Tatgu v Nulu Customary Land Investment & Development Association [2014] SBHC 119; HCSI-CC 71 of 2014 (1 September 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

HERRICK TATAGU, VIVA TATESALA, CHIEF LUKE,
MEDOSI TIVIKERA, TOGE PIRANGA, WILLIE NOAH,
KEVIN SIPATA, JEFFREY APUSAE, RODRICK TIKERA
and BOAZ MAJIKOLO (representing Nulu and Nulu /
Ghalaghala Landholding Groups, Rangogga, Western
Province.
1st Claimants.

AND:

NULU CUSTOMARY LAND INVESTMENT &
DEVELOPMENT ASSOCIATION
2nd Claimant

AND:

ATTORNEY GENERAL (representing the Western
Customary Land Appeal Court).
Defendant.

Mr. J. Keniapisia for the Claimants.
Mr. J. Muria Jr for the Defendant.

Date of hearing: 11 August 2014.
Date of Judgment: 1 September 2014.

RULING
Apaniai, PJ:

1. On 11 July 2014, I delivered ex tempore ruling on this application during a Chapter 15 Conference. I promised to give written reasons later. These are the reasons.
   
2. The 1st and 2nd claimants have filed a claim for judicial review of the decision of the Western Customary Land Appeal Court ("WCLAC") dated 14 October 2014 seeking a number of orders, namely, quashing orders in relation to the decision, a further order for the WCLAC to re-convene and identify those entitled to grant timber rights over the Nulu / Ghalaghala customary land ("Disputed land") and a further order to disqualify certain members of the WCLAC from taking part in the WCLAC hearing on the ground of marriage affiliations.
   
3. The claimants assert that the WCLAC, having set aside the timber rights determination of the Western Provincial Executive ("WPE") in relation to the Disputed land, should have made a determination in the place of that which it had set aside. It had not done so, hence, this claim.
   
4. The claimants also assert the WCLAC decision was against the weight of the evidence and that the WCLAC erred in referring the land ownership dispute back to the appropriate forum instead of making the ownership decision itself.
   
5. Finally, the claimants assert that two members of the WCLAC, namely, the WCLAC clerk, David Vurusu and WCLAC Justice Willington Liosi, are related to the Appellants through marriage. They object to these two members being part of the WCLAC hearing.
   
6. In its defence, the defendant admits that it had quashed the WPE determination; that it had not made any determination as to the persons entitled to grant timber rights over the Disputed land; and, that it had referred the issue of the ownership of the Disputed land to the appropriate forum. It submits that it had no jurisdiction to determine land ownership issues and therefore there is nothing erroneous about its referral of the ownership issue back to the Chiefs for determination. It asserts that the owners of the land are the persons entitled to grant timber rights over the land and therefore it is important for the Chiefs to first settle that issue.
   
7. As regards the objection to David Vurusu and WCLAC Justice Willington Liosi taking part in the WCLAC hearing, the defendant asserts that the claimants have not raised any objections to Vurusu and Liosi taking part when the parties were asked at the commencement of the hearing whether they objected to any member of the WCLAC taking part in the proceedings.
   
8. Those are the defences raised by the defendant.
   
9. The matter then came before me on 11 July 2014 for conference (that is, a Chapter 15 Conference) under Rule 15.3.16 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"). The purpose of a Chapter 15 conference is to consider whether:-
   

[a] the claimant has an arguable case;

[b] the claimant is directly affected by the subject matter of the claim;

[c] there has been no undue delay in making the claim; and,

[d] there is no other remedy that resolves the matter fully and directly.

10. If one or more of those four conditions is not satisfied, the court will dismiss the claim. If all the conditions are satisfied, the claim will proceed.
    
11. In this case, the parties agree that conditions [b] and [c] have been satisfied. They disagree in regards to conditions [a] and [d].
    
12. In his submission, Mr. Muria Jr, of counsel for the defendant, submits that there is no arguable case because the WCLAC has a right to refer issues relating to ownership of customary land to the chiefs for determination. In regards to the question whether there is no other remedy that resolves the matter fully and directly, Mr. Muria Jr submits that the chiefs can deal with the matter fully and directly. He submits that the court should dismiss the claim. Mr. Keniapisia, of counsel for the claimant, disagrees with Mr. Muria Jr.
    
13. The question whether Customary Land Appeal Courts have jurisdiction to determine ownership of customary land during an appeal under the Forest Resources & Timber Utilisation Act has, more or less, been settled in this jurisdiction. The position is that Customary Land Appeal Courts have jurisdiction to determine ownership of customary land under the Forest Resources & Timber Utilisation Act as a preliminary to deciding the issue of disposal of timber rights. That was the decision in Francis Pitabelama & Others v Moses Biliki & Others[1]. Where the CLAC makes a decision as to ownership, that decision is binding on the parties for the purposes of section 10 of the Forest Resources & Timber Utilisation Act. The loser is not entitled to re-litigate the ownership issue before the Chiefs[2]. The ownership issue becomes res judicature[3].
    
14. From the above discussions, it is clear that the claimant has an arguable case which means that Rule 15.3.18(a) is satisfied.
    
15. Mr. Muria further submits that the referral by the WCLAC of the dispute back to the Chiefs means that Rule 15.3.18(d) has not been satisfied because the chiefs can now deal with the dispute fully and directly. Again, I am not persuaded that the referral of the dispute back to the Chiefs was correct in law for the reasons stated in paragraph 13 above. I am satisfied there is no other remedy available that would resolve this matter fully and directly other that this proceeding.
    
16. It follows that the application by the defendant to dismiss the claim on the ground that Rules 15.3.18 (a) and (d) have not been satisfied is rejected.
    
17. The defendant shall pay the costs of the claimants in relation to this application to be taxed if not agreed.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] [2007] SBCA 21; CA-CAC 04 of 2006 (10 May 2007).
^[2] Majoria v Jino [2007] SBCA 20; CA-CAC 36 of 2006 (1 November 2007).
^[3] Pitabelama & Others v Biliki & Others [2007] SBCA 21; CA-CAC 04 of 2006 (10 May 2007).