Quanahai Integrated Development Co. Ltd v Attorney General [2016] SBHC 194; HCSI-CC 109 of 2014 (2 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:
QUANAHAI INTEGRATED DEVELOPMENT CO. LTD
Claimant

AND:

ATTORNEY GENERAL

1^st Defendant

(Representing the Commissioner of Forest)

CHACHABULE AMOI AND SERI HITE

2^nd Defendant

Date of Hearing: 25 October 2016
Date of Judgment: 2 November 2016

Mr. D. Marahare for claimant
Mr. Daniel for AG
Mr. B. Kaehuna for 2^nd defendant

Brown J:

The claimant company (the company) had previously a felling licence no. A 10554 which expired on 1 March 2011, from the Commissioner of Forests.

By Category C claim filed on the 9 April 2014 the company seeks a mandatory order directing the Commissioner of Forest to issue an extension of felling licence A 10554 to commence from the date of this court order.

By its statement of case, the company had been conducting operations in the concession area known as Davala Customary land up until the licence expired, and had by letter of the 25 February 2011 sought an extension of the licence from the Commissioner.

The Commissioner replied by letters of the 28 and 30 March, confirming the company was to be considered for an extension and seeking payment of fees in the sum of $60,000. The money was paid. No extension of the licence has been given by the Commissioner.

In support of its claim for a mandatory order directing the Commissioner to renew the licence to the company, the company pleads the fact of a Standard Logging Agreement (Form IV) with Davala Customary landowners on the 25 February 2013 and letters of approval from senior members of the Tombakokorapa tribe dated 25 February and 15 March 2013. They were after the expiration. These pleas form part of the statements read in support by Burnely Kimitora and Freeman Aaron Rebi.

Burnely Kimitora is the son of Ben Lomulo (deceased), a principal proprietor of the company.

Then, on the 24 June 2014, two persons, Chachabule Rebi Amoi and Seri Aaron Hite filed a Defence, claiming they are interested parties in these proceedings as proprietors, custodians and trustees of Davala Customary land.

They, by statement of case to the Defence, confirm the original felling licence A10554 had expired and the Commissioner had not since renewed it. They deny any legitimate expectation for renewal in the circumstances, or at all.

The interested parties are joined as defendants, since their interests are conjoint with those of the Attorney General (for the Commissioner of Forests) and they seek the proceedings struck out, saying any renewal of licence is discretionary, for the power of remains with the Commissioner.

These fresh defendants seek to have the Claim dismissed as
“ a) an abuse of process; b) issued without leave having beyond 6 months,
c) ought to be dismissed for laches, acquiesce and or delay.”

By statement of Defence filed by Attorney General (for the Commissioner of Forests), the Attorney denies the claimant is entitled to the relief sought or any relief, for the felling licence had expired. The Attorney further relies on the provisions of section 40 of the Forest Resources and Timber Utilization Act (Cap.40)[the Act]

“S.40 – No licence or permit issued under this Act shall convey or be construed to convey any right which the Government does not have and in particular no such licence shall convey nor be construed to convey any right or authority to enter any private land nor take action with respect to anything without the authority of the owner of that land or thing”.

Before addressing issues which may arise in relation to the effect of section 40 on the claim for a mandatory order, I shall look to see what follows from the expiry of the felling licence. For the company pleas a legitimate expectation that, on the facts of the request, and nature of answer by the Commissioner and payment of fees, the expectation arises that the licence would be renewed.

The original felling licence A 10554 was given on the 1 March 2006. It has been annexed to statement of Burndy Kimitora, filed in support of the company.

The document, Form B takes effect from 1 March 2006 and expires 1 March 2011. It purports to be pursuant to the Act and the Forest Resources and Timber Utilization Act (Felling Licences) Regulations 2005 made in accordance with Sector 44 of the Act. The Regulations, then need to be read with the document to understand whether the Commissioner has power to extend the licence and if so, does the material on which the company relies, create a “legitimate expectation” that the licence will be extended.

The document is silent on the question of licence extensions. Reference to licence expiry is to be found in Clauses 30 and 31, dealing with the licence’s continuing liability in particular aspects, and the completion of operation to the Commissioner’s satisfaction. I am satisfied no inference may be had from the wording of Clause 31 that a licence renewal may be contemplated to carry out remedial work.

The Regulations, by Sub-Clause 10(zd) and (ze) provide the underlying legal basis for the Clauses 30 and 31 in the Licence document.

The Regulations provide a period of 5 years for the term of a licence. The Regulations are silent on the question of licence extension. In the absence of specific provision, no power to extend beyond the 5 years term of licence may be presumed or implied by the fact that the Timber Rights Agreement “shall remain in force until the extension of a completion Certificate as published for in schedule C, or the agreement is terminated through breach of its provisions.”. The agreement must be read to include all the matters to be provided for, unless extrinsic evidence shows a clear intention to vary the terms of the agreement, in this case to provide for such an extension. Any such intention need comply with Rules or Regulations affecting licensing.

For the Agreement (section 12 of the Act) is between the Company and the landowner Representatives, and cannot be read to affect the separate statutory and regulatory powers and responsibilities of the Commissioner of Forests.

The Forest Resources and Timber Utilization Act and Regulations govern powers and responsibilities of the Commissioner, the procedural requirements for a logging licence are set out in clause 7 of the Regulations. The use of “shall” in the commencement of the clause makes mandatory the necessity for compliance with the Regulations.

By statement of claim the letters recited in support of the orders sought, cannot be substituted for the documents necessarily required by the Commissioner under the Regulations. The fact that the Commissioner may have written indicating an intention to extend, does not enable the Commissioner [who is without any discretionary power], to release the claimant company from compliance with the Regulations.

In any event, what is sought here is a mandatory order directing the Commissioner to “review, extend and issue” the felling licence. This Court has no jurisdiction to stand in place of the Commissioner of Forests and determine and accept all the material required by the Commissioner under the Regulations, then direct the Commissioner to grant the licence. That is not the function of the Court, rather the Court may direct the Commissioner to carry out his function to consider the material but not direct the Commissioner to do an act which is wholly within his province to decide.

No error of law has been shown by the Commissioner, sufficient for this Court to now direct him to review the material furnished by the company for renewal, for firstly, there is no expectation on the face of the documents provided that renewal is available or may follow as a matter of course and secondly, the documentation necessary for an application for a felling licence does not comply with the Regulations in any event. The fact that the Commissioner has accepted money and presumed to entertain the request in the letter for renewal cannot be grounds for this Court to find error of law by the Commissioner for while he may have been somewhat free in his action by so doing, he cannot change the mandatory requirements of the legislation and regulations in relation to the grant of logging licences. To accept that his actions may afford the claimant the right to avoid the mandatory requirements for a logging licence, as the company seeks to do, cannot be countenanced by this court.

I accordingly find no legitimate expectation that the Commissioner will issue a logging licence. There may be an expectation on the strength of letters, but, in the face of the Regulations, no legitimate expectation.^[1]

It is not, as the defendants say, a question of delay which disentitles the orders sought, but simply whether the particular orders are available. For the reasons that I have given, they are not. While the nature of the orders are discretionary, in the circumstances of this case, the question of discretion does not arise for this court cannot stand in place of the decision maker, the Commissioner and determine the right or not, to a logging licence^[2].

There was much evidence brought regarding the claimant companies’ right to log following upon a letter by the “landowners” of Davala customary land written the Commissioner dated 25 February 2013 and a fresh standard logging agreement executed between the company and senior tribal members of the Tombakokorapa tribe.

The defence in relation to those pleas was a denial that the claimant had complied with S.40 of the Forest Resources and Timber Utilization Act, for that the interested party, now the defendants Chachabule Amoi and Seri Hite, also claim ownership of the subject land, and deny the right to log.

I need not address these arguments for the case turns on the remedy sought. It is ironical these defendants now come claiming standing. In Lomulo v Amoi^[3] Chetwynd J said “1. Out of curiosity I searched the High Court data base for cases which involve roughly the same parties, issues and land in this case. I stopped counting when the number reached 15. It is unfortunate there have been so many cases.”

For Chetwynd J, dealing obita dicta with the question of ownership of land, said at 15
“As regards the Second Defendant’s slightly differently phrased question, to all intends and purposes the issue does not arise. The decision of the WCLAC does not purport to change the judgment in the 1972 case between Rebi (and his descendants) and Komi (and his descendants) in respect of by Ghoanahai/Riki land or the 1974 Magistrates decision in respect of Hahata and Rebi (and others) and Topakokorapa/Riki land and Ben Lomulo and Rebi in respect of Davala/Riki land 16.
All the previous decisions remain intact and effective so that Koni’s descendants cannot says as against Rebi’s descendants they own Davala/Riki land. Nor can Hahata’s descendants, as against Rebi’s line, say they own Topakokorapa/Riki land.

The difficulty which appears to run through all these High Court cases (and no doubt arguments else-where) is illustrated in Chetwynd J’s judgment at 12 where he says; - “Be that as it may, as there is no evidence of where Mateni and Hagere fit into this particular jig-law puzzle it is different to see how the WLAC can be faulted. If they are not related in any way to Reki then the WCLAC were perfectly entitled to say that Lomulo had a better right than Mateni and Hagere to grant timber rights. That is not the same as saying the First Claimant (Ben Lomulo) had a better entitlement than the Second Defendants (Rollens Rebi and James Puleipu) to grant timber rights. The decision by the WCLAC has in no way affected the previous decisions of the Marovo Native Court, the High Court or the Western Magistrate’s Court. As between the Second Defendant (Rollens Rebi and James Puleipu) and the First Claimant (Ben Lomulo) there I absolutely no doubt as to the ownership of Ghoanahai land which includes Davala land. It belongs to Rebi’s descendants. Koni’s descendants abandoned all claim to it. If, as surmised, the First Defendant (Chachabule Amoi) is connected to Rebi’s line then he too has a superior claim to ownership of Davala land than does the First Claimant (Ben Lomulo).’’

These arguments have again been raised here, but for the reasons given I need not entertain them. Suffice to say, the arguments are matters to be resolved amongst the protagonists in the first instance.

The Claim for Mandatory Orders filed on 9 April 2014 is refused.
The proceedings are dismissed by the court on the application of the 2^nd defendants, pursuant to R. 9.75(b) for the reasons given
The 2^nd defendants shall have their costs of the proceedings from the claimant.

I make no order as to costs in relation to the 1^st defendant, the Attorney General.

__________________
BROWN J

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^[1] Anisminic Ltd v Foreign Compensation Commission (1967) 3 WLR 382, (1967) 2 AUER 986

^[2] R v Lords Commissioner of the Treasury 5 , L.R.7 Q B387

^[3] (2011) SBHC 160, HCSI-CC 332 of 2007 (7 December 2011)