Choe Intergrated Company Ltd v Maekera [2011] SBHC 164; HCSI-CC 367 of 2010 (20 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 367 of 2010

BETWEEN:

CHOE INTEGRATED COMPANY LIMITED
1st Claimant

AND:

RODNEY HIVA
(representing himself, Trustees and members of Choe Tribe as owners of
Choe Land)
2nd Claimant

AND:

JOHN OTI MAEKERA
(representing himself and members of the Marovo Council of Chief)
1st Defendant

AND:

ATABAN TAHU
(representing himself and persons claiming ownership of lands within Choe land)
2nd Defendant

AND:

JOY ITAIA
(Carrying business under business name of
Oceania Trading Company)
3rd Defendant

AND:

ATTORNEY GENERAL
(representing the Western Provincial
Executive and the Commissioner of Forests)
4th Defendant

Date of Hearing : 26 October 2011
Date of Ruling : 20 December 2011

C. Ashley for Claimants
P. Tegavota for 1st Defendant
B. Etomea for 2nd Defendant
P. Watts for 3rd Defendant
D. Danielea for 4th Defendant

RULING

1. The Claimants filed their amended claim for judicial review on 22nd February 2011. They seek the following relief:
   
   • (1) A permanent injunction against each of the Defendants restraining them, their servants and or agents from carrying out any act that would constitute or facilitate the granting of a further felling licence over the First Claimant's concession under licence A10735; and
     

(1A) A declaration that the decision of the Western Customary Land Appeal Court dated 14th November 2006 as to customary ownership and boundary of Choe Customary Land is binding upon the First and Second Defendants; and

(2) An order quashing any decision or determination of the First Defendant to the extent where such decision or determination would create new ownership or boundaries of Choe Customary Land so as to facilitate the granting of any further felling licence over the First Claimant's concession under Felling Licence No. A10735; and

(3) An order quashing any decision or determination of the Fourth Defendant, his agents or servants to the extent where such decision or determination would constitute or facilitate the granting of any further Felling Licence over the First Claimant's concession under Felling Licence A10735; and

(4) Costs of the Claimants in this proceeding and any further costs in the Marovo Council of Chiefs, Gizo Magistrates Court and Western Provincial Executive, if any; and

(5) Any further order the Court deems fair and just.

2. As of 28 August 2009, Choe Integrated Development Limited was granted Felling Licence No. A10735. This License will expire on 28 August 2014. The Licence covers Choe Peka, Choe Ulu and Choe Kokorapa customary Lands.
   
3. Licence No. A10102 was issued to JP Enterprises Limited on 2 July 2006. It covers Lio, Nono and Podokana customary lands. The Licence was extended to cover Guva, Chale and Choki customary lands. On 17 January 2008, JP Enterprises was granted Licence No. A10102 effective from 16 January 2008. The Licence covers Lio, Nono and Podokana. This Licence expired on 16 January 2011.
   
4. The Western Customary Land Appeal Court made its decision on 14 November 2006. It was an appeal by Samuel Lasi. The parties in this customary land case No. 5/205 were Samuel Lasi as Appellant Chillon Maepio and Skinner Rence as Claimants and Elizah Iputu & others as Respondents. This was an appeal against the decision of the Western Provincial Committee made on 9 February 2005.
   
5. The Decision of the Provincial Executive Committee was made in these terms:
   

"2. Executive therefore resolved to

(A) Agreed – that the Applicants are representatives of Choe Tribe and lawfully entitled to grant timber rights on Choe Land.

(B) Noted – that there are no strong evidence of certain objectors and that objection of other members within Choe tribe regarding land boundaries to be sorted out by their own tribal Chiefs."

6. The Western customary Land Appeal Court upon hearing the evidence before it, afresh and make its own determination.
   

ORDER

1. Determination of the Western Provincial Executive as appeared on minute and seemed to be record on Form 11 on 30th March, 2005 is accordingly set aside.
   
2. Afresh and determine the following persons as persons and represent all the persons entitled to grant timbers rights on Choe Land.
   
   1. Chief Elijah Iputu
   2. Mesach Tivuru
   3. Jeremiah Picho
   4. Simeon Pui
   5. Alick Ngira
   6. Skinner Rence
      

Dated 14th day of November 2006.

7. The decision of the Western Customary Land Appeal Court (CLAC) dated 14 November 2006 merely deals with persons who were lawfully entitled to grant timber rights over Choe customary land. It did not deal with the common boundary between Nono and Choe Customary lands nor the customary ownership of Choe land, nor the true boundaries and ownership of Nono, Talumu, Mohi, Siovae, Nono ulu, Chale, Choki and Guvu as set out in the notice to the Council Chiefs on 23 September 2010.
   
8. As to relief sought in ground 1 of the judicial review, the First and Second Defendants are not bound by the decision of CLAC in terms of the ownership and boundaries of Choe Customary Land. The declaration sought under this ground is therefore refused and dismissed.
   
9. The relief sought underground 2 relates to decisions or determinations in the future. It would seem to this court that decisions can merely be quashed where decisions are made and whether they are invalid, ultra vires and so on. I do not think this court could issue preventive orders as sought by the Claimants. Decisions are quashed by this court when they are made. Relief sought here is refused and dismissed.
   
10. Relief sought underground 3 are also refused and dismissed for reasons given in ground 2.
    
11. There is no evidence before this court that the First, Second and Third Defendants made threats to the Claimants in relation to the Licence No. A10735. This court does not know the nature of the acts that this three Defendants may do for which the Claimants seek injunctive orders. On the other hand, the court may not grant injunctions against the Crown, the Fourth Defendant is not amenable to injunctions (S.18 (I)(a) of the Crown Proceedings Act [Cap.8). This ground of relief is also refused and dismissed.
    

ORDER:

1. All relief sought by the Claimants are refused and dismissed.
   
2. The Claimants to pay costs of First, Second and Third Defendants in proceeding.
   

Order accordingly.

THE COURT