Agasi v Watts [2011] SBCA 9; Civil Appeal Case 12 of 2011 (4 October 2011)

SOLOMON ISLANDS COURT OF APPEAL
(Mwanesalua J)

Civil Appeal Case No. 12 of 2011

BETWEEN:

ALAN AGASI AND HARRINGTON LOGARA
(Representing Members of Getu Tribe)
Appellants

AND:

ISSAC WATTS, DARCY TIMOTHY AND
JOHN TIMOTHY
First Respondent

AND:

HUGO JAMAKOLO, KEVU SAM AND
TONY JAMAKOLO
Second Respondents

AND:

BULO ENTERPRISES LIMITED
Third Respondents

AND:

PACIFIC METRO LIMITED
Fourth Respondents

AND:

COMMISSIONER OF FORESTS
Fifth Respondents

AND:

WESTERN PROVINCIAL GOVERNMENT
Sixth Respondents

Date of Hearing : 12 September 2011
Date of Ruling : 4 October 2011

Samani Logara Dausabea Kali'uae Getu (Representing/Spokesman for the Applicants)
Chris Hapa for the First and Second Respondents
No appearance for the Third and Fourth Respondents
John Muria (Jr) for the Fifth and Sixth Respondents

RULING

1. The Getu Tribe was the Claimant in Civil Case No. 43 of 2004 in the court below. That case arose from the absence of any timber rights hearing meeting prior the issue of a Certificate of Customary ownership of land (Form 11) by the Western Provincial Government between 2001 and 2002. The representative and spokesman of the Tribe who had carriage of that case was Mr. Getu. He continues in that capacity in this proceeding.
   
2. On two consecutive dates, namely 24 September and 8 October 2010, he failed to appear in court for trial preparation conferences. No cogent reasons were before the court for his absence. The court noted that he had possession of the Claimant's file since 2007. During intervening four years little progress was made in getting the claim for trial. The court found that he filed documents late. He failed to appear in court on four other occasions. And the court formed the impression that he regarded his official duties in the ombudsman office as being more important than his obligations to his tribal members in this claim in court.
   
3. The court considered the interval between the events which gave rise to the cause of claim and when the trial would be eventually held. The court was of the view that interest of justice for the parties would not be promoted by allowing the claim to proceed to trial. The court then struck out the claim on 8 October 2010.
   
4. The Claimants now seek to appeal the whole of the orders of 8 October 2010 and the judgment of the court dated 8 April 2011. They filed an application for leave to appeal on 6 May 2011. And that their proposed grounds of appeal are that the court:
   
   • (1) Made a mistake in law and in fact that there was inordinate and in excusable delay in bringing the matter to trial by the Claimants' tribal representative by his absence on 24 September and 8 October 2010.
     
   • (2) Made a mistake in law and in fact in striking out the matter in view of the fact that relief sought by the Claimants is for conversion and trespass in view of the alleged fraud and forgery of the Claimants elders' name or in the writ.
     
   • (3) Made an mistake in law and fact in striking out the matter whilst the matter is still under police investigation with the Royal Solomon Islands Police Force [RSIP]
     
   • (4) Made a mistake in law and fact in striking out the matter in view of the trespass and conversion relief sought by the Claimants and since the Tomba Mbili island inclusive of Mijanga, Saenihulumu, Kareje Gete and Kiki, Japuana and Taba are Customary Land and that issues of dispute relating to the ownership, boundary or extent of such entitlement is unresolved until the Mechanism under the Local Court Act is completed [FRTUA] albeit the Forestry Resources and Timber Utilization Act.
     
   • (5) Made a mistake in law and fact in striking out the matter leading to the dispersing of trust properties as the Customary Land, the Tomba Mbill Islands inclusive of Mijanga, Saenihulumu, Kareje Gete and Kiki, Japuna and Toba are customary land and that issues of dispute relating to customary land, ownership, boundary or entitlement or extent of such entitlement are pending.
     
   • (6) Made a mistake in view of the prima facie evidence of His Lordship Justice Albert Palmer on the same on the 18th October 2004 that:
     

[a] "...the Deputy Provincial Secretary confirmed that he had no official records to confirm any timber rights hearing meeting had ever been conducted. In the absence of a timber rights hearing it is inexcusable how a Certificate of customary ownership ("Form II") was issued on or about 22nd April 2002. That this was so is confirmed by Mr. Prestly Watts in his affidavit filed 30th March 2004 at paragraph 6 (f). How an irregularity could have been allowed to occur is tantamount to gross negligence, incompetence or fraud on the part of the Western Provincial Executive or Provincial Secretary and dated 22nd April 2002. The Provincial Secretary has obligation to explain how such a document ever came into existence in the absence of any public hearing. The requirements of section 8 of the Forestry Act couldn't be any clearer. I am satisfied there is prima facie evidence of a fundamental defect in the process of acquisition of timber rights which is accepted by the court is capable of invalidating the timber rights executed and timber license issued...".

[b] "...There is no evidence to suggest that any such notice was ever published and, thereby depriving the Plaintiffs of their rights to appeal under section 10. Again there is prime facie evidence of non-compliance with the requirements of the Act."

[c] "...There is something fishy about the timber rights agreement recommended by the Commissioner of Forest for approval and approved by the Western Provincial Government Executive for the issue of a timber license (see "Exhibit HL4" annexed to the affidavit of Harrington Logara filed 9th February 2004. It was never signed by JP Enterprises Company Limited. It was signed by a group of landowners. It is defective therefore to that extend."

[d] "... Further, how Bulo Enterprises (the third defendant) and not JP Enterprises Company Limited was ever issued a timber license is also irregular. Bulo Enterprises never featured in the application for timber rights. There is also no evidence of any transfer of rights and obligations of timber rights. To that extent the issue of a license to Bulo Enterprises would appear to be defective as well..."

[e] I am satisfied that the Plaintiffs have demonstrated the existence of customary rights over Bili Islands and which have been denied or ignored by virtue of non-compliance with the procedural requirements of the Forestry Act and thereby depriving them of their rights recognized in law which they have not been able to exercise. In consequence they have not been heard, that is to present their claims of ownership to the Western Provincial Executive and have not been able to exercise their right of appeal against any determination of the said executive by the failure to issue a public notice of their determination. There is prima facie evidence as well that the timber rights agreement and license is defective. These are serious issues and gave them the right to come to court to impugn the timber rights agreement entered with the first and second defendants and to question the validity of the timber license.

5. On 6 September 2011, the Appellants filed further application to extend time for filing notice of appeal. This document is headed "Skeletal Submission by Appellants – Tribal Representative/Spokesman". That follows with an introduction on the case, background of the case, the High Court Judgment dated 8th April 2011". These document appears more like a written submission rather that an application. There are no reasons for the application in it. There is therefore the application of 6 May 2011 in court.
   
6. The First and Second Respondents, and the Fifth and Sixth Respondents opposed the application, on the grounds that there was no sworn statement in support of the applications, and that there was no application to extend time within which to seek leave to appeal as required by Section 19 (b) of the Court of Appeal Act [cap. 6].
   
7. During their oral submissions in support of the application, the Appellants, through their representative, Mr Getu, raised the point that the Respondents in the court below did not satisfy the court on 8 October 2010 of four factors on which to dismiss or strike out their claim. The factors are that there must be prolonged delay in the prosecution of their claim; the delay was inexcusable; the delay would preclude a fair trial of the issues and the limitation period has lapsed. He quoted Allen v. Sir Alfred McAlpine and Sons Ltd [1968] 2QB 229, Dutton v. Spink and Beeching (Sales) Ltd and others [1977] IAllER 287 and Birket v James [1978] AC 297 as authorities.
   
8. The main reason for the court to dismiss the Appellants' claim was due to the slow pace in which Mr. Getu progressed the case for trial and his non appearances in court.
   
9. The Appellants have not filed sworn statement in support of the application. They have not made any application for extension of time for leave to appeal. There are points for consideration by the full court in paragraph 7 above. But since no application to extend time for leave to appeal is before the court, this appeal is still not foot.
   

In the circumstances, it is not possible at this stage to decide whether or not leave should be granted to the Appellants to appeal. If the Appellants desire to proceed with their intention to appeal, then I would direct them to seek extension of time for leave to appeal before the full court. If they proceed to the full court, they need to have an application for extension of time for leave to appeal; A notice of appeal and a sworn statement in support the application for leave to appeal.

THE COURT