Koga v Attorney General [2014] SBHC 15; HCSI-CC 105 of 2012 (20 March 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

HEINZ KOGA, PAUL GESI, JACKSON HAELI, LENCE RINA, CHARLES TANI, CONSTANT GERRY, MAX LUA, BENJAMIN SUILA, EZEKIEL KEIRUKA and MAX KOLUBALONA (representing The members of the tribes of Garavu (big line) and Manukiki (small line) and members of the Coastal Land owners of Haliatu/Malagheti Communities)
1st Claimants

And:

GUADALCANAL EXPLORATION PTY LTD
2nd Claimant

And:

ATTORNEY GENERAL ( representing the Acquisition Officer, Japhet Limopu)
1st Defendant

And:

ATTORNEY GENERAL (representing the Provincial Secretary of Guadalcanal Province)
2nd Defendant

And:

MARTIN TSUKI, MATHEW MOLI, MOFFAT HOBI, NESTER RADE and MANUEL POLITO.
3rd Defendants

Mr. D. Marahare for the Claimants.
Mr. J. Muria Jr. for the 1st and 2nd Defendants.
No appearance to the 3rd Defendants.
Date of hearing: 19 March 2014.
Date of Judgment: 20 March 2014.

RULING

Apaniai, J:

1. On 16 April 2012, the 1st and 2nd claimants filed an application for judicial review of a determination by the acquisition officer, Japhet Limopu, in respect of Koleula (also known as Koloula) customary land. The purpose for acquiring the Koleula land was said to be "for business and investment activities".
   
2. In his determination, Mr. Limopu ruled that Martin Tsuki, Mathew Moli, Moffat Hobi, Nester Rade and Manuel Polito were the persons who had the right to sell or lease Koleula land.
   
3. The 1st claimants have lodged an appeal against that determination in the Magistrates Court in accordance with section 66 (1) of the Land & Titles Act ("Cap. 133"). The 2nd claimant, however, did not appeal. Instead, it filed this claim for judicial review seeking various declarations including an order to quash the acquisition Officer's determination. The 1st claimant's appeal has not yet been heard. It was adjourned generally by the Magistrates Court pending the decision in this judicial review claim.
   
4. It is a requirement under Rule 15.3.16 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules") that, as soon as practicable after the defence has been filed and served, the court must call a conference. This is the conference normally referred to by lawyers as "Chapter 15 Conference". At this conference, the court is required under Rule 15.3.18 to be satisfied as to four matters before it can hear the claim. In other words, the court will dismiss the claim unless it is satisfied as to these four matters.
   
5. These four matters are:-
   

[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.

6. Under Rule 15.3.19, the court is entitled to hear argument from the parties in relation to these matters.
   
7. At the Chapter 15 conference this morning, I invited counsel to address me in regards to these four matters.
   
8. In their submissions, both counsel agree that matters [a], [b] and [c] have been satisfied. Their disagreement is in regards to matter [d].
   
9. Mr. Muria submits that Rule 15.3.18 (d) has not been satisfied and therefore this claim should be dismissed. He argues that subsections (1) and (2) of section 66 of Cap. 133 have provided for appeals by a person aggrieved by any act or determination of the acquisition officer and a further appeal lies to the High Court on a point of law by a person aggrieved by a decision of the Magistrate Court. He submits that the 1st claimants have filed an appeal to the Magistrate Court against the determination of the acquisition officer and that if the 2nd claimant was not satisfied by that determination it should have done the same instead of lodging a judicial review claim against the determination. He referred to the decisions in Bollen v Sade[1] ("Bollen") and Bavare v Nerapa[2] ("Bavare") in support of his submission.
   
10. In Bollen, an application was made for leave to issue writ of certiorari to quash a determination made under the Forest Resources and Timber utilisation Act ("Cap. 40"). The court refused the application on the ground that Cap. 40 had provided for an appeal against such determination and that the discretion to grant certiorari is not normally exercised where statute provides for remedy such as appeal or review.
    
11. Bavare was a case where an application for judicial review was made in relation to a chief's decision regarding customary land ownership. In that case, a Chapter 15 conference was convened at which Justice Chetwynd held that the claimant had an alternative remedy pursuant to sections 12 and 13 of the Local Court Act (Cap. 19). He therefore dismissed the judicial review claim. On appeal, the Court of Appeal dismissed the appeal holding that, since a hierarchy of appeals has been provided by the Local Court Act and the Land and Titles Act to enable parties aggrieved by decisions made in relation to customary land by the chiefs, the local court and the Customary Land Appeal Court, Justice Chetwynd was correct in dismissing the claim on the ground that paragraph (d) of Rule 15.3.18 had not been satisfied.
    
12. In the present case, Mr. Marahare submits on the other hand that judicial review is concerned with the decision-making process whereas appeal is concerned with the merits of the decision. His submission, as I understood it, is that where an error is committed in the process leading to the making of the decision, the error should be corrected by the judicial review process. He submits that in the present case, the error is that the acquisition process has been used for a purpose falling outside the scope of the acquisition process and therefore the appropriate remedy is to seek judicial review of the acquisition process. He referred to Hiva v Mindu[3] ("Mindu") in support of his submission.
    
13. Furthermore, he submits that an appeal to the Magistrate Court under section 66 (1) of Cap. 133 is available only to those who claim ownership of the disputed land and since the 2nd claimant, being a company, could not claim ownership of the Koleula land, the only remedy available to it is to seek judicial review of the acquisition officer's determination.
    
14. Unfortunately, I cannot agree with Mr. Marahare. The issue at this stage (that is, Chapter 15 conference) is not whether the acquisition process has been used for a purpose falling outside the scope of the acquisition process. The issue here is whether the claimants have another remedy available to them as required under Rule 15.3.18(d). The decision in Mindu is therefore not relevant at this stage.
    
15. In regards to that issue, however, it is my view that the appeal process provided for under section 66 (1) of Cap. 133 is available to both the 1st and 2nd claimants herein. Under section 66 (1), a person aggrieved by a decision of the acquisition officer may appeal to the Magistrates Court. Under section 66 (2), a further appeal lies to the High Court on a point of law against a decision of the Magistrates Court. It is my view that the hierarchy of appeals provided for under section 66 of Cap 133 provides sufficient remedy for persons aggrieved by a determination of the acquisition officer.
    
16. In that regard, I am not satisfied that no other remedy is available to resolve the matter fully and directly. That means Rule 15.3 18(d) has not been satisfied.
    
17. The judicial review claim is therefore dismissed with costs against the 1st and 2nd claimants to be taxed if not agreed.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] [1999] SBHC 109; HC-CC 345 of 1999 (9 November 1999).
^[2] [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011).
^[3] [2009] SBCA 22; Civil Appeal No. 13.2008 (23 July 2009).