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Manubili v Fenda [1982] SBHC 24; [1984] SILR 1 (16 August 1982)

[1984] SILR 1

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No.5 of 1982

MANUBILI & OTHERS

v

FENDA

High Court of Solomon Islands
(David Crome, Commissioner)
Civil Appeal Case No.5 of 1982

16 August 1982 at Auki
Judgment 16 August 1982

Property growing on customary land - Land and Titles Act (C. 93) ss 231 and 231B -exclusive jurisdiction of Local Court - appeals to be brought to Customary Land Appeal Court.

Facts:

The appellants brought an unsuccessful action in the Local Court claiming cocoanut trees growing on customary land. They appealed to the Magistrates’ Court and also brought a civil action in the same court claiming damages for conversion of coconuts by the respondent. The magistrate dismissed the appeal and the action on their merits.

The appellants appealed to the High Court, also on the merits of the case.

Held:

Both the appeal and the action were “... proceedings of a civil nature affecting or arising in connection with customary land ...” in the words of S. 231 of the Land and Titles Act. So the appeal lay to the Customary Land Appeal Court under S. 231 of the Act, and the action came within the exclusive jurisdiction of the Local Court.

Decisions of magistrate quashed.

Appeal remitted for hearing to the Customary Land Appeal Court. Action declared of no effect.

Abither Manubili as spokesman for himself and other appellants.
The respondent in person.

David Crome: The Appellant appeals to this Court from a decision of the learned Principal Magistrate, Malaita, dated the 29th March 1982, which rejected his appeal made on behalf of himself and his line, from a decision of the local court sitting at Auki, Case 30/81, in August last year.

I have carefully read the record of the local court proceedings, and the two proceedings before the learned Magistrate first in October 1981, when the Respondent failed to attend, then in March 1982, when he did attend and the learned Magistrate, being satisfied that the Respondent had good cause for not attending at the earlier hearing, reheard the appeal, acting in accordance with Order 28 rule 5 of the Civil Procedure Code.

At the rehearing, the learned Magistrate consolidated with the appeal a civil case issued in his own court, in which the Appellant as Plaintiff claimed damages being the value of coconuts allegedly taken by the Respondent. It became clear before the hearing that the cocoanuts claimed were some of the very ones in dispute in the local court case.

S. 231(1) of the Lands and Titles Act states: -

“A local court shall .... have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land ...”

S. 231(3) of the same Act states: -

“(3) the decision of a local court given in exercise of its jurisdiction under this section shall be final and conclusive and shall not be questioned in any proceedings whatsoever save an appeal under Section 231B”

S. 231B is the section establishing and giving jurisdiction to Customary Land Appeal Courts.

It is agreed by the parties that the land upon which the cocoanuts are growing is customary land, the substance of the dispute appears to be the existence, and, if it exists, the nature and effect of an alleged agreement between the Respondent’s father and the Appellant relating to secondary rights in customary land.

In the circumstances, the original appeal from the local court decision should not have been heard by the learned Magistrate at all. As clerk of the Customary Land Appeal Court (Malaita) he should have listed the appeal made last year, and finally disposed of by him in March this year, for that Court.

As to the civil case, brought in the Magistrate’s Court, this also was wrongly tried since it clearly was a civil proceeding “arising in connection with customary land”.

In the circumstances I order that the decision of the learned Magistrate dated the 29th March 1982 is of no force, since he had no jurisdiction to hear the case, and the original appeal from the Local Court should now proceed to be heard by the Customary Land Appeal Court (Malaita).

As to the civil case, that is a nullity and the Court fee paid by the Appellant should be remitted to him. The Court had no jurisdiction to entertain the action. The Plaintiff should be advised to proceed in the local court who will no doubt wish to hear the outcome of the appeal to the Customary Land Appeal Court before proceeding.

One final matter arises to be mentioned. Until an appeal is heard and in the absence of any order from the appellate Court or other court having jurisdiction to make an order affecting the position, the decision of the lower court remains in force.

In these circumstances the decision of the local court in August 1981 is the only decision of a court of competent jurisdiction, affecting this land, and the Appellant has said before me that he will not try to chase the Respondent off the land. The Respondent has also agreed that it is his duty to look after the plantations and not to do anything to spoil them.

I make it clear that there is no order or injunction of this court in these matters, but the legal (and common sense) position has been explained to and clearly understood by the parties. If in any future proceedings the conduct of either is called into account, then the explanation given to them today and the statements of intent made by them will no doubt be weighed by any court considering compensation or punishment for damage or trespass or anything of that sort.