Nique v Rupakana [2006] SBHC 47; HCSI-CC 352 of 2006 (16 November 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 352 of 2006

JOHN NIQE AND PENROSE PAREPARE

-v-

GRAHAM RUPAKANA, DELTA TIMBER LIMITED & ATTORNEY-GENERAL (Representing the Commissioner of Forests)

Date of Hearing: 10th November 2006

Date of Judgment: 16th November 2006

Makario Tagini for the Plaintiffs
Presley Watts for the 1st Defendant
Philip Tegavota for the 2nd Defendant
Rawcliff Ziza for Attorney-General

JUDGMENT
Summons for interlocutory injunction pending writ

Writ and Statement of Claim seeking declarations to the effect that the 2nd defendants felling licence issued pursuant to the Forest Resources and Timber Utilisation Act is invalid in so far as it affects parts of (Nasoga) Borovai land and consequential orders.

Brown J: By inter-party summons filed on the 6 September the plaintiff’s claim as owners and spokes-persons of Vasoga Clan whose customary land is the subject of a Felling Licence No. A10302 granted by the Commissioner of Forest Resources on the 3 March 2006 seek to prevent logging operations by Delta Timber Limited the company granted timber rights by earlier agreement with other landowner representatives. For by Standard Logging Agreement dated 8 February 2006, Delta Timber Limited was granted timber rights to Borovai land, South Choiseul by the landowners named in that agreement. Those landowners included the 1st defendant, in the document described as Chief Graham Rupakana. As well others who signed were Abel Qoravahaka, Kega Poloso, Ken Luaboe, Roniolo Tanakasu, and Martin Matai, witnessed by John Qaqhra – community leader. That agreement had annexed a marked map of the land affected.

This SLA followed the process prescribed by the Forestry Act it is said, for by Form 1 particular named persons claiming as landowners sought a timber right hearing at Taro Provincial Headquarter on 22 April 2003 and subsequently by Choiseul Province Executive Committee determination dated 7 May 2003 recognized named persons as able and entitled to grant timber rights over Borovai land. The Executive hearing the application included the Hon. Jackson Kiloe of Babatana Ward, the Premier of the Province.

As a consequence, there were, I am told, four groups of persons who appealed against the Executives determination. The plaintiff John Niqe was one such objector, (jointly with Mesach Ngodoro).

The Western Customary Land Appeal Court heard these appeals together and by judgment dated 10 October 2005 the court struck out the appeals for that in its reasons; "the court is satisfy that all the appeal grounds are not for the court to deal by process under the FTRU Act. Also by the minute or record of the proceeding of the Provincial Executive there is nothing wrong in the determination to warrant this court to intervene".

Mr. Tagini argues on the evidence of the two plaintiff’s that the determination by the Executive dated 7 May 2003 had been overtaken by the Council of Chief’s decision of the 29 October 2002, in any event and that consequently the timber rights determination by the Executive was ineffectual to allow those named in the Determination dated 7 May 2003 to grant timber rights for that the Executive departed from the Chief’s finding.

The defendants argue that the Chief’s hearing was not concerned with the grant of timber rights.

That is the flaw in the plaintiffs argument on this point for the grant of timber rights on customary land is governed by the Forest Resources and Timber Utilisation Act, a statutory regime which the plaintiffs concede was followed in this instance even to the extent of prosecuting their particular appeal against the findings of the Executive, an appeal which failed.

For that determination of the CLAC was a hearing on the merits and by s. 10(2) of the Forestry Act, the order of the CLAC "shall be final and conclusive and shall not be questioned in any proceedings what so ever"

That finding of the CLAC is protected by s. 10(2). There is, then no merit in the plaintiffs 1st argument that they have had recognition in other proceedings of their claim to ownership of this particular customary land (an issue different to that facing the Provincial Executive) for that other forum is not that forum vested with jurisdiction to consider grievances following upon timber rights hearings and determinations made under s. 9 of the Forestry Act. By that Executive’s Certificate of Customary ownership the 1st Defendant Rupakana Graham was confirmed as one of the persons lawfully able and entitled to grant timber rights. I note that Penrose Parepare was also named amongst those lawfully able to grant, but he (needless to say) was not named amongst the 4 groups who appealed the Executive’s decision.

I do not accept Penrose Parepare’s assertion that his name was included in the Form 2 determination "without his consent," rather I find that his assertion, now, against his interest as one found to have the power to grant timber rights, reflects the contentious nature of the customary power play, and must be seen in the light of John Niqe’s benefit under the Glen Grow agreement exhibited to Lawrence Wong’s affidavit of the 29 September 2006.

The 2nd issue that arises on the plaintiffs’ affidavits is that to be found in Moses Vozoto’s affidavit of the 23 October 2006. That affidavit annexes a letter of the Hon. Jackson Kiloe dated the 29 October 2006, in which the Premier says, when writing to the Commissioner of Forests that he has no knowledge of tabling the Form 4 agreement for Borovai Customary Land before the Choiseul Provincial Executive Committee and further that any endorsement of Form 4 and Form 3 have been done outside the Executives decision.

The Hon. Jackson Kiloe signed the Form 2 as one of the Provincial Executive. His Provincial Secretary was then Nixon Qurusu. On the 9 February 2006 the Secretary executed a Certificate approving Timber Rights Agreement Negotiation pursuant to s. 12 of the Forestry Act. (Form 3)

Section 12 provides that, upon receipt of the Commissioner of Forests, recommendation for grant of approval to the Agreement for Timber Rights (Form 4), (which recommendation impliedly accepts

(i) no appeal or resolution (in this case) by having before the CLAC of appeals under s. 10; and

(ii) the existence of a proper stamped completed agreement (Form 4 – dated 8 February 2006 – in evidence annexed to Penrose Parepare’s affidavit, "PP 2");

the Choiseul Provincial Government may complete the Form 3 and forward a copy of the Form 3 to the Commissioner of Forests who shall inform the parties. There upon the process is complete and the parties are free to proceed in accordance with the grant.

But at the time Nixon Qurusu signed the Form 3, there was, it appears, a letter by the Under Secretary (the appropriate officer) Ministry of Provincial Government, suspending Mr. Qurusu from his duties. Mr. Qurusu says he was unaware of the fact of such suspension until some time in March 2006 although the Under Secretaries letter was dated 28 December 2005. The Premier, the Honourable Jackson Kiloe does not throw any light on the issue as to when the purported suspension took effect, for he does not, in his letter, deal with it at all. What is plan however that is there is no evidence to satisfy me that I should disregard Mr. Qurusu’s assertion that he was unaware of this suspension until March, so that, he was to all intents carrying out the function of Secretary to the Provincial Government when he signed the Form 3. Consequently the Commissioner of Forests, in communicating as he did, to the parties confirming approval and completion of the Timber Rights Agreement did so in good faith without notice of the supposed suspension of the Provincial Officer. Since the Commissioner of Forests has acted upon the Form 3 dated the 9 February 2006 and issued his statutory notification, the parties and the Commissioner are entitled to the presumption of regularity afforded the Form 3. Omnia Praesumuntor rite et sollenniter esse ada. (It is presumed that all the usual formalities have been complied with) nothing to the contrary can be gleaned from the Premiers’ letter of the 20 October 2006 for it does not address the issue of notice to the Provincial Secretary of his suspension nor any steps taken to relieve him of responsibility so as to afford notice to those parties, such as the Commissioner who may be presumed to act on the Provincial Secretaries certificate.

The plaintiff must fail on that issue.

The 3rd issue is one raised by the 2nd defendant, the grantee of the timber rights Delta Timber Ltd. That company, after completion of the Timber Rights Agreement, entered into an ancillary logging Agreement with Glen Grow Ltd which company was to do the physical work of logging and extracting the timber from the licence area. That company, for whatever reasons sought agreement with particular parties in these terms

(a) Clause 1 – The Vasoga tribe agree to cooperate with the logging operation on Borovai land.

(b) Clause 2 – John Niqe will receive $10,000.00 being the balance of $20,000.00 compensation claim for damage to tambu sites.

(c) Clause 3 – John Niqe will receive SBD$6-00 per cubic meters after each shipment of logs from Borovai land.

(d) John Niqe has agreed to withdraw all disputes against the 2nd defendant’s logging contractor and has agreed to ensure that the logging operation on Borovai land will be conducted without any interruptions or disputes.

A copy of that agreement ("LW 10") is with Mr. Wong’s affidavit. The recitals estopps the plaintiff John Niqe from coming to court complaining of this logging. That argument is, without doubt supported on the authorities and is plain to see. I accept that it is fatal to the continuation of these proceedings.

There is consequently no entitlement in either to seek redress of the lawfully approved Timber Rights Agreement for they have no standing in terms of the Forestry Act.

Any argument they may have under customary law to dispute shares to the benefits flowing from the logging remain unaffected but their actions in custom, cannot in law affect the logging.

There may be serious issues in custom for Chief Graham Rupakana seems to be opposed at every turn, although his right to grant timber over this licence block is a right recognized and upheld by the CLAC.

Consequently there are no issues before me calling for injunctive relief, both plaintiffs lack standing.

There is no cause of action remaining. It is appropriate to stop proceedings at this juncture.

The plaintiff’s action is struck out.

I award costs to the defendants.

THE COURT