Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999)

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BETWEEN:	GANDLY SIMBE (Representing Dali Tribe)	Plaintiff
AND:	EAST CHOISEUL AREA COUNCIL	First Defendant
AND:	EAGON RESOURCES DEV. COMPANY LTD.	Second Defendant
AND:	STEVEN TAKI (Representing Volekana and Voetoroe Tribes)	Third Defendant
AND:	PETER MADADA	Fourth Defendant
CORAM:	MASON P., McPHERSON & WILLIAMS JJ.A
HEARING:	21st October 1998
JUDGMENT:	McPHERSON J.A.:- Read by Registrar of Court of Appeal on 9/2/99

1. Parties to the appeal. This is an appeal by the plaintiff Gandly Simbe, of the Dali Tribe, against an order made by Palmer J. in the High Court on 17 July 1997 discharging an earlier order made by his Lordship on 7 February 1997 and ordering that the plaintiff pay the costs of the application before him. The earlier order, which had been obtained ex parte, had granted an interim injunction to restrain the second defendant from entering upon, and felling trees and removing timber growing on, customary land on Choiseul Island that the plaintiff claims is owned by the Dali Tribe of which he is a member. The second defendant and a respondent to the appeal is Eagon Resources Development Company Ltd., which is a timber logging and exporting company. The other two respondents to the appeal are the third defendant Steven Taki, representing the Volekana and Voetoroe Tribes, and the fourth defendant Peter Madada, who represents persons claiming to be owners of the Nola land. The first defendant, which is the East Choiseul Area Council, took no part in and was not represented on the hearing of the appeal.

2. Statutory provisions. Eagon Resources, as it will be referred to here, is the holder of a licence no. Tim 2/14 to fell trees and remove timber that was issued on 10 September 1987 under s.5 of the Forest Resources and Timber Utilisation Act (chap. 90). The relevant provisions of the Act in its current or earlier forms have been discussed in several decisions of this Court. It is necessary to repeat some of those provisions here, but only in broad outline. Section 4(1) makes it an offence, for the purpose of resale, to fell a tree or remove timber from any land except as specified in the various paragraphs of s.4(1) including, as provided in s.4(1)(d), under and in accordance with the terms and conditions of a valid licence issued under s.5. By s .29, no such licence is to convey any right or authority to enter private land, nor to take any action with respect to anything without the authority of the owner of that land. Authority to enter and fell or remove timber therefore depends on the existence of a valid timber rights agreement, or “logging” agreement, entered into with the owner or owners, who in this case and most, if not all, others are the customary owners of the land in question. So much is expressly acknowledged in licence no. Tim 2/14 issued in this instance, which carries a footnote stating:

“No felling is permitted on areas where no timber rights agreements have been signed in accordance with provisions of the Forests and Timber Act.”

3. Procedure for timber rights agreement. The procedure for obtaining such an agreement is set out in ss.5 and 5A of the Act, which call for an application to the Commissioner of Forest Resources for the grant of a licence authorising the felling of trees and removal of timber: see s. 5(l)(c). However, under s.5(1A) no such licence is to be issued unless the Commissioner is satisfied of various matters listed in paras. (a) to (d) of the proviso to that subsection, of which s.5(1A)(b) is:

“that the applicant has obtained approved agreement, when such felling and removal are the subjects of rights granted under that agreement, from any customary land.”

The procedure for obtaining an approved agreement is set out in Part IIA of the Act which, as a principal first step requires application to and the consent of the Commissioner to negotiate with the appropriate [provincial] government, the local area council, “and the owners of such customary land”: see s.5B(1). The second step is for a meeting with the customary landowners to be held by the area council: s.5C(1), which is to be advertised by notice “to persons who reside within such area and appear to have an interest in the land, trees or timber in question”: s.5C(2).

4. Area Council determination. The third step in the process is for the area council to discuss and determine with the customary landowners and the applicant the matters set out in paras (a) to (e) of s.5C(3). These are:

“(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;

(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are;

(e) the participation of the appropriate Government in the venture of the applicant.”

The fourth major requirement is that any agreement reached pursuant to discussions under s.5C(3) is by s.5C(4) to be reduced to writing and forwarded to the Commissioner with the recommendation of the area council. The applicant is then required to carry out various investigations necessary to identify and describe the forest resources: s.5C(5).

5. Certification. If no agreement is reached between the applicant and the customary landowners, the area council is by s.5D(1) bound to recommend rejection of the application for a timber licence, and the Commissioner is required to reject it. On making a determination under section 5C(3), the area council must under s.5D(2)(a) issue a certificate in the prescribed form setting out its determination. Presumably this refers to a determination recommending the agreement, for it is only after receipt of that certificate, and on being satisfied of various other matters, that the Commissioner is authorised by s.5F to recommend to the appropriate [provincial] Government to grant approval to such agreement; and it is only then that the [provincial] Government is authorised by s.5G to complete a certificate in prescribed form approving the agreement. Without a certificate under s.5D(2)(a), there is no power to grant a timber licence under s.5(1A), and it has been held that a licence issued in the absence of such a certificate is invalid: see Beti v. Allardyce Lumber Co. (CAC 5/92, at pp. 11-12 ) .

6. Customary landowners. Timber is, for the Solomon Islands, a vital resource, in the exploitation of which both the national and provincial governments as well as the customary landowners and the logging companies all have interests, which are nevertheless not necessarily or always congruent. Part IIA involves an attempt to ensure that the landowners, who ordinarily reside and depend for their subsistence on the land in question, are adequately consulted and that their wishes are accorded priority. Logging may not take place without obtaining their agreement to the entry, felling and removal of the timber. Authority to exercise rights of that kind is, as already mentioned, conferred not by the licence issued by the Commissioner under s.5(1A) but only by an “approved agreement”, which by s.5A means an agreement approved under the provisions of Part IIA. See Qurusu v. Attorney-General CC 4/93 [87]; and Cape Esperance Company Ltd. v. Emery & Sullivan (1995) (CA 7/1994). In practice, therefore, it is the customary landowners who are the persons entitled to grant timber rights over the land in question: Qurusu v. Attorney-General CC 4/93.

7. Identifying customary landowners. No difficulty exists if the customary landowners are identified and all of them are willing and agree to grant timber rights: Hyundai Timber Co. v. Attorney-General CC 79/93, at pp.6-7, 9. Equally, if all are known but not all of them agree, then the function of the area council under s.5C(3)(a) of discussing and determining whether the customary landowners are willing to negotiate for the disposal of their timber rights to the applicant will ordinarily be at an end. It is, however, not in those cases that problems most often arise, but rather where, in terms of s.5C(3)(b), the area council needs to determine “who such persons are”, and whether they “represent all the persons lawfully entitled to grant such rights”. If and to the extent that some of what was said in Hyundai v. Attorney-General suggests that the function of the area council is at an end once a dispute emerges about the ownership of the customary land in question, then, with great respect, we cannot agree with the observations to that effect. It will seldom be possible for an area council to perform its function under s.5C(3)(a) of determining whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant without also determining under s.5C(3)(b) whether the persons proposing to grant those timber rights are or represent all the persons lawfully entitled to grant them. Section 5E(1) expressly confers a right of appeal against a determination of the area council made under s.5C(3)(b). In many if not most instances, the task of identifying the customary owners is therefore likely to be an essential step in the process of determination under s.5(3). See Beti v. Allardyce Lumber Co. Ltd. (1992) CAC 5/92, at pp.7-8; cf. also Qurusu v. Attorney-General (1993) CC 4/93, at p.13 and Talasasa v. Biku (1988) CAC 2/87, at pp. 4-5. Experience suggests that there often are disputes about ownership of customary lands or their boundaries.

8. Effect of council determination. It remains true to say that, in making a determination for the limited purposes of s.5C(3), it is no part of the function of an area council to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part IIA that an area council is a tribunal, and not a court of record, or indeed a court of any kind whether of customary or common law. It has long been recognised that its determination gives rise to no guarantee that the contracting customary owners are the true owners. See Hyundai v. A-G (1993) CC 79/93, at pp.8-l0 [72-74], citing with approval the remarks in the High Court of Commissioner Crome in Fugui v. Solmac Construction Co. Ltd. [1982] SILR 100, 107. If a binding determination is desired it must be obtained from a local court under s. 8 of the Local Courts Act as amended by the Local Courts (Amendment) Act 1985 inserting ss.8C, 8D and 8F; or on an appeal, instituted under s.5E(1) of the Forest Resources Timber and Utilisation Act by a person who is aggrieved by a determination of the area council under s.5C(3)(b) of that Act, to a customary land appeal court having jurisdiction for the area in which the customary land is situated. In contrast to an area council determination, the order or decision of a customary land appeal court on an appeal pursuant to s.5E(1) is “final and conclusive”: see s.5E(2). Such an order or decision has been said to create an estoppel by judgment as between the parties: Beti v. Allardyce Lumber Co. Ltd. (1992) CAC 5/92, at p.9; and, since by s.5E(2) it is “not [to] be questioned in any proceedings whatsoever”, an order or decision of that kind has been held to be immune from review by certiorari in the High Court: Talasasa v. Biku (1988) CAC 2/1987, at pp.8-10.

9. The plaintiff’s claim. With these matters in mind, it is possible now to proceed to the questions for decision on this appeal. The facts are that on 1 June 1995 and on days following that date, the East Choiseul Area Council made a series of separate determinations that the customary landowners of parts of the lands in question were willing to negotiate for disposal of their timber rights to the second defendant Eagon Resources. In due course certificates in Form II of customary ownership were issued under s.5D(2) setting out those determinations and naming the persons lawfully able and entitled to grant timber rights in specified areas of the land in question. In February 1996 the East Choiseul Provincial Government acting pursuant to s.5G(1) approved the timber rights agreement. Several distinct areas were involved, which in the evidence about them are not always uniformly named. In the end, however, only two such areas, identified as Volekana 1 and Nola, were the subject of dispute by the plaintiff before the Area Council and remained in dispute in the High Court proceedings now the subject of the appeal before this Court. Originally a written objection had been lodged with the Area Council by David Gala of the Dali Tribe; but at the hearing it was retracted or overruled by his father Galotaba, which, according to the custom of the Dali Tribe, it was within his authority to do. This left for determination an objection by another member of that Tribe, and the plaintiff Gandly Simbe, who is the appellant now before us. Mr. Simbe has made various complaints about the conduct of proceedings before the Area Council. They are all encompassed in the single submission that the learned primary judge was wrong in holding there was no serious question to be tried and, as his Lordship also held, consequently no basis for interlocutory relief by way of injunction pending trial of the action.

10. First question on appeal. Reducing the matter to so simple a form condenses several distinct questions of law raised on the appeal. The first concerns the validity of the timber rights agreement with Eagon Resources. There were in fact several different agreements each of which related to a distinct area of land; but, because they are in the same or similar terms, it is convenient to confine our remarks at present to the agreement relating to Volekana 1.

11. The allegation of inconsistency. The plaintiff’s primary challenge to the validity of the agreement is based on what is said to be the inconsistency of its provisions with provisions of the Act, with regulations made under it, and with the forms they prescribe. In addition to the statutory provisions mentioned, amending regulations were promulgated by the Forests and Timber (Prescribed Forms) (Amendment) Regulations 1985. Amending reg.2 replaced an earlier version of reg.5, which now reads as follows:

“5. An agreement for the sale of timber rights in customary land shall be in such form as prescribed in Form 4 of the Schedule.”

Turning to the Schedule, Form 4 is seen to contain a series of 39 clauses, a few of which require completion of blank spaces, but which otherwise specify in considerable detail the terms to be incorporated in a timber rights agreement. When these terms are compared with the corresponding terms of the approved timber agreement of 10 January 1996 entered into with Eagon Resources, some notable differences, variations or discrepancies are observable. It was submitted on behalf of the plaintiff and conceded by the respondent defendant on appeal that some 27 instances of differences or variations could be identified in the provisions of the approved agreement.

12. Substantiality of variations. The consequence, or so the plaintiff contends, is that the approved timber agreement entered into with Eagon Resources is invalid and unenforceable as being contrary to the statutory provisions and forms. On behalf of the defendants, it was submitted that, even admitting the existence of such differences or discrepancies, they are not so substantial as to invalidate the agreement in question. For this reliance was placed on s.53 of the Interpretation and General Provisions Act 1978, which provides;

“53. Where a form is prescribed for use, the use of the form is not invalidated by any variation or alteration of the form that is not calculated to mislead and does not affect the substance of the form.”

In his submission on the matter, Mr. Sullivan of counsel for the respondents referred particularly to Crowley v. Templeton [1914] HCA 6; (1914) 17 C.L.R. 457, 466-467, and Gibb v. Registrar of Titles (Victoria) [1940] HCA 15; (1940) 63 C.L.R. 503, as recognising a distinction between an agreement (meaning the substance of the contract) and its verbal form. Those two decisions were, however, concerned with the rather different matter of the form of instruments to be registered under the Torrens System, which in this particular is to a large extent governed by considerations of convenience, whereas here many of the statutory requirements obviously contain a strong element of social and economic purpose aimed at protecting customary landowners and the environment from undue exploitation. In that respect reference may be made to s.9(3) of the Interpretation Act, which requires an Act to be interpreted according to its true intent, meaning and spirit.

13. The amending Regulations of 1985. In any event, there is in the amending Regulations of 1985 another Schedule, which is designated Schedule I. It is necessary he e to set it out in full.

SCHEDULE I OVERALL CONDITIONS TO BE IMPOSED ON COMPANY AS A PRECONDITION FOR ANY LOGGING IN SOLOMON ISLANDS

The licensed area shall be restricted to.................. only in the first instance. Other areas can be considered later once the company has established itself and shown how it will perform.

The Company shall be required to produce a general 5 year operation plan and a specific yearly plan thereafter for the duration of the operation, covering road development and the phasing of its logging and other operations to the Province and MNR for approval before it commences logging.

All agreements between the Co. and landowners shall be made on the approved standard agreement form ............................to be specified in the Licence, with such additions or amendments to the negotiable conditions as the two sides shall agree. All clauses must be completed and none may be deleted. Clauses open to negotiations are:

18 Exclusion of species, 21 Reafforestation, 29 Wages & conditions, 31 Royalty (percentage only, new method of assessment) 34 Method of Payment.

The Licence shall require the company to observe the following procedure when negotiating any agreements with landowners (after the completion of Form 11 by the .................... Area Council).

(a) Copies of the 5 year plan and road plan to be made available to each land holding group before negotiations commence for any particular area.

(b) A preliminary meeting shall be held by the company with representatives from Forestry Division and the Province present. The company will explain its plans for the area and intended timing, and the terms and conditions proposed. No agreement may be signed at this stage.

(c) Notices and maps shall be published at important places in the area for 2 months advising people of the plans, date and place for negotiating the agreement.

(d) On the specified date the Company shall negotiate with the chosen representatives of the landowners in public, with legal advisor to the landowners, and representatives of the Province and Forestry Division present as observers. If agreement is reached, the Company and not less than 5 representatives chosen by the landowners shall sign an agreement in the approved form with such insertions, deletions or additions as the two sides agree but see 3, shall in accordance with the Company’s licence and the standard agreement Form ..........It shall be a condition of all agreement that one copy must be deposited with the Province and one copy with Forestry Division MNR within 14 days of being signed.

It shall be a condition of the Licence that no felling or logging shall take place above 400 metres except on any plateaus or level land for which specific prior approval has been granted in writing by the Conservator of Forests after his consultation with the landowners.

The Minister of Natural Resources shall appoint all Government Forestry Officers and Inspectors for the purposes of enforcement of the provisions of the River Waters Act.

The Minister of Natural Resources will need to consent to Forestry Officer assisting landowners to check on measurements of logs and assist landowners to monitor the Company’s performance of its obligations under the logging agreements.

The Public Solicitor’s Office will need to consent to assist landowners (a) in negotiations, (b) in serving enforcement notices or court proceedings arising from the agreements and (c) in assisting landowners to set up trustee bank accounts and to act as a mandatory signatory for any withdrawals from such accounts to ensure they are for approved purposes.

“This agreement is made between ...............................................................

...........................................................of ..................................................................

(the grantor) and

............................................................of ........................................................................

...............................................of ....................................................................

.............................................of .....................................................................

..............................................of............................................................................................

being the chosen representatives (the grantee) of the the

...............................................of ....................................................................

From this it will be seen that para.(3) of Schedule I requires all clauses to be completed and that it distinguishes between terms that are, and those that are not, “open to negotiation”, Plainly what is intended is that, with the exception of those specified, other clauses in the Schedule are not capable of variation by agreement.

14. Particular inconsistencies. A number of provisions and clauses in the subject timber rights agreement that diverge from those prescribed in Form 4 were identified in the course of the hearing before us. Without setting out to be exhaustive, they include, for example, cl.7 which in the form agreed would permit extraction of gravel not only from rivers, but from the sea as well, which is not authorised in the corresponding clause in prescribed Form 4; cl.8, which omits the absolute prohibition against felling of trees on slopes of 30◦ and above; cl.12, which omits part of the prescribed requirement that stockpiles of gravel be left for repairs “that may be necessary within the next 5-10 years”; cl.15, which purports to reduce the depth of furrowing required below that prescribed in the regulations; cl.l6, which substitutes “close” felling for “directional” felling of timber; cl.17, which slightly varies the penalties for wasted logs, and substitutes “try its best” for the unqualified obligation as prescribed to extract logs within 3 months of felling; cl.20, which omits both the obligation to establish contour skid trails, and the prohibition against felling mangrove species; cl.20, which in the form agreed consigns reafforestation measures entirely to future discussion; c1.31, which substitutes a sliding scale of royalty payments for that prescribed; c1.32, which purports to relieve Eagon Resources from producing “monthly” statements of production figures; and the addition by cl.38 of the approved agreement of a requirement of notice before action that is not found in the prescribed form. It may also be observed that the approved agreement in the case of Volekana 1 appears to be signed by only four landowners, whereas cl.(4)(d) of Schedule I provides:

“If agreement is reached, the Company and not less than 5 representatives chosen by the landowners shall sign an agreement in the approved form with such insertions, deletions or additions as the two sides agree but see 3, shall in accordance with the Company’s licence and the standard agreement Form ....”

The words “see 3” in para.(4)(d) are clearly enough a reference back to para. (3), headed Form of Agreement with Landowners, which limits the extent of permissible variations or departures from the Schedule.

15. Legal effect of inconsistencies. Several questions arise. The first concerns the legal effect of the departures or variations from the prescribed Form 4 and associated regulations. The consequence of failing to comply with the provisions of the Form and Regulations is not expressly stated in the Act or Regulations; but it can scarcely be doubted that it results in the invalidity of the timber agreement. At least that is so in the cases of departures that are not among those specifically authorised in para.(3) of Schedule I, which confines the variations permitted to cll.18, 21, 29, and (in part) cl.34 of “the standard agreement form”, which is evidently a reference to Form 4. With the exception of c1.34, which involves a departure from the corresponding term in Form 4 that is only partial, none of the other variations in the Volekana 1 agreement is authorised by para.(3) of Schedule I. Minor variations in the terminology even of those clauses might, it may be conceded, be covered by the provisions of s.53 of the Interpretation and General Provisions Act, and as such might fairly be disregarded. But when regard is had both to the number and the status or character of the particular clauses involved in this instance, it is really not possible to say that, in the approved agreement concerning Volekana 1; the substance of the prescribed form has been preserved or is not affected. To take only one example, the omission in cl.8 of the prohibition against felling of trees on slopes of 30° and above (which is evidently directed to preventing degradation by erosion of land denuded of its protective vegetation by the felling of trees) is plainly a matter of substance and not merely of form. It is not necessary to identify other instances of a comparable kind, but they can readily be picked out by comparing the terms of the approved agreement with the terms of the prescribed agreement in Form 4.

16. Power to make regulations. Omission of a step in the procedure laid down in Part IIA of the Act was in Beti v. Allardyce (1992) CAC 5/92, at pp.1l-12 held to invalidate the ensuing timber agreement. There the step omitted was non-receipt by the Commissioner of the certificate required by what is now s.5F; but it is difficult to see why failure to adhere to the substance of the terms prescribed in the Form 4 agreement should not have a like consequence. The existence of a valid timber rights agreement, is, for reasons already pointed out, an indispensable prerequisite of a valid licence. Without it there is no right to enter on customary land or to fell and remove trees from it. But, said Mr. Sullivan, if that is so, the regulations exceed the statutory power to make them and so are ultra vires and invalid. An examination of the Act, however, shows this not to be so. The regulation-making powers contained in s.5H and s.33(1) are extensive in their scope. Section 5H authorises the Minister to make regulations for carrying out the provisions of Part IIA, and in particular for:

(b) the form of agreements which may be approved under this Part and the manner in which they are to be executed;

(f) the rates of royalty payments, the method of calculation and the manner of payment thereof;

(h) the manner and nature of reforestation so as to protect the timber industry;

(i) prohibiting or regulating the taking of any specified kind of timber form any customary land ...”

The more detailed regulation-making power conferred by s.33(1) of the Act authorises regulations to be made in para.(a), providing for “forms of licences ... and the terms and the conditions to which they may be subject”; in para. (m)(A), requiring persons licensed under the Act (ii) to construct, repair and maintain roads and bridges for the purpose of access to land for felling trees and removing timber; and in para.(r), prohibiting (i) the felling and removal of any protected tree; and (iv) logging of forests above 400 metres above sea level.

17. Schedule I. Some comment was made in the course of the hearing about the form of Schedule I. Its form, and to some extent, its language are at some points a little curious. It is not in terms specifically related to any designated section of the Act or regulations. But that is equally true of the other subsidiary Schedules A to H promulgated by the amending regulations of 1985, and it raises no suspicions about their statutory validity. Indeed, a scrutiny of the provisions of Schedule I suggests that its contents are simply a further series of regulations or prescriptions designed to govern the making of a Form 4 timber agreement.

It is noteworthy that the heading to Schedule I is “Overall conditions to be imposed ...”, which are to be implemented either by way of (a) conditions in the licence; or (b) “by an SI Govt/... formal agreement”. Schedule I adds that the matters that follow in paras. (1) to (4) “should be provided for or made legally binding”. Presumably the choice of alternative depends on whether they are made and take effect as conditions of a licence or as provisions of an agreement. Recent practice has been to incorporate them in the timber rights agreement rather than in the licence, which accords with what has already been said about the function of that agreement in the statutory scheme of things; but the two instruments are to some extent interrelated if not interdependent.

18. The plaintiff’s interest in the agreement. Considering all these matters together, the only legitimate conclusion is that the relevant regulations and forms associated with timber rights agreements under the Act are fairly within the scope of the statutory regulation-making powers of the Minister and so are valid. That does not mean that the plaintiff is bound to succeed on his claim for an interlocutory injunction. For that, he must begin by showing an arguably sufficient interest to entitle him at trial to challenge the validity of the agreement. Speaking generally, the validity of a contract may be impugned only by a person who is a party to it. A stranger is not ordinarily entitled to intervene in or challenge the contractual arrangements of others unless he or she is directly affected by them: cf. Amon v. Raphael Tuck & Sons [1956] 1 Q.B. 357. It is here that the problems confronting the plaintiff make their presence felt. Possession of land in the area might well have amounted to a sufficient interest to invest him with standing to challenge the validity of the agreement; but it is conceded that there is no evidence that he or those he claims to represent are in possession of any of the land claimed by him on behalf of the Dali Tribe. Ownership of the land or an interest in it would probably be enough; but the determination of the Area Council was that, for the purpose of entering into a timber rights agreement, the plaintiff and the Dali people had no rights of ownership or interest in the subject land. To establish a sufficient interest the plaintiff now seeks to question that determination by showing that he or the Dali people have at least an arguable claim, susceptible of favourable determination at a trial of this action in the High Court, to an interest as customary owners of the land.

19. Exclusion of jurisdiction. A serious obstacle to pursuing such a claim in the High Court arises from the provisions of s.231 of the Land and Titles Act (chap. 93), which is as follows:

“231. (1) a Local court shall, subject to the provisions of this section and sections 8D, 8E, 8F 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.”

Sections 8D, 8E and 8F provide, it may be noted, for a system of mediation of customary land disputes, in the first place by the chiefs, meaning the traditional leaders residing within the locality.

20. The jurisdiction of the High Court. On the face of it, s.231(1) appears to prevent the High Court from entertaining a claim like that advanced by the plaintiff in respect of the subject land. It is acknowledged to be customary land, and the plaintiffs claim to or in respect of it in this action is “a matter or proceeding of a civil nature” affecting or “arising in connection with” that land. In Allardyce Lumber Co. Ltd. v. Anjo (1997) CAC 8/96, at p.l0 [12], this Court said that the High Court had no jurisdiction to deal with questions of ownership of customary land for the purposes of a licence under the Forestry Resources and Timber Utilisation Act. The reason for denying the Court’s jurisdiction was not expressly identified, but it almost certainly was s.231(1). On the appeal before us, Mr. Watt of counsel for the plaintiff submitted that on this point the decision in Anjo was incorrect and should be overruled, along with the later decision of this Court in Mega Corporation Ltd. v. Kile (1997) CA 1/97, which is said to have followed it. Reasons of constitutional law were advanced for adopting that course. Reliance was placed on s.77(1) of the Constitution of the Solomon Island, which provides:

“(1) There shall be a High Court for 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.”

The High Court having by Con. s.77(1) been invested with “unlimited original jurisdiction”, it was not, Mr. Watt submitted, competent for s.231(1) of the Land and Titles Act (or any other legislation short of a valid constitutional amendment under s.61) to qualify or limit that jurisdiction at all, or in the way it purports to have done.

20. Legislative power to exclude jurisdiction. It may be doubted whether, properly interpreted, s.77(1) of the Constitution was designed to have quite such an impregnable character as the plaintiff’s submission suggests. Provisions in the form of s.77(1) are a common method of investing a superior court with the general jurisdiction of the courts at Westminister. It would be surprising (and certainly inconvenient) if, as a result, the Parliament of Solomon Islands was, without first amending the Constitution, permanently precluded from legislating to devolve any aspect of that jurisdiction to some other court ,or tribunal, and of doing so exclusively of the jurisdiction of the High Court. When regard is had to s.75(1) of the Constitution, there is even less reason for reaching such a conclusion in relation to the provisions of s.231(1). Section 75(1) provides:

“(1) Parliament shall make provision for the application of laws, including customary laws.”

That s.231(1) of the Land and Titles Act is, within the meaning of Con. s.75(1), a provision for the application of customary laws cannot be doubted. It is true that it was in the first instance not made by Parliament but was originally part of an Ordinance passed before the Constitution was adopted on independence in 1978. Clause 5(1) of the Solomon Islands Independence Order 1978, to which the Constitution is scheduled, expressly provides, however, that existing laws are to have effect on and after independence “as if they had been made in pursuance of the Constitution ...”. Since independence, the Land and Titles Ordinance has been redesignated an Act of Solomon Islands, and Parliament has more than once recognised it as such in the course of subsequently amending it. In that way, it may properly be considered a provision made by Parliament for the application of customary laws.

21. Legislative power over customary laws. In addition, s.75(1) of the Constitution embodies a grant to Parliament of an independent head of legislative power. The power is specific as to subject matter (“application of ... customary laws”) and is mandatory in its terms. There is therefore no rational basis for construing it as limited by or subsidiary to, or for otherwise according constitutional primacy to, the provisions of Con. s. 77 (1). In addition, however, Mr. Watt’s submission fails to take account of the express terms of s.76 of the Constitution, which provides:

“76. Until Parliament makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands - (c) of customary law; ...”.

“3. - (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.

(2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.

(b) regulate the manner in which or the purposes for which customary law may be recognised; and

Schedule 3 and its provisions form part of the Constitution and are equal in status to other provisions in it. In providing that a local court is, subject to ss.8E, 8E and 8F of the Local Courts Act, to have exclusive jurisdiction in civil proceedings arising in connection with customary land, s.231(1) of the Land and Titles Act does no more than provide for or regulate, within the meaning of c1.3(3) of Schedule 3, the proof or the manner in which, and the purposes for which, customary law is in this particular to be recognised, and the resolution of conflicts of customary law provided for. There is therefore no justification for regarding s.231(1) as being in conflict with s.77(1) of the Constitution and invalid. To the extent that a different view may have been adopted by Commissioner Crome in Fugui v. Solmac Construction Co. Ltd. [1982] SILR 100, 104, the decision should on this particular point not now be regarded as authoritative.

22. Jurisdiction over approved agreements. What Parliament removes with one hand, it may, however, restore with the other. If the jurisdiction of the High Court in relation to disputes over customary land is excluded by s.231(1) then, so Mr. Watt submitted, the jurisdiction of the Court has been returned to it by s.5J of the Forest Resources and Timber Utilisation Act. It provides:

“5J. Notwithstanding any provision of any other law to the contrary, original jurisdiction to hear and determine any cause or matter arising out of, or relating to an approved agreement shall be exercised only by the High Court.”

Section 5J is contained in Part IIA of the Forest Resources etc. Act, and was introduced by amendments adopted by Parliament in 1990 and 1991. As such, s.5J is a later provision than s.231(1) of the Land and Title Act, and therefore to the extent of its operation prevails over the provisions of s.231(1). Mr. Watt was disposed to submit that it repealed s.231(1) altogether, and so restored the jurisdiction of the High Court in respect even of disputes as to ownership of customary land “in any cause or matter arising out of or relating to an approved agreement” under the Forest Resources etc. Act. Such an interpretation of s.5J is a possible one; but it seems unlikely that it represents the intention of Parliament. The two provisions are not irreconcilable. It is true that s.5J confers jurisdiction in any “matter ... relating to” an approved agreement, and that both “matter” and “relating to” are expressions of wide import. But the starting point of s.5J is an approved agreement under Part IIA, and, in the absence of express repeal, it would be wrong to begin by assuming a legislative intention to retract the exclusive jurisdiction of local courts over disputes about ownership of customary land, or to limit it further than is necessary for the occasion. Indeed, the contrary intention is clearly implicit in the contemporaneous enactment in Part IIA of the provisions of s.5E(l), which expressly confer a right of appeal to the customary land appeal court having jurisdiction in the area; and of those in s.5E(2), which make the decision of such a court not only final and conclusive but prevent it from being questioned in any proceedings whatsoever. The effect of that subsection is, as we have seen, to exclude the jurisdiction of the High Court to issue certiorari in respect of a decision of a customary land appeal court given in the exercise of jurisdiction under that provision or its earlier equivalent. See Talasasa v. Biku (1988) CAC 2/1987, at 4-5 and Paia v. Talasasa [1980/81] SILR 93, approved by this Court in Beti v. Allardyce Lumber Co. Ltd. (1992) CAC 5/92, at p.9.

23. Extent of jurisdiction. It is in our opinion not essential on this occasion to investigate in detail the limits of the jurisdiction invested by s.5J, beyond saying that it should not be considered as authorising the High Court to decide questions of ownership of customary land simply because in proceedings in the High Court relief is sought by way of injunction in relation to an approved agreement under Part IIA. Under the provisions of ss.5E(1) and 5E(2) of Part IIA such a question is to be determined finally and conclusively in the relevant customary land appeal court, whose decision with respect to it creates an estoppel between the parties to it. See Beti v. Allardyce Lumber Co. Ltd. (1992) CAC 5/92, to which reference has already been made on this point. It is true that the jurisdiction of such a court is, by s.6 of the Local Courts Act, confined to “causes and matters in which all the parties are islanders resident or being within the area of the jurisdiction of the court”. A foreign logging company, like the respondent Eagon Resources, would as such have no right to be a party to such proceedings. But its claim to enter upon and to fell or remove timber from customary land is necessarily dependent on the right, if any, derived by it from the customary landowners with whom it claims to have made a timber rights agreement. The status of its right to enter and log cannot in law transcend the title of those from whom it claims by agreement to have acquired that right with whatever weaknesses it involves. As has been remarked elsewhere, a timber licence, and in turn a timber rights agreement, rely for their efficacy on the title of the customary land owners entitled to the timber on that land.

24. Effect of ownership dispute on s.5J jurisdiction. It does not follow that, simply because there is a dispute or question about ownership of customary land, the High Court is deprived of its jurisdiction to grant relief by injunction. Section 5J expressly confers jurisdiction in relation to an approved agreement, and a local court lacks the power to grant injunctions whether interlocutory or otherwise. That being so, the applicable principle is well settled. It is that “nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is expressly so alleged”: Peacock v. Bell [1845] EngR 175; (1667) 1 Wms. Saund 69, 74; [1845] EngR 175; 85 E.R. 81, 87-88, applied in Mayor of London v. Cox [1867] UKLawRpHL 17; (1867) L.R. 2 H.L. 239, 259. See also D.M. W. v. C.G.W. [1982] HCA 73; (1982) 151 C.L.R. 491, 509. It is within the jurisdiction of the High Court, but not of a local court, to grant injunctions, and the Court has under s.5J the power to do so in relation to an approved agreement under Part IIA.

25. Function of Court injunction. 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. Pending decision of that dispute in the local or customary land court, proceedings in the High Court would ordinarily be stayed on appropriate terms. Whether or not the Court would be prepared, pending the decision of the local court, also to grant an interlocutory injunction to restrain entry on, and felling and removal of timber from, the land in question depends on the circumstances, including in part the Court’s assessment of the plausibility of the plaintiff’s claim to ownership of that customary land and the prospects of its succeeding in the local court. Making such an assessment for the purpose of deciding whether to grant or withhold such relief involves no usurpation by the High Court of the exclusive jurisdiction of a local court under s.231(1) of the Land and Titles Act. Jurisdiction means the power to hear and determine a matter or proceeding, which is not the function that the High Court would be performing in deciding whether or not to grant an interlocutory injunction according to general principles of law and equity. Section 231(2) of the Land and Titles Act, it may be noticed, contains an express power to refer a matter direct to a local court; but, standing on its own, the provision has been said to be of doubtful efficacy. See Teteha v. Registrar of Titles [1980/81] SILR 209 at 216. It is improbable that its imperfections can be cured by resorting to 0.38, rr.14-21 of the High Court (Civil Procedure) Rules 1964, unless it is possible to regard a local court as capable of being a “referee” under those provisions. Were it not for that defect, the High Court might, in some proceedings before it in which an injunction is sought to restrain a trespass on customary land arising out of an approved agreement, be disposed under s.231(2) to refer a question of customary ownership direct to the appropriate local court for its decision; and, in the meantime, to restrain further entry on and removal of timber from that land. As it is, such a result can be attained indirectly by using the procedure of injunction and staying the action discussed above.

26. Correctness of decision under appeal. With these considerations in mind, it is possible to turn at last to the precise question on this appeal, which is whether the learned judge at first instance was wrong in exercising his discretion to discharge the interim injunction rather than to extend it to the trial of the action. From what has already been said, it emerges that the primary obstacle confronting the plaintiff was and is his apparent lack of standing to challenge the timber rights agreement, to which he is not a party, entered into by Eagon Resources with respect to the subject land. A land owner whose title is not disputed has been said to be prima facie entitled to an injunction to restrain intrusions on to his land: Patel v. W.H. Smith (Eziot) Ltd. [1987] 1 W.L.R. 853; [1987] 2 All E.R. 569; but the plaintiff’s claim as customary owner to an interest in the land in question is very far from being undisputed. It was rejected by the East Choiseul Area Council in the course of its determination under Part IIA. It is true that the determination by the Area Council to that effect is neither final nor binding, nor such as to raise an estoppel by judgment against the plaintiff or anyone else; but in seeking an injunction it is not the most advantageous position from which to start. In addition, the plaintiff did not under s.5E(1) of the Forest Resources etc. Act appeal against it. He claims he took steps to institute such an appeal to the customary land appeal court; but there is no record of his notice of appeal having been received by the court either within the time limited for appealing or at all. Nor has the plaintiff, at any time since the Area Council determination, sought to exercise whatever other rights he may have to bring the dispute about ownership before the local court pursuant to s.6 of the Local Courts Act. Indeed, it was only when he instituted the action in the High Court that his claim to an interest in the land in question was re-asserted.

27. Character of interest claimed. In determining whether an injunction should be granted or continued, the learned primary judge was entitled, if not bound, to take into account this history of inactivity or inaction on the part of the plaintiff in pursuing his claim to be interested in the land as customary owner. It was a factor relevant to the discretion which his Lordship was exercising to grant or withhold the relief sought by way of injunction. Moreover, it was not until the inter partes hearing between the parties in the High Court that the plaintiff for the first time relied on the claim in the form in which it is currently put forward. It is now asserted as a customary claim by the Dali Tribe arising out of luabani, which refers to land given as a dowry or bride price on marrying into the tribe, and intingini, which is a right to recall the gift if its source or origin is denied. For the purpose of assessing its status as an interest in land capable of supporting a claim to impugn the timber rights agreement and attracting an injunction restraining entry on, and felling and removal of timber from, customary land, it is not altogether easy, nor even necessary, to identify it with any corresponding interest in land at common law; but, on any view of it, the claim or interest now asserted by the plaintiff is contingent and remote, and not of a direct or present kind that would readily call for an injunction to restrain trespass or even waste at common law. The fact that, whatever its true character, its existence has not yet been recognised in proceedings before any tribunal or court is a cogent reason for saying that the question of ownership ought first to have been passed upon in a customary court before it was made the basis of the plaintiff’s claim for an injunction in the High Court.

28. No question to be tried. In these circumstances Palmer J. was plainly justified in concluding that, without a favourable determination in the customary court, and in the absence of any indication of a present intention on the part of the plaintiff to seek a determination in that forum, there was, in the action instituted in by the plaintiff in the High Court; no serious question to be tried concerning the validity of the timber rights agreement to which he was not a party. The result might conceivably have been different had the plaintiff undertaken in appropriate terms in the High Court to prosecute, in a court having jurisdiction in the matter, his claim on behalf of the Dali Tribe to an interest in the Volekana 1 land; but nothing of that kind was suggested either at the hearing below or on this appeal.

29. Nola land. So far, we have confined our attention primarily to the Volekana 1 land; but what has been said applies with equal force to the Nola customary land, in respect of which a similar claim was made and injunction sought by the plaintiff. The claim to an injunction in respect of that land must inevitably share the same fate.

30. Result of appeal. The result is that the learned judge was correct in refusing to grant the injunction sought and in discharging the interim injunction previously granted. The appellant has succeeded, although only to a limited extent, on his submissions, but he has failed on the principal question raised both here and in the court below. The appeal should be dismissed with costs.

Court of Appeal of Solomon Islands

Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999)