Veno v Jino [2006] SBCA 22; CA-CAC 002 of 2004 (12 April 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ)

COURT FILE NUMBER: Civil Appeal No 002 of 2004 (On Appeal from High Court Civil Case No 152 of 2003)

DATE OF HEARING: 20 July 2005

DATE OF JUDGMENT: 12 April 2006

THE COURT: Lord Slynn of Hadley P, Brown and Adams JJA.

PARTIES: STEVEN VENO AND GORDON YOUNG (Appellants)

-v-

OLIVER JINO, RAEVIN REVO, ALBERT LEGER, ANDREW LANDA MURRAY, SETH PIRUKU AND WUITLYN VIULU (First Respondents)

ORION LIMITED (Second Respondent)

ADVOCATES:
Appellants: John Sullivan QC with Rodney Kingmele.
Respondent: Phillip Tegavota

KEY WORDS: Appeal against refusal to grant interlocutory injunction- logging on customary land- standing of appellants to seek relief in the High Court.

PAGES: 13

BY THE COURT

Introduction

1. Steven Vino and Gordon Young (the appellants) applied in the High Court of Solomon Islands for an interlocutory injunction to restrain Oliver Jino, Raevin Revo, Yalu Revo, Albert Legere, Andrew Landa Murray, Seth Piruku and Wiutilyn Viulu (first respondents) and Orien Limited (second respondent) from commencing and carrying out any logging operations over Havahava customary land, located at Vangunu Island, Western Province. The application was heard by Palmer CJ. His Lordship refused upon the ground that, in the circumstances, there was no jurisdiction to grant injunctive relief. His Lordship also concluded that that the appellants lacked standing. The appellants submit in this Court that these conclusions are wrong and seek consequential orders.
   

Factual Background

2. The factual background is not disputed in any substantial way. The learned Chief Justice succinctly but adequately set it out in his Lordship’s judgment, from which what immediately follows is largely taken.
   
3. The appellants claim to be members variously of the Luma and Kavele clans said to comprise the Veala tribe which owns the Havahava customary land. They say that they, together with Albert Legere, John Legere, Michael Honda, Stanley Sidiki and Andrew Landa Murray invited Omex Limited (Omex) to conduct logging operations on Havahava land. An application in the form prescribed by the Forest Resources and Timber Utilisation Act (the Forest Resources Act) was lodged by Omex with the Commissioner of Forests. This application sought approval for a negotiation to acquire timber rights. A hearing, called a timber rights hearing, was duly convened in accordance with s 8 of the Forest Resources Act. Sub-section 8(3) requires the appropriate Government, to "discuss and determine with the customary landowners and the applicant" a number of specified matters, including "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...". On 18 September 2002 a certificate in the prescribed form was issued which listed Albert Legere, John Legere, Michael Honda, Stanley Sidiki and Andrew Landa Murray (the proposed landowners) as the persons lawfully entitled to grant timber rights over Havahava land. The appellants, as is obvious, were not named as members of this group.
   
4. The determination as to the identity of the lawful landowners was appealed against by Raevin Revo, Yalu Revo and Seth Piriku (objectors) on behalf of themselves and others who disagreed with it, utilizing the appeal provisions contained in the Forest Resources Act. On 17 April 2003, before the appeal came on for hearing, both the proposed landowners and the objectors consented to a judgment for the Western Customary Land Appeal Court (CLAC) to endorse. That consent judgment identified, as the persons representing all those entitled to grant timber rights over Hauahaua land, Raevin Revo, Yalu Revo, Seth Piriku, Andrew Landa Murray, Oliver Jino and Wiutilyn Viuku (the land trustees). The consent judgment provided amongst other things, that immediately upon the approval of the CLAC being given to the judgment, "the appellants shall file notice to discontinue appeal". For reasons stated in due course, this provision is of crucial importance in correctly characterising the nature of the proceedings and the judgment. That there was no determination on the merits was made clear by the letter of 17 April 2003 from Mr Maina, the Clerk to the CLAC to the Commissioner of Forests. Mr Maina informed the Commissioner that "[t]he appeal...was amicably sorted out by the parties and the CLAC(W) has entered their settlement as consent judgment of the court today the 17th April 2003". That consent judgment necessarily involved acceptance of the discontinuance of the appeal, which was a term, indeed, we would infer, a crucial term of the settlement and the consent judgment.
   
5. It should be noted by way of context that, in the meantime on 26 March 2003, the proposed landowners and the objectors had written to Omex "revoking" any "authority, consent and permission" to Omex to acquire timber rights and declining to negotiate further with it over timber rights. This was followed on 17 April 2003, namely, after the consent judgment, by another letter in similar terms. The land trustees entered into negotiations with the second respondent (Orion) in connection with logging operations on Havahava land. On 22 April 2003 the land trustees lodged a submission with the Commissioner for the purpose of enabling negotiations with Orion. On 23 and 28 April 2003, they met with the Commissioner to discuss the matter. His consent was obtained for a timber rights agreement to be entered into with Orion. This agreement was signed on 29 April 2003 and a licence issued to Orion under the Forest Resources Act on 9 May 2003.
   

The significance of the consent judgment

6. Where the dispute concerns or arises out of the matters covered by the Forest Resources Act, disputes over customary ownership or other rights may fall to be determined by the relevant CLAC. The Act provides as follows –
   

"10. (1) Any person who is aggrieved by the determination of the appropriate Government made under section 8(3)(b) or (c) may, within one month from the date public notice was given in the manner set out in section 9(2)(b), appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.

(2) Notwithstanding any provision to the contrary in any other law, the order or decision of a customary land appeal court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

7. Provisions such as s 10(2) of the Forest Resources Act are frequently found in legislation creating specialist tribunals for determining disputes of particular kinds. Variously labelled "privative", "exclusionary" or "ouster" clauses, they do not, as phrased in the provision we are presently considering, prevent courts of general jurisdiction from examining the proceedings conducted by such a tribunal for certain limited purposes. A useful starting point for a consideration of the supervisory powers of courts of general jurisdiction is Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 but it is not necessary to deal with this matter in the present case since it is not suggested that the CLAC acted in excess of its jurisdiction.
   
8. In this case, the proceedings in the CLAC were brought to an end by the approval given to the consent judgment to which the parties had agreed. As has been noted above, it was a term of that judgment that the appeal should be discontinued. It follows that no appeal was, to use the language of sub s 10(2), entertained by the CLAC. The approval of the CLAC, therefore, was not a decision or order within sub s 10(2) – that is, on an appeal entertained by it – but only a decision or order to the effect that the appeal would not be entertained by it, in accordance with the consent judgment. It follows that the consent order, though binding on the parties to it in accordance with its terms, is not protected by s 10(2).
   
9. It should be observed that the terms of s 10(1) grant jurisdiction to the CLAC to "hear and determine" appeals. Where an appeal is brought to an end by agreement, it is self-evident that the CLAC has not determined the appeal: it has been determined by the parties. That is not to say that the CLAC has no power to dispose of an appeal by approving such an agreement. However, it seems doubtful, to say the least, that the protection given by sub s 10(2) applies to decisions or orders of the CLAC that are the result of agreement between the parties rather than determination of the CLAC on the merits. It is not necessary in this case to decide this particular issue and we do not do so, in part because the facts are simplified by the term of the consent judgment discontinuing the appeal.
   
10. So far as the processes relating to customary land ownership are concerned as provided for by the Forest Resources Act, they have been completed: firstly, by the decision of the Western Province Executive and, secondly, by the discontinuance of the appeal. The timber rights issues have thus been settled. The plaintiffs did not seek to appeal to the CLAC. As the learned Chief Justice rightly pointed out, this has a direct bearing on whether there were serious issues for determination requiring the intervention of the adjectival jurisdiction of the High Court.
    

The appellants take action

11. The appellants, in substance, dispute that the trustees represent all those entitled to customary rights over Havahava land and assert furthermore that some of them have no customary rights in respect of the land. The respondents claim that the plaintiffs have no rights in the land. The appellants accordingly took the dispute to the Marovo Council of Chiefs. However, on 18 September 2003 the Council made a determination in favour of the first defendants. For reasons which are not clear, the successful parties in the proceedings before the Council notified the Local Court, using the prescribed Form 1, that the decision of the Council of Chiefs was not wholly acceptable to all the parties involved in the dispute. It appears that, as it happens, the decision was indeed not wholly acceptable to all the parties. As we have already mentioned, the appellants claim both that they have a customary interest in the relevant land and that some of the land trustees have no interest in it. We deal with the significance of the notification below.
    
12. It may be worth noting that, if there had indeed been a decision or order within the meaning of sub s 10(2) of the Forest Resources Act, that provision would have prevented the local court from hearing any dispute as to the matters heard and determined by the CLAC. It may be also that the sub section is wide enough – by the generality of the words "any proceedings whatsoever" – to comprehend and thus prevent a consideration by the Chiefs of a customary land dispute raising the same or cognate issues. However, we do not need to determine this question and say no more about it. In this case, for the reasons that have been given, there was no order or decision within sub s10(2) and thus nothing to prevent the Chiefs considering the dispute that was referred to them and which they decided adversely to the appellants.
    

The lodgement of the Form 1 in the local court

13. Section 254 of the Land Titles Act (Cap 133) gives exclusive jurisdiction (for present purposes) to the local court "in all matters and proceedings of a civil nature affecting or arising in connection with customary land...", subject to s 12, 13 and 14 of the Local Courts Act, [Cap 19]. Those sections concern the functions of the Chiefs in relation to the determination of disputes over customary land. The specific provisions of the Forest Resources Act, to which we shall shortly come, create another exception to the exclusive jurisdiction of the Local Court in disputes over customary ownership.
    
14. It is clear that customary land disputes do not fall within the jurisdiction of the High Court to determine, except to the limited extent to which an appeal on a pure question of law or concerning procedural requirements lies to the High Court from the decisions of a CLAC (under s 256 of the Land Titles Act). Nevertheless, in certain circumstances, the High Court has jurisdiction in connection with the determination of customary land disputes, where it is necessary or desirable for it to act in its general jurisdiction to ensure the integrity of the statutory processes, for example, where the local court is acting outside its statutory charter. It is unnecessary for present purposes to describe the extent of this jurisdiction. As has been already mentioned, in this case, the appellants sought injunctive relief in the nature of a stay until the local court had determined what was claimed to be an outstanding dispute.
    
15. Fundamental, therefore, to the appellant’s case is the existence of current proceedings in the local court. It is evident that no such proceedings were current. All that had occurred was the production of a certificate in the prescribed Form 1 as provided in s 12 of the Local Courts Act. Section 12 is in the following terms –
    

"12 (1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that –

(a) the parties to the dispute had referred the dispute to the chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

(2) It shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.

(3) In addition to producing a certificate pursuant to subsection (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out –

(a) the extent to which the decision made by the chiefs is not acceptable; and

(b) the reasons for nor accepting the decision."

15. The crucial jurisdictional facts that must be established before the local court can hear and determine any customary land dispute are the matters specified in paras 12(1)(a), (b) and (c). The mere existence of these facts is not sufficient to invoke the jurisdiction of the local court. To use the language of sub s 12(3), a party must refer the dispute to the local court. The section takes effect when a party has referred the dispute and assumes that such a referral has occurred. There is nothing in the Form that suggests its production commences the proceedings or effectuates a referral: its purely evidentiary effect is specifically stated by the section itself. In short, a party must first commence proceedings in the local court before the existence of any jurisdictional fact becomes material. In terms, the production of a Form 1 Certificate does not commence proceedings: Muna v Holland Billey & anor [2003] SBHC 9; CC 284/2001, Brown J. The certificate simply facilitates proof that the jurisdictional facts required by paras 12(a) and (c) have occurred. It may be that such a certificate not only facilitates proof that the requirements have been fulfilled but is the only mode of proving those facts, but whether that is so does not matter in this case. In our opinion, the mere lodgement of a Form 1 does not refer any dispute to the local court, either in form or in substance.
    
16. The Local Courts Act does not in any substantive way make provision for the commencement of proceedings, no doubt in order to reduce formalities and permit its functions to be invoked by persons who need its assistance to vindicate their rights but who may be completely unfamiliar with court proceedings and might baffled or frustrated by bureaucratic procedures. At the same time, the civil jurisdiction of the court is defined in s 8 of the Act in legalistic language designed (as we are minded to think) to bring to the court’s attention in a precise way what matters it is authorised to hear and determine. Precision of this kind is also essential to permit the High Court to exercise its supervisory functions appropriately.
    
17. The Second Schedule to the Local Courts (Forms) Rules prescribes a summons to be used for the commencement of proceedings and makes specific reference to s 8(1) as the provision to which the form relates. The prescribed form identifies the parties (as plaintiff and defendant) and requires the details of the matter in dispute to be identified. The form of the summons is to be signed by the Court Clerk and specify the date and place of hearing. Provision is made for notification of service by the Constable. It seems clear that the summons is obtained at the instance of the plaintiff for the purpose of invoking the court’s jurisdiction. The Local Courts (Fees in Civil Cases) Rules prescribes the payment of a fee of $5 for a summons and, in any cause or matter involving a customary land dispute, the fee of $50.
    
18. Having regard to the nature of the Act, we would not be prepared to say that the issuing of a summons is the only way by which the jurisdiction of the local can be invoked. However, it will usually be appropriate to do so, as a mode of making a record of the parties, specifying the subject matter of the dispute and notifying the defendant that he or she is the subject of an invocation by the plaintiff of the court’s jurisdiction. There is no reason in this case why, if the appellants were not happy with the decision of the Council of Chiefs, they could not have commenced proceedings in the Local Court and thus invoked the court’s jurisdiction to determine customary land disputes where the Chiefs have not managed to give an agreed decision.
    
19. The Appeal Book contains a letter from Mr Vurusu, Magistrate, on behalf of the Principal Magistrate to the respondents’ lawyers acknowledging receipt of the Form 1 and a fee of $50 in respect of what is described as the "Havahava customary land dispute". The letter goes to state –
    

"The above case is now filed before the Marovo Local Court. The date of hearing is yet to be fixed depending on the availability of funds from the Government. Meanwhile the case will still be pending for hearing".

By copy of this letter, the defendants' party is also informed about the position of the case."

The defendants are identified as "Mr Stephen Veno + others, Seghe..."

20. We are not sure what was intended by the lodgement of the Form 1 and the payment of the fee. It appears to have been accepted that thereby the Local Court was seized of the matter and that a hearing would occur in due course. We think it is inescapable that the respondents had no interest in seeking a decision of the Local Court that would overturn or qualify the decision that they already had in their favour from the Council of Chiefs. It is also inescapable that the appellants had not attempted in any way to invoke the jurisdiction of the Local Court, though it may be that they were content to allow the respondents to do so and, perhaps thought that the respondents had done so.
    
21. It is very difficult to avoid the conclusion that the Form 1 was simply filed because it had been provided and was a way of recording in the Local Court the favourable decision obtained by the respondents from the Chiefs. It is worth observing that it is contrary to fundamental principle and needlessly multiplies litigation to permit parties who have received a favourable decision at first instance to seek to agitate by way of appeal the same matter upon which they have already received judgment.
    
22. That the respondents had not intended to undertake proceedings in the Local Court is made clear by their failure to comply with the requirement of sub s 12(3) that the party referring the dispute to the local court – in this case it was the first respondents, accepting for the sake of argument that lodgement of the Form1 had the effect of a referral – to lodge a written statement setting out the two prescribed matters, namely the extent to which the Chiefs’ decision is not acceptable and the reasons for not accepting the decision. Such a written statement has not been lodged in the present case. Having regard to the mandatory language of sub s 12(3), failure to lodge the statement must be fatal to the referral. There is no evidence that the first respondents intend to lodge such a document. Nor can they be required to do so. The mere fact that the appellants were able to articulate in their application for relief in the High Court a basis for disputing the correctness of the decision of the Chiefs is immaterial. They are not the referring party.
    
23. The requirement that the party referring the dispute must specify the extent to which the decision is not accepted and the reasons for not accepting that decision is a strong, perhaps decisive, reason for inferring that only the party aggrieved by the decision (to use the language of Brown J in Muna) can refer the dispute to the Local Court. It would be surprising if sub s 12(3) required a party to state, as a necessary prerequisite, matters that, in the nature of things, could only be known to the opposing litigant. Such a radical departure from the ordinary procedures – quite apart from being a marked defiance of common sense – that would be constituted by requiring one party to state the case of the opposing party is most unlikely to have been intended by the legislature. If this conclusion be correct, it follows that, even if the proceedings in the Local Court might (contrary to the view expressed above) be commenced by production of the Form 1, the Form 1 must be produced by the aggrieved party since that party alone is in a position to comply with sub s 12(3). The production of the Form 1 by the first respondents was accordingly ineffective for the purposes of commencing proceedings in the Local Court.
    
24. Since the relief claimed by the appellants can only be granted by the High Court (in the premises) in aid of the exercise by the Local Court of its jurisdiction in relation to customary land disputes, the existence in the present case of current and viable proceedings in the Local Court was an essential precondition to the exercise of the High Court’s jurisdiction to grant injunctive relief. Accordingly, the learned Chief Justice was right to refuse to do so.
    
25. It is plain that the initiating party in the lower court (the respondent to this appeal) simply wishes to exercise rights that have been already vindicated by the Chiefs’ findings. The plaintiffs have not sought to re-litigate the questions already decided by the Chiefs, by itself commencing proceedings for that purpose. On the assumption (which we do not accept, for the reasons stated above) that proceedings had indeed been commenced by the defendants in the Local Court, they could, by the simple expedient of discontinuing those unfinished proceedings make futile the exercise by the High Court of its jurisdiction to review, enlivened by the existence of the supposed "proceedings" in that lower court. On general principles, it will be very rarely appropriate to grant injunctive relief in these circumstances to parties in the position of the appellants in this case. This demonstrates the artificiality of the appellants’ application and supports the rightness of the Chief Justice’s decision to refuse interlocutory relief.
    

Whether there are serious factual issues for determination

26. The Chief Justice pointed out that the evidence is "overwhelming" that the appellants lacked standing to usurp the timber rights agreement and the licence granted to the second respondent, upon the basis that their claims as to customary rights in the Havahava land are no more than mere assertions. No relevant body or tribunal has endorsed them and the Council of Chiefs has rejected them. We consider that his Lordship’s characterisation of the appellants’ claims as "mere assertions insufficient to ground the injunctive relief sought" to be both just and accurate.
    

Conclusion

27. The appeal is dismissed with costs.