IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name: 	Laise v Kajapala 	
		
Citation:		
		
Decision date: 	18 September 2024	
		
Nature of Jurisdiction	Appeal from Judgment of The High Court Of Solomon Islands (Kouhota J)	
		
Court File Number(s):	21 of 2023	
		
Parties: 	Chief Russel Laise, Kubokale Sarapaito Tribe Association  v Jeffrey Kajapala, Shalom Limited, Attorney General, Attorney General 	
		
Hearing date(s): 	24 May 2024	
		
Place of delivery: 		
		
Judge(s): 	Muria P
Gavara-Nanu JA
Lawry JA	
		
Representation: 	J Duddley, for Appellant 
S Kilua, for First & Second Respondent 
C Bird, for Fourth & Firth Respondent 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Solomon Islands Courts (civil Procedure) Rule 2007, r15.3.9, r9.75, 15.3.8 and 15.3.9, 15.3, 15.3.1, 15.3.3, 7.71, 9.72, 9.73 and 9.74 [cap 9], r26
Forest Resources Timber Utilization Act [cap 40] S 9 (2) (b), S 10 (1), 9 (2) (b), S 8 (3) (b) and (10 (1)
Charitable Trusts Act [cap 115] 
Constitution 1978 S 155 (2) (b)	
		
Cases cited:	Pitabelama v Biliki [2007] SBCA 21, Simbe v East Choiseul Area Council [1999] SBCA 9, Ngasukana v Leketo [2020] SBHC 56, Australian Coal and Shale Employees Union v. The Commonwealth [1956] 94 CLR 621 at 627 and House v. The King [1936] HCA 40; (1936) 55 C.L.R, Lagobe v. Premier of Western Province [2008] SBHC 67, Talasasa v. Paia [190] SBHC 2; Carl-Zeiss Shtiftung v. Rayner and Keeler Ltd and Others [1966] 2 All ER 536 at 656, Avia Aihi v. The State [1981] PNGLR 81, Warau v. Attorney General [2014] SBHC 96;	
		
ExTempore/Reserved:	Reserved 	
		
Allowed/Dismissed:	Allowed 	
		
Pages:	1-23	

JUDGMENT OF THE COURT
1. 	On 9th September, 2020, the appellants as claimants in the court below filed a judicial review proceeding in a Category C claim under Rule 15.3.9 of the Civil Procedure Rules, 2007, (“the CPR” hereon), against the respondents as defendants. The following reliefs were sought in the claim: -
1.	An Order under rule 15.3.9 of the CPR granting leave for extension of time.
2.	An Order quashing the determination of the Western Provincial Executive made on 29th October, 2019.
3.	An Order directing the Commissioner of Forests to suspend or cancel Felling License A101942.
4.	A permanent restraining Order against the First & Second Defendants and their agents & servants from entering Kubokale Sarapaito land blocks 3 & 4 for logging purposes.
5.	An Order directing the Commissioner of Forests to approve extension of the Applicant’s harvest plan to cover land blocks 3 & 4 on Kubokale Sarapaito land.
6.	Any further Orders the Court may deem fit to make.
7.	Order for costs.
2. 	The first appellant is the chief of Kubokale tribe and the representative of the Kubokale Sarapaito customary land (“the Kubokale land” hereon) owners. The first appellant was also the grantor of timber rights over Kubokale land, including blocks of land 1 to 6 within Kubokale land which were designated portions for the Kubokale sub-clans. The timber rights granted by the first appellant was made pursuant to the determination made by the Western Provincial Executive (“the WPE” hereon) on 16th February, 2016.
3. 	Pursuant to the requirements under s. 9 (2) (b) of the Forests Resources Timber Utilization Act, (Cap. 40), (“the FRTU Act” hereon), a public notice dated 19th February, 2016 was given regarding the WPE determination on 16th February, 2016. The WPE as a result recommended to the Commissioner of Forests to approve the grant of timber rights over Kubokale land to the appellants, including the subject blocks of land 3 and 4.
4. 	The second appellant is a body registered under the Charitable Trusts Act (Cap. 115). It represents and oversees land rights of the Kubokale tribe.
5. 	The first respondent was the grantor of timber rights over Kurikuri Sarapaito land (“the Kurikuri land” hereon) pursuant to the WPE determination on 28th October, 2019. That grant covered the above-mentioned blocks of land 3 and 4, which were already awarded to the first appellant and Kubokale landowners by the WPE in its determination on 16th February, 2016.
6. 	The second respondent was the holder of Felling License No. A101942, it carried out logging operations in the disputed area covering blocks of land 3 and 4 within Kubokale land.
7. 	A map attached to Form 1 application clearly marked out the land boundaries of Kubokale land covering the blocks of land1 to 6, inclusive.
8. 	The first respondent representing Kurikuri landowners appealed the WPE decision on 16th February, 2016 to the Western Customary Land Appeals Court (“the Western CLAC” hereon). However, that appeal was withdrawn after the appellants and the respondents had a purported reconciliation meeting with the Chiefs of the area. That resulted in the parties signing a Deed of Settlement (“the Deed” hereon), which was subsequently recognized by the Western CLAC in Appeal Case No. 4 of 2916. The terms of the Deed were as follows: -
	IN THE WESTERN CUSTOMARY LAND APPEAL COURT
	AND IN THE MATTER OF: Western Provincial Executive Timber Right Determination of Kubokale Sarapaito Customary Land, Velalavela Island, Western Province.
	CLAC Case No. 04 of 2016
	 BETWEEN:  Jeffery Kalapala Appellants 
	(Representing the Kurikuri tribe)
	AND: Russel Laise Respondents  
	(Representing the Kubokale Sarapaito tribe
	& its timber right trustees)
	DEED OF SETTLEMENT
	WHEREAS The appellant is the representative and chief of Kurikuri tribe on Velalavela Island in Western Province and hence the aggrieve (sic.) party to the Western Provincial Timber Right Determination issued on the 18th February, 2018.
	AND WHEREAS The respondents (sic.) is the chief of Kubokale Sarapaito tribe and represents its beneficiary landowner and Timber Right trustees on Kubokale Sarapaito Customary land. 
	AND WHEREAS The subject of the dispute by parties in the proceeding is ownership to Kubokale customary land and hence the rightful person to grant timber right on Kubokale customary land.
	AND WHEREAS Upon the Council of Chiefs Peace and Reconciliation Ceremony dated 29th June, 2018, both chiefs and tribe (sic.) of Kurikuri and Kubokale Sarapaito now agreed with each other in resolve (sic.) their differences, hence entered into this Deed of Settlement.
	SETTLEMENT
1.	That Chief Jeffery Kajapala and his tribe of Kurikuri acknowledge the enthronement of Russell lease (sic.) as chief of Kubokale Sarapaito Tribe & its Customary Land Ownership on Kubokale Sarapaito land; AND
2.	That Chief Russel Laise and his tribe of Kubokale Sarapaito Customary Customary Land also acknowledge the authority & ownership of Chief Jeffery Kajapala and his tribe over Kurikuri Customary Land; AND
3.	That Chief Jeffery Kajapala and his tribe of Kurikuri acknowledge the Authority & Ownership of Chief Russel laise (sic.) and the identified Timber Right Grantors in Form II of the Forest and Timber Utilization Act as the rightfully (sic.) person to grant timber rights over Kubokale Sarapaito customary land.
4.	That both the appellants & the respondents agreed that Kubokale Sarapaito Customary Land is separated land from the Kurikuri Customary Land (sic.); AND
5.	That upon this settlement by the two tribes (Kurikuri Tribe & Kubokale Sarapaito Tribe), it is agreed that no further claim or any cause of disturbance shall be caused to any of its tribe’s form of development on their respective portion (sic.) of lands Sic.).
6.	That upon signing of this Deed of Settlement, the claim in this proceeding shall be discontinued of it’s entirely (sic.)
7.	Parties to bear their own costs.
	Signed: (by the Appellants’ Representatives).
	Signed: (by the Respondents” Representatives) 
9. 	The 28th October, 2019, WPE determination was made in an extraordinary meeting upon an application made by the respondents on 25th October, 2019 for timber rights over blocks of land 3 and 4, which as we alluded to earlier in our judgment were already awarded to the appellants by the WPE in its determination on 16th February, 2016. In that determination, the respondents were awarded timber rights by the WPE over the said blocks of land 3 and 4. Notably, no public notice was given regarding that award. The map attached to Form 1 application which covered blocks of land 3 and 4 was also revised and the blocks of land 3 and 4 were placed in the logging plan of the respondents.
10. 	The appellants became aware of the WPE determination on 28th October, 2019 when they were investigating the logging operations carried out by the second respondent in the area of land in which blocks of land 3 and 4 were situated. That led to the appellants issuing the judicial review proceeding in the Category C claim in the High Court against the respondents.
Decision of the primary judge
11. 	The respondents applied for the appellants’ claim to be struck out based on Rules 9.75, 15.3.8 and 15.3.9. The learned primary judge in granting the application by the respondents held that the appellants failed to comply with s. 10 (1) of the FRTU Act, which provided for a party aggrieved by a decision of a Provincial Executive to appeal the decision to the Customary Lands Appeals Court having jurisdiction, which in this case was the Western CLAC. In this this case, the appellants did not appeal the WPE determination on 28th October, 2019 to the Western CLAC within the prescribed period under s. 10 (1) of the FRTU Act, which is one month of the decision. The primary judge said no explanation was given by the appellants for the purported failure to appeal the decision within the prescribed statutory appeal period. 
12. 	The primary judge accepted submissions by counsel for the respondents that if the appellants were aggrieved by the decision of the WPE, they should have appealed the decision to the Western CLAC under s. 10 (1) of the FRTU Act. 
13. 	The following excerpts of the primary judge’s decision capture the substance of the decision. The primary judge said this when referring to the submissions by counsel for the respondents: -
	“The first defendant withdrew his appeal CLAC No. 4 of 2016 and entered into a deed of settlement agreed on the boundary between Kubokale and Kurikuri as determined by the Maelean House of Chief’s decision of 22nd April, 2016 and since the claimant does not dispute the chief’s decision the ownership rest with the first defendant.
	I think there are merit (sic.) in the Counsel for applicants’ submission. The claimant’s claim is in respect of a decision made by the Western Province Executive in respect of a timber right hearing alleging noncompliance with procedural requirements.
	The Forest Resources Timber Utilization Act section 10 (1) specifically provide (sic.) the avenue for those who are aggrieve (sic.) by the Provincial Executive decision in Timber rights to pursue their claim. The claimant did not do that in the time allowed by law. I think it is not proper for him to raise the issue in a claim for judicial review when an avenue is specifically provided by legislation for that.
	With regard to issue (c) counsel submitted that the First defendant’s right was determined by the WCLAC in CLAC case No. 3 of 2016 on 5th August, 2019. The claimant was a party in the CLAC proceeding. Thus counsel submit (sic.) that the claimant been (sic.) a party to the CLAC proceeding, the principle of res judicata applied to him. I think counsel for the applicant is correct in her submission.
	On the issue (d) counsel for applicant submit (sic.) that the decision of the CLAC was made on 5th August 2019 in favour of the first defendant and the Western Province Executive determination on 28th October, 2019 so the claimants claim was filed more than 5 months after the 6 months period stipulated by legislation and the rules. Claimant also provide no reasonable cause why the judicial review claim was filed out of time.
	Thus counsel for the applicant submit (sic.) that all of the above make the claimants (sic.) claim frivolous and vexatious. She submit (sic.) that the claimant has no locus standi to bring this action and that the court cannot be satisfied there is no other remedy to resolve the matter fully and directly. She submit (sic.) that the claim for quashing orders must be made within 6 months. In the present case the claim for judicial review was filed 5 months out of time and the Court does not give an extension time.
	“I am of the view that even if the court proceed (sic.) with the claim for judicial review the claimant would find it difficult to satisfied (sic.) the requirement that there is no other remedy to resolve the matter fully and directly in view of s. 10 (1) FRTUA (sic.). Having considered the application and the submissions of counsel I am satisfied that the issues raise (sic.) in the application has (sic,) rendered the claimants (sic.) claim to be frivolous and vexatious and show no reasonable cause of action. On that basis I see no sufficient reasons to extend time for the claim for judicial review but dismissed (sic.) the claim”. (Our underlining).
Grounds of appeal
14. 	The appellants raised 10 grounds of appeal; they can be summarized as follows: 
1.	The learned primary judge erred in law in relying on s. 10 (1) of the FRTU Act, because this provision is invoked when normal timber right process applies, in this case, the decision the WPE reached was in an extra-ordinary meeting which was held without the appellant being present and no notice was served on parties having interest in the case.
2.	The learned primary judge erred in law in failing to consider the appellant’s pleadings in paragraphs 15 and 24, where the appellant raised concerns about the WPE convening the extra-ordinary meeting without his presence. Furthermore, the primary judge failed to consider the first appellant’s sworn statement 4 September, 2020, in which similar concerns were raised.
3.	The primary judge erred in law and fact in failing to consider that the appellant had sought extension of time and placed emphasis on failing to file the judicial review application within six months. Furthermore, the primary judge failed to consider the explanations and the reasons the appellant gave in his sworn statement for the delay in filing the application. 
4.	The primary judge erred in law and fact in failing to consider that the evidence by the first appellant that he was not notified or made aware of the timber rights application by the respondent filed on 26 October, 2019, and the determination for that application made by the WPE on 28 October, 2019, in which blocks 3 and 4 which were originally given to the appellants were place in the new map where the respondents were allowed to conduct logging.
5.	The primary judge erred in law and fact in finding that the appellants’ claims were frivolous and vexatious by overlooking the material facts evidence showing clear errors in the determinations made by the WPE, as pleaded by the appellants in paragraphs 20 and 21 of the claim, especially in respect of the conduct of an extra-ordinary meeting which was in breach of s. 8 (1) of the FRTU Act
6.	The primary judge erred in law and fact in overlooking the ownership right over the subject blocks of land given by the WPE in its earlier decision in 2016 in awarding the same blocks of land to the appellants then wrongly awarded the same blocks of land to the first respondent.
7.	The primary judge erred in law and in fact in misapprehending the evidence, which resulted in finding that the issues raised in the appellants’ application for judicial review were res judicata.
8.	 The primary judge erred in law and in fact in misconstruing the dated 29 June, 2018. The primary judge also erred in law and in fact in disregarding the Deed of Settlement, which was pleaded in paragraph 12 of the claim.
15. 	The appellants seek orders that appeal be allowed, and the matter remitted to the High Court to be retried before another judge and costs.
Submissions
By the appellants
16. 	It was submitted by the appellants that the primary judge failed to consider the errors made by the WPE which were fundamental in among others, calling the extraordinary meeting on 28th October, 2019, without the appellants being informed about the meeting. It was further submitted that s. 9 (2) (b) of the FRTU Act, which made it mandatory for public notices to be given regarding determinations by Provincial Executives granting timber rights, was breached, when no such public notice was given. It was also submitted that pursuant to s. 10 (1) of the FRTU Act, launching of an appeal against an Executive determination to a Customary Land Appeals Court was dependent on a public notice being given under s. 9 (2) (b) of the FRTU Act, regarding such determination and the parties, especially the aggrieved party being advised or made aware of the determination, thus giving the aggrieved party an opportunity to appeal the determination. It was submitted that in this case, that fundamental requirement was overlooked in the primary judge’s decision. Thus, it was submitted that the primary judge erred in holding that the appellants’ claim was frivolous and vexatious. The primary judge therefore erred in the exercise of his discretion to strike out the appellants’ claim.
17. 	The appellants further submitted that, because no public notice was issued regarding the WPE determination on 28 October, 2019, and them (appellants) not being made aware or advised of the determination, they could not appeal the decision to the Western CLAC within a month of the determination as required under s. 10 (1) of the FRTU Act.  
18. 	The appellants also submitted that it was clear that WPE’s decision (on 28 October, 2019) to award blocks of land 3 and 4 to the first respondent and Kurikuri landowners breached its previous decision on 16th February, 2016 in which it awarded the same blocks of land to the appellants. Thus, the determination of the WPE on 28th October, 2019 was ultra vires and therefore null and void. 
19. 	There is no dispute that the appellants became aware of the WPE determination on 28th October, 2019 well after the statutory appeal period of one month required under s. 10 (1) of the FRTU Act, to appeal the determination. Thus, they filed the judicial review claim seeking leave for extension of time pursuant to Rule15.3.9 of the CPR. 
20. 	Thus, the primary judge erred in law and fact, which warranted extension of time to allow the appellants to challenge the determination by WPE on 28th October, 2019.
21. 	It was submitted that for all these reasons, the appeal should be allowed, and the decision of the primary judge set aside, and the matter remitted to the High Court to be retried.
By the respondents
22.	The respondents relied among others, on the decision of Maelean House of Chiefs, (“the Chiefs” hereon), made in April, 2016 and the first respondent’s sworn statement which they argued confirmed that the disputed blocks of land 3 and 4 were inside Kurikuri customary land.  
23.	The respondents also submitted that the appellants misinterpreted ss. 8 (3) (b) and 10 (1) of the FRTU Act; they submitted that under these provisions the appellants did not have to attend the extra-ordinary meeting of the WPE that was held on 28th October, 2019 to appeal the WPE determination to Wester CLAC. They submitted that even if the decision or determination was made in their absence, the appellants as the aggrieved party should have been vigilant and appealed the determination. The respondents relied on Pitabelama v. Biliki [2007] SBCA 21 and submitted that even if the WPE determination was irregular, it was not a bar to the appellants from appealing the determination.
24.	It was submitted that the primary judge had wide powers to decide whether to grant the extension or not. It was further submitted that even any oversight of aspects of the case by the primary judge did not invalidate the decision to strike out. 
25.	As to the appellants not being aware of the WPE decision, it was again submitted that it was in their interest and duty as the aggrieved party to be vigilant and inquire about the determination. In this case, they failed to do so. The respondents relied on Simbe v. East Choiseul Area Council [1999] to argue that the appellants failed to provide any justifiable and or compelling reasons for the primary court to grant extension of time.
26.	It was further submitted that the primary judge had good reasons to hold that the claim by the appellants was frivolous and vexatious, to protect and maintain the integrity of the judicial system. They relied on Ngasukana v. Leketo [202] SBHC 56 and submitted that there being no reasonable cause of action disclosed by the appellants’ claim, including the failure to appeal the WPE determination to the Western CLAC, the claim was frivolous and vexatious, which was a proper and valid ground to strike out the claim. 
27.	Regarding the Deed, it was submitted that it simply reaffirmed the land boundaries of Kubokale and Kurikuri customary land. 
28.	The Court is urged to dismiss the appeal and affirm the decision of the primary court.
Consideration 
29.	It is instructive to reproduce Rules 15.3.8 and 15.3.9 of the CPR which the appellants invoked to seek an order to quash the WPE determination of 28th October, 2018 and leave for extension of time. These Rules provide as follows: -
	Time for filing claim for a quashing order
	15.3.8 A claim for a quashing order must be made within 6 months of the decision.
	15.3.9 The court may extend the time within or outside of the prescribed period for making a claim if it is satisfied that substantial justice requires it.
30.	The appellants invoked Rule 15.3.9 to seek leave for extension of time.
31.	These Rules are part of the judicial review process prescribed under Chapter 15.3 of the CPR, which has the heading – Judicial Review of Executive or Legislative Action; and Rule 15.3.1, defines the terms; “mandatory order”; “prohibition order” and “quashing order”. A ‘Quashing order’ which is relevant in this case is defined as (formerly called an order of certiorari) means an order that the decision of a decision-maker is quashed. Rule 15.3.3 is important, it provides as follows: -
	15.3.3 	Chapter 15.3 applies to claims for judicial review and does not derogate from the court’s inherent powers
32.	The pertinent Rules for application to ‘strike out’ are Rules 9.71, 9.72, 9.73 and 9.74. These Rules appear under Chapter 9 of the CPR under the heading – Ending proceedings early.  None of these Rules were invoked by the respondents in their application to strike out. They, however, invoked Rule 9.75 which also appears under Chapter 9, it deals with frivolous and vexatious proceedings. This Rule provides as follows: - 
	Frivolous and vexatious proceedings
	9.75	 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a)	 the proceedings are frivolous or vexatious; or
(b)	no reasonable cause of action is disclosed; or 
(c)	the proceedings are an abuse of the process of the court.
	the court may, on the application of a party or on its own initiative, order that the proceeding be dismissed generally or in relation to that claim.
33.	As we alluded to earlier in our judgment, the respondents invoked Rules 9.75 together with Rules 15.3. 8 and 15, 3.9 of the CPR in their strike out application. The relief was pleaded in this way: –
1.	An order pursuant to the inherent jurisdiction of the High Court and Rules 15.3.8 and 15.3.9 as read with Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“CPR”) that the Claim filed on 9 September, 2020 be struck out.
2.	Any other orders the court may deem fit to make in the circumstances; and 
3.	Costs of the application. 
34.	It is trite law that the decision by the primary judge to strike out the appellants’ claim had to be made judiciously based on proper principles. This Court cannot interfere with the primary judge’s decision unless the primary judge fell into a clear and demonstratable error or errors in his decision. For example, by overlooking relevant matters or over emphasizing matters or taking into account matters he should not have taken into account or not taking into account matters he should have taken into account or misinterpreted principles of law. Alternatively, by inferring that an error or errors have been made in the decision because of it’s unreasonable. See, Australian Coal and Shale Employees Union v. The Commonwealth [1956] 94 CLR 621 at 627 and House v. The King [1936] HCA 40; (1936) 55 C.L.R 499 at 504. 
35.	Having considered all the materials before us, including the primary judge’s decision and the submissions by counsel, we have come to an inescapable conclusion that his Lordship fell into fundamental errors in several respects in his decision. 
36.	The principal bases upon which the appellants issued the judicial review claim were the determination of the WPE on 28th October, 2019 in an extraordinary meeting to award Kubokale land blocks 3 and 4 to the respondents by including them in the respondents’ logging plan under a revised map of the area. In its 2016 determination these same blocks of land were awarded to the appellants, thus the WPE decision on 28th October, 2019 was in breach of its decision in 2016. 
37.	The appellants were also unaware of that WPE determination because they were not informed about the extra ordinary meeting convened by the WPE in which timber rights over blocks of land 3 and 4 were awarded to the respondents. Furthermore, no public notice was issued about the determination although it is a mandatory requirement under s. 9 (2) (b) of the FRTU Act.
38.	The first appellant swore a supporting statement deposing to these facts. 
39.	The primary judge held among others, that the appellants failed to appeal the WPE determination pursuant to the requirements under s. 10 (1) of the RFTU Act. That was a clear error of law and fact because in making that finding, the judge essentially ignored the fact that appellants were not advised or made aware of the extra ordinary meeting conducted by the WPE and its determination on 28th October, 2019. They were not a party to that hearing. Furthermore, there was no public notice given regarding the determination as required under s. 9 (2) (b) of the FRTU Act. These were very reasons the appellants filed their judicial review claim seeking leave for extension of time to challenge the above WPE determination.
40.	The primary judge also considered matters he should not have considered, which resulted directly in his Lordship striking out the appellants’ claim. For example, his Lordship held that the appellants did not dispute the decision of the Chiefs, which favoured the respondents regarding the ownership disputed blocks of land 3 and 4, thus held that they were bound by the decision. But there was evidence before his Lordship in the sworn statement of the first appellant in which the first appellant deposed to the fact that the appellants were not a party to the hearing or inquiry before the Chiefs. The first appellant deposed in his sworn statement that they became aware of the Chiefs’ decision when he was given a copy of the decision in 2020 by the respondents when his Kubokale tribesmen went to investigate logging operations carried out by the second respondent inside Kubokale land, which included blocks of land 3 and 4. The first appellant also deposed in his statement that the issue before the Chiefs was between the Kurikuri Sarapaito and Wagina tribes. This evidence clearly appears to have been overlooked by his Lordship. 
41.	The respondents invoked Rules 15.3.8; 15.3.9 and 9.75 of the CPR in their strike out application. 
42.	The primary judge accepted the arguments by the respondents that the appellants’ claim was frivolous and vexatious because they failed to appeal the WPE determination on 28th October, 2019. Thus, his Lordship held that the appellants’ claim disclosed no reasonable cause of action and was an abuse of process. However, as we alluded to earlier in our judgment, the respondents’ arguments had no factual and legal bases, and were not only misleading but were mischievous. The findings by the primary judge were centered around the WPE determination on 28th October, 2019, but the determination as we have discussed earlier was wrong in law and fact. Thus, for reasons we have alluded to earlier in our judgment, the determination clearly appears ultra vires and null and void.
43.	The primary judge also accepted submissions by the respondents and held that issues raised by the appellants were res judicata because the same issues regarding the ownership of the land in dispute were already decided by the Chiefs. That finding was again wrong in law and fact because the appellants were not a party to the hearing before the Chiefs. An essential element of the doctrine of res judicata is that the issues arising before a tribunal or a court for determination must be same as the issues that the earlier tribunal or court had made determinations on, and that the parties were same in both proceedings. Thus, in the circumstances of ths case, the issue of res judicata viz; the issue estoppel cannot be raised against the appellants. See, Lagobe v. Premier of Western Province [2008] SBHC 67; HCSI-CC 62 of 2008 (20 October, 2008) and Talasasa v. Paia [190] SBHC 2; [1980-1981] SILR 93 (13 October, 1980). That latter case adopted the utterance of the basic principles of the doctrine of res judicata also described as issue estoppel by Lord Guest in Carl-Zeiss Shtiftung v. Rayner and Keeler Ltd and Others [1966] 2 All ER 536 at 656, where his Lordship said: -
	“The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final, and (iii) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privies”.
44.	Earlier in his decision, his Lordship said: -
	“Although the doctrine is still referred to as “res judicata” it is perhaps more accurately described as “issue estoppel” to take into account the widening of the doctrine in recent years to include decisions other than those of courts of record”.
45.	We also find that the primary judge fell into error in considering Rules 15.3.18, to decide whether the appellants had standing. The issue before his Lordship was whether to extend time. His Lordship was required to decide whether substantial justice warranted or justified a grant of leave for an extension of time. In deciding this issue, the primary judge was required to consider the reasons the appellants gave for not appealing the WPE determination on 28th October, 2019. The primary judge had before him detailed explanations by the appellants and the reasons for not appealing the determination. Those explanations were not considered; thus, his Lordship fell into serious and fundamental errors. 
46.	We find that the materials before the primary judge very clearly showed substantial justice favouring the grant of leave for an extension of time, thus satisfying the test in Rule 15.3.9. For example, the WPE breached ss. 8 and 9 of the FRTU Act. The requirements of s. 8, particularly sub-section (3) was breached by WPE by failing to call and notify all persons having interests relating to timber rights over the subject areas of land to attend the meeting, especially the landowners, including the appellants. These are mandatory requirements. Also, the mandatory requirement under s. 9 (2) (b) of the FRTU Act, was breached by the WPE by not issuing a public notice regarding its determination on 28th October, 2019. These were errors of substantive law, and they warranted leave for extension of time.
47.	Furthermore, there is no express provision under the FRTU Act, which authorizes the calling of an extraordinary meeting by Executives to determine timber rights. Hence, the extraordinary meeting held by the WPE on 28th October, 2019 in that regard appears to be illegal and therefore null and void.
48.	We also find that the primary judge erred in not having regard to the Deed, because in paragraph 3, the respondents implicitly agreed that blocks of land 3 and 4 which were in Kubokale land belonged to the appellants. Thus, the Deed in that regard did not just mark or define the land boundaries of Kubokale and Kurikuri customary land, it also identified the customary land which each party owned.
49.	It would be amiss of us not to expound on Rules 15.3.8 and 15.3.9 pursuant to which the appellant claimed leave for an extension of time. The requirement under Rule 15.3.8 pursuant to the word “must” in the Rule is that a claim for a quashing order be made within 6 months of the decision. Whilst this Rule when read on its own purportedly gives no room for such a claim to be made outside 6 months of the decision, when Rule 15.3.9, is read together with Rule 15.3.8 as envisaged by Rule 15.3.9, it becomes clear that the requirement under Rule 15.3.8 is a matter entirely for court’s discretion. This is borne out quite clearly by the following terms of Rule.15.3.9 viz; “to extend time within or outside the prescribed period for making a claim if it is satisfied that substantial justice requires it”. Thus, a court can in the exercise of its discretion under Rule 15.3.9 extend time even if the claim for extension in a judicial review is made outside the prescribed 6 months period, as in this case. But the exercise of that discretion must be guided by the merits of the case and if satisfied that substantial justice requires extension of time, then it is incumbent on the court to grant the relief sought.
50.	Furthermore, and perhaps more significantly, judicial review under Rule 15.3 being a discretionary remedy, pursuant to the express terms of Rule 15.3.3, the primary court had, besides the express power given to it under Rule 15.3.9, inherent power to grant leave for extension of time, where substantial justice warranted it in order to challenge the WPE determination on 28th October, 2018, which as we found was ultra vires. In a landmark case of Abia Aihi v. The State [1981] PNGLR 81, the Papua New Guinea Supreme Court took a similar approach. The appellant in that case was convicted of wilful murder and sentenced to life imprisonment, she failed to appeal within the statutory period. She sought leave to have her sentence reviewed outside the appeal period under s. 155 (2) (b) of the Constitution, which grants reserve power to the Supreme Court to review actions of the National Court (the trial court). By majority, the appellant was granted leave to seek review of her sentence. the Supreme Court in discussing the inherent power of the Court to grant review, per Kearney DCJ said:
	“This Court, as part of the National Judicial System, is invested with the judicial authority of the people: the Constitution, s. 158(1). That is the exclusive and ultimate source of its authority.
	The word inherent in the Constitution, s. 155(2) (b), I think, indicates that it is direct from that unlimited well that the court’s authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court.
	The word inherent also connotes that within the limits of the subject-matter of the Constitution, s. 155(2) (b) judicial acts of the National Court the power of review of this Court is plenary. In the absence of express constitutional provision, that power and its exercise cannot be restricted by any Act of Parliament; there is no express constitutional provision, see per Andrew J. in Constitutional Reference No. 1 of 1979 (supra) at p. 401. So, for example, a privative clause would be of no effect, see the illustration by Pritchard J. in In re Moresby North East Election Petition; Patterson Lowa v. Goasa Damena. Contrast the Constitution, ss. 155(3) (a) and 155(3)(e), as regards the National Court.
	Whether the power is to be exercised in a particular case must always remain wholly a matter for this Court, in its discretion. I consider that it is a truly discretionary jurisdiction, of much the same type as that of the Privy Council in exercising what the common law recognizes as its inherent prerogative to grant special leave to appeal, though an applicant has no right by statute to appeal.
	I consider that this Court’s discretionary and reserve power under the Constitution, s. 155(2) (b), is additional to the power and jurisdiction vested in the court under the Constitution, s. 155(2)(c); this appears clearly from the language used. The latter is dependent in part on the exercise of legislative power by Parliament; the former is not. The latter is subject to limits imposed by Acts; the former is not.
	It is to be expected that the final court of appeal in the National Judicial System would be expressly vested by the Constitution with a discretionary jurisdiction of the type in the Constitution, s. 155(2)(b), so as to ensure the dispensation of justice; it is a common feature of many judicial systems. The policy of the Constitution in this respect is made strikingly clear in s. 155(5) as regards the National Court.
	No distinction is to be drawn in my opinion, as regards the Constitution, s. 155(2) (b), between the concepts of jurisdiction and power. In normal language usage, jurisdiction connotes the authority of a court to exercise judicial power in a specific case; while judicial power is the totality of the powers of a court, when it embarks upon the hearing of a case within its jurisdiction. The Constitution, s. 155(2) (b), however, vests in the court an unrestricted authority to review certain judicial acts; and that, in effect, is a grant of jurisdiction. A grammatical support for this view is the reference to other jurisdiction in the Constitution, s. 155(2) (c). Further, it appears that the inherent power in the Constitution, s. 155(4) is characterized as a jurisdiction in the Constitution s. 155(3) (d), although the power there referred to in fact accords more closely with the strict sense of the word. The Constitution, s. 155(2) (b) and s. 155(2) (c), are clearly two distinct and separate heads of jurisdiction.
	I would accordingly uphold Mr. Wilson’s second submission. I consider that the applicant, a person affected by a judicial act of the National Court, lacking now any right to have that act reviewed, may yet ask this Court to exercise its inherent and discretionary power to review, under the Constitution, s. 155(2)(b); And the court may hear the appeal.
	Whether or not this Court would exercise that power and grant leave to appeal, depends on the circumstances of the particular case. It is wholly discretionary, but I think that in general leave would be granted only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity. (Our underlining).
51.	Having regard to these principles, in the instant case, there were exceptional circumstances which clearly manifested substantial injustice in the decision of the primary judge. There were therefore bases for the primary judge to grant the relief sought by the appellants, which was to grant leave for extension of time. The primary court also had power to extend time under Rule 26. 6 of the CPR The appellants gave valid and detailed explanations for the delay in filing their claim, thus the finding by the primary judge that no explanations were given by the appellants in filing their claim had no factual basis. See, Warau v. Attorney General [2014] SBHC 96; HCSI-CC 226 of 2013 (2 July, 2014).
52.	For all these reasons, we allow the appeal. We quash the decision of the primary court, and we set aside its orders. We remit the matter to the High Court to be retried before another judge.
53.	The respondents will pay the appellants’ costs of and incidental to this appeal and the proceeding in the court below, which are to be taxed if not otherwise agreed.
54.	Orders accordingly.
Muria P
Gavara-Nanu JA
Lawry JA