Kitu v Pitu [2010] SBHC 67; HCSI-CC 90 of 2010 (14 October 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Goldsbrough J)

Civil Case No. 90 of 2010

BETWEEN:

RONALD KITU AND NELSON HUTI...
(Representing the Saikile tribe of South New Georgia)
(Claimant)

AND:

ARNOLD PITU, JOHN KILATU, RUPASI MURRAY, LEMECK BILE,
KELRICK ROY, PENI HARO, CHIEF DILENTY VULA, ARNOLD MINU,
MASURU VUDERE AND HARRY FINAU
(Representing the Kalena Tribe)
1st Defendants

AND:

FRANK DIA, ROBERT PENTANI,
MANGROSS NGORO AND JACK KEGHU
(Representing Soloso Tribe)
2nd Defendants

AND:

ATTORNEY-GENERAL
(Representing the Western Customary Land Appeal Court)
3rd Defendant

AND:

OMEX INDUSTRY LIMITED (SI)
4th Defendant

AND:

ATTORNEY- GENERAL
(Representing the Western Provincial Executive)
5th Defendant

AND:

ATTORNEY- GENERAL
(Representing the Commissioner of Forests)
6th Defendant

Date of Hearing: 29 September 2010
Date of Decision: 14 October 2010

Ipo M for the Claimants
Tegavota P for the First and Second Defendants
Sullivan/Katahanas for the Fourth Defendant
Damilea D for the Third, Fifth and Sixth Defendants

APPLICATION TO VARY INTERIM RELIEF

GOLDSBROUGH J:

1. Following the decision published on 13 July 2010 in respect of interim relief, the Court has now heard submission on the question of jurisdiction raised in the application for variation of interim relief first granted in this matter is on an ex parte basis and thereafter confirmed inter partes.
   
2. The question raised involved consideration of section10 (2) of the Forest Resources and Timber Utilisation Act [Cap 40]. That subsection regulates appeals from a Customary Land Appeal Court (CLAC) which has exercised its jurisdiction under Cap 40. In particular it restricts the right of appeal.
   
3. The Court of Appeal in Talasasa v Biku[1] considered the effect of a previous equivalent section and determined that whilst such a section was to be regarded as effective in ousting the jurisdiction of the High Court to hear and determine an appeal, it did not effectively oust the jurisdiction of the High Court to confine an inferior tribunal to its own jurisdiction.
   
4. The Court of Appeal has further indicated that where the question of res judicata is relevant, it should be considered by a Tribunal considering Land and Timber Rights disputes. See Majoria v Jino[2].
   
5. To give effect to the above it is necessary to conclude that where a Tribunal is required to consider the principle of res judicata and does not or will not do so, then an error of law going to jurisdiction should be said to have occurred. If it is not regarded as going to jurisdiction then the matter could not be reviewed at any higher level in any way. This cannot be a correct position.
   
6. To determine otherwise would not permit any challenge to a CLAC decision in the High Court. Whilst a valid reason itself it is not the only reason why the decision must be so. It is a natural and logical application of the rule relating to what a jurisdictional point is.
   
7. There is no great merit either in determining whether the principle of res judicata is a rule of law or a rule of evidence. Whatever the conclusion reached at the end of that discussion, it remains a principle that must be applied, and its correct application would rule out any consideration by the CLAC of anything further. Thus a party before it in a situation as this would not properly be in a position to deny a previous binding decision on the same subject matter. To deny that principle and to hear and make a determination on evidence that should not be admitted in accordance with the principle would be to act in excess of jurisdiction. To that extent the res judicata principle may be regarded as either an exclusionary rule of evidence or a rule of law.
   
8. Given that this court considers that the issue raises a point going to jurisdiction and may therefore be reviewed by the High Court, it does not appear necessary to further consider the Constitutional questions raised by the appellant in submissions as to the constitutionality of section 10(2). Suffice it to say that this argument, although apparently finding some favour in Papua New Guinea is, in my view, not likely to find the same favour in this jurisdiction.
   
9. Satisfied then that the res judicata issue goes to a question of jurisdiction, one turns to consider whether same question was properly and fully raised by the present appellants in the CLAC hearing. Presently the appellants rely on the report of a 1957 hearing in which there is a reference to a previous hearing in which the appears, from the brief report, to have been previous hearings in which the ownership of this land was determined in their favour. This Court has not yet seen any fuller report on anything which the 1957 reports refers to any earlier hearing. It is correct to submit that this court has set a time period within which the appellants are expected to produce those earlier reports. That, it is submitted is taking the matter beyond legitimate judicial review. I understand that implied criticism, but remain content that the order made serves a useful purpose for the full hearing of judicial review if that ever takes place.
   
10. Given that it is conceded that the only report available to the appellant when he was before the CLAC is this short report making reference to earlier cases, it is clear that the res judicata issue was not put before the CLAC by putting into evidence the case relied upon. At best, and this is not yet in evidence, all that the appellant could have done was to have produced this short report and thereafter give evidence of what is contained in the earlier and, supposedly, more full and binding earlier case reports. Until there is evidence as to what exactly was put before the CLAC it is only speculation. In those circumstances it is difficult to conclude that the res judicata issue was properly raised before the CLAC.
    
11. This is consideration of interim relief, not a final decision on judicial review, and the questions to be asked are different. Here one is looking at the balance of convenience. Clearly there is an issue to be tried. One then considered where the balance of convenience lies. Earlier I considered the grounds brought, other than the jurisdiction question and held that the balance of convenience lay with the appellant. This cannot remain the case now when it is clear that, whilst I am satisfied what the res judicata issue raised a question of jurisdiction. I am not satisfied that the appellants were in a position at that CLAC hearing to properly raise the same issue.
    
12. The appellants make the point that in the event that they are successful, logging will have taken place and that this cannot be reversed or compensated in damages alone. I agree that in certain circumstances that can be the case. It will be the case where a landowner has the intention to maintain a forested landholding. It is less likely to be the case where, as in this case, the appellants themselves took the question of a Timber Licence to the Provincial Executive. Here it was the appellants who initiated a Timber Rights hearing before the Provincial Executive which lead to the appeal by the present respondents before the CLAC. Given that there are strong indications that the appellants had an intention to log themselves rather than maintain the forests. Were it otherwise there would be no other reason to seek the grant of a timber licence.
    
13. The application to vary the existing interim relief is granted. In the event that they are successful damages are an adequate remedy and therefore an injunction to restrain logging pending determination should not be maintained.
    
14. Given that the time for producing the original earlier reports has not yet expired, one does not know how this case will proceed. This is a significant case in that it provides a vehicle within which the court may consider boundaries previously left unexplored. It is provides a further opportunity for the High Court to explain what the CLAC is required to do when faced with a res judicata question. Although the Court of Appeal may have determined that the doctrine should be considered by the CLAC I have not seen a great deal of advice as to how that is to be done in practice, particularly given the absence of lawyers at those hearings. This perhaps can be done at the full hearing but I will reserve the right to publish a more comprehensive decision on this application in the event that this case does not proceed, for whatever reason, to a full hearing. If that is regarded as impermissible, I will announce this decision and reserve the right to publish reasons at a later date.
    
15. In the event the interim injunctive relief of 19 May 2010 is removed, costs of this application, including certification for QC are awarded to be paid by the claimant/applicant to the defendants.
    
16. Costs – cost in the cause.
    

Dated this 14th day of October 2010.

GOLDSBROUGH J

---

^[1] SICA 2 of 1987 22/11/1988
^[2] SICA 36 of 2006 01/11/2007