Kongungaloso Timber Co Ltd v Attorney-General [1999] SBHC 39; HC-CC 229 of 1998 (19 April 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 229 of 1998

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ATTORNEY-GENERAL
(On Behalf Of The Minister Of Provincial Government M.P.G.)

High Court of Solomon islands
Before: Muria, CJ Civil Case No. 229 of 1998

Hearing: 14 April 1999
Judgment. 19 April 1999

A. Nori for Applicant
S. Manetoali for Respondent

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> MURIA CJ: By its Amended Originating Summon filed on 15 February 1999 the applicant Company seeks a determination to a number of questions relating to the Order made by the Minister for Provincial Government suspending all Area Councils and which affected its application for logging licence. At the commencement of the hearing, the respondent raised the question of the locus standi of the applicant to bring these proceedings. It is that preliminary question that I shall deal with in this judgement.

The applicant, Kongungaloso Timber Co. Ltd, is a private cate company who applied for a logging licence to operate a logging operation in the area of land between Tetekavoro and Patusora, Gatokae Island, Western Province. The procedure under the Forest Resources and Timber Utilisation Act had been carried out for the grant of timber rights. At the hearing of the Marovo Area Council on 1 May 1997 the application was rejected following an objection by one Redily Riringi. The land issue was taken before the Chiefs on 6 June 1997 and at the hearing conducted before them they identified that the Kongungoloso Tribe being the owners of the land in question. Armed with the Chiefs’ decision, the applicant re-submitted its application on 11 February 1998 for timber rights to the Area Council in respect of the said area of land. On 23 February 1998 the Commissioner of Forests advised that the Marovo Area Council should reactivate the applicant’s timber rights application.

The Area Counct on 12 May 1998 and approved the application. Following ng the Area Council’s determination in favour of the application, a group led by one Shane Sarere Tutuo submitted an appeal to the Customary Land Appeal Court (W) against the Area Council’s decision. The Principal Magistrate (Western) rejected the notice of appeal on the basis that the determination of the Area Council was invalid and so refused to list the appeal for hearing. The main reason for the refusal was because all Area Councils in the country were suspended on 17 March 1998 through the Order bearing the same date made by the Minister for Provincial Government and so Marovo Area Council could not competently sit to deal with the application on 12 May 1998. The suspension Order is not disputed although it was argued on behalf of the Marovo Area Council that it was not aware of the Order suspending all Area Councils.

That is briefly the background to this case. The question raised by the respondent is whether the applicant, Kongungaloso Timber Company Ltd, has locus standi to maintain this action, a question which has been strongly urged upon the Court to be in favour of the respondent, that is to say, that the applicant lacks the standing to bring these proceedings. Naturally, Mr. Nori for the Applicant Company, also strongly urged upon the Court to hold that in the circumstances of this case the applicant does have standing to maintain the challenge to the Minister’s action.

Before the applicant is entitled to such a challenge, it must have locus standi; that is a right to come before the Court and ask for the order which it seeks from the Court. It is a condition precedent to possessing locus standi that the applicant must have a special interest in the subject matter of the dispute. The Courts have developed the rules about standing to sue or locus standi in the course of adjudicating disputes over the years. Individuals have now been accorded standing to sue for the vindication of public rights on certain conditions as laid down in Boyce -v- Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch 109 where Buckley J stated:

“A plaintiff can sue without joining the Attorney-General in l in two cases: first, where the interference with the public right is such as that some private right of this is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and where no private, right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the with the public right.”

The enunciated in case has been applied by the Courts ill numernumerous cases since then, albeit now more and more liberally. In Australian Conservation Foundation Inc. -v- Commonwealth (1980) 146 CLR 493 where Gibbs J together with Mason J rephrased the test of locus standi as a special interest in the subject matter of the action over and above that enjoyed by the public generally. The High Court of Australia refused to grant locus standi to the plaintiff who had no special interest in the preservation of the environment at particular places concerned. In the course of his judgment, Mason J (as he then was) said at p.547:

“I also agree with Gibbs J. that, apar apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.

Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interest (as to which see New South Wales Fish Authority v. Phillips (5) ) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v. Western Australian Museum (6): “The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another.”

In this difficult field there is one proposition whichwhich may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration. I entirely agree with Gibbs J. when he says that ‘A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.”

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Thus the High Court of Australia accepted the general principle stated ined in Boyce -v- Paddington Borough Council but went on to add that so much depends in a given case on the circumstances and the nature of the relief sought as what is sufficient interest in one case may not be necessarily so in another.

In Solomon Islands, the Courts have also had occasions to consider this question of locus standi. In most of the cases, the question of the applicant’s standing to sue arose out of a constitutional challenge. Such was the case of Kenilorea -v- Attorney-General [1983] SILR 61 (“the Committee on Prerogative Mercy case”) which had to consider test of locus standi under section 83 of the Constitution which is expressed in the words “interest are being or are likely to be affected.” In that case Daly CJ referred to the cases of Gourcet -v- Union of Post Office Workers [1977] UKHL 5; [1977] 3 All ER 70, Baker -v- Carr [1962] USSC 42; (1962) 369 U.S 186, Australian Conservation Foundation Inc. -v- The Commonwealth (above), R -v- I.R.C, Exp. Federation of Self-Employed [1980] 2 WLR 599, Thorson -v- Attorney General of Canada (Abbot) (1974) 43 DLR 3d 1 and Supreme Court Reference No. 4 of 1980; Re Petition of Somare [1981] PNGLR 265. His Lordship preferred the liberal approach taken by the Courts in the Canadian and PNG cases and held that the Leader of Opposition in Parliament had locus standi to challenge the actions of the Governor-General whose actions contravened the provisions of the Constitution. In another case of Kenilorea -v- Attorney-General [1984] SILR 179 (“the Price Control case,”) this Court (Daly CJ) also accorded the applicant locus standi to challenge, although Pratt JA expressed reservation in the Court of Appeal as to the locus standi of the applicant. On this question, baby CAB said in the Committee on Prerogative of Mercy case at pages 73 - 74:

Can it then be said that the Applicant’s interests are bein being affected by this alleged breach? Has the Applicant a genuine grievance in relation to the subject matter of the application? Applying my discretion to this matter as a whole, I have no hesitation in answering both those questions with a firm “yes”. As a citizen of Solomon Islands Sir Peter has granted with his fellow citizens a Constitution to all citizen of Solomon Islands. Each and everyone of those citizens may have a grievance if there is contravention of the terms of that Constitution. A citizen’s interest lies in the effective maintenance of the Supreme law by which he has entrusted power to the organs of government in his sovereign democratic state. The power so entrusted belongs to each and every citizen and if it is abused or misused a citizen should have general standing to come to this court, a court to whom power is also entrusted to grant remedies when there is a contravention of the terms of the citizen’s entrustment, that is, the terms of the Constitution. I say “may have a grievance” and “general standing” because it remains within the discretion of the court to decide in an individual case whether the applicant has a genuine grievance and, on this basis, whether his interests are in fact being affected or likely to be affected. This is the importance of the use of those words in section 83(1) and 83(1) of the Constitution.

In this case, bearing in mind tture of the alleged contravntravention, the nature of the Applicant, the manner of the approach to the court and having read the documents before the court I hold that the Applicant as a citizen of Solomon Islands has locus standi or legal standing within section 83(1) of the Constitution.”

As the Constitution is the supreme law in Solomon Islands, it must be the leading authority on any principle of law applicable in this country including, that of locus standi. The applicability of such principle depends on the circumstances and nature of a given case.

[1987] SILR 75, the Ombudsman sought declarations regarding a scheme of arrangement for sale of timber rights under the Forests and Timber Act and Regulations. The defendants, apart from the Attorney General, were private companies and individuals. The Court held that the applicant had no locus standi being a private individual whose interest were not peculiarly affected by the defendants’ conduct and that his claim was too indirect and unsubstantial.

The Courts have dealt with this issue and have said in many cases the e exercise of their discretion in such cases will not be made in favour of a plaintiff whose claim is too indirect or insubstantial and would not give him relief from liability, disadvantage or difficulty. See Thorne RDC -v- Bunting [1972] 2 WLR 577, the Gouriet’s case, and Gordon -v- Minister of Finance (1968) 12 W.I.L.R. 416.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> My observation of the case in this jurisdiction shows that for locuslocus standi to be established, the applicant must show that his interest in the matter in dispute is affected. This interest must be special to the applicant. In this connection, I would prefer the test as enunciated in Boyce -v- Paddington B.C but as rephrased by Gibbs J and agreed to by Mason J in Australian Conservation Foundation -v- The Commonwealth. The view expressed also by the High Court of Australia in Anderson -v- The Commonwealth [1932] HCA 2; (1932) 47 CLR 50 makes it even more clearer the test to be applied in such a case as this. In that case the plaintiff alleged that an agreement between the Commonwealth and a State restricting the importation of sugar into the Commonwealth was illegal and invalid. He alleged that he was interested in the matter as a member of the public. The Court said:

“The plaintiff is no party to the Agreement, and founds his action upon an allegation of lack of authority on the part of the Commonwealth to make any such agreement or to prohibit the importation of sugar. But the Agreement made by the Commonwealth, and its prohibition affect the public generally and the plaintiff has no Interest in the subject matter beyond that of any other member of the public: he has no private or special interest in it. Great evils would arise if every member of the Commonwealth could attack the validity of the acts of the Commonwealth whenever he thought fit; and it is clear in law that the right of an individual to bring such an action does not exist unless he establishes that he is “more particularly affected than other people.”

I respectfully agreed with the view expressed by Mason J (as he then was) in Australian Conservation Foundation -v- The Commonwealth, to the effect that standing to sue in constitutional cases turn on distinct considerations than those in cases such the present one where the applicant, a logging company, seeks to challenge the order of the Minister suspending Area Councils.

The cases referred to, however, recognised the basic principle in judicial determination that each case depends so much on its own circumstances in determining the issues raised for the Court’s consideration. The legal principles to be applied may be common but the exercised of it cannot be done in isolation of the circumstances of the particular case. Thus in the present case the Court lost consider the factual circumstances of the case in order to see whether the applicant has locus standi to come to this Court in order to challenge the executive order of the Minister.

The applicant beisirous of obtaining a licence to carrying out a loggilogging operation in the area concerned, applied through the usual statutory procedure as provided by law under Part IIA of the Forest Resources and Timber Utilisation Act. The right of the applicant at that stage of the process, is not the right to be granted the licence but rather the right to be accorded the statutory opportunity to be properly dealt with on his application for the licence, that is to say, the right to have his application properly considered in accordance with the statutory provisions under the Forest Resources and Timber Utilisation Act, which provisions are still effective.

Parliament had enacted Part IIA provisions of that Act which provides for r the procedure for obtaining timbers rights in an area of land concerned. Section 5 B (1) provides for the first step in this process whereby the application is made to the Commissioner of Forests for his consent to negotiate with the appropriate Provincial Government, Area Council and landowners. The second step is for the Area Council to meet with the landowners following notice to persons residing within the area concerned and who appear to have an interest in the land, trees or timber in question : S, 5C(2). The third step, as provided for under section 5C(3), is for the Area Council to meet with the landowners and applicant and determine the matters set out in paragraphs (a) to (e) of that section. The fourth requirement is that any agreement reached pursuant to section 5C(3) must be., reduced to writing and forwarded to the Commissioner with the recommendation of the Area Council: Simbe -v- East Choiseul Area Council & Others, (1997) Civ. App. Cas. No. 3 of 1997 (Ch), All these requirements confer a statutory duty on the Area Council under the Forest Resources and Timber Utilisation Act to consider applications for timber rights and when an applicant, such as the applicant in this case, submits an application to the Commissioner, he is exercising his statutory rights conferred on him by operation of those provisions and so has a legitimate expectation that it would be dealt with according to law: The suspension of the Area Council undoubtedly means that the applicant's application would not be able to be dealt with an the process under Part IIA of the Forest Resources and Timber Utilisation Act would be affected. If anything, this in my view, is a substantial prejudice to the applicant. Its right and interest would clearly be affected: Talasasa -v- Attorney General & Others (1995) CC43/95; Christopher Colombus Abe -v- Minister of Finance (1994) CC197/94.

Australian Conservation Foundation Inc., stands to suffer from the violation of a public right.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The point regarding the position of thorney-General having the rihe right to exercise his fiat as a guardian of public right in Solomon Islands will one day be fully determined by the Courts in this jurisdiction. I do not think I need to go into that at great length in this case. I can only say that the constitutional position of the Attorney-General in Solomon Islands is not the same as that in England and as such, borrowing principles on the position of Attorney-General in England and applying them to our position in this country must be done with caution. There are a number of marked differences which must not be brushed aside These include the decisions whether or riot to institute criminal prosecutions, thereby making the Director Public Prosecution responsible to the Attorney-General. This is not the case in Solomon Islands. The Attorney-General in Solomon Islands is the principal legal adviser to the executive government. In England, the Attorney General and his Law Officers are the legal advisers to the Crown and Parliament and they change with the government. I share the same view expressed by Daly CJ in the Committee on Prerogative of Mercy Case where he said.

class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “The preamble to the Constitution states that:-

“all power in Solomon Islands belto its people and is exercixercised on their behalf by the legislature, the executive and the judiciary established by this Constitution.”

This preamble concludes “AND for these purposes we now givw give ourselves this Constitution”. Section 2 provides that the constitution is “the supreme law of Solomon Islands.”

There is to be observed immediately a clear distinction with the the constitutional law of England as stated in Couriet’s case (ab. Cited) where it is said that the rights of the public are vested in the Crown. In Solomon Islands the power is vested in the people; Her Majesty is the Head of State. For this reason alone the authorities dealing with an officer of the Crown are not, in my opinion strictly applicable in Solomon Islands. In our Constitution the Attorney General is given a specific role to play by section 42 as principal legal adviser to the Government. Indeed it can be seen in this present motion that the Attorney-General appears as Respondent in his constitutional capacity as principal legal adviser to the Government 'and quite properly takes up his position as such. It would, in many cases in Solomon Islands be impossible for as a public officer, to be the originator of public interest actions and principal legal adviser to the Government at one and the same time.”

In the present case, nothing has been done by the Attorney Generalneral in respect of the action of Minister until the applicant commenced these proceedings. Assuming that the Minister’s action in suspending the Area Councils on 17 March 1998 was wrong in law, no action had been taken by the Attorney-General to remedy it and one can further assume that had the applicant not taken these proceedings, the Minister’s wrongful action would be left unchallenged. This in my view, is all the more reason why I feel the view expressed by Daly CJ is pertinent in our context.

As to the present case, I have considered all matters efore the Court and tand the only conclusion this Court can come to is that the applicant has locus standi to bring these proceedings and I so hold.

(Sir John Muria)
CHIE CHIEF JUSTICE