Piruku v Clerk to the Western Customary Appeal Court [2005] SBHC 92; HCSI-CC 338 of 2005 (18 August 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 338 of 2005

SETH PIRUKU, RAEVIN REVO, OLIVER JINO, YALU RENO,
ALBERT LEGERE, BURNLEY KIMITORA
AND ANDREW LADA MURRY

-v-

THE CLERK TO THE WESTERN CUSTOMARY APPEAL COURT
AND HAVEA, MOGORIA, GORDON YOUNG AND OTHERS.

Date of Hearing: 10^th August 2005.
Date of Ruling: 18^th August 2005.

P. Tegavota for the Applicant.

RULING

Kabui, J.: This is an ex parte application for leave for an order of mandamus to issue against the CLAC (Western) to determine the persons lawfully entitled to grant timber rights in respect of Rodo customary land on Vangunu Island in the Western Province. Such leave is required under Order 61, rule 2(1) of the High Court (Civil Procedure) Rules 1964, “the High Court Rules.” Leave can be granted provided there is an arguable case being presented by the Applicant. In other words, if there is merit in the case and not a busybody cause of action. It is against that principle that I will decide whether or not I should grant leave in this case. (See Ramo Dausabea v. The Cabinet (represented by the Attorney-General and the Commissioner of Lands, Civil Case No. 153 of 2001).

The background.

As a result of a Form 1 application, followed by a notice of publication under the provisions of the Forests and Timber Utilization Act (Cap. 40), "the Act," the Western Provincial Executive sat on 15^th August 2002 and conducted a timber rights hearing at Seghe regarding timber rights over Rodo land on Vangunu Island. The timber rights hearing seemed to have continued and concluded at a later date. Form 2 was signed and dated on 18^th September 2002. By letter dated 4^th October 2002, the appeal against Form 2 determination was lodged. That appeal was heard and the CLAC (Western) gave its decision on 8^th July 2005. The CLAC (Western) determined that the Western Provincial Executive Committee had failed to identify the persons lawfully entitled to grant timber rights without going on to determine the persons lawfully entitled to grant timber rights over Rodo land in lieu of the omission committed by the Western Provincial Executive Committee. Leave is therefore being sought to enable an application for mandamus to demand that the CLAC (Western) proceed to identify the persons lawfully entitled to grant timber rights over on Rodo land.

The CLAC (Western) determination.

There is no record before this Court of the further timber rights hearing to be continued in Marovo after the Seghe hearing on 15^th August 2002. The fact that Form 2 exists does confirm the fact that further timber rights hearing had taken place following the Seghe hearing. The CLAC (Western) decision given on 8^th July 2005 shows on pages four and five of the judgment that the Provincial Executive Committee’s determination consisted of three pages. The Provincial Executive Committee’s conclusion as its determination on page three states -

(i) That the executive therefore, by majority vote, approved the Rodo Development Company timber right application in the customary land called Rodo Land at Vangunu Island. (See attached map).

(ii) That the executive further approved that Rodo Development Company must include the provincial executive during its agreement negotiation as stipulated on 5c(3)(e) of the Forest and Timber Utilization Act 1990.

(iii) That the executive has approved sitting allowance of $500.00 per sitting effective forthwith for executive members and officials attending timber rights hearing.”

Clearly, nothing is said about the points raised in the appeal letter dated 4^th October 2002. The CLAC (Western) neither confirmed the persons found by the Provincial Executive Committee being the persons lawfully entitled to grant timber rights nor found the persons lawfully so entitled in substitution for the Provincial Executive Committee’s determination. No appeal lies from the CLAC to the High Court under section 10(2) of the Forests and Timber Utilization Act (Cap.40), "the Act." Should the CLAC (Western) be commanded to determine the persons lawfully entitled to grant timber rights over Rodo land is the issue to be decided if leave is granted for an application for mandamus to be made. Clearly, that is a prima facie arguable case and must weigh in favour of granting leave. Leave is granted accordingly.

F.O. Kabui
Puisne Judge