Reresare Development Ltd v Dive [2007] SBHC 104; HCSI-CC 264 of 2007 (22 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 264 of 2007

RERESARE DEVELOPMENT LIMITED

v

ALFRED POTAKANA (Representing the South Vella La Vella Council of Chiefs), JONATHAN DIVE (Representing the Greater Reresare Tribe of Vella La Vella)

Date of Hearing: 22 August 2007
Date of Ruling: 22 August 2007

Mr. J. Sullivan QC with Kuriah Pitamama for the Plaintiff/Applicant
No turning-up of Defendant

RULING on motion for an order of Prohibition directed to the South Vella Lavelle Council of Chiefs stopping the hearing of proceedings likely to affect the statutory process of Part III of the Forest Resources and Timber Utilisation Act

Brown, J:

1. By paragraph 5(d) of the Statement pursuant to O.61 r.2 of the High Court Rules the applicant claims the Council has no jurisdiction to determine the grant of timber rights or to review any timber rights after it was duly granted under the provisions of the Act. For by notice of hearing the South Vella Lavella Council of Chiefs listed 3 matters for determination between Jonathan Dive and others of Greater Resesare Tribe [applicant] and Jack Lagobe and other directors of Reresare Development Company Limited [respondent]. I am satisfied they are matters which raise "the same or cognate issues" which fall to be determined by the Provincial Executive in terms of s. 8[3]{b} of the Act.[see Veno v Jino unreported C of A decision dated 12 April 2006 at para. 12 of the judgment of the court].

2. I am so satisfied when I read the affidavit of Milner Tozaka sworn 19 July 2007 and its annexures; MT "6", MT "7"[Approval of Form III Reresare Development Co Ltd. by Provincial Secretary of Western Province dated 29 November 2004], MT "4" [Certificateof Determination]. [Form IV-Agreement under hand of the Representatives determined in Form II].[Form III evidence signed by Secretary – Provincial Secretary]; MT "8" [the Licence to Reresare Development Co. Limited].

3. Timber Rights are beyond the power of the Chiefs Council once the Act has been invoked.

4. The foregoing shows that the provisions of Part III of the Act have been complied with the extent that the authorised representatives have been determined in accord with s. 8 (3) (b) of the Act, the Agreement has been approved by the Province and the Licence issued under s. 5 by the Commissioner. I am satisfied that on balance there is nothing to suggest the process required by the Act, (which in so far as the grant of timber rights is concerned, is a Code) has not been followed.

5. The Council of Chiefs, once the determination of the representatives has been made in accordance with Part III of the Act, has no function or power to enquire into the matters exclusively within Part III of the Act. Consequently the purported hearing into matters the Subject for Determination is ultra vires the Chief’s powers. Section 10(1) provides for the avenue for recourse by those aggrieved by the Provincial Executive determination.

6. I note that the appeal in this instance by David Gina in terms of the Act was withdrawn and a certificate to that effect issued under hand of the Clerk to the CLAC. There were no other appeals.

7. While Reresare is in North Vella Lavela, the South Vella Lavela Council of Chiefs seem to have presumed jurisdiction. Whilst I do not need to make findings in relation to the propriety of this, the Local Courts Act suggests that this course of action is not available. [See s. 11 Local Courts Act].

8. For the reasons that I have stated, I make orders in terms of the notice of motion filed 26 July 2007, paragraph 1 and 2.

9. I also order that the 2nd defendant pay the applicants costs.

10. I note that there has been no appearance of the 2nd defendant today. Notice was given on the 8 August and Mr. Nori appeared on that day when he undertook to enter an appearance. I’m satisfied on his undertaking that notice has been given the 2nd defendant. So far as the 1st defendant is concerned no appearance has been entered and I can only presume that the Council will abide the decision of the court.

THE COURT