Koina v Attorney General [2012] SBHC 123; HCSI-CC 69 of 2011 (8 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 69 of 2011

BETWEEN:

David Koina, Havea Majoria, Tui Kavusu and
Leslie Tusi of Kadiki Tribe, Vangunu, Western
Province
Claimants

AND:

Attorney General
(representing the Customary Land Appeal
Court (Western)
1st Defendant

AND:

Epherem Siope, Oliver Jino, Yalu Revo, Seth
Piruku, Brown Lamu, Andrew Lada Murray,
Exmas Jino, Ilai Kusolo, Hilly Billy Jino, Solomon
Lego, Habolo Kumiti, Boaz Nara, Perry Veno,
Paul Kito, Eric Qora, Francis Sene, Albert
Leqere, George Carter, Hami Lavi, Russell Peloko,
Wuitlyn Viulu, Robert Purugu, Harold Viulu and
Richard Sidiki (representing the Veala Tribe)
2nd Defendants

Date of Ruling : 8 October 2012

A Keniapisia for Claimants
R Firigeni for 1st Defendant
G Suri for 2nd Defendant

RULING

Mwanesalua J:

[1] The Claimants seek judicial review of the decision of the Western Customary Land Appeal Court (WCLAC) dated 30th November 2010 in timber rights Appeal No. 4 of 2010. In particular, the Claimants seek the following orders:

1. An order to quash the decision of the WCLAC made on 30th November 2010 in relation to an appeal by the Claimants in CLAC Appeal No. 4 of 2010.
   
2. An order that the WCLAC re-determine CLAC No. 4 of 2010 and decide the issue of the ownership of the concession areas based on the evidence before it.
   
3. An order that the WCLAC and 2nd Defendants pay the costs of the Claimants.
   
4. Such further orders as the court deems fit.
   

[2] The Claimants are members of the Kadiki Tribe of Vangunu Island, Marovo, Western Province. On or about 1st November 2009, Earth Movers (Solomons) Ltd made an application to acquire timber rights on Babakani, Sivele, Kokoba and Buo Customary Lands ("Concession areas") on Vangunu Island, Marovo, Western Province. On 6th April 2010, the Western Provincial Executive ("WPE") conducted a timber rights hearing in respect of the application and made a determination that the 2nd Defendants were the persons lawfully entitled to grant timber rights over the concession areas. The Claimants made objections at the hearing on behalf of their Kadiki tribe on the ground that the concession areas are part and parcel of the customary lands owned by the Kadiki tribe, and that the said Kadiki tribe has not given any approval for the 2nd Defendants to carry out any logging operations in their customary lands. However, the WPE rejected the Claimant's objections.

[3] On or about 6th April 2010, the Claimants lodged an appeal against the WPE determination with the WCLAC. The grounds of appeal are:

1. The Western Provincial Executive erred in determining that Ipa Siope, Oliver Jino, Yalu Revo, Seth Piruku, Brown Lamu, Andrew Lada Murray, Xmas Jino, Ilai Kusolo, Hilly B. Jino, Solomon Lego, Habolo Kumiti, Boaz Bara, Perry Veno, Paul Kito, Eric Qora, Francis Sene, George Carter, Hami Lavi, Russell Peloko, Wuitlyn Viulu, Zutu, Robert Purugu and Harold Viulu are persons, and represent all the persons, lawfully entitled to grant timber rights over the Sasara, Babakani, Sivele, Kokoba and Buo customary land areas. The persons lawfully entitled to grant, and who represent all the persons lawfully entitled to grant timber rights over those areas are Havea Majoria, Chief Tui Kavusu, Leslie Tusi, David Koina, Nixon Jino and Hubert Sesapa.
   
2. The Western Provincial Executive erred in determining that the said lands are held by Babakani, Sivele, Kokoba and Buo landholding groups. There are no such groups as Babakani, Sivele, Kokoba and Buo landholding groups in existence.
   

[4] The WCLAC heard the appeal on 30th November 2010 at Gizo, Western Province. At the hearing, the Claimants produced sworn statements in which they deposed to their ownership of the concession areas as well as to the boundaries of the concession areas.

[5] The 2nd Defendants have not produced any evidence of ownership of any of the concession areas or of their boundaries but instead only made written and verbal submissions at the hearing through Andrew Landa Murray.

[6] After the hearing, the WCLAC forthwith made a decision rejecting the Claimants' appeal. In its decision, the WCLAC rejected the Claimants' appeal on the ground that the question of ownership of land "should be referred to the appropriate panel either the chiefs or the local court", meaning that the WCLAC had no jurisdiction to determine issues of ownership of customary lands.

[7] The Claimants' case is that, in holding that the WCLAC had no jurisdiction to determine issues of ownership of customary lands and by further referring the issue of ownership of the concession areas to the Chiefs or the Local Court, the WCLA had erred in law.

[8] The First Defendant supports the decision of the WCLAC. He contends that the Claimants should seek relief from the Local Court through Chiefs serving the area where the concession areas are situated. He observes that the gist of the Claimants' appeal regards the customary ownership of the concession areas, rather than with the process of reviewing the timber rights acquisition of the concession areas by the WPE, which the WCLAC conducted on the 30th of November 2010. This court should therefore dismiss and strike out this case on the basis that the Claimants have come to the wrong forum.

[9] The second Defendant contends that the WCLAC acted within its power to decide as it did. It has not acted in excess of that power and thus this claim should be refused and dismissed.

[10] The Claimants contend that the WCLAC had power to determine the customary ownership of the concession areas concerned in this case. It therefore made an error of law when it referred the issue of custom ownership of the concession areas to the local court through the relevant chiefs.

[11] This is a judicial review case. As such, this court merely confines itself with reviewing not the merits of the decision of the WCLAC, but the decision making process of that court. In this claim, it is apparent that that Claimants have failed to show where the WCLAC went wrong, while reviewing the process through which the WPE had followed in granting timber rights in the concession areas to Earth Movers (Solomons) Limited.

[12] What the Claimants sought to do in this case, in the quise of judicial review, was an appeal against the decision of the WCLAC on its merits. That is wrong "because its decision does not determine ownership of customary land but rather review the determination of the WPE which is not a determination of ownership of customary land. (See Sina v. Matupiko [2011] HC – CC 082 of 2001 (6 November 2001 per Kabui J as he was then).

[13] This review case is accordingly struck out and is dismissed.

Order: This case is struck out and is dismissed with costs.

THE COURT