IN THE CENTRAL MAGISTRATE’S COURT	)
OF SOLOMON ISLANDS				)					
Civil Jurisdiction
	
Civil Case No. 55 of 2017

BETWEEN:	PATRICK VITI 				APPLICANT

AND: 			WILLY BOBO 				RESPONDENT

Date of Hearing:	May 31, 2017
Date of Ruling:	May 31, 2017

No appearance for Viti
Respondent in person

RULING ON APPLICATION TO SET ASIDE
 AN INTERIM COURT ORDER

1.	This is an application by the Respondent to set aside an Interim Court Order issued on 2nd May 2017. The wordings of that order are quoted as follows:

“1. 	That the respondent and his agents shall be restrained from causing disturbances to the proposed development carried out by the members of Lahi Tribe on Hagela land, which further includes the taking his own member of Lahi tribe to the Chief’s settlement for a new land case.

2. 	That the respondent and his agents shall be restrained from entering further claims before the Traditional Chiefs forum to enquire into the custom and to determine the ownership since the Respondent is also a member of the winning party.

3. 	That the respondent and his agents are restrained from causing any such form of abuse to the claimant Mr. Patrick Viti and his tribe either verbally or physically.

4. 	The terms of Orders 1 to 3 remains in force until further orders of the Court.

5. 	Penal Notice is attached.”
 
2.	From the sworn statement of the Respondent, he deposed that he is not a party to the Customary Land Appeal Case decision handed on 14th October 2016 and therefore, that decision is not binding on him. He is a new party and hence, he is intending to bring a case concerning ownership of Hagela customary land before the Longana House of Chiefs for determination of the ownership of that said Hagela land. However, he was prevented by the Court order referred to earlier. This caused injustice to him in so far as his right to bring the matter before the Longana House is concerned.

3.	The issue for me to decide in this case is simple and straightforward. That is; whether or not the Magistrate Court has the jurisdiction to grant injunctive orders to restrain the Respondent (as a fresh party) from bringing the land case over the ownership of Hagela customary land before the Longana House of Chiefs. 

4.	The Magistrates Court is a creature of statutes. Its powers are derived and confined within the bounds of the Magistrates Court Act and the Solomon Islands Courts (Civil Procedure) Rules when dealing with civil matters. It has no inherent and unlimited powers like the High Court or other superior court and hence, by implication, its powers cannot be exercised willy-nilly. Unless it is expressly prescribed by law, any exercise of its powers without legal basis will be erroneous and ultra vires. 

5.	I have looked at section 19 of the Magistrates Court Act under the part “Civil Jurisdiction” and unfortunately, it is silent on whether the court can issue restraining orders against a person from exercising his right to bring case before any inferior court or tribunal such as the Longana House of Chiefs for example. Therefore, this issue can be resolved by looking at case law as set down by superior courts in our jurisdiction.  

6.	In the case of Alemaesia v Agola, Foukona J stated:

“Section 77 of the Constitution provides that the High Court has unlimited original jurisdiction to hear and determine any civil (for our purpose) proceedings under any law and such other jurisdiction and powers conferred on it by the Constitution or Parliament. Section 84 says, the High Court has jurisdiction to supervise any civil proceedings before any subordinate court and may make such orders etc, as it consider appropriate ensuring that justice is duly administered by such Court.”
 
7.	Also, in Simbe v East Choiseul Area Council, the Court of Appeal made it clear that only the High Court has the jurisdiction to issue injunctive orders for lower courts because of its supervisory role to ensure determination of customary ownership at the lower courts are effectively and properly carried out. In that case, the Court stated:

“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 a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that 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 appeal court specifically invested by Parliament with the power to decide it.”

8.	The House of Chiefs is also one of the tribunals supervised by the High Court under its supervisory powers as stated in Osiramo v Aeounia. In that case, Kabui J (as he was then) also stated:

“That is to say, the High Court has the power to grant an injunctive order in aid of the exercise of the jurisdiction of a local court as well as a customary land appeal court excepting deciding ownership of customary land. In my view, I do not see any reason why the Chiefs in their adjudication role in customary land disputes should be excluded from the same benefit of injunctive orders by the High Court as they are also forums created by statute.”

9.	It is clear from the reasonings of those binding case authorities that only the High Court has the power to restrain or stop the inferior courts in matters pertaining to the performance of their duties but not the Magistrates Court. To restrain a person from exercising his right to bring a case before the Chiefs’ tribunal lawfully established under the Local Court Act is to make a prohibitive injunction which only the High Court has the inherent and unlimited power to do so. Therefore, by granting any order of such nature by the Magistrates Court which is only a court created by statute is clearly erroneous and ultra vires. In that same reasoning, any matter that is filed seeking orders of such nature at the Magistrates Court is without legal basis and amount to an abuse of the legal process. 

10.	In my view, this matter should be filed at the High Court for injunctive orders or even for declaratory orders on the basis of res judicata and not at the Magistrates Court if the Applicant believes he owns the customary land in question. The Applicant unfortunately brought this proceeding to a wrong forum and therefore, this Court lacks jurisdiction to deal with such matters. In my view, this case is one which amounts to an abuse of the court process.

11.	Rule 9.75 (c) Solomon Islands Courts (Civil Procedure) Rules states:

“9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
	
(a) ….

(b)…..

(c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”(Underlined mine) 

12.	Beside the legislation,  in a High Court case of Lolo v Kwaiolea, Judge Apaniai (as he was then) when referred to Goldsmith v Speerings Ltd succinctly explained that a matter can be struck out on the basis of abuse of legal process in these clear terms:

“A claim can also be struck out and dismissed at an early stage if it is shown that the claim is an abuse of the legal process. The legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s right or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end. The process is said to be abused because it had been used to effect an object not within the scope of the process.”

13.	It follows from the reasons narrated herein that the application by the Respondent must be granted with the following Orders:

(i)	The Interim Court Order granted on 2nd May 2017 is set aside in its entirety.

(ii)	This case CMC-CC No. 55 of 2017 is struck out for abuse of the court process.

(iii)	Parties to bear own costs.

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(Augustine Aulanga – Principal Magistrate)