "all the functions of a judge (of the High Court) in respect of (a) particular case" (section 64(4) (a)). By section 64 (5) he is expressly given the powers and immunities of a judge of the High Court. In this case he exercised jurisdiction conferred upon the High Court by the Land and Titles Act.

Counsel submits that the express provision in subsection (5) giving things done by the Commissioner "the same validity and effect as if they had been done by a judge of the High Court" would be unnecessary if the draftsman of the Constitution had intended that he would constitute an equivalent court to the High Court. It may be that subsection (5) does (no doubt ex adundante cautela) elaborate on matters which could be inferred from the fact that the Commissioner performs the functions of a judge of the High Court. But in view of the, unequivocal terms of the two subsections it seems to me beyond all doubt that a Commissioner of the High Court is to be regarded, in acting within the terms of his appointment, as a judge of co-ordinate jurisdiction with the judges of the High Court.

That being so I find that the court of the Commissioner of the High Court in this matter is not a "subordinate court" and therefore is not amenable to the jurisdiction granted by section 84(1) of the Constitution.

Argument has been addressed to the desirability as a matter of public policy of bringing a Commissioner within the supervisory jurisdiction of this court. That argument did not impress me. Even had it done so, in view of the clear terms of the Constitution it would not be for me to give effect to the public policy.

As I conclude that this court has no jurisdiction to grant the order sought upon due application, leave to apply for such an order is refused.