Jino v Lomulo [2007] SBHC 25; HCSI-CC 011 of 2007 (10 May 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 011 of 2007

OLIVER BIKOMORO JINO, SETH PIRUKU,
RAEVIN REVO

v

BEN LOMULO (1ST RESPONDENT) &
THE ATTORNEY-GENERAL (2ND RESPONDENT)

Date of Hearing: 30th April 2007
Date of Ruling: 10th May 2007

Ms. Maelyn Bird for the Applicant
Mr. R. Firigeni for the 2nd Respondent
Mr. Thomas Kama for 1st Respondent

RULING on application for leave to apply for a prerogative writ of certiorari

Brown, J: The applicants come seeking leave to issue a writ certiorari to call up and quash the determination of the Western Customary Land Appeal Court decision given on the 23rd December 2006, where the CLAC held that Ben Lomulo, the 1st Respondent was the person lawfully entitled to grant timber rights on Rodo land for his Rodo tribe.

The applicants say that the CLAC decision was wrong for that the applicants and Ben Lomulo were a single party who originally appealed against the determination of the Provincial Executive when a finding by the Provincial Executive on the 18 September 2002 had been given against all of them. For in that hearing before the Provincial Executive, Havea Majoria was, with others, found to be the parties with the right to deal with the timber on Rodo land. The applicants say that Ben Lomulo was nominated by the applicants to speak at the Executive’s hearing and state their tribe’s geneoloy and that, as a single party the applicants and Ben Lomulo appealed against the adverse finding of the Provincial Executive given on the 18 September 2002 in a single letter of appeal. Certainly the letter of the appellant’s is in evidence as "XJ2" to that affidavit of Xmas Jino in these proceedings. That appeal first came before the Customary Land Appeal Court on the 8th July 2005 where the Customary Land Appeal Court was subsequently found to have failed to determine matters required of them under section 8(3)(b)&(c) of the Forestry Resource and Timber Utilisation Act (the Forestry Act). This court on the 22nd November 2006 directed the CLAC to reconvene and hear the originally appeal from the Executive decision "according to law" in terms of s. 8(3)(b)&(c)..

The error of the CLAC to which the applicants point is that if Ben Lomulo was held to be the lawful person to grant timber rights, all the applicants (since they, as one, had originally filed a single appeal against the Provincial Executive determination) should be held to be the persons lawfully able to grant timber rights over Rodo land. It is not available, the applicants say, to separate Ben Lomulo from the other 3 applicants in the circumstances of this case. That argument is one going to custom, and not one this court can now entertain.

In support of the application for leave Ms. Bird for the applicants, read the affidavit of X-mas Jino of Bopo Village. An annexure of that affidavit as exhibit XJ2 was the notice of appeal dated the 4th October 2002 and on that document Ben Lomulo had affixed and signed his name. That appeal document stated-
With the above reasons, we the undersigned representing the true Land owning tribes of Rodo customary land and other land owners of Sasara customary land and Kindi customary land hereby object in the strongest terms the determination given by the Provincial Executive and appeal against the determination on the above land.

They affixed their names to the next page of the appeal letter, a page also stamped by the Commissioner for Oaths who took their oath. That appeal claimed Oliver Bikomoro Jino (Rodo customary landblock) Raevin Revo (Sasara customary landblock) and Seth Piruku (kinudi customary landblock) as those entitled to represent and grant logging rights over the particular land parcels. On the signature page, some 13 names appeared, including Ben Lomulo.

The evidence given at the Provincial Executive hearing in 2002 by Ben Lomulo is found in paragraph 22 of the Minutes of the Western Provincial Executive Timber Rights Hearing application by Rodo Development Company.

"In support to the objectors Mr. Benlomulo handed in a letter or objection during the hearing request the executive to give him time to present his objection. Permission was granted for him to present his objection. My name is Mr. Benlomulo, I borned in 8th March 1932. I have no name written on the other objection letters by my name is included in other letters. Rodo land has already been explained by the first objectors but I would like to explain what my son Havea Majoria mentioned. Havea intended to cut out my neck. He even wrote a letter to Bopo that is why fighting broke out and killed a person at Bopo. What he intended to do now is to cause another problem.

I would provide here the genealogy of my tribe of Rodo;

Visuigana
Matagore
Mege
Balo (F)
Sedeve
Mari
Luje ------------	Piaradi (F)
	Toku &	Kesolo	Niu
	Lomulo	Silivia	John
	Benlomulo	Havea	Nelson
	Lolo
	Nibasasa

I confirm that they have no evidences such as coconut, old places and other things. When I built or established Matikuri Resort on 1987, no any dispute from Rikana, Havea and others. Chief Luje was the one who gave away primary school area t Alisi Bop and also mission place but not Rikana.

The history of Rikana is as follows;

a. Rikana was a leprosy person

b. Rikana because of leprosy stayed away from his wife ad children for a long time.

c. Rikana went to Court as was claimed, the decision would be available today.

I confirm that my tribe or Rodo owns the Rodo land".

Notwithstanding that evidence, the Executive found for the son, it seems, of Ben Lomulo the said Havea Majoria and others when deciding those entitled to grant timber rights. On the 23 December 2006 the CLAC reversed that finding for reasons which it gave.

By separate proceedings cc27 of 2007 Havea Majoria (claiming to represent the Rodo tribe) named Ben Lomulo as a defendant in those proceedings which also seek also to quash the CLAC decision of the 23rd December 2006 (which had determined Ben Lomulo as the person lawfully entitled to grant Timber Right over Rodo Land). In support of that application the affidavit of Havea Majoria annexed the CLAC determination given on the 23rd December last from which I quote. It is plain there was no love lost between the father and the son when I read the record of the Executives’ Minutes set out above.

It is plain from reading courts findings and reasons on page 3 that the court accepted the basis of Ben Lomulo’s Claim in these terms –

"On the issues whose evidences and submissions essentially related directly to the question of timber right interest of Rodo Customary Land it is clear for fourth appellant (Ben Lomulo) as or B a person lawfully entitled of to grant timber right of Rodo land. There is an artificial or legal distinction of ownership of customary land and timber right created by legislation. But as stated by Kabui J. in the case of Ezekiel Mateni -v- Seri Hite HCC 155/2003 at p. 4 that persons identify to own the land may only assist the Provincial Executive committee to identify the proper persons to grant timber right on the Land concerned. The evidence before the court is clear or better for the fourth appellant (Ben Lomulo)."

The CLAC accordingly dismissed the appeals of Oliver Bikimoro Jino, Raevini Revo, Seth Piruku, and allowed the appeal of Ben Lomulo and identified Ben Lomulo as a person lawfully entitled to grant timber rights on Rodo land for his Rodo tribe. The respondent in the CLAC proceedings, Havea Majoria was heard by the CLAC during the course of the hearing.

On the 16th February I directed that both cases, CC11 and CC27 of 2007 be heard together. After having heard the applicant seek an ex parte order to allow an application for the writ of certiorari, I refused to allow the application in CC27 of 2007 to proceed ex parte but directed service of the application on those sought to be affected. Both that application and this, were ordered to be listed for the 22 February for a hearing on the question of leave, since separate individuals were seeking the same result, leave to seek a writ of certiorari to quash the CLAC decision.

Later by consent order dated the 19th February 2007, cc. 27/ 2007 was purported to be adjourned generally with liberty to apply upon given 7 days notice. The order was signed by the Registrar. Costs were ordered to be costs in the cause. The order conflicts with my earlier order. My earlier order must stand in these circumstances.

On the hearing of the application for leave, Ms Bird for the applicants in cc. 11/07 reiterated the argument in the statement for leave which I have set as above. She went on to submit that the issue whether Ben Lomulo could be a party in the proceedings before the Customary Land Appeal Court is a question of law (because he was the witness in the Provincial Executive original meeting) and consequently the applicants application for leave should be granted. I see little merit in such an argument. The matter for enquiry by Provincial Executive and the CLAC are those matters required under the Forestry Act; to determine those lawfully entitled to grant timber rights. It would be foolish to suggest that an applicant in the circumstances of Ben Lomulo before the Customary Land Appeal Court is precluded from relying on the evidence that he gave before the Provincial Executive. The issue before me is whether there has been shown to be as Mr. Kama for (Mr. Ben Lomulo) says an error by the CLAC;

1. that the Customary Land Appeal Court has exceeded its jurisdiction

2. an error on the face of the record which gives rise to a right of review.

3. or that the Customary Land Appeal Court has not been shown to have given natural justice to the aggrieved parties;

hence raising grounds for leave.

Mr. Kama says so far as 1 and 2 above are concerned, no record of the Customary Land Appeal Court is before the court and consequently there is no material to show any basis of any such grounds.

So far 3 is concerned Mr. Kama argues that the rule of natural justice has been complied with for that the appellants have had the opportunity to be heard by the CLAC in December last. All applicants had the opportunity to be heard.

Mr. Firigeni for the Attorney-General says that it is futile to grant leave in the absence of the record of the CLAC before the court. Consequently this court should by order ex debito justitiae strike out the application for leave as having no merit. Mr. Firigeni says by relying on the grounds of the appeal in the document exhibit XJ2 the appellants have no more than asserted an interest. The CLAC in December last has authoritatively found the person entitled to grant timber rights after hearing and in the absence of the Decision, it is for this court to accept that the hearing was regularly performed. (Omnia praesumuntur rita esse acta)(all things are presumed to have been done rightly).

The earlier proceedings by Havea Majoria included the record of the CLAC determination dated the 23rd December 2006 (for that affidavit annexing the determination was read on the application for leave) and the Minutes of the Executives hearing referred to by the CLAC in its determination were "XJ1" to the applicant’s affidavit in these proceedings. Both records appear certified under hand of the proper officers conducting the particular proceedings. They have not been challenged as not proper copies. They fall to be admitted under the Evidence Act, 16 Vic. No. 14, s. 9 and I have regard to them as "public documents". It is fruitless to ignore the very material which will assist this court in leading to a proper determination of the matters in issue between the parties. In cases such as these there must be an over riding necessity to seek to finally determine matters in issue between the parties who purport to represent particular tribes which are common to both proceedings. It is for the court to facilitate resolution of the evidence before it. The evidence then given by Havea Majoria in those early proceedings includes such matter of public record, the Decision of the CLAC and consequently it would be wrong if this court could not have regard to that record. Lord Denning in R v Northumberland Compensation Appeal Tribunal, ex parte Shaw (1952)1 All. E. R. 122 made that plain. The decision stated;

"The record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons unless the tribunal chooses to incorporate them."

In the case before me the tribunal has in its reasons made clear the material on which it relied. There is no error in that regard.

I am not minded to refuse the application for leave on the basis suggested by Mr. Firigeni; that the court should ex debito justitiae strike out the application. I am minded however to strike both applications in the respective causes, for despite the argument by the applicants I am not satisfied any of the relevant grounds (raised by Mr. Kama as sufficient for leave, grounds which reflect Lord Denning’s dicta) have been shown on the material before me. When I read the material parts of the record of decision by the CLAC given in December last it is clear that the CLAC had regard to evidence of Ben Lomulo on which it is entitled to rely.

Leave is refused. The applicants shall pay the respondents costs. Consequential orders may be made in the associated proceedings cc. 27/2007.

THE COURT