Majoria v Jino [2007] SBHC 105; HCSI-CC 255 & 462 of 2005 (22 August 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 255 & 462 of 2005

HAVEA MAJORIA
(Representing the Kadiki Tribe of Vangunu Island, Marovo, Western Province)

-v-

OLIVER BIIMORO JINO
(Representing the Bareke Tribe of Vangunu Island, Marovo, Western Province),
AND THE CLERK TO THE
CUSTOMARY LAND APPEAL COURT (WESTERN)
(Representing the Customary Land Appeal Court (Western Province)

Date of Hearing: 31 July 2007
Date of Ruling: 22 August 2007

T. Kama for the Plaintiff/Applicant
M. Bird for 1st Defendant/Respondent
R. Firigeni for 2nd Defendant/Respondent

RULING on the plaintiff’s summons to discharge earlier injunctive orders to permit the plaintiff to resume logging under a logging licence

Brown, J:

1. On the 21 January 2005, leave was granted Havea Majoria to apply for an order of certiorari to bring up and quash the decision of the Western Customary Land Appeal Court (WCLAC) given at Gizo on the 8 July 2005 which directly affected the rights of named persons earlier found by the Provincial Executive to be entitled to grant timber rights over Rodo Customary Land. These proceedings, cc462/05 on the February 2006 were directed to be joined to be heard with associated proceedings by the same plaintiff cc255 of 2005. Later file cc462/05 bears notation that the proceedings were "adjourn generally – liberty to restore – with costs in the cause" by order of the Registrar.

2. On the 10 May 2007, in proceedings cc11/07, Oliver Bikimoro Jino, Seth Piruku, Raevin Revo v Ben Loumulo (1st respondent), Attorney-General (2nd respondent), I had cause to deal with those applicants’ claim to seek leave to apply for an order of certiorari, this time to quash a later decision of the WCLAC (the "Decision") which had reconvened and ruled (following the direction of this court), on the original appeal from the Provincial Executive to the WCLAC over these found able to grant timber rights over Rodo land. By that ruling of the 10 May 2007 (which affected as well other separate proceedings instituted by Have Majoria in cc 27/07, [again for leave for a writ to quash the Decision] for that they were ordered to be heard together). I struck both applications for leave out. I was not satisfied, after inter party argument, that grounds existed for me to grant leave. Reasons were given in those proceedings.

3. By virtue of that ruling then, the Decision of the WCLAC of the 23 December 2006 is afforded the inviolable effect recognised by the Court of Appeal. (see Talasasa v Biku (1988) CAC 2/1987 at pp 8-10 referred to in Gandly Simbe v East Choiseul Area Council and Eagon Resources Develop. Anors – unreported Court of Appeal Case 8/97 per McPherson JA at p6). Section 10(2) of the Forestry Act says-
"(2) Notwithstanding any provision to the contrary in any other law, the order or decision of a customary land appeal court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever".

4. The Court of Appeal in Civil Appeal 2/04 by judgment dated 12 April 2006 (Steven Veno & Gordon Young v Oliver Jino, Raevin Revo, Albert Legere Yalu Revo, Andrew Landa Murray, Seth Piruku and Wuitlyn Viulu; Orion Limited (2nd respondent) said at para 12, p. 6

It may be worth noting that, if there had indeed been a decision or order within the meaning of sub s 10(2) of the Forest Resources Act, that provision would have prevented the local court from hearing any dispute as to the matters heard and determined by the CLAC. It may be also that the sub section is wide enough – by the generality of the words "any proceedings whatsoever" – to comprehend and thus prevent a consideration by the Chiefs of a customary land dispute raising the same or cognate issues.

5. The Decision of the WCLAC determined, on those appeals of which it had cognizance, (following the Provincial Executives decision given on the 18 September 2002) that Ben Lomulo was the person lawfully entitled to grant timber rights on Rodo land. The appeals before the WCLAC determined by that court on the 23 December 2006 were those appeals made within time allowed, from the Provincial Executives decision and which had been considered previously by an earlier convened court which, as I say was directed to reconvene and determine such appeals "according to law" in terms of s. 8(3)(b)&(c) of the Forestry Act for that the earlier court, while quashing the decision of the Provincial Executive misdirected itself on its obligation to make findings on the appeal before it.

6. On reconvening the appeals of which the WCLAC had cognizance, included one by these particular plaintiffs, Ben Loumulo and others numbering in total 13, as one group of appellants were heard. The respondent to those appeal proceedings was the said Havea Majoria for he had been named by the Provincial Executive as the person entitled to grant timber rights over Rodo land and consequently was a party to the proceedings before the WCLAC. Of course, upon the finding of the WCLAC on the 23 December 2006, Havea Majoria was aggrieved. For the WCAC had reversed the finding of the Provincial Executive by which it had awarded the rights to Havea Majoria the son it seems of Ben Lomulo who had acknowledged his son when giving evidence before the Provincial Executive back in 2002. He there had given the genealogy of his tribe and illustrated its right to Rodo land. In any event, the WCLAC, on the 23 December 2006 was sufficiently satisfied, and found he was the appropriate representative granting to him the right to deal with the timber resource.

7. The effect of such Decision is to create an estopped by judgment as between the parties in a common law sense (Beti v Allardyce Lumber Co Ltd (1992) CAC 5/92 at pa 9). (and see also Section 10(2) of the Forestry Act).

8. By summons of the 1 June 2007 the plaintiff, Havea Majoria, seeks the discharge of the interim injunction given on the 23 September 2005. By that order an interim injunction was granted the applicant/1st defendant Oliver Bikimoro addressed to the plaintiff/respondent to prevent logging operations on Rodo land for one week. The injunction has been continued until now.

9. In support of the summons Mr. Kama for the plaintiff read two affidavits, those of Havea Majoria and Burnley Kimitora both sworn the 1 June 2007. In essence Mr. Kama says that there is no issue to be tried by virtue of earlier rulings of this court (and the Court of Appeal).

10. The consequence, Mr. Kama says will be to affirm that the Licence to log issued to Rodo Development Company (a firm) by the Commissioner of Forests under the Forestry Act is valid.

11. That licence no. A10202 dated 18 May 2005 to "Rodo Development" C/- P O Box 699 Honiara (the "licence") granted the licencee the right to fell and market timber on Rodo Customary land. Pursuant to that licence Hup Lee (SI) Co. Ltd. contracted with Rodo Development Company to be the contract logger of Rodo customary land. Now "Rodo customary land" spawned an argument over nomenclature for "Havahava land" was also claimed by the plaintiff to be separate from Rodo land. But those issues were dealt with in other proceedings resulting in a decision by the Court of Appeal (CAC 2/04 judgment dated 12 April 2006) which confirmed the Chief Justice’s finding that Havea Majoria had no standing to argue the WCLAC decision affecting Havahava land given on the 17 April 2003. The plaintiff’s summons of the 5 September 2006 seeking to restrain the 1st defendants and their contractors affecting Havahava was struck out.

12. That Licence then, A10202 which deals with Rodo land issued before the "judgment" of the WCLAC given on the 8 July 2005 was handed down. That "judgment" "recited.

(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 etc and

(iii) That the Executive approved sitting allowance etc".

What the judgment failed to do however was make a finding on the appeal over the Executive’s finding of these persons representative of those able to grant timber rights over Rodo land. The judgment purported to quash the Executive determination.

13. The Licence (which does not appear to have been exhibited by the plaintiff) or at least some pages of a document purporting to be a copy of the licence was annexed to the affidavit of Andrew Lada Murray dated 13 September 2005 read earlier in these proceedings. No full page copy of the grant of such licence by the Commissioner of Forests under S. 5 of the Act formed part of that annexure ALM "9". The first page however, showed the number A 10202 and the date, "18 May 05".

14. That Licence cannot stand for it issued before the timber rights process required by Part III of the Forestry Act had taken place. By S. 5(1)(c) the Commissioner may accept or reject an application for a licence "under an agreement duly approved by the minister under Part III" etc. The "agreement" referred to is that Form 4 of the Forestry Regulations which by Form 3 also provides for the Provincial Executives approval to such agreement in accordance with s.12 of the Act.

15. By Form 3 the Provincial Secretary certifies that the agreement (Form 4) for the sale of the timber rights by the named representatives has been made in accordance with the provisions of Ss 7 to 11 of the Act.

16. The named representatives who signed the agreement dated 16 April 2005 on behalf of the Kadiki Tribe (including the plaintiff Havea Majoria) were not the persons (or person) ultimately determined by the WCLAC to be lawfully able to grant timber rights. For by its determination of the 23 December 2006, the WCLAC found that Ben Loumulo was that person entitled to grant timber rights and the representative of all those others able to grant such rights in Rodo land. Consequently the act of the Commissioner to grant (if that be the case) such Licence A10202 was ultra vires his powers and void for that it predated any valid agreement in terms of Part III of the Act, an agreement which needed to await the outcome of the appeal procedure and the WCLAC determination of the 23 December 2006.

17. It stands to reasons, then that no ratification argument can arise when the "representatives" purporting to execute the agreement of the 16 April 2005 granting timber rights to Rodo Development Company were not confirmed as the person or persons able to grant and represent all those entitled to assign timber rights in terms of s. 8(3) (b) of the Act. Whether ratification is available must await argument in some other instance. Again since the agreement is void the standing of Rodo Development Company, (a "firm" as Mr. Kama says), to be able to take the grant or assignment of timber rights need not be considered. In any event, the use of company in the model guide for the Form of Agreement for Timber Rights pursuant to s. 12 to be found in the (Prescribed Form) Regulations of the Act cannot envisage a "firm". It needs be a ‘company" in that sense envisaged under the Companies Act or a person in the normally accepted sense.

18. The Summons seeking discharge of the interim injunction originally given on the 23 September 2005 is predicated on the fact that all the consolidated issues in cc 255/05 and cc462/05 have been decided. But the validity or otherwise of the logging licence no. A10202 under which the plaintiff’s claim to log within Rodo land has not specifically been addressed before now. For the reasons that I have given, it would be wrong to discharge that injunction for the effect would be to allow logging pursuant to a licence which is void. The appropriate order is to make the injunction permanent and I so order. What flows, of course, will be the need to address disbursement of funds held pending resolution of these proceedings in the light of my order, but that disbursement can await further argument and order if resolution cannot be achieved between the parties.

19. I have reached this decision, having read as well, the Deed of Settlement dated 2 February 2007 purportedly between Havea Majoria, the applicant and Ben Loumulo (represented by his son Burnley Kimitora) the respondent of the other part. In that Deed by 1.1(e) the parties purport to acknowledge, agree and declare:-

"that by virtue of their membership of the Rodo tribe, the Applicant, Gordon Young, Paul Alosasa, Vita Kona) Lezi Tusi and Nelson Sam are, jointly with the Respondent, entitled to grant timber rights over Rodo land".

The Deed then goes on and purports to have the Respondent Ben Loumulo ratify the timber rights agreement signed on the 16 April 2005 by the said Gordon Young, Paul Alosasa, Vita Koina, Lezi Tusi and Nelson Sam as Representatives of the Rodo tribe of the one part with Rodo Development Company of the other in relation to the logging operations commenced by Rodo Development Company within Rodo land.
20. Such purported ratification is unavailable to the parties in the circumstances for it is based on the false premise, that at this time the Respondent Ben Loumulo can acknowledge or determine these other persons "representatives" of the Rodo land in terms of s. 8(3)(b), a finding only available to the Provincial Executive and ultimately the WCLAC in accordance with the statutory provisions of Part III of the Act. Parties cannot presume to contract out of statutory process in this fashion.

21. The other issue which stems from that Deed is the execution (by the Respondent party, Ben Loumulo) of the document. Burnley Kimitora claims to sign as a duly authorised representative of Ben Loumulo, without reference to any Power of Attorney or the authorisation on which he seeks to rely. Frankly the Deed cannot be read to alter legal rights afforded Ben Lomulo by the decision of the WCLAC of the 23 December 2006, a decision afforded the protection of s. 10(2) of the Act.

Order

1. The injunctive order of the 23 September 2005 is made permanent
2. The plaintiff shall pay the 1st defendants costs
3. Liberty to apply.

THE COURT