Ngao v Attorney General [1999] SBHC 146; HCSI-CC 108 of 1999 (9 July 1999)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 108 of 1999

WILLIAM NGAO & JOHNSON TUA

–v-

ATTORNEY GENERAL & RAINFOREST LUMBER COMPANY LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No.108 of 1999

Hearing: 10th June 1,999
Judgment: 9th July 1999

Andrew Nori for the Plaintiffs/Applicants
Attorney General not appearing
Leslie Kwaiga for 2nd Defendant/Respondent

JUDGMENT

MURIA CJ: This is an application for an order of certiorari to quash the determination of the Central Malaita Area Council (“the Area Council”) made on 20th January 1998 granting timber rights to the second respondent, the decision of the Principal Magistrate (Malaita) issuing a Certificate of No Appeal made on 27th February 1998 and the decision of the Commissioner of Forests issuing a timber rights licence to the second respondent. There is also an application by the second respondent for injunction and other orders against the first and second applicants.

However, Counsel for the second respondent had indicated that he would not deal with his application at this stage but that he would do so later depending on the outcome of the applicants’ application. I shall therefore deal only with the application by the applicants.

Brief Background

The background to this case is that on or about 16th October 1997 the Area Council received a copy of the Form I Application by second respondent for Timber Rights in Otekwanga (llikata and Tolokwasi) customary land. Pursuant to the procedure applied in Timber Rights Hearings (“TRH”), the Secretary to the Area Council caused notices to be prepared and displayed at Auki Post Office Notice Board on 27th October 1997 advising of the hearing of the application to be at Auki Seaview Hall on 15th January 1998. It was on 20th January 1998 that the meeting of the Area Council actually took place. All parties concerned attended the meeting including the second applicant. Following the hearing, the Area Council issued Form II on the same date 20th January 1998, in favour of Paul Fuato’o, Manasah Maefunia, Wilson Maefunia, James Niudao and Ratu Karai as persons lawfully able and entitled to grant timber rights in Otekwanga/llikata/Tolokwasi Land. Being aggrieved by the decision of the Area Council, the second applicant wrote to the Magistrate at Auki complaining about the Area Council’s decision. The second applicant’s letter to the Magistrate was dated 16th February 1998. As this letter is the subject of contention in these proceedings as to whether or not it could constitute the “Appeal” against the Area Council’s decision, I shall say something more on it later in this Judgment. On the 27th February 1998, the Principal Magistrate (Malaita) issued a Certificate of No Appeal. Thereafter a timber felling licence was issued to the second respondent.

Case for the Applicants

The case for the applicants in this case is that the timber rights determination of the Area Council, the decision of the Principal Magistrate to issue a Certificate of No Appeal and decision of Commissioner of Forests to issue the licence should all be quashed on the ground of non-compliance with procedural requirements of the law. As against the Area Council, the applicants argued that the Area Council did not comply with the procedural requirement of Section 8 (3) of the Forest Resources and Timber Utilisation Act (“FRTU Act”) by not dealing with the question as to who has the right to grant timber rights over the land concerned. Consequently, the decisions made by the Principal Magistrate and the Commissioner of Forests were ineffective.

The Issues

The argument for the applicants centres mainly on the alleged non-compliance with section 8(3) of the FRTU Act. The question, therefore, for the Court to consider is whether at the meeting of the Area Council on 20th January 1998 the issue as to who has the right to grant timber rights over the land concerned was properly considered by the Area Council. The other question to be considered by the Court is whether the second applicant’s letter dated 16th February 1998 to the Magistrate was a letter of appeal against the Area Council’s determination.

The Argument of the Applicants

It was contented for the applicants that although the Area Council met on 20th January 1998 to consider the Form I (The Application for Approval for Negotiation to Acquire Timber Rights) over Otekwanga Land (llikata & Tolokwasi) the question as to who was entitled to grant timber rights over the land had not been properly considered or at all. This, argued Mr. Nori, was not in accordance with section 8(3) of the FRTU Act which imposes a duty on the Area Counsel to consider, among other things, the question as to who has the right to grant timber rights over the area of land concerned. Instead the Area Council only dealt with the questions of development proposals on the land and the promises offered by the second respondent.

The objections as to ownership of the land raised by the applicants were not dealt with at the hearing of the Area Council. That was contrary to section 8(3) of the Act. Consequently, having learnt of the Area Council’s decision the second applicant appealed to the Court by a letter dated 16th February 1999. For all intentions and purposes, that letter was an appeal against the Area Council’s determination so that when the Principal Magistrate issued a certificate if no appeal in this matter he was wrong. There was an appeal in existence. So much so that when, the Commissioner of Forests issued the licence to the second respondent following the no-appeal Certificate, he did so contrary to law and it was therefore of no force or effect, argued Counsel.

The Second Respondent’s Argument

On the other land, the second respondent’s argument was that the Area council had properly dealt with its application for timber rights under the procedure provided under the law. The second applicant’s objection was dealt with at the hearing. The fact that there was no record of it in the minutes was due to the fact that it was only the second applicant who objected and not the others who attended the hearing. Mr. Kwaiga contended that there are two limbs to section 8(3); firstly, the ascertainment that the persons proposing to grant timber rights are the landowners and secondly only where they are not, that the search for the landowners comes into play. Thus, argued Counsel, in the present case, the persons proposing to grant timber rights were the landowners and that the second applicant’s objection was not against all the proposers but against only two of them, namely Niudao and Karai. So, the argument goes, the fact that the others were not objected to did not affect the decision of the Area Council.

Section 8(3)

The duties of the Area Council in respect of an application for timber rights forwarded to it are set out under section 8 of the Act. In particular, the duties of the Area Council under subsection (3) are as follows:

“(3) 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 will 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;

(d) the sharing of the profits in the venture with the landowners; and

(e) the participation of the appropriate Government in the venture of the applicant.”

The Area Council must discuss with the landowners at the hearing and then determine the question as to whether the landowners were willing to negotiate for the disposal of their timber rights, and if they are, whether they were the persons or whether they represent all the persons having the right to grant timber rights over the land concerned, the nature and extent of the timber rights to be granted, the sharing of profits with the landowners and the participation of the Provincial Government in the applicant’s venture. The outcome of the discussion made under subsection (3) must be agreed to and be in writing as required by subsection (4). Where no agreement is reached between the applicant and landowners section 9 provides that the Area Council must recommend to the Commissioner of Forests to reject the application and he must act in accordance with that recommendation.

There is no doubt that the second applicant raised objections at the hearing before the Area Council on 20th January 1998. The objections were to the rights of two of the five landowners named in the determination to grant timber rights over Otekwanga (llikata, Tolokwasi) Land. It appears that the objections were treated by the Area Council as an internal matter for the landowners to resolve. This is clear from the affidavit evidence of Robert Bilifo’oa who is the Secretary to the Area Council. The record of the Area Council’s hearing did not show that the second applicant’s objections were considered by the Area Council. No doubt, the reason must have been that the objections were treated as an internal matter for the landowners.

It was suggested by the affidavit evidence filed on behalf of those supporting the second respondent that the second applicant’s objections were resolved before the Area Council hearing continued on 20th January 1998. There was no evidence to support that suggestion. One would expect that, having heard the second applicant made his objections, the Area Council would have asked him to confirm whether or not the landowners had resolved their differences and have it recorded. Nothing of that sort can be seen from the record and as such one can only conclude that the second applicant’s objections had not been resolved. In fact the evidence shows that the second applicant was not happy with the Area Council’s determination and lodged a letter disputing the Area Council’s decision with the Magistrate’s Court at Auki. That is a clear evidence that his objections had not been dealt with and resolved by the Area Council.

There is also the further matter of the Area Council’s determination naming the five persons including the two, Niudao and Karai, who were objected to by the second applicant as being entitled to grant timber rights over the land in question. There is no evidence on the record showing that the objections to the inclusion of the two named persons had been dealt with and yet the Area Council had decided to include them as landowners having the right to grant timber rights.

Obviously objection had been raised in this case, but the Area council had failed to consider it. Consequently the aggrieved objector lodged a letter disputing the Area Council’s determination to the Magistrate’s Court at Auki. Subsection (3) requires the Area Council, not only to consider whether the landowners were willing to negotiate for the disposal of their timber rights but also, in my view most importantly, to consider whether those proposing to grant timber rights were the persons entitled to grant such rights. If those proposing to grant timber rights were objected to, then the Area Council is obliged by law to consider the objection and determine those persons who were so entitled to grant timber rights over the particular land. The Area Council is not entitled to pass on that obligation to the landowners themselves where an objection has been properly raised. It would be different if all the landowners signify at the hearing that they all agree to the persons named as landowners and having the lawful right to grant timber rights over a land. Even so, there must be record of it as having been considered by the Area Council.

In the present case, there had obviously been a failure by the Area Council to consider an important matter as required of it by Section 8(3) (b). This failure is fatal to the subsequent actions taken in the process of granting the licence to the second respondent. There is certainly no agreement as to the matter required to be agreed upon under paragraph (b) of subsection (3).

Although not raised by the applicants in this case, one would also note from a quick glance of the record of the timber rights hearing that there were no records of any discussion and determination on the matters set out in paragraphs (d) and (e), profit sharing and Provincial Government participation respectively. That must surely be non-compliance with section 8(3) also. It could be that there had been no agreement on those matters or simply the Area Council overlooked the need to deal with them. Whatever the reasons might be, there had been a failure to follow the requirements of the law.

The remedy of Certiorari

The prerogative remedy of certiorari lies to bring decisions of inferior courts, tribunals or other public authorities before the High Court to be determined whether they ought to be quashed or not on the basis that they are made in excess or for want of jurisdiction, error of law on the face of the record, breach of the rules of natural justice or where decisions are procured by fraud, perjury, duress or collusion. It is no longer the position that the remedy is restricted to a body who only acts judicially or quasi-judicially. The remedy is now available to review decisions of tribunals or bodies set up in accordance with acts of government and which are performing public functions which affect the rights of parties to a dispute before them. This Court had recently dealt with this point in Eric Tavea & Gordon Leua v Paripao House of Chiefs & Eric Kuta, Civil Case No. 196 of 1999 (Judgment given on 22nd June 1999) where I said:

“Traditionally, certiorari can only lie against a body which was obliged to act judicially or quasi- judicially. However, it has now been made clear that this ancient remedy of certiorari must be adaptable to meet the changing conditions of our time. Decisions of tribunals or bodies established by acts of government and are of public, as opposed to private, character and which although not obliged to act judicially, are required to act fairly are reviewable by certiorari. This is the modern approach. The only constant limit is that the body concerned must be performing a public duty. See Reg. v Criminal Injuries Compensation Board, Ex. p. Lain [1967] 2 Q.B. 864: Reg. v Take-over Panel, Ex p. Datafin Plc [1986] EWCA Civ 8; [1987] 2 W L R 699.

The Paripao House of Chiefs in this case had constituted itself for the purpose of enquiring into the dispute over the land in question between the applicants’ line and second respondent’s line. This is in line with the Local Courts Act which provides, inter alia, that no Local Court shall have jurisdiction to hear and determine any customary land dispute unless that dispute is first dealt with by the chiefs: section 12(1), (Cap. 19, Revised Edition of the Laws). One is therefore disposed to see that the authority of the Chiefs (or a body of them) stems, not only from an act of government but also from an act of government but also from an Act of Parliament. The manner in which the Chiefs constitute themselves into a body and the procedure employed at the hearing of disputes before them are, however, not formalised by statute. Nevertheless the Chiefs are a recognised authority for the purpose of determining the rights of the disputing parties to a customary land dispute. The Chiefs have, by the nature of their authority, exercise at least some judicial-type duty. The remedy we are concerned with here would therefore lie against their decision.

Again, not only is their authority derives from the statute, the performance of their functions forms an integral part of the system of dispute adjudication applicable to customary land disputes in Solomon Islands. This gives them a public law character with sanctions thereof enforced publicly. They, therefore, also exercise important public law functions. Again in such a situation, the remedy of certiorari will lie”.

The remedy of certiorari is one that is clearly available against the decision of an Area Council which is a body established by the FRTU Act to perform public duties, which include determining the rights of parties in respect of their entitlement to grant timber rights over a particular customary land through a procedure laid down by law. As had been seen, the Area Council failed to comply with the requirements of the law when it sat on 20th January 1998 to consider the timber rights application in this case. On the face of the record, the failure was obvious. This was an error of law clearly ascertained on the face of the record and one that is fatal to the Area Council’s determination. This is enough to dispose of this application.

The Letter dated 16th February 1998

The status of the letter written by the second applicant on 16th February 1998 had been raised by the second respondent and so I shall deal with it briefly. The decision of the Area Council was made on 20th January 1998 and any person aggrieved by that decision had 30 days to challenge it “through the normal procedure” which must be taken to mean an appeal to the Customary Land Appeal Court (“the CLAC). The right to appeal against the Area Council’s decision made under section 8(3) (b) or (c) is provided under section 10 of the Act. Such right must be exercised within one month from the date of the publication of the notice of the Area Council’s determination.

The letter written by the second applicant to the Magistrate was indeed the result of the Area Council’s decision which determined that the five persons including the two against whom he objected were the landowners and therefore had the right to grant timber rights in the land concerned. Being aggrieved by the determination of the Area Council, the second applicant wrote the letter to the Magistrate. Among other things mentioned in the letter the second applicant wrote in the second and third paragraphs of his letter:

“I am very surprised that although I have disputed the application for a license to log in the above areas during a hearing on the 20/01/98 through the area Council in Auki, they still insist on granting the license to the applicants, however, it was emphasised at that time that any body wishing to dispute the decision have to do so within the 30 days which will lapse on 20/02/98.

My decision to dispute the Area Council’s decision was made on the following grounds;

(1) The applicants for the licence were not the primary landowners of the above land so do not have the right to log the area.

(2) The trustees to the above agreement were not evenly represented by the members of the landowning group.

(3) The primary landowners of the clan were not consulted or even informed of the proposed operation”.

It must be obvious to anyone reading the letter, and certainly to this court, that the second applicant was not happy with the determination of the Area Council. He wrote the letter exercising his right within the required 30 days to challenge the determination and gave his grounds for doing so. The action of the second applicant was, in my judgment, clearly an exercise of his right to appeal against the Area Council’s determination. He did so by way of a letter. If it was done on his behalf by a lawyer, the form of appeal would have been by way of a formal Notice of Appeal. It matters not. The essence of the letter was that the second applicant was aggrieved by the determination, notified the Magistrate who was the Clerk to the CLAC of his challenge to that decision and that he did so within the time limit set by law for him to do so. The letter dated 16th February 1998, in my judgment, was sufficient for the purpose of being regarded as a “notice of appeal” against the decision of the Area Council.

Having said that, the point raised by Mr. Kwaiga is crucial if the letter of 16th February 1998, was to be regarded as effective. In other words, whether the letter of appeal was sufficient for it to be considered by the CLAC. Mr. Kwaiga’s point was that even if the letter of 16th February 1998 was accepted as an appeal, it was not a valid appeal as no appeal fee had been paid up to the 27th February 1998 when the Magistrate issued a Certificate of No Appeal. I think there is force in Counsel’s argument. For an appeal to be effective or valid, the prescribed appeal fee must be paid if not at the time of filing, certainly it must be before the expiration of the time limited for appeal. If by the end of that time limit, no appeal fee has been paid, then there is no duly brought appeal before the court and therefore nothing that is lawfully justiciable before the court.

In this case, there was an appeal lodged by the second applicant against the Area Council’s determination. However by 27th February 1998, no appeal fee had seen paid and consequently, the appeal was ineffective as it was not duly brought before the court. The Magistrate was entitled to hold that there was no duly brought appeal before the court and so to issue a Certificate of No Appeal. This, however, is not fatal to the applicants’ case in these proceedings since the decision of the Area Council had not been properly reached in the first place and is now of no effect.

Conclusion

The result of the matter is that, the Area Council had not complied with the provisions of Section 8(3) of the FRTU Act when it considered the timber rights application on 20th January 1998. That failure was apparent on the record and as such it was fatal to its determination. That being so, it cannot be allowed to stand. It must be removed to this court to be quashed. There was no valid determination from which the subsequent acts of the Magistrate and Commissioner of Forests could lawfully follow. Their decisions to issue Certificate of No Appeal and to issue Licence respectively must be removed to this court for the purpose of being quashed.

The costs of this application be paid by second respondent to the applicants.

The other relief sought is for damages for breach of statutory duties. I shall adjourn that to be dealt with later should the applicants wish to pursue it.

(GJB Muria)
CHIEF JUSTICE