Maneniaru v Attorney General [2015] SBHC 111; HCSI-CC 14 of 2013 (11 December 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 14 of 2013

BETWEEN:

HONOURABLE JOHN MANENIARU
Claimant

AND:

ATTORNEY GENERAL
(Representing Malaita Provincial Executive)
1st Defendant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Forests)
2nd Defendant

AND:

ATTORNEY GENERAL
(Representing Minister of Forest)
3rd Defendant

AND:

GREEN TREE TIMBER LIMITED
4th Defendant

AND:

JACOB HOITARA
(Representing the Trustee of Tawarao Land)
5th Defendant

Date of Ruling: 11th December 2015

Mr. M. Pitakaka for the Claimants
Mr. Banuve for 1st, 2nd and 3rd Defendants
Mr. Lidimani for the 4th and 5th Defendants

RULING ON PRE TRIAL CONFERENCE

Maina J:

A claim for judicial review was filed on 25th January, 2013 on the Malaita Provincial Executive Committee's determination of the timber rights application by the 4th and 5th Defendants.

The Claimant seek orders to quash the 1st, 2nd and 3rd Defendant's actions and or determination as it breaches the requirements of provision of Sections 7 to 11 of the Forest Resources and Timber Utilisation Act (FRTU Act). Claimant alleged that the determinations as it stands also covers portion of the Inamauriasi Land which he claims belong to his clan.

At the Pre-trial conference under Rule 15.3.16 ("Chapter 15 Conference") Mr Lidimani for the 4th and 5th Defendants and Mr Banuve, Solicitor General for the 1st, 2nd and 3rd Defendants submits that the claim should be dismissed on the ground the Claimants have not exhausted the remedies to fully or directly or failed to show why the other remedy to resolve dispute Section 10 (i) of the FRTU Act was not used or complied with as it is the statutory requirement.

Rule 15.3.18 requires the Court to be satisfied as to four matters before it can hear the claim and they 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.

Under Rules 15.3.19 and 15.3.20, if the Court is not satisfied on the papers filed with the arguments the Court must decline to hear the claim and strike it out. If the Court is satisfied it may determine the claim or give directions and fix date for trial.

With the requirement of Rule 15.3.18 (a) (b) and (c) Mr Lidimani conceded or do not have any concern. He said the only issue is with (d) whether there is no other remedy that resolves the matter fully and directly as for timber right matters and the right of appeal is provided by Section 10 of the FTRU Act. Counsel Lidimani is supported by Mr Banuve that Claimants has not satisfied the requirement of Rule 15.3.18. Both counsels said that this statutory requirement under Section 10 of the FTRU Act is mandatory and must be exhausted by the Claimant. Further, there is no explanation given to the Court as to why that has not been exhausted by the Claimant and decide to come to this Court.

Mr. Pitakaka for Claimant argued that for the purpose of Chapter 15.3.17 conference, the Court need only look at the pleading whether the Claimant can establish the requirement prescribed in Rule 15.3.18 (a) – (d). And further the counsel for Claimant submits that despite the fact that there is statutory provision for appeal under Section 10 of the FTRU Act to CLAC that does not bar the Court from entertaining judicial review and he refers to Mereki v Attorney General HCCC No. 59 of 2014. I noted the case but the essence of Mereki v Attorney General HCCC No. 59 of 2014 that while Advisory Committee is provided in law there is no in existence of such body, but with this case a Court established by law (CLAC) for appeal on timber determination does exist.

There is an arguable case as the determination is alleged to cover the Claimant customary land is directly affected by the subject matter of the claim. But with Rule 15.3.18 (c), there is an element of delay on part of the Claimant as the hearing on timber rights by the Provincial Executive was on 24th and 25th May 2011 but this application for judicial review was filed in the High Court on 25th January 2013. From that period till now, no appeal is lodged in the manner provided under the FTRU Act. Both Counsels for the Defendants did not raise this as an issue. I noted the argument by Mr Pitakaka that the notice of the determination was not displayed at Uhu Village, West Are Are. However, the documents filed in the Court shows that a Public Notice of the Determination was published on 5th April 2012.

This is a bulldozer type of claim or the Claimant in this claim is trying to capture errors or faults from the Defendants at a loophole. Claimant alleges and seeks judicial review for breaches the requirements of various provisions in Sections 7 to 11 of the Forest Resources and Timber Utilisation Act. They termed the breaches of the provisions as a point of law and exclude the jurisdiction of CLAC under Section 10 of the FTRU Act. To the effect it would be that there may be no other remedy that resolves the matter fully and directly as by Rule 15.3.18 (d).

In the pleadings and submission, the Claimant is seeking to squash what is described as Forms 1, 2, 3 and 4 under the Act in so far covers the portion of Inamauriasi clan customary land. According to the pleading this is so as a portion of land determined is subject to Malaita Local Court Case No. 3 of 2004, judgment of 5th October 2008 and a portion of this case No. 3 of 2004, judgment of 5th October 2008 and a portion of this case No. 3 of 2004 still pending before the Local Court. And Counsel for Claimant said that determination breaches of Sections 7 to 11 of the FRTU Act. What appears to be clear in the pleading is that there are issues relates to timber rights determination of people under Section 8 (3) (b) or (c) of the FRTU Act.

For the timber right hearings as and alluded or stated by Solicitor General Banuve in his submission, any determination of timber right is to be challenged in the process under FRTU Act. It is the scheme of the Act that this avenue of redress to have been first exhausted before the judicial review was resorted to.

As noted in the claim it is an allegation of breaches of Sections 7 to 11 of the FRTU thus includes Section 8 (3) (b) or (c) which this Court lacks jurisdiction on the matters. While the manner of presenting the pleading tries to play it down that is not much on the determination than the law, it is clear in the pleadings and submission by the Claimant that it is directly relates to appeal against the determination of persons under Section 8 (3) (b) or (c) of the FTRU Act.

This is a claim that tries to capture errors or faults from the Defendants at a loophole. It is so as the Claimant makes broad allegation of breaches of Sections 7 to 11 of the FTRU Act and seek orders to quash Forms 1, 2, 3 and 4 made by authorities or persons under the Act. Note again that Form 2 relates to matters under Section 8 of the FTRU Act and in particular the determination of persons to grant timber right, a matter that requires appeal to the CLAC.

There is also a matter that should be noted in this case. The Malaita Customary Land Appeal Court or Office Manager of – Malaita Magistrate Court has not been named as Defendant in this case although the Claimants is also seeking judicial review on the letter relates to no appeal lodged to the CLAC. The act of this office is subject for judicial review as it plays a primary role in the process of timber right matters otherwise the Claimant seeks leave to include CLAC as Defendant or in alternative the Claimant to seek from CLAC to lodge appeal out of time.

This is an abuse of the process of the Court on part of the Claimant as the steps as noted above still exist for them.

ORDERS

1. The Claim is dismissed
2. Cost of the Defendants
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge