Qalo v Attorney-General [2003] SBHC 86; HC-CC 296 of 2003 (29 December 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 296 of 2003

JACKSON QALO

–V-

ATTORNEY GENERAL AND REKO ENTERPRISES LIMITED

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 8^th December 2003
Judgment: 29^th December 2003

G. Suri for the Applicant/ Plaintiff
N.A. Moshinsky Q.C. for the first Respondent/first Defendant
P. Tegavota for the second Respondent/second Defendant

Palmer CJ.: By ex parte summons filed 13^th November 2003, Mr. Suri for the Applicant/Plaintiff (“Applicant”) applies for leave pursuant to Order 61 Rule 2(2) of the High Court (Civil Procedure) Rules 1964 (“the Rules”) to apply for an order of mandamus against the first Respondent/first Defendant (hereinafter referred to as “the Commissioner”) to inter alia suspend or cancel the logging licence of Reko Enterprises Limited (“Reko Enterprises”) and subsequent orders. The Applicant relies on sections 39(1), 32 and 33 of the Forest Resources and Timber Utilisation Act (cap. 40) (“the Act”) for his application.

Background facts.

The Applicant claims ownership in custom over Kovorae/Polo land (“Kovorae”) and the trees situated on the said land. Kovorae is situated on Choiseul Island. The Applicant’s claims of ownership are challenged by another group, Shakespeare Qaloboe, Simion Kebaku, Maeka Leokana, Jimmy Pitakaji and Bose Poqe (hereinafter referred to as “the Competing Landowners”). Their ownership claims over the trees on Kovorae were tested under the relevant provisions of the Act when Reko Enterprises sought to acquire timber rights over the said land for logging purposes. In its determination of 6^th August 2002, the Choiseul Provincial Executive (“CPE”) determined that the Competing Landowners were the persons lawfully able and entitled to grant timber rights over Kovorae.

On or about 8^th August 2002, the Applicant filed appeal to the Customary Land Appeal Court (Western) (“WCLAC”) under section 10 of the Act challenging the findings of the CPE. That appeal is yet to be heard.

Meanwhile, on or about 14^th July 2002, Reko Enterprises and their contractor Mega (Maximus) Company (“Maximus”) landed their logging machines and equipment on Sarukesa/Raburabu land (“SR land”). Applicant claims that the land on which the logging machines and equipment were landed is Sarukesa owned by Kavalabatu and is part of Kovorae. The Competing Landowners on the other hand say that the same land is called Raburabu partly owned by Dent Soma and Jimmy Pitakaji. SR land lies somewhere in between Repaga land and Kovorae land. The Competing Landowners say that the said land is separate and distinct to Kovorae land; that it is owned by a different person and that they had entered into a separate agreement with that person for use of the said land and therefore deny any allegations of trespass or conversion in respect of the claims of the Applicant.

There is no dispute regarding the identity of persons entitled to grant timber rights over Repaga land; these have been determined to be the same persons as the Competing Landowners. A timber licence number A10223 has also been issued in favour of Reko Enterprises. By virtue of a technology and management agreement signed 17^th March 2003, Maximus was engaged as the logging contractor to carry out the logging operations on Repaga land. It is not in dispute that access to Repaga land from the coast can only be made through SR land.

In an earlier action Shakespear Galoboe, Simion Kebaku, Maeka Leokana, Jimmy Pitakaji and Posepoqe v. Jackson Qalo^[1] (“Shakespear’s Case”) the Applicant had applied for interim restraining orders on the grounds of trespass to Kovorae. The Applicant had asserted and continues to assert that SR land is part of Kovorae. His Lordship Kabui J. refused injunction on the basis that issues of ownership and boundaries in respect of SR land and Repaga land had not been commenced under the Local Courts Act. His Lordship relied on the Court of Appeal decisions in Gandly Simbe v. East Choiseul Area Council, Eagon Resources Development Company Limited, Steven Taki and Peter Madada^[2] and Aquiala Talasasa, Jacob Zinghite and Nathan Maisasa Losa v. Rex Biku, John Kevisi and Western Customary Land Appeal Court^[3] in which it was determined that the correct forum for land disputes was the Chiefs, the Local Courts and Customary Land Appeal Courts.

The issue for determination.

The Applicant bases his application for leave to file an application for mandamus on exactly the same grounds as raised in Shakespear’s Case, that an appeal is pending before the WCLAC regarding ownership rights over timber in Kovorae land (currently under dispute) and that SR land is part of Kovorae land. The courts and the Commissioner of Forests (“the Commissioner”) therefore are obliged to safeguard the interests of the Applicant over those disputed trees.

The provision relied on.

The Applicant says that the Commissioner in this case has duty under sections 39(1), 32 and 33 of the Act to cancel and or suspend the licence of Reko Enterprises where he is so satisfied that “... the holder of a licence or permit issued under this Act has contravened any of the provisions of this Act, or that there has been a contravention of any of the terms of conditions of such a licence or permit ....”. Applicant contends that the activities of Reko Enterprises are illegal in that they do not have any valid licence or timber rights agreement to enable them to construct a log pond or access road through SR land.

Submission of the first Respondent representing the Commissioner.

Mr. Moshinsky for the Commissioner submits that no leave should be granted on the basis that what the Applicant is seeking from the court is to require the Commissioner to exercise his discretion to get a particular result, that is, to cancel or suspend the licence of Reko Enterprises. Learned Counsel submits that this cannot be permitted; court cannot compel Commissioner to exercise his discretion to get a particular result (see The King, on the Prosecution of Howard Freeman v. Arndel [1906] HCA 7; [1906] 3 C.L.R 557).

Submission of the second Respondent (Reko Enterprises).

Mr. Tegavota for Reko Enterprises submits that leave should not be granted in that the timber rights agreement and licence issued in favour of Reko Enterprises do not cover Kovorae. The Applicant therefore does not have locus standi to bring this case; he is not a party to the timber rights agreement. His interest is confined only to Kovorae land.

The law.

Mandamus is a discretionary remedy and long recognized as the normal means of enforcing the performance of a public legal duty by public officers or authorities. Whilst certiorari and prohibition deal with wrongful action, mandamus deals with wrongful inaction.

Where there is discretion to be exercised, the most mandamus can do is to compel the court or tribunal to exercise its discretion. Whether the court or tribunal will rule in favour of the Applicant or not is a matter solely within its discretion, in other words, the court will not interfere with action which is intra vires.

Application to the facts of this case.

Mandamus is sought in respect of the action taken by the Commissioner in refusing to cancel or suspend the timber licence of Reko Enterprises, despite a submission made to that effect by the Applicant as contained in his letter dated 17^th September 2003 (Exhibit “JQ7” annexed to the affidavit of Jackson Qalo filed 13^th November 2003). The decision of the Commissioner is contained in his letter of 17^th September 2003 addressed to “The Police Officer Taro” in which he pointed out that the land on which the machines had been landed and the proposed access road were not within the boundaries or vicinity of the disputed land (Kovarae/Polo land). The Commissioner accordingly refused to cancel or suspend the licence as urged by the Applicant.

The Applicant insists that the Commissioner had failed to act properly by refusing or declining to suspend or cancel the licence of Reko Enterprises and therefore is amenable to the jurisdiction of this court by an order for mandamus. Applicant submits that the Commissioner had failed to exercise his discretion properly and therefore should be ordered to do his work.

Unfortunately, as pointed out succinctly by learned Counsel Moshinsky in his submissions, even if an order could be made in favour of the Applicant, the most the court can do is to order the Commissioner to exercise his discretion; the court cannot order him to cancel or suspend the licence of Reko Enterprises, that would be tantamount to compelling the Commissioner to exercise his discretion to get a particular result.

This case is slightly different in that it is not the case where the Commissioner is declining or refusing to exercise his discretion. The Commissioner had exercised his discretion it seems in the matter after considering the letter of complaint of the Applicant, but had declined to suspend or cancel the licence of Reko Enterprises. Whether that decision is wrong or right is immaterial to the exercise of the Commissioner’s discretion and this court should not intervene. If the Applicant contends that the exercise of the Commissioner’s discretion is wrong in law, that is, ultra vires then the proper course of action to take would be for certiorari.

Operations of Reko Enterprises illegal?

Learned Counsel Mr. Suri submits as an alternative argument that even if the discretion had been exercised so that the court should hesitate to intervene, he submits that the facts present a compelling case for leave in that the actions of Reko Enterprises in whichever way it is looked at reveals activities which have been committed in clear breach of the provisions of the Act. Learned Counsel Suri points out that Reko Enterprises had failed to obtain a valid licence and a timber rights agreement covering SR land. The licence and timber rights agreement of Reko Enterprises were in respect of Repaga land only; there is no mention of SR land. The issue of land ownership over SR land therefore had never been determined under the Local Courts Act as between the various claimants in this case. This was the reason why his Lordship Kabui J. had refused to grant injunction in Shakespear’s Case.

Both the Applicant and the Competing Landowners concede that SR land is a separate or distinct land and over which no valid timber rights had been acquired and licence issued for the construction of a log pond, camp and access road, though the Applicant continues to assert that it is part of Kovorae in any event. To that extent there is compelling material before this court that the activities conducted by Reko Enterprises on SR land were done without complying with lawful procedure set out in the Act and without lawful authority.

Should the court intervene by way of granting leave for mandamus?

This issue raises in turn the question of locus standi. Does the Applicant have standing to challenge the decision or lack of decision by the Commissioner in the circumstances of this case? Respectfully this is where the application of the Applicant must fail for the following reasons. First, although the Applicant asserts on one hand that SR land is part of Kovorae, his concession that it is separately owned is crucial to any rights that he might have over the said land. That concession effectively severs any rights or interest he might claim over the said land. It shows that for any timber rights hearings that might be undertaken over the said land, he cannot act as the representative of that land and therefore cannot assert any interest or right over it. Secondly, the person Kavalabatu, identified by him as having rights over the said land has not been joined as a party in these proceedings. Thirdly there is no evidence to support his argument that the said land (SR land) had been included in his claims as being part of Kovorae. Even if his claim is accepted, his concession that it is separately owned virtually destroys any claims of right he might have or assert over the said land. Fourthly, even if Kavalabatu is joined as a party to these proceedings, the fact that there is no evidence to suggest that the issue of land ownership had been referred to the Chiefs and the Local Courts etc. pursuant to the Local Courts Act bars any interlocutory injunction in aid of the Chiefs or the Local Courts.

So whilst conceding to a certain extent that a compelling case had been demonstrated that Reko Enterprises had acted illegally, without complying with the procedures set out under the Act, unfortunately, his application for leave ultimately must be denied on the grounds of lack of standing or sufficient interest (see reasons enumerated above). Secondly, for the same reasons, whilst conceding that it may have been amply demonstrated that the Commissioner had failed or declined to exercise his discretion properly, that is, according to law, I am unable to exercise my discretion in favour of granting leave to apply for an order for mandamus.

Orders of the Court:

1. Refuse application for leave to file motion for an order of mandamus against the Commissioner.
   
2. Costs of the Respondents to be borne by the Applicant.
   

The Court.

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^[1] HCSI-CC No. 283 of 2002, 29^th October 2003 per Kabui J.
^[2] CASI-CC No. 8 of 1997
^[3] CASI-CC No. 2 of 1987