Kimisi v Attorney General [2010] SBHC 57; HCSI-CC 163 of 2010 (23 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 163 of 2010

BETWEEN

ROBERT CHRIS KIMISI and Others
Claimants

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
First Defendant

And

DONLI KAKI and Others
Second Defendants

And

WAGENA DEVELOPMENT COMPANY LTD
Third Defendant

And

KALENA TIMBER COMPANY LIMITED
Fourth Defendants

Mr Ashley for the Claimants
Mr Afeau for the Fourth Defendants
Mr Muria for the First Defendants
Global Lawyers for the Second and Third Defendants not appearing

Date of Hearing: 11th August 2010
Date of Judgment: 23rd August 2010

Judgment

1. This is an application, made by the First Defendants, to strike out proceedings and it is on the basis that the claim is frivolous or vexatious or discloses no reasonable cause of action. Alternatively the application seeks an order that the proceedings be dismissed because the Claimants have not complied with Rule 15.3.8 [1]. The Fourth Defendant supports the application. It is not known what position the Second and Third Defendants adopt as they did not appear.
   
2. The first leg of the application is premised on the contention by the Claimants that the Claim does not ask for a judicial review but is a straight forward category A claim. The second leg relates to the provision in the Rules [2] that requires a claim for a quashing order (otherwise known as judicial review) to be made within six months of the decision sought to be reviewed.
   
3. The first question which arises is this; what is the nature of the claim filed by the Claimants? I do not think there can be any doubt the Claimants are seeking judicial review. The relief sought at paragraph 1 of the Claim filed on 4th May 2010 asks for a declaration that the timber rights agreement is null and void. Paragraph 2 asks for a declaration that the felling licence is null and void. The Statement of the Claimants' case[3] refers to a determination of the Vella La Vella Area Council. The timber rights agreement followed that determination. At paragraph 8 the Claimants recite the issue of a felling licence by the Commissioner of Forests. It is these administrative resolutions and actions that the Claimants want declared null and void. Clearly, the Claimants are asking the High Court to review those decisions otherwise how is the court to declare them null and void. There is no need to go through the rest of the claim, those first two claims for relief and the grounds upon which the Claimants seek relief cannot be seen as anything else but a claim for judicial review. The High Court is being asked to exercise a supervisory jurisdiction over the Vella La Vella Area Council and the Commissioner of Forests. Even using the most basic and simplistic definitions of judicial review, I can reach no other conclusion.
   
4. That being so, the provisions of Rule 15.3.8 apply. There is no argument suggesting the claim was filed within 6 months of the decisions sought to be reviewed. The Vella La Vella Area Council Decision seems to have followed a timber rights hearing in 1997. The felling licence was issued on 15th October 2004. The claim was not filed until May 2010. Using either date as a starting point, the claim was lodged many months after the deadline set out in Rule 15.3.8
   
5. The court has discretion to extend the time for lodging a claim in Rule 15.3.9 "if it is satisfied that substantial justice requires it". Should discretion be exercised in this case? There has been considerable delay in bringing this claim and the length of the delay must have some bearing on the justice of the case. The submission from the Claimants is that they were unaware of all that had gone on. It is put in this way, "...my clients say that all the actions of the other parties to this proceeding were concluded without my clients' knowledge".[4] Against that it is said logging has been going on since 2005. In proceedings issued last year[5], and which I have been referred to in this case, the Claimants do not dispute logging has been going on in Block B since October 2005. Putting aside, for the time being, uncertainty over whether the Claimants are challenging ownership or timber rights in respect of both Blocks A and B, the plain fact is the Claimants have been aware of the logging operations for 5 years. It is difficult to accept the contention by the Claimants that they were unaware of "all the actions of the other parties" given what they themselves admit.
   
6. There is uncertainty about what rights or claims the Claimants are making against both Blocks A and B. Paragraph 4 of the relief claimed refers to both Blocks. In submissions the Claimants seemed to accept that Block B was not their concern. In Civil case 158 of 2009 there appear to be concessions as to Block B. It is difficult to exercise a judicial discretion based on the justice of a claim when there is uncertainty about that claim.
   
7. In my view the crux of this case is the 1997 determination which led to the timber rights agreement. It is clear that an appeal was lodged by the Claimants against that determination. It is apparent from the evidence I have seen the determination did relate to Blocks A and B. The appeal against the determination therefore relates to Blocks A and B. Evidence in this case, and in Civil case158 of 2009, shows the Second, Third and Fourth Defendants in this case were aware of the appeal. The Chiefs who made a decision about "The Oula Miqa Land nowadays commonly known as Ruara Wagena Tribe Land Block A" in 2003 knew about it. That is what is shown in the exhibits to Ngu Ket Siong's sworn statement in Civil case 158 of 2009. The letter from Mr Afeau to Mr Ashley dated 26th March 2010 (admitted as evidence in this application) puts a different light on what Mr Siong says in his sworn statement. Bearing in mind the Claimants in Civil case 158 of 2009 based their claim on the decision of the Chiefs in 2003 it is unlikely that a court, now in the full knowledge of the contents of Mr Afeau's letter, would reach the same conclusion as Naquiolevu J did in 2009.
   
8. It might be thought, given all that is said above, that substantial justice does require this court to exercise its discretion in favour of the Claimants. However, there is one final matter which prevents me from reaching that decision. The appeal against the 1997 determination was completed in 2006. The Western Customary Land Appeal Court (WCLAC) handed down its decision in November 2006. Despite that and despite the Claimants having a decision in their favour, they did nothing. They did not even rely on the WCLAC findings in their defence of Civil Case 158 of 2009. They cannot say they did not know of the decision. It was their appeal. Whilst there may be injustice in allowing the WCLAC decision to be ignored, as it has been, there would be even greater injustice in allowing the Claimants, 4 years after the decision, to seek to rely on it and undo all that has gone on in the past 5 years.
   
9. In all the circumstances the only order I can make is that the claim filed on the 4th May 2010 be struck out as not having been filed within six months of the decision as is required by Rule 15.3.8. I find that I am unable to exercise the discretion set out in Rule 15.3.9 and extend the Claimant's time for making their claim. Whilst I have not heard any argument on the question of costs it is clear that none of the parties in this case can be said to depart the stage spotless and blame free. The equity of the situation requires each party to bear its own costs.
   

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] Solomon Islands Courts (Civil Procedure) Rules 2007
^[3] Paragraph 6 Statement of Case
^[4] Letter dated 24^th May 2010 Exhibited as RCK5 to sworn statement of Robert Chris Kimisi filed 10^th August 2010
^[5] Civil Case 158 of 2009