HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 243 of 1995

DONGA USULI & ANOTHER

-V-

TOATA GAGAME & OTHERS

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 16 March 2000
Date of Judgment: 20 March 2000

Mr A Nori for the plaintiffs
Mr C Ashley for the defendants

JUDGMENT

(Lungole-Awich, J): This case has been referred back to the High Court by the Court of Appeal in COA Case No. 6 of 1997, following a successful appeal by the plaintiffs. The Court of Appeal decided that this case had not been finally determined by the High Court in an earlier High Court Appeal Case No. 4 of 1972, which was a case about the same land area, but the parties were the present defendant and his line and one Masikisi who was not a member of the present plaintiff's line, the present case was not res judicata. The Court of Appeal pointed out that the case between the present parties ended in the Malaita Customary Land Appeal Court, the MCLAC, in 1982. A copy of the proceeding of the MCLAC in 1982 and judgment of the MCLAC was tendered to the High Court as exhibit JS1 in the case appealed, to it was a map of the land area, exhibit JS2. Unfortunately the proceeding does not bear a case No. It appears that the appeal was from Local court case No. 5/81.

The case before the High Court then and now referred back from the Court of Appeal, is one of trespass for which the plaintiffs pray for damages and injunction. The question of trespass depends much on the identification of the customary land claimed by the plaintiffs. Identification of boundaries of customary land is a complex matter which involves knowledge of evidence of such things as sacrificial places about which the Local Court has better knowledge and day to day experience. That has been recognised by S:254 (old s:231) of the Lands and Titles Act, Chapter 133, Laws of Solomon Islands which provides:

"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 a determination whether any land is or is not customary land.

(2)	A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.

(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 256.

(4)	The provisions of this section shall have effect notwithstanding anything contained in any other law, other than sections 12, 13 and 14 of the Local Courts Act, or in any warrant establishing any local court.

(5)	Nothing in the foregoing provisions of this section shall operate to confer or be construed as conferring, upon a local court any jurisdiction over any person who by reason of his status would not, apart from those provisions, be subject to the jurisdiction of a local court, except with the consent of such person."

In the appeal judgment in the present case at pages 10 and 11 of the typed judgment, the Court of Appeal left the question of the discretion of the High Court to refer and direct the Local Court open. It posed the question: "Does the High Court have any discretion to refer a customary issue in connection with land?". That may well be that in the Court of Appeal case, Allardyce Lumber Company Ltd and Others -v- Nelson Anjo, COA Case No. 8/96 the Court expressed reservation about jurisdiction of the High Court to direct the Local Court in cases of customary right in customary land. The Court stated: 

"The direction with regard to the determination of the question of ownership of customary land in the Local Court is not a matter which comes within the jurisdiction of the High Court. Whether or not any of the parties wish to pursue this matter in the Local Court is a different matter. There should not be any direction in this regard."

Then later came the judgment of the Court of Appeal in Gandly Simbe -v- East Choiseul Area Council and Eagon Resources Development Company Ltd, COA Case No. 8/97, the Court left no doubt about the supervisory power of the High Court over the Local Court. It might be significant that s:27 of the Local Courts Act, Chapter 19 of the Laws, gives power to a magistrate to "revise any of the proceedings of a local court." The High Court of course has power to revise proceedings of a magistrate's court.

In my view, until the Court of Appeal has expressed unequivocal view or unless there is some compelling submission against the power of the High Court to refer questions about customary right in land to the Local Court, s:254 (2) should be read literally, the meaning being that the High Court has the power. During the hearing on 16.3.2000 both counsel for the plaintiffs and for the defendants did not submit that the High Court has no discretion, it appeared they were more inclined to the view that the High Court has the discretion.

The physical identification on the ground of the boundaries of the land in question is crucial in this case in the determination by the High Court of the question as to whether there has been trespass on the land claimed by the plaintiff. It is my view that the tribunal well placed to physically determine the boundaries in situ is the Local Court of the area. I therefore make order referring the question of identifying on the ground in situ, the boundaries of the land in dispute and of Anokwalekwale and Tafuita to the Local Court of the area. In its exercise the Local Court must follow the determinations in the judgment of the MCLAC dated 6.10.1982, and must pay attention to the map, exhibit JS2; the judgment and the map must be read together. The magistrate in charge is to assist in explaining this order to the Local Court and in facilitating the proceeding of the Local Court for the purpose ordered. The Registrar of the High Court is requested to send this judgment together with a copy of the MCLAC judgment, exhibit JS1, to which is attached the map, JS2, and the Local Court case No. 5/81, to the Principal Magistrate, Malaita so that he may assist.

Until the record of the identification by the Local Court of the boundaries has been forwarded to this Court, the proceedings before this Court remains adjourned generally. The costs of the proceeding on 16.3.2000 and of today are reserved.

Delivered this Monday the 20th day of March 2000
At the High Court
Honiara
Sam Lungole-Awich
Judge