Rongo v Fananasi [2014] SBHC 69; HCSI-CC 419 of 2011 (30 June 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 419 of 2011

BETWEEN:

DAVID RONGO AND EDDIE FANASIFAKA
(Representing Members of Suragina Tribe)
Claimants

AND:

MOSES FANANASI, JOHN PALMER TARISURIRONGE, SACHARIAH NGARA, PAUL MENEGETEA AND WILSON PWAUNINI
First Defendants

AND:

ATTORNEY GENERAL
(Representing the CLAC (Eastern District) Makira Ulawa Province
Second Defendants

Date of Judgment: 30 June 2014

Mr. Marahare for Claimants
Mr. Etomea for First Defendants
Mr. Banuve for Second Defendants

JUDGMENT

1. This is a Judicial Review Claim by the Claimants of the Decision of the Makira Ulawa Customary Land Appeal Court (MUCLAC) pursuant to chapter 15.3 of the Solomon Islands Civil Procedure Rules 2007 (the Rules), which was delivered on 16 June 2011.
   
2. The Relief sought are:
   
   1. A declaratory order that the MUCLAC failed to hear and determine the appeal lodged by the Claimants against the determination of the Makira Ulawa Provincial Executive (MUPE) in respect of the Timber Rights Hearing conducted at Marou Village, Haununu District on 19 August, 2004, as required under section 10 (1) of the Forest Resources and Timber Utilization Act (Cap. 4) as amended.
      
   2. In the alternative, a declaration order that the determination of the MUCLA delivered on 16 June, 2011 does not amount to a determination in law as required under section 10 (1) of the Forest Resources and Timber Utilization Act (Cap. 4) as amended ("the Act").
      
   3. The First Defendants are the persons determined by the MUPE as the grantors of timber rights over Pwegetea, Gorowa and Pwapwagoki Customary Lands. Their case is that the Claimants' case is an appeal in the guise of a judicial review. It must therefore be refused and dismissed for abusing the process.
      

The Second Defendant is the MUCLAC which dismissed the appeal by the Claimants against the determination of the MUPE. It is also submitted on behalf of the Second Defendant that the Claimants' case is an appeal in the guise of a judicial review and should be dismissed for abusing the process.

4. Counsels for the Claimants and the Defendants agreed facts and issues in this case. They are:
   

Agreed Facts

1. The Claimants are members of the Suragina Tribe of Haununu on Makira in Makira Ulawa Province, which tribe is the custodian of Suragina Customary Land situated in the Haunu area in Ward 20.
   
2. The First Defendants are the persons determined by the Makira Ulawa Provincial Executive (MUPE) as the purported grantors of timber rights over Pwegetea, Gorowa and Pwapwagoki customary lands based on the timber rights hearing conducted at Marou Village in Haununu District on Makira Island on 19 August, 2004.
   
3. The Second Defendant represents the Customary Land Appeal Court (CLAC) responsible for hearing appeals against the determination of persons entitled to grant timber rights pursuant to section 8 (3) of cap 40 as amended.
   
4. Based on the timber rights hearing conducted by the MUPE at Marou Village in Haununu District on 19 August, 2004, the MUPE determined the First Defendants as the persons entitled to grant timber rights in respect of Pwegetea, Gorowa and Pwapwagoki Customary Lands.
   
5. A notice of the determination was issued on 23 August, 2004 or thereabout by the Provincial Secretary of the MUPE. The notice also invited any person, who might wish to object to the determination to submit their objections to the Magistrate's Court (Eastern) by 4.30pm on September, 2004.
   
6. By Letter dated 6 September, 2004 to the Magistrate's Court (Eastern) the Claimant through Messrs David Rongo and Hilton Koamirongo objected to the right of the First Defendants to grant timber rights in respect of Pwegetea (spelt Begetea), Gorowa (spelt Horowa'a) and Pwapwagoki (spelt Babagoki) Customary Lands.
   
7. By Letter dated 13 September, 2004 to the Magistrate's Court (Eastern) the Claimants through Mr. David Rongo objected to the right of the First Defendants to grant timber rights in respect of Pwegetea, Gorowa and Pwapwagoki Customary Lands. Further, Mr. Rongo paid the appeal fee in the sum of $100.00 as evidenced by GTR No. 0580.
   
8. By Letter dated 19 June 2007 to the Magistrate's Court (Eastern) the Claimants through David Rongo with their objection in respect of Baunatara Land, but confirmed that their appeal is in respect of Pwegetea, Gorowa and Pwapwagoki Customary Lands still stand.
   
9. The MUCLAC's purported determination was delivered on 16 June 2011.
   

Issues for Determination

10. Was the Second Defendant duty bound to take into account the decision dated 24 July 1984 of the MUCLAC in CLAC kk7/7/83?
    
11. Whether or not an appeal hearing had been conducted? And if so, whether or not the determination amounted to a determination in law?
    
5. The MUCLAC No. CLAC kk7/7/83 decided the boundaries and the ownership of Suragina, Rangorango, Ataga, Wawa, Mamoni and Suragina II Customary Lands. It did not deal with Pwegetea, Gorowa and Pwapwagoki Customary Lands, which were objected to by the Claimants, which were included in the Form 1 application, and determined by the MUPE on 19 August, 2004. The Claimants contend that the Second Defendant should have regard to the decision in the MUCLAC No. CLAC kk7/7/83 because Paipaiafare, Pwegetea, Gorowa and Pwapwagoki lands are part of Suragina Customary Land.
   
6. The Applicant in Land Case No. 13/3/125 is David Rongo who represented Eddie Nanasifaka. He should be the person responsible for providing case authorities to the MUCLAC if he deems them relevant for his case. In any case, in his appeal he did not tell the MUCLAC that Paipaiafare, Pwegetea, Gorowa and Pwapwagoki Land are part of Suragina Customary Land.
   
7. The Notice of the determination of the MUPE on the acquisition of timber rights over Pwegetea, Gorowa, Pwapwagoki and other customary lands was published on 19 August, 2004. The Notice shows that the First Defendants were the persons entitled to grant timber rights over Pwegetea, Gorowa and Pwapwagoki. But on 6 September, 2004, the Claimants raised objection in a letter alleging that the First Defendants do not have customary ownership of Pwegetea, Gorowa and Pwapwagoki Lands. The Claimants adopted their letter as their appeal to the Second Defendant.
   
8. The Second Defendant convened a hearing to consider the appeal. It delivered a written judgment on 16 June, 2011. The appeal was dismissed on the basis that the letter did not contain any point of appeal. It is clear from the judgment that it merely covered the process of acquiring timber rights. The Second Defendant entirely failed to hear evidence on customary ownership of Pwegetea, Gorowa and Pwapwagoki Lands. This is the ground of appeal raised by the Claimants. The ground of appeal is based on section 8 (3) (b) of the Act, which the Second Defendant would have jurisdiction to determine.
   
9. It was submitted to this court that the decision of a customary land court is final and cannot be questioned in any proceeding whatsoever[1]. The view of this court is that such provision does not apply to this court as it has specific jurisdiction to supervise proceedings of subordinate courts[2].
   
10. There are two issues agreed for determination as set out above. The First is whether the Second Defendant was duty bound to take into account the decision of the MUCLAC in CLAC kk7/7/83 dated 24 July 1984. A duty is usually imposed by Law[3]. The Claimants in this case have not cited any law to support that the MUCLAC was duty bound to consider the decision in CLAC kk7/7/83. Further, this case had not mentioned during the hearing of Land Case No. 13/3/125, and therefore there was no need to refer to it.
    
11. The second issue is whether or not an appeal hearing had been conducted? There was a hearing, but it was not been done in accordance with the procedure provided by law. The appeal was lodged under section 10 (1) of the Act. Matters referred to in section 8 (3) (b) are in issue as the Claimants disputed the customary ownership of Pwegetea, Gorowa and Pwapwagoki in the appeal. The second Defendant would jurisdiction to determine those matters. That was not done in this case.
    
12. The court will accordingly make the following relief:
    
    1. A declaratory order that the MUCLAC failed to hear and determine the appeal lodged by the Claimants against the determination of the MUPE in respect of the timber rights hearing conducted at Marou Village, Hanunu District on 19 August, 2004.
       
    2. Order that a newly consisted membership of the MUCLAC hear and determine the appeal by the Claimants.
       

THE COURT

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^[1] Section 10 (2) of the Act
^[2] Section 84(1) of the Solomon Islands Independent Order 1978
^[3] Section 28 of the Interpretation and General Provision Act Cap.85.