Choe Integrated Development Company Ltd v Maekera [2012] SBCA 12; CA-CAC 01 of 2011 (30 March 2012)

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IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)

COURT FILE NUMBER:	Civil Appeal Case No. CA. 1 of 2012 – Appeal from High Court Civil Case No 367 of 2010)

DATE OF HEARING:	25 March 2012
DATE OF JUDGMENT:	30 March 2012

THE COURT:	Sir Robin Auld, President
	Sir Gordon Ward, JA
	Justice Michael Adams JA

PARTIES:	Choe Integrated Development Company Limited Appellant and Rodney Hiva Appellant

	v.

	John Oti Maekera - Respondent
	John Tahu - Respondent
	Joy Itaia - Respondent
	Attorney General - Respondent

ADVOCATES:
Appellants:	Wilson N. Rano
1st Respondent	Philip Tegavota
2nd Respondent	Signature indecipherable – Ben Etomea
3rd Respondent	Preslie Watts
4th Respondent	Daniel Damilea

KEY WORDS:	Determination of ownership of customary land for purpose of grant of timber rights and issue of felling licences

EX TEMPORE/RESERVED:	RESERVED

ALLOWED/DISMISSED:	DISMISSED

PAGES:	9

1. This is an appeal by Choe Integrated Development Company Limited ("Choe Co.), the First Appellant, and Rodney Hiva, the Second Appellant, against the judgment of Mwanesalua J on 22nd December 2011 on their claim for judicial review. Choe Co. holds a felling licence, No. A10735, granted in August 2009 under the Forest Resources and Timber Utililsaton Act (Cap. 40) (the"Forests Act"). The licence was granted by representatives of those claiming to be landowners of "Choe" customary lands in Marovo, Western Province. Rodney Hiva claims as a representative of all those claiming to have been entitled to or a party to the grant. For ready identification in this judgment, we shall call Choe Co and Mr Hiva and those whom he now represents the Choe Faction.

2. The claim is made against John Oti Maekera, the First Respondent, representing himself and the Marovo Council of Chiefs ("Marovo CC"), and a number of associated persons who have had and have rival claims to the same or overlapping customary lands and who are former beneficiaries of logging operations over them under felling licences granted to JPE Enterprises Ltd (JPE Ltd.). These include, Ataban Tahu, the Second Respondent, who formerly supported the Choe Faction, but now represents rival claimed customary landowners, and Joy Itaia, the Third Respondent, a logging contractor, engaged by them and working with JPE Ltd. (not itself a party to these proceedings). Again, for ready identification, we call the rival contenders and the logging contractor the JPE Faction.

3. The claim is also made against the Attorney-General, representing the Western Provincial Executive and the Commissioner of Forest Resources ("the Commissioner"), the latter of whom is responsible for administration of the provisions of the Forests Act governing the issue of felling licences over customary land.

1) to grant a permanent injunction restraining the JPE Faction from felling or facilitating felling or the grant of a further felling licence over the Choe Faction's "Choe" customary lands covered by their felling licence A10735;

2) to declare that a decision of the Western Customary Lands Appeal Court ("Western CLAC") of 14th November 2006 binds the JPE Faction so as to prevent them from tree-felling over the lands; and

3) to quash any determination of the Marovo CC or the Commissioner of Forests respectively creating new ownership or boundaries over or granting any further felling licence over the lands.

5. At the heart of the appeal lies an issue whether the Choe Faction can rely on the decision of the Western CLAC in November 2006 that its members were entitled to represent the "Choe" customary landowners, or whether the JPE Faction can look to a more recent decision of the Marovo CC in 2010 that the lands in question were not and never had been "Choe" customary lands. In one form or another, this has been the subject of dispute in 17 sets of proceedings over half a century or more.

6. The Commissioner may only issue one felling licence per area of land covered by the licence. The system for the grant of such a licence over customary land is governed by section 5 of the Forests Act. The Commissioner may issue a licence where the right to fell and remove timber have been granted under an agreement approved by the appropriate Minister under Part III of the Act. Section 7(1) in Part III of the Act deserves particular attention:

"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, this was deleted in 2000 and the owners of such customary land." [the Court's italics]

7. Section 8(1) and (3) of the Act require the appropriate Government (ie the respective Provincial Executive) concerned to arrange a meeting between the applicant and, among others, the customary landowners to discuss and determine, in particular: i) whether the latter are willing to negotiate the disposal of their timber rights to the applicant; and ii) "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 ...". Any concluded agreement must be reduced to writing and sent to the Commissioner with the area council's recommendations as to its proposed terms. Following further procedural requirements, the process ends, if all goes well, with the Commissioner recommending to the appropriate Regional Government the grant of approval for the timber rights agreement.

8. Sections 254 and 255 of the Land and Titles Act (Cap. 133) give exclusive jurisdiction to Local Courts, including Customary Land Appeal Courts, in all matters and proceedings of a civil nature "affecting or arising in connection with customary land, but not, in the absence of any express provision, "any matter or proceeding involving a determination whether any land is or is not customary land". There is no such other relevant provision. So, the Western CLAC had no original jurisdiction over any issues as to the ownership of the disputed customary lands in this case. By virtue of section 12 of the Local Courts Act (Cap. 19) resolution of any such issue for a Council of Chiefs - here, the Marovo CC - whose decision, if all traditional means of solving the dispute before them have been exhausted, is appealable to a local court or reviewable by way of judicial review in the High Court. See e.g. per Muria CJ in Pitakia v Graham [2003] SBHC 130; HC-CC 091 of 2003 (23 September 2003).

9. As might be expected, there are often uncertainties in the statutory process as to who are, and/or who are entitled to represent, customary landowners in negotiations for the grant of timber rights and as to the location, extent and precise boundaries of the customary land the subject of negotiation. Curiously, original judicial jurisdiction over those two vital matters is split between the local Customary Land Appeal Court and the local Council of Chief, here, the Western CLAC and the Marovo CC. Determination as to who are entitled to represent customary landowners is a matter for the CLAC, and identification of the location, extent and precise boundaries of the customary land the subject of the negotiation is for the local Council of Chiefs. See Muna v Billey [2003] SBHC 9; HC:CC 284 of 2001 (11 December 2003), where Brown J held that:

"... 'proof and pleading, regulation of manner and resolution of conflict' remain a matter of custom and usage in the discretion of the Chiefs in accordance with the Constitution (Schedule 3(3)). Their procedural powers are unfettered by any consideration of concepts more suited to curial proceedings."

10. Between 2003 and 2005 the Choe Faction sought the grant of timber rights over what they claimed to be "Choe" customary land. They put their application before the Marovo CC, who, as it later transpired, did not reach a decision upon which they could legitimately rely as to their ownership or the boundaries of the land in their application to the Commissioner for his consent to them to enter into a timber rights agreement. In addition, the agreement on which they later sought to rely was seriously defective. Nevertheless, in 2005 the Western Provincial Executive Committee decided that the names of those whom they had put forward were representatives of "Choe" customary landowners and lawfully entitled to grant timber rights on their lands. The Committee noted, however, objections of certain representatives "regarding land boundaries, which had yet to be "sorted out by their own tribal Chiefs".

11. On 14 November 2006 the Western CLAC set aside that decision, and determined that others should be representatives for the purpose, a decision unchallenged by way of judicial review. The Western CLAC expressly recorded in its determination that it had no jurisdiction to determine issues of ownership and boundaries. As commented by Mwanesalua J in his ruling in this case, it merely dealt with the persons who were lawfully entitled to grant timber rights over Choe customary lands; it did not deal with the extent or boundaries of "Choe" customary lands in question.

12. The persons substituted by the Western CLAC as entitled to grant timber rights over the lands then entered into a timber rights agreement with JPE Limited, and with the Commissioner's grant of a felling licence to, JPE Ltd over the lands, later extended by a further timber rights agreement and licence in respect of other customary "Choe" lands, namely Chale, Choki and Guva. The lands were then registered in the names of trustees, followed by de-registration and reversion to customary ownership, followed by a grant in 2009 of timber rights and the felling licence, A10735, to Choe Co. The licence included customary lands the subject of dispute, but purportedly not those covered by the JPE Ltd. licence. So there were now two felling licences, one held by JPE Ltd and the other by Choe Co, each notionally covering separate and discrete areas of "Choe" customary lands, but with much dispute as to their respective boundaries.

13. In February 2010 the Chief Justice ruled in JPE Ltd & Ors v Hiva, Ngira & Ors (CC 316/2007) that the timber rights agreement or agreements on the basis of which JPE Ltd's felling licences had been granted were null and void ab initio because (as indicated in paragraph 10 above) of defects in the timber rights processes, and thus also were the licences. This stemmed largely from unresolved issues at the time as to who exactly had been entitled to act as representatives of the customary landowners, over what lands and as to their willingness to grant timber rights to JPE Ltd. He noted too that the issue of ownership over those lands remained a live issue. His decision remains unchallenged.

14. Following the Chief Justice's ruling, Choe Co applied successfully to the Commissioner to extend its felling licence, A10735, to areas previously included in one of JPE Ltd's licences, namely Chale, Choki and Guva. This was quickly followed with a dismissal by Cameron J in JPE Ltd v Maepio & Ors, which included Choe Co (CC 96 of 2005), of a claim by JPE Ltd. seeking to prevent Choe Co from relying on the extended licence to fell trees in Chale, Choki and Guva, a claim instituted before the Chief Justice's ruling. Cameron J held that, as JPE Ltd's licences had been declared to be null and void, its claim had to fail.

15. Undaunted, the JPE Faction, in April 2010 applied to the Commissioner for consent to secure timber rights over Chale, Ghoki, Guva and Nono and other customary lands, which received consent, coupled with a notification of it to the Provincial Secretary of the Western Province. They also sought, by way of counterclaim in Rima & Choe Co v Balesi & Ors (CC 489 of 2009 and 34 of 2010), to challenge the Choe Faction's, claim to be customary landholders of Nono. They asserted that Nono had had been wrongly included in the area covered by Choe Co's extended licence, A10735. Cameron J dismissed the counterclaim, holding that the effect of the Western CLAC's determination of 14 November 2006 was that the JPE Faction could not challenge the licence, save by way of judicial review, the time limit for which had long expired.

16. Accordingly, the JPE Faction decided to start all over again by applying successfully to the Commissioner for consent to acquire timber rights in Chale, Choki, Guva, Nono and the other areas over customary lands hitherto always claimed by the Choe Faction as its customary preserve. The Western Provincial Council referred the matter this time to the Marovo CC specifically to determine issues of ownership and boundaries of the disputed customary lands. Following a contested hearing in which the two factions participated, the Council, on 12th October 2010, determined that:

"One thing stands crystal clear that when ... [the] land registration was cancelled [in 2007, see para 12 above], all the customary lands which were included in the registration were [sic] all reverted to customary lands, and have different owners and not under Choe Land as was always claimed by the defence. Should any parties be not satisfied with this decision, they may go to the Marovo Local Court if they so desire. Order: All Choe people to go home and sort out their own problems peacefully or make reconciliation themselves."

17. After such a tangled tale, thus it was that Choe Faction came to institute the present claim for judicial review against the JPE Faction, seeking:

1) a declaration that the Western CLAC decision of 14 November 2006 (see paragraph 11 above) had the effect, when coupled with Choe Co's 2009 felling licence, A10735, of setting the extent and boundaries of Choe customary lands so as to exclude the JPE Faction's claims and prevent the Commissioner from granting them consent for a timber licence over the same lands; and

2) quashing the Marovo CC's determination and orders to the contrary of 12th October 2010.

18. The matter came before Mwanesalua J on 22nd December 2011 in what appears to have started as a Rule 15.3.16 Conference, but which concluded with his dismissal of the claim. The Judge held that the Western CLAC's decision of 14 November 2006:

1) merely dealt with persons who had been lawfully entitled to grant timber rights over Choe customary land;

3) did not deal the common boundary between it and other lands, including Nono, Chale, Choki and Guva;

4) all of those matters had been before the recent meeting of the Marovo CC and determined by it, on 12th October 2010, against the Choe Faction and in favour of the JPE Faction; and, therefore,

5) that, as the JPE Faction were not bound by the Western CLAC's November 2006 ruling, the Choe Faction were not entitled to the relief sought.

19. Mr Wilson Rano for the Choe Faction, including Mr Rodney Hiva, the First and Second Appellants, submitted that:

1) that Western CLAC in November 2006 considered and ruled on the extent and boundaries of the "Choe" customary lands; there is no extant transcript or minutes of its meetings, but he relied on an affidavit of Mr Hiva sworn in these proceedings and referred to passages in the Western CLAC's determination suggesting, he submitted, that it did advert to those issues and concluded on the evidence before it that a number of areas, including Chale, Choki and Guva, were "part and parcel of land within Choe Customary Land", although Nono had been excluded by the Western Provincial Executive;

2) that the JPE Faction were bound by the Western CLAC determination - first, because Mr Tahu, the First Respondent, had in later proceedings in 2003, when Secretary to the Marovo CC, endorsed the Choe Faction's claim, and as such: i) it then became a decision of the Chiefs; ii) the Western CLAC in November 2006 "no doubt" took it into account; iii) the Chiefs were not entitled four years later, in October 2010, to re-visit the matter, especially given the change of stance by Mr Tahu; and, therefore; iv) the issue as to ownership and boundaries had been settled in favour of the Choe Faction and for the Commissioner by the Western CLAC's November 2006 determination.

20. Mr John Maekera, the First Respondent, was a defendant to the claim in his capacity as a former Secretary to the Marovo CC and in his own right and as a rival contender for the Nono Tribe in all matters affecting "Choe customary land". Mr Philip Tegavota, on his behalf, submitted in support of Mwanesalua J's ruling, that it was not a Chiefs' Council decision in 2003 but only a minuted meeting of their discussions, and that there were no other Chiefs' Council decisions on which the Choe Faction could rely. He also submitted that there was nothing in the Western CLAC's decision of 14th November 2006 purporting to decide issues of ownership, indeed, as the Court has noted in paragraph 11 above, its reasoning was to the contrary. He also placed strong reliance on the Chief Justice's ruling in JPE Ltd & Ors v Hiva & Ord in 2010 (see para. 13 above) that ownership and boundaries of the disputed lands remained a live issue.

21. Mr Ben Etomea, who appeared for Mr Tahu, the Second Respondent, and Mr Preslie Watts for Mr Joy Itaia, the Third Respondent, also supported Mwanesalua J's rulings and on the same main grounds as those advanced by Mr Tegavota. Both pointed to defects in the proceedings of the Marovo Chiefs in 2003 - 2005, Mr Etomea adding that Mr Tahu had changed sides on discovering those defects after the Marovo CC's decision in 2003. Mr Daniel Damilea, for the Attorney-General, representing the Commissioner of Forests, took the same stand, pointing in particular to the Chief Justice's unchallenged ruling in 2010 and the fact that until the Marovo CC re-visited the matter in their decision of 12th October 2010, the issue of ownership of these disputed lands had remained undetermined.

22. The difficulty for the series of propositions by which Mr Rano reached his concluding submission that the ownership and boundaries of the disputed customary lands had been settled in favour of the Choe Faction by the Western CLAC's determination in November 2006 is that they are built on sand. First, as the Chief Justice held in 2010, the proceedings before the Western Provincial Executive in 2002 and the Marovo Chiefs in 2003 were flawed on the issues of ownership and boundaries so that those issues remained live. Secondly, it was no part of the Western CLAC's jurisdiction in November 2006 to consider and determine such matters. Thirdly, the extracts from its determination relied on by Mr Rano do not establish that it purported to decide such issues - on the contrary, it expressly recorded in its determination its lack of power to do so. The Chief Justice's decision in 2010, which remains unchallenged, is that, in the result, issues as to the ownership and boundaries of the disputed lands remained unresolved, leaving the Marovo CC in October 2010 with a clear field to exercise, for the first time in this narrative, its exclusive jurisdiction in that respect underwritten by section 254 of the Land & Titles Act.

23. In the Court's view, the submissions of counsel on behalf of all the Respondents on the issue are to be preferred. Each of them rightly under-lined the long chain of inconclusive litigation on the question of ownership before a variety of judicial and other bodies, until its clear resolution by the Marovo CC against the Choe Faction in October 2010 in the due exercise of its exclusive jurisdiction on that issue. Mwanesalua J, in his succinctly reasoned ruling, rightly refused all the relief sought.

Court of Appeal of Solomon Islands

Choe Integrated Development Company Ltd v Maekera [2012] SBCA 12; CA-CAC 01 of 2011 (30 March 2012)