Paia v Sakiri [2005] SBHC 61; HCSI-CC 368 of 2004 (15 April 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 368 of 2004.

HUGH PAIA AND OTHERS

–v-

JUDAS SAKIRI AND OTHERS

HIGH COURT OF SOLOMON ISLANDS.
(KABUI, J.).

Date of Hearing: 11^th April 2005.
Date of Ruling: 15^th April 2005.

A.N. Tongarutu for the Plaintiffs
P. Tegavota for the 1^st, 2^nd and 3^rd Defendants
F. Waleanisia for the 5^th Defendant

RULING

Kabui J. This is an application by summons filed by the 1^st, 2^nd and 3^rd Defendants on 10^th September 2004, seeking a determination of a point of law agreed by the parties under Order 27, rule 2 of the High Court (Civil Procedure) Rules 1964 “the High Court Rules”. The Plaintiffs filed a Writ of Summons and a Statement of Claim on 4^th August 2004 seeking a number of declarations and orders against the Defendants.

The brief background.

The Plaintiffs are members of the Voramali tribe being the landholding group having authority over the Kazukuru Right Hand Land (KRHL) situated on New Georgia, in the Western Province. The 2^nd Defendant is also a member of the Voramali tribe but was not authorized to enter into any agreement with the 1^st and 3^rd Defendants concerning KRHL. The 1^st Defendant and those whom he represents also claim to be members of the Voramali tribe which the Plaintiffs deny. On 26^th September 2003, the Plaintiff and the 2^nd Defendant applied for a timber rights licence over KRHL by lodging a Form 1 application with the Commissioner of Forests but was not processed according to the requirements of the Forests and Timber Utilization Act (Cap. 40) “the Act”. Yet in 2004, the Commissioner of Forests processed the application by the 1^st and 3^rd Defendants and issued a licence to the 3^rd Defendant on 25^th June 2004 without compliance with the requirements of the Act. The Plaintiffs have now challenged the validity of the non-compliance with sections 7, 8, 9 and 10 of the Act.

The issue to be determined by the court.

The point of law to be decided is whether or not the 1^st, 2^nd and 3^rd Defendants are required to comply with sections 7, 8, 9 and 10 of the Act. To understand the point of law being raised for determination, one has to go to the determination made by the Customary Land Appeal Court, (Western), in 1984. (See CLAC No. 1/84). In that determination, twelve persons had been identified as the persons lawfully entitled to grant timber rights over the KRHL. They were as follow-

1. Willie Paia;

2. A. Bisili;

3. John Roni;

4. Esau Hiele;

5. R. Ege;

6. Simon Sasae;

7. E. T. Daga;

8. J. Sakiri;

9. J. Posa;

10. Zonga;

11. S. Kato;

12. J. Zingihite.

Of these, only Judas Sakiri, Alfred Bisili, Jonathan Poza and Simon Sasae are still alive today. Since then a number of replacement trustees have been chosen to replace three trustees who are now dead and one who is a disabled person, to complete the full compliment of twelve trustees for KRHL. How the new replacement trustees were chosen is an internal matter which I need not delve into for obvious reason.

The CLAC (Western) determination in 1984 of persons lawfully entitled to grant timber rights over KRHL and its effect.

There is no doubt that the twelve persons named in the determination of the CLAC (Western) were the persons entitled to grant timber rights over KRHL. This was indeed the case when the then Roviana Area Council confirmed them in Form 2 in the 1988 application by Allardyce Lumber Company to carry out logging in the same area of land. It appeared from the body of Form 2 itself that the then Roviana Area Council had indeed sat on 18^th March 1988 to consider the application before making the determination required of them. The determination was therefore based upon a letter written to the Chairman of the then Roviana Area Council by Alfred Bisili and the late Willie G. Paia, confirming the names determined by the CLAC (Western) in 1984 as the trustees entitled to grant timber rights over KRHL. The action of the then Roviana Area Council was however was short lived for it came under the scrutiny of the Court of Appeal in Beti, Bisili & Paia (representing the Voramali tribe) v. Allardyce Lumber Co. Ltd., Attorney-General and Bisili, Roni, Sakiri, Hiele, Sasae, Poza, Hite, Daga & Pato, Case No. 5 of 1992. The Court of Appeal confirmed that the acquisition of timber rights procedure under Part 11 A (now Part 111) of the Act was mandatory, affirming the view of Ward, C.J. of the High Court, involving the same parties in Civil Case No. 93 of 1989, [1988/89] SILR 78. Affirming the view of Ward, CJ, the Court of Appeal at page 10, said-

“...The ratio of the decision, so far as Allardyce’s case was concerned was that the agreement or agreements were invalid for failure to observe the then Part 11A provision and that the steps which purported to be taken under ss.5E and 5F were invalid for the same reasons. This view accords entirely with that which we have expressed above...”

At page 15, the Court again said-

“...The irregularities committed by the RAC and the Commissioner of Forests Resources and the Minister denied the plaintiffs and their line the right, under Part 11A, to appeal to the CLAC. The procedure prescribed by Part 11A, which is the only way timber rights could be granted over customary land, was either ignored or misapplied. The agreements of June and November 1988 were not, as has been seen, agreements for the purposes of Part 11A...”.

At page 18, the Court emphasized that-

“...In practical terms however, as in the case of Allardyce No. 1, it must surely be clear that Allardyce has no prospect of obtaining a valid timber licence over KRHL unless there is a strict compliance with Part 11A by all involved. This, as Ward, C.J. expected would occur after the first Allardyce case, entails a fresh application. If this is inconvenient either to the Provincial Government or to Allardyce, it will at least ensure that customary rights are not overridden for economic reasons...”.

This same position was affirmed in Civil Case No. 45 of 1992, involving the same parties, by Muria, C.J. in His Lordship’s judgment delivered on 21^st May 1993.

The Forest Resources and Timber Utilization (Amendment) Act 2000 (No. 6 of 2000) have replaced Area Councils with the Provincial Governments in the form of the Provincial Executives. Subsection 1 in section 8 of the Act has been replaced by a new subsection 1 but the timber rights acquisition procedure as restated by the Court of Appeal above remains unaltered. The procedure includes the right to appeal to the CLAC which can be denied if the procedure is avoided by non-compliance.

The validity of the CLAC (Western) determination in 1984 can be said to apply only to those persons named in the determination made by that Court at that time. That determination cannot now be said to be accurate since the death of nine of the original trustees for the appointment of the replacement trustees was not the work of the CLAC (Western) in 1984. Their appointment was the work of the Voramali tribe as confirmed in a support letter addressed to Delta Timber Limited dated 23^rd August 2004. It therefore cannot be said that the replacement trustees appointed by the Voramali tribe can find solace in the CLAC determination in 1984. The matters in (a) (b) (c) (d) and (e) stated in section 8(3) of the Act are important matters to be discussed as and when they arise which cannot be pre-determined for future generations by the first trustees in 1984. This point was recognized by Ward, C.J. as an important issue in the case cited above and affirmed by the Court of Appeal in its judgment also cited above. The argument by Counsel for the Defendants, Mr. Tegavota, that the CLAC determination in 1984 had set the threshold beyond which sections 7, 8, 9 and 10 in Part 111 of the Act cannot apply does fly into the face of the Court of Appeal judgment cited above and affirmed by Muria, C.J. in Civil Case No. 45 of 1992, both confirming the view taken by Ward, C.J. in the first place in Civil Case No. 93 of 1989 cited above. The same argument can also be said to be superfluous because the need to call a meeting under section 8 is for the purpose of determining the matters in subsection 3 which are matters in (a) (b) (c) (d) and (e) in that subsection. If that meeting is not called, then nothing can be done about (a) (b) (c) (d) and (e) above which are vital to the whole investment project with the end result that the Provincial Executive would recommend to the Minister, the rejection of Form 1, being the application. The Court of Appeal made this point at pages 5-6 of its judgment and that confirms the intent of Parliament. I find myself being unable to disregard this and act otherwise. Counsel for the Defendants, Mr. Tegavota, also relied upon the case of Steven Veno and Others v. Oliver Jino and Others, Civil Case No. 152 of 2003 in which Palmer, C.J. said that where the questions of timber rights had been finally determined, those rights should not be re-determined over the same land. I was told by Counsel that the judgment was being appealed and for that reason I express no view on Counsel’s reliance on this authority for the purpose of this determination. The authority of the Court of Appeal judgment cited above is enough to enable me to dispose of this issue before me. I answer this point of law raised by consent of the parties in the affirmative. That is, the 1^st, 2^nd and 3^rd Defendants are required to comply with sections 7, 8, 9 and 10 in Part 111 of the Act. I determine accordingly. Consequently, the licence issued is invalid for that reason. The Form 1 application by the 3^rd Defendant must therefore be treated as a fresh application for the purpose of sections 7, 8, 9 and 10 of the Act. I have noticed that this same issue had been before the Courts three times before and each time the answer given was the same as demonstrated by the previous judgments. This is the fourth time it has come to Court for determination. There must be an end to litigation as a matter of public policy as has been said by the courts many a time. Whilst the Defendants had obviously obtained encouragement from the judgment in Steven Veno and Others v. Oliver Jino and Others cited above, a little research would have revealed the existence of the Court of Appeal judgment which is a direct authority on the issue. Nevertheless, both parties have accepted the usefulness of applying Order 27, rule 2 of the High Court Rules to cut costs of litigation for their own mutual benefit. Each party will therefore meet their own costs. I order accordingly.

F.O. Kabui

Puisne Judge