Rupakana v Vozoto [2009] SBCA 25; Civil Appeal Case 10 of 2008 (23 July 2009)

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 Case No. 10 of 2008 (On Appeal from High Court Civil Case No. 162 of 2007)
DATE OF HEARING:	13 July 2009
DATE OF JUDGMENT:	23 July 2009
THE COURT:	Goldsbrough, PA
.	McPherson, JA
.	Williams, JA
PARTIES:	Rupakana & ors	Appellant
	-V-
	Vozoto & ors	1st Respondent
	Attorney General	2nd Respondent
ADVOCATES:
Appellant:	P. Tegavota	for Appellant
Respondent:	M. Tagini	for 1st Respondent
	S. Woods with D. Damilea	for 2nd Respondent
KEY WORDS:
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Dismissed
PAGES:	1 - 6

JUDGMENT OF THE COURT

1. This appeal concerns a determination at first instance that a timber rights agreement was invalid. The proceedings began with the respondents to this appeal seeking determination of a question, set out in an originating summons as follows:-
   

Whether the second respondents logging licence number A10302 issued on 3 March 2006 is ineffective by virtue of section 40 of the Forest Resources and Timber Utilization Act [Cap 40] for the reason that the above nine applicants out of the thirteen persons lawfully determined by the Choiseul Provincial Executive Committee as persons having ownership and lawfully entitled to grant timber rights over Borovai Land did not sign the Standard Logging Agreement executed between the First and Second defendants dated 8 February 2006.

2. In the event that the answer to the above question was in the affirmative, the respondents sought consequential relief, most significantly a declaration that the logging company named in the proceedings as the second respondent (now one of the appellants) were not entitled to undertake logging activities on the land pursuant to the logging licence.
   
3. In a judgment dated 4 March 2008 the High Court answered the question raised in the affirmative and declared the Timber Rights agreement dated 8 February 2006 invalid and accordingly that the licence issued to the second respondents invalid.
   
4. There are four grounds of appeal against that decision of the High Court.
   
5. To understand the grounds of appeal it is necessary to first consider the scheme set up under the relevant legislation giving rise to Timber Rights Agreements. Under Part III of the Act any person who wishes to carry on business in Solomon Islands as a timber exporter or saw miller, and desires to acquire timber rights on customary land shall make application to the Commissioner in the prescribed form and manner and obtain his consent to negotiate with the appropriate Government, the area council and the owners of such customary land. That application is made using what is described in regulations as Form 1. That form is submitted to the Commissioner of Forest Resources who, if he consents to the application, informs the relevant Local Government.
   
6. Acting under section 8 of Cap 40 the relevant Provincial Executive will hold a meeting to discuss those matter prescribed in the section and in particular will make a determination under section 8 (3) (b) as to 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.
   
7. Under section 9 of the Act the Provincial Executive may inform the Commissioner through the Local Government that no agreement has been reached or indicate in a prescribed form (Form 2) the agreement, and in particular who are the persons lawfully entitled to grant timber rights.
   
8. Section 10 provides for an appeal against a section 9 determination to the appropriate Customary Land Appeal Court. When the appeal period has lapsed or an appeal determined, the Commissioner, after receiving the agreement for the granting of the timber rights referred to in such certificate duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 10 with the order of the court determining such appeal, may recommend the grant of approval by the relevant Local Government.
   
9. After approving the agreement described above the Local Government acting under section 12 forwards a Certificate to the Commissioner who may then notify the parties of the completion of the agreement. The Local Government will notify the Commissioner in Form 3 and the Commissioner will issue a licence in Form 4. The regulations providing for Form 4 require that the agreement shall be signed by all persons specified in paragraph 3 of Form 2 of the Schedule to the Forests and Timber (Prescribed Forms) Regulations.
   
10. In this instance the relevant Form 2 was duly submitted to the Local Government from the Provincial Executive and thence to the Commissioner. It is dated 7 May 2003. It names, in paragraph 3, thirteen persons as being lawfully able and entitled to grant timber rights in the area referred to as Borovai Land. That decision of the Provincial Executive was the subject of an appeal to the Customary Land Appeal Court, which appeal was dismissed on 10 October 2005.
    
11. A Form 3 dated 9 February 2006 was duly submitted to the Commissioner of Forests. Form 4, the standard logging agreement was executed, perhaps surprisingly, on 8 February 2006. It was executed as between Delta Timbers (one of the present appellants) on the one part and five people on behalf of the 'Borovai Landowners/Trustees. The five signatures on that part were Graham Rupakana, Abel Qoravalaka, Keqa Poloso, Ken Luaboe and Roniolo Tanakasu.
    
12. A comparison of Form 3 and Form 4 shows that the same people who signed on behalf of the Borovai Landowners/Trustees in Form 4 were the persons named in the Form 3 as representatives of the same.
    
13. The names Abel Qoravalaka, Ken Luaboe and Roniolo Tanakasu do not feature as persons having rights as set out in the Form 2. Whilst the remaining two names in Form 3 and Form 4 also appear in Form 2, this leaves eleven persons named in the Form 2 as persons entitled not thereafter featuring as persons entitled in the Form 3 and signatories in the Form 4 agreement.
    
14. This is the factual scenario against which the High Court determined the validity of the Timber Rights agreement and resultant Felling Licence issued by the Commissioner on 3 March 2006.
    
15. The issue which fell to be determined in the High Court was whether the failure to have the Form 4 agreement signed by all thirteen persons named in paragraph 3 of Form 2 was fatal to the licence issued.
    
16. The grounds of appeal are summarised in submissions of the appellants. They are that the learned judge erred in law in declaring that the Timber Rights Agreement dated 8 February 2006 was invalid; that the learned judge erred in law in declaring the (subsequent) felling licence to be invalid; that the learned judge erred in law in failing to consider or take into account that the logging licence and agreement had been challenged by persons representing the same interest and that the action appealed from is an abuse of process and finally that the learned judge erred in law in holding that the appellants were not entitled alone to transfer timber rights to Delta (one of the present appellants).
    
17. It is correct to say that nowhere within the legislation, as opposed to regulations made under the authority of the legislation, is there any indication of a requirement that all persons identified as representing the customary owners or a piece of land must sign a timber rights agreement. Regulations make it clear that this is to be the case. Moreover the High Court has said the same when considering the question on a previous occasion. In Allardyce Lumber Company Limited, Bisili, Roni, Sakiri, Hiele, Sasae, Poza, Zongahite, Daga, Pato, and Zinghite v Attorney General, Commissioner of Forest Resources, Premier of Western Province and Paia [1998-9] S.I.L.R. beginning at page 70. At line 867 appears:-
    

"Returning to the earlier agreement signed by only four of the, then, eleven survivors, it has long been the position in Equity that some only of the trustees cannot act without agreement of the remainder."

18. We endorse the approach taken in the above case as correct. Persons identified as persons entitled to represent customary landowners in a process under Cap 40 are to exercise those rights as trustees. The rules relating to trustees acting with agreement of all of them is long established. Equally there are procedures whereby a deceased trustee can be replaced, and whereby dispute as between trustees can be resolved.
    
19. Thus we can find no error in law in the decision that absent the agreement of all of the trustees, the Form 4 (and indeed the Form 3) subsequent licences or agreements are invalid.
    
20. For the appellants it was submitted that by virtue of a decision of the Babatana Council of Chiefs, Graham Rupakana was identified as the person fit to head his tribe, which itself owned Borovai land. This authority, it is submitted, leads to the conclusion that he alone is the person whose authority is required to enter into a Timber Rights agreement. This decision preceded the decision of the Provincial Executive under Cap 40. Whether the Provincial Executive in making its determination as to the thirteen persons entitled to grant timber rights was correct, given the scenario presented by Rupakana is not the issue in this appeal. The issue in this appeal is that, given the Provincial Executive did identify thirteen people as entitled, was the consent of all of them required in subsequent negotiations.
    
21. In our view the answer to that question is that all surviving trustees must act by agreement. It cannot be correct to suggest that since he is the head of his tribe, only the views of that individual are to be taken into account when in accordance with a legislative scheme a proper authority has identified thirteen people as being entitled together to grant timber rights. To adopt the view taken by the appellant Rupakana would be to deny the effect of the legislative scheme under Cap 40. This ground of appeal must fail.
    
22. Given that the Timber Rights Agreement as evidenced in Form 4 is properly declared to be invalid, it follows that any subsequent licence granted under its authority is equally invalid. There is nothing in submissions for the Appellants suggesting that this is not the correct position in law.
    
23. It is further submitted that, having challenged the validity of the Timber Rights agreement in different proceedings on different grounds and having failed, that by bringing these proceedings, the respondents are guilty of an abuse of process. It is a matter of concern that there has been a multiplicity of proceedings on this same subject, but it cannot amount to an abuse of process to bring to the attention of the court a failure to follow the rules of a legislative scheme. That ground of appeal must also fail.
    
24. At first instance the trial judge commented adversely upon the officers of both the Provincial Executive in issuing the Form 3 as it was and the subsequent actions of the Commissioner. Whilst counsel for the second respondent valiantly attempted to defend the actions of his client, it does seem that the trial judge was right in his criticisms. When the Provincial Executive made its determination as to the persons entitled to grant timber rights, that decision was recorded and communicated to the Commissioner under the legislative scheme. Knowing that thirteen persons had been identified, it would not be to expect a great deal for either the authors of the Form 3 or those who subsequently acted upon it to verify that there was no material variation between the two documents. To have done so at an early stage would have had the potential to avoid this litigation. We do not consider that it is too much to ask of officials that they check all the details that are significant in applications of this type.
    
25. In the event this appeal is dismissed. Costs of the respondents to the appeal will be paid by the appellants, such costs to be agreed or taxed and in any event to be paid within 30 days.
    

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Goldsbrough PA
President

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McPherson JA
Member

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Williams JA
Member