Livingstone v Napata [1997] SBHC 52; HC-CC 150 of 1997 (10 October 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 150 of 1997

DAVID LIVINGSTONE & OTRS

-v-

ISAAC NAPATAAPATA & OTRS

p>="3">Before: Palmer, J

Hearing: 8th September, 1997 - Ruling: 10th October, 1997

Counsel: S. Watt for the Respondents; P. Tegavota for the Applicants

PALMER J.:

By order dated 17th July, 1997, this Court granted leave to the Applicants to apply for orders of Certiorari to quash the decision of the Western Customary Land Appeal Court ("WCLAC") dated 6th June, 1997. The application by Notice of Motion for issue of the said orders was subsequently listed for hearing on 8th September, 1997.

On the said date, learned Counsel, Mr Watt for the Respondents raised preliminary issue challenging the jurisdiction of this Court to entertain this appeal. I allowed Counsel's application and heard argument. The arguments put forward were two-fold; first, that section 5E (2) of the Forest Resources and Timber Utilisation (Amendment) Act 1990 ("the FRTUA Act"), ousted the jurisdiction of this Court in no uncertain terms; and two, by virtue of that same section, the customary land appeal court was not a subordinate or inferior court and therefore this Court had no supervisory powers to exercise over that court, either in its inherent jurisdiction or under section 84(1) of the Constitution.

Mr Watt submits that where a valid order or decision has been made by the WCLAC pursuant to section 5E(2) of the FRTUA Act, then no further proceedings can be commenced in this Court. Section 5E(2) reads:

"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."

Subsection 5E(1) states:

"Any person who is aggrieved by the determination of the council made under section 5C(3)(b) or (c) may, within one month from the date public notice was given in the manner set out in section 5D(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."

Section 5C(3)(b) and (c) relate inter alia, to matters which the Area Council was required to determine under the FRTUA Act. I quote:

"At the time and place referred to in subsection (1), the area council shall in consultation with the appropriate Government discuss and determine with the customary landowners and the applicant matters relating to

(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;

(b) 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;

(c) the nature and extent of the timber rights, if any, to be granted to the applicant;" (Emphasis added)

It is important to bear in mind that the jurisdiction of the customary land appeal court under the FRTUA Act is restricted only to determinations of the council under section 5C(3)(b) or (c); for our purposes the relevant paragraph is 5C(3)(b).

The facts of this case briefly were that on or about 13th March, 1997, the Marovo Area Council convened to determine an application by Golden Springs International ("the Applicant"), for acquisition of timber rights pursuant to section 5B of the FRTUA Act. The customary land areas which comprised the subject of the application were OZANGA KIKI, HIHIOVO, CHOCHOLE AND KOLOMBANGARA customary lands (hereinafter referred to collectively as the "Timber Rights Land"). The landowners proposing to grant timber rights to the Applicant Company were represented by Steven Veno. They claimed that they were the customary owners of the trees (timber rights) over those customary lands.

As has been usual in such meetings of the area council, there were other landowners who claimed ownership rights over lands within the Timber Rights Land and thereby disputed the claims of ownership by Steven Veno and his group and objected to the granting of any timber rights to the Applicant Company. According to the minutes of the Marovo Area Council dated 3rd March, 1997, there were five objectors.

The first objector was Brown Lamu. He claimed to be the owner of land known as Susuvirana land located within the Timber Rights Land. This land he claims stretched from the Mumuru River to the Lulupebu River. He identified Susuvirana land on the map when asked by the Area Council. In his affidavit dated 20th August, 1997, he further clarified that he is a member of the Veala Tribe who owns Veala Land situated at South Vangunu. He explained Susuvirana land formed part of Veala Land and that his family line are the owners.

The second landowner who objected was Wiutlyn Viulu. He also claimed to be a member of the Veala Tribe (same tribe as Brown Lamu) which owned Veala Land. Part of Veala Land he claimed, also comprised an area of land known as Kuvotu Land and stretched from Sambunu River to Chochole River (note one part of Veala Land is Susuvirana land). He claimed also that this is inside the Timber Rights Land. Further he points out that he is the holder of a Local Court decision no. 4/76 in his favour in respect of Kuvotu Land and thereby claims this is strong evidence of his ownership of Kuvotu land.

Another objector to the application was Isaac Napata. However, it is not clear from the records what tribe he represented and what land he claimed inside the Timber Rights Land.

The fourth objector, Seth Piruku, referred to an area of land which is part of Ozanga Lavata land which he claims should be excluded from the application. He sought to identify this land as lying just above the village of Balavaini. He did not indicate however what rights he was claiming in respect of that land.

The final objector was Raevyn Revo. He did not state which tribe he represented and what land he claimed. The records merely indicated that he did raise an objection to the application of the other landowners represented by Steven Veno.

After hearing the various claims, though very brief and one wonders whether there was sufficient material before the Marovo Area Council to enable it to make a proper determination as to the question "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", the Area Council made the following determination:

"The Marovo Area Council therefore, by majority vote approved the Golden Springs International (SI) Ltd's application for timber rights acquisition in the customary lands applied for, namely:

(1) Ozanga Kiki

(2) Hihiovo

(3) Kolombangara

(4) Chochole."

The determination of the Marovo Area Council is somewhat interesting because on first impressions it appears to be quite vague and one can almost say unsatisfactory. The crucial question which the Area Council had been required to determine under section 5C(3)(b) appears not to have been answered clearly; that is: "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;" Instead, it merely approved the application for timber rights acquisition by Golden Springs International (SI) Ltd! It did not state whether Steven Veno's group or any of the Objectors were the persons and represent all the persons lawfully entitled to grant timber rights over the Timber Rights Land. A word of caution should made here, that area councils must not be side-tracked by minor or irrelevant issues, but must always come back at the end of the day to the crucial questions that it is obliged to determine. The role of the Chairman in this regard is vital to ensure that the attention of his members are always focused on the right issues.

So while noting that the determination of the Area Council may be described as inadequate, I am obliged to take cognisance of the contents of the certificate (more commonly referred to as Form II) issued pursuant to section 5D(2)(a), by the Clerk to the Area Council dated 24th March, 1997, which states at paragraph 3 the following:

"Upon the conclusion of its considerations the said Area Committee determined:

(a) The following persons are the persons lawfully able and entitled to grant timber rights in the area bounded in Red on the attached map being held by the ...... land owning group.

1. David Livingstone Kavusu of Niniveh

2. Hon Steven Veno of Seghe

3. Mr Molton Luma of Niniveh

4. Mr Tui Kavusu of Niniveh

5. Mr Opiu Vendi of Patutiva

(b) that the timber rights set out in the First Schedule may be granted by the above persons."

The Form II ultimately does appear to show that the Area Council at some stage of its deliberations did eventually make a finding as to the persons lawfully entitled to grant timber rights in respect of the Timber Rights Land. For present purposes it can readily be accepted that the determination of the Marovo Area Council was as contained in that Form II Certificate. For future purposes however, the area council must state clearly in its determination its findings pursuant to section 5C(3)(b) and not merely in the Form II Certificate. This is to ensure that the Form II Certificate does set out correctly the determination of the area council.

In his submissions, Mr Watt dwelt much on the point that issues of customary ownership of land and timber rights should be kept separate and distinct from each other as they do not necessarily mean the same thing and that there are separate court processes for each issue; the former being covered by the Land and Titles Act and Local Courts (Amendment) Act, 1985, and the latter by the FRTUA Act. He submitted that the WCLAC was correct when it refused to deal with the appeal as presented before it on the ground that there was clearly a dispute or disputes amongst the landowners on questions of land ownership and that the appropriate forum to have those questions addressed was under the Local Courts Act.

With respect however, I must disagree. Whilst it is not denied that issues of customary ownership of land and ownership of timber rights may not necessarily mean the same thing, it is my respectful view that under the FRTUA Act, the area councils are expressly empowered to inquire into questions of ownership of customary land for purposes of determining who are the persons lawfully entitled to grant timber rights. In almost all situations, persons who own the land where the trees are located are the rightful persons to grant timber rights. They are the owners of the trees. It is inevitable therefore, in almost all situations, when an area council sits to determine who are all the persons entitled to grant timber rights, that questions of land ownership must also be inquired upon. It is important to differentiate that the area councils are not being asked to determine questions of ownership of land between disputing land owners and no more. Rather, what they are being asked to determine questions hold something like a public inquiry (referred to in FUGUI & ANOTHER v. SOLMAC CONSTRUCTION COMPANY LIMITED and OTRS SILR (1982) 100 at page 105, last paragraph) and to ensure that those persons who in custom are entitled to the timber rights are traced and their consent given for the issue of a licence in favour of the Applicant Company. What is important in my respectful view to appreciate is that in the process of the public inquiry, questions of competing claims of ownership and interests in the customary land, trees or timber are bound to be raised and discussed by the area councils. Clearly this must have been foreseen and intended by the legislators of the day. The observations of the learned Commissioner, D.R. Crome in Fugui's case above could not be more apt:

"All a licence amounts to, it seems, is a defence to a prosecution under s. 4(1) and the possibility that the true customary owners of timber rights and any persons by whose consent the exploitation of those rights can be sold or dealt in, have been traced as a result of the lengthy procedures under the Act. No guarantee is given that the contracting customary owners are the true owners." (Emphasis added)

It should be borne in mind that part of the lengthy procedures under the Act included rights of appeal to the customary land appeal court on the very questions raised under section 5C(3)(b) and so hopefully by the time any such appeals are heard, the true customary owners would have been correctly identified.

In GANDLY SIMBE v. EAST CHOISEUL AREA COUNCIL & OTRS, Civil Case No. 33 of 1997, judgment delivered on 17th July, 1997, I assessed the views expressed by the Court of Appeal in ALLARDYCE LUMBER COMPANY LIM1TED and DOVELE DEVELOPMENT COMPANY LIMITED v. NELSON ANJO, CAC No. 8 of 1996 ("Anjo's Case"), and MEGA CORPORATION LIMITED v. NELSON KILE CAC No. 1 of 1997 ("Kile's Case"), and came to the conclusion that the Court of Appeal indirectly hinted that the area councils and the customary land appeal courts do have jurisdiction to determine questions of ownership of customary land for purposes of a licence under the FRTUA Act. I reiterate that determining questions of ownership of customary land must be viewed in the context of identifying or tracing the true customary owners of the trees and timber for purposes of a licence under the FRTUA Act. Accordingly it is not correct in my respectful view to say that the area councils and the customary land appeal courts do not have jurisdiction to hear questions of land ownership for purposes of issue of a licence under the said Act, and that the area councils would be usurping the exclusive jurisdiction of the Local Courts in determining questions of ownership of land.

If we look at subsection 5C(2), for instance the notice clause, the following pertinent words will be noted:

" Notice of the meeting referred to in subsection (1) shall be given within one month of the receipt of the application in a manner the area council considers most effective, to persons who reside within such area and appear to have an interest in the land, trees or timber in question. " (Emphasis added)

It will be clear from the way the above clause is phrased, that the purpose of such notice is to ensure that all persons who purport to have a claim or interest in the land, trees or timber in the respective timber rights areas, are made aware of the application of the applicant company and thereby given opportunity to present themselves at the said meeting conducted by the Area Council and be heard if desired. Otherwise, why make it a requirement to issue such notice in the first place. It is obvious in my respectful view that the only logical conclusion that can be reached from all this is that the legislators must have intended that the area councils should have power to inquire into whatever claims and interests that persons (landowners), who reside within such area may have in the land, trees or timber. This in my respectful view cannot be read to exclude questions of land ownership that may arise for purposes of acquisition of timber rights and issue of licence.

This brings me then to consider the terms of section 5E(2) of the FRTUA Act - the appeal provisions, in detail, in particular the reference to the words "the order or decision of a customary land appeal court . . . shall be final and conclusive and shall not be questioned in any proceedings whatsoever". What does this mean?

In my respectful view, it is important not to be distracted from the context in which those words are used. The order or decision of the customary land appeal court referred to is one made on the substantive issues raised and argued on appeal under subsection 5E(1). Any decision or order made on the substantive issues are final and conclusive and this court has no jurisdiction to inquire into them. This in my. view was what the Court of Appeal had in mind in Anjo's Case when it said:

"The High Court has no jurisdiction to deal with questions of ownership of customary land for purposes of a licence under the Act."

A question however which must be raised is, what if in hearing the appeal, the customary land appeal court failed to hear one of the parties before making its decision or order, (that is, there is a breach of the right to a fair hearing and therefore a breach of the principles of natural justice); does the ouster clause still prevent any intervention from this court; or what if one of the errors listed by Lord Reid in Anisminic Ltd v. The Foreign Compensation Commission and another [1968] UKHL 6; [1969] 1 All E.R. 208, at pages 213 and 214 (Anisminic's Case) are committed by the customary land appeal court, is it beyond the jurisdiction of this court to intervene?

"But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had not power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

In seeking to answer the question posed above, I must consider the second issue raised by Mr Watt on whether the customary land appeal court under the FRTUA Act is a subordinate court or not. Mr Watt submits that in exercising its jurisdiction under section 5E, the customary land appeal court is not a subordinate court as defined in section 84(1) of the Constitution and therefore immune to the supervisory jurisdiction of this court whether in its inherent jurisdiction or under the said Constitutional provision. He submits that the clear words used under subsection 5E(2) can only be construed as giving final appellate powers to the customary land appeal court and that in the exercise of that jurisdiction it cannot be perceived as inferior to the High Court.

Section 84(1) of the Constitution reads:

"The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court."

The crucial question for this court to consider is whether the customary land appeal court in exercising its powers under section SE of the FRTUA Act is a subordinate court or not. Section 84(1) of the Constitution clearly gives jurisdiction to the High Court to supervise any criminal or civil proceedings before any subordinate court. If the customary land appeal court is a subordinate court, in particular when exercising its powers under section 5E of the FRTUA Act, then clearly this Court has jurisdiction to intervene in its supervisory capacity.

The customary land appeal court is a creature of statute set up under section 231A of the Land and Titles Act ("LTA"). That it is a court in my respectful view is beyond argument. Its jurisdiction is described in the following general terms:

" . . . which shall have jurisdiction over the area or areas of such native court or courts as the Chief Justice may in the warrant, or by order provide." (subsection 231A(1))

In terms of the geographical area or areas that its jurisdiction covers therefore, its jurisdiction is similar to that of the Local Courts.

With regards to the powers it exercises, subsection 231(4) of the LTA provides that it "............shall have and exercise all the powers of a native court".

In terms of composition, it is also comprised of lay justices of appeal (4) and one magistrate (subsection 231A(5)).

Section 231B(1) provides a right of appeal to the customary land appeal court.

"Any person aggrieved by any order or decision of a local court given in exercise of its jurisdiction under section 231 may, within three months from the date of such order or decision, appeal therefrom to the customary land appeal court having jurisdiction."

It will be seen from this appeal provision that the order or decision of the local court which may be appealed against is the jurisdiction exercised by the local court under section 231 of the LTA.

The jurisdiction of a local court under section 231 in turn is spelled out as follows:

"A local court shall, subject to the provisions of this section and sections 8D, 8E and 8F of the Local Courts Act, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than

(a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land."

(subsection (1))

The appeal jurisdiction of the customary land appeal court therefore does include dealing with "all matters and proceedings of a civil nature affecting or arising in connection with customary land".

Further, it will be noted that subsection 231B(2) provides that:

" . . . a customary land appeal court may substitute for the decision appealed against, such decision, and may make such order, as to it may seem just."

This gives the customary land appeal court very wide powers to determine an appeal brought before it.

This broad appeal jurisdiction in my respectful view should be borne in mind when we come to consider the jurisdiction of the customary land appeal court as provided under section 5E(I.) and (2) of the FRTUA Act.

Section 23 113(3) of the LTA provides a right of appeal to the High Court but on limited grounds:

"Any person aggrieved by any order or decision of a customary land appeal court may within three months from the date of such order or decision, appeal therefrom to the High Court on the ground that such decision or order is erroneous in point of law or on the ground of failure to comply with any procedural requirement of any written law. "

Subsection 231B(4) is the ouster clause:

" Any order or decision of the High Court, and, subject to subsection (3), of. a customary land appeal court, in each case given in exercise of the jurisdiction conferred by this section, shall be final and conclusive and shall not be questioned in any proceedings whatsoever."

One of the submissions which Mr Watt seeks to put forward was that there is a clear difference in the preceding words used in the ouster clause in subsection 5E(2) of the FRTUA Act as compared to subsection 231B(4) LTA. Subsection 231B(4) does not contain the preceding statement found in subsection 5E(2) of the FRTUA Act:

"Nhstanding any proy provision to the contrary in any other law . . . ."

p>These words he contends are very clear and emphatic and thereforeefore should be construed as giving jurisdiction to the customary land appeal court beyond that of a subordinate court, so much so that the decision or order of that court cannot be subject to the inherent supervisory powers of this Court or under section 84(1) of the Constitution.

I have carefully considered this submission but cannot agree with it. The way the appeal provisions in section 5E have been enacted does not support such construction. Under section 231A of the Land and Titles Act, the customary land appeal court is clearly a subordinate court. That status in my respectful view did not change under the FRTUA Act. It is important to appreciate that the jurisdiction of the customary land appeal court which is referred to under section 5E of the FRTUA Act is the same jurisdiction conferred on its establishment and as specified under sections 231A and 231 B of the Land and Titles Act. (See my earlier analysis of the powers, functions and jurisdiction of the customary land appeal court in this judgment.) Section 5E(1) of the FRTUA Act makes no mention or reference to the jurisdiction of the customary land appeal court as being equal in any way to the High Court or that of a Judge of the High Court. Instead it clearly states:

" Any person who is aggrieved by the determination of the council made under section 5C(3)(b) or (c) may, within one month from the date public notice was given in the manner set out in section 5D(2)(b), appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated ". [Emphasis added].

Note the jurisdiction of the customary land appeal court sought to be invoked is none other than the same jurisdiction conferred on its establishment; ". . . the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated", and this must include the general jurisdiction to inquire into questions of ownership of land, though if it should inquire into questions of ownership it would be for the purpose of determining the specific questions raised in section 5C(3)(b) of the FRTUA Act. Those specific questions being on the customary ownership of the trees and timber on the land in question. But in seeking to answer those specific questions, there is no legal impediment whatsoever in my respectful view, for that court to inquire into questions of ownership of land where that is necessary.

The customary land appeal court therefore is a subordinate court and the jurisdiction conferred under the FRTUA Act did not in anyway remove that status. The phrase 'Notwithstanding any provision to the contrary in any other law. . ." in my respectful view must be read in the context of the order or decision of a customary land appeal court on appeal; that is, an order or decision on the substantive issues raised on appeal based on the matters set out in section 5C(3)(b). To give that phrase a wider interpretation as suggested by Mr Watt in my respectful view could produce dire results. Allegations of bias and or breaches of natural justice would not be challenged and if this is allowed to continue could destroy the very foundation of that court. Part of the foundation of that court and other courts is the trust reposed in them and that necessarily includes the fact that claims of bias or breaches of natural justice would be looked into by an appellate court or superior court and ruled upon. In my respectful view such an interpretation would result in entrenching a decision or order which in effect was a nullity or no decision at all. That cannot have been intended by the legislators and in my view is incorrect.

The case of SIA v. AMASIA,(1980/1981) SILR 150, referred to by Mr Watt can be easily distinguished on its facts. That case I involved the hearing of an appeal under section 231B(3) of the Land and Titles Act by a Commissioner of the High Court, duly appointed. The question before the Court was whether the Commissioner of the High Court was a subordinate court. The learned Chief Justice Daly, had no difficulty in finding that the Commissioners' Court was not a subordinate court by virtue of the terms of section 79(5) of the Constitution and dismissed the action.

To return to the question whether this court can intervene where there is an error of law committed by the customary land appeal court which goes to jurisdiction, such as the ones listed in Anisminic's Case (ibid), the answer must now be given in the affirmative. The customary land appeal court being a subordinate court is subject to the supervisory jurisdiction of this court whether in its inherent jurisdiction or under section 84(1) of the Constitution. It must always be borne in mind that the supervisory jurisdiction of the court does not extend to the substantive merits of the case on appeal. That is clearly beyond the jurisdiction of this court.

In essence, the ruling of this Court resolves the preliminary issues raised by learned Counsel for the Respondent. The question whether an order of Certiorari should issue or not must now be left to the next hearing when the notice of motion of the Appellants will be considered.

Orders of the Court:

1. Dismiss preliminary issues raised by the Respondents.

2. Re-list noti notice of motion dated 17th July, 1997 for hearing on 29th October, 1997 at 9.30 a.m. at Honiara or on a suitable date by arrangement in the first or second week of November, 1997.

3. Costs of the Appellants to he borne by the Respondents.

ter">ALBERT R. PALMER
THE COURT