Ratusia v Attorney General [2016] SBHC 53; HCSI-CC 125 of 2015 (8 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 125 of 2015

BETWEEN:

PETER LOLO RATUSIA (representing himself and Members of
Nonoulu Tribe of Marovo, Western Province)
Claimants

AND:

ATTORNEY GENERAL
(Representing the Western Customary Land Appeal Court)
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant
(Representing the Commissioner of Forests)

AND:

CHIEF LETIPIKO BELASI, ATABAN TAHU, CHIEF SIMON
CHACHABULE and SISIFA K. FA’ARODO
(Representing the estate of ELMA TUAPA, now deceased)
Third Defendant

AND:

PACIFIC CREST ENTERPRISE LIMITED
Fourth Defendant

Date of Hearing: 1st February 2016
Date of Decision: 8th April 2016

Mr. M. Pitakaka for the Claimant
Ms. L.F Fineanganofo for the First and Second Defendants
Mr. D. Marahare for Third and Fourth Defendants

DECISION ON CHAPTER 15 PTC and APPLICATION FOR LEAVE

Faukona PJ:

1. A claim in category A for judicial review was filed on 9^th April 2015. The claim is purposely to review the judgment of the Western Customary Land Appeal Court (WCLAC) (First Defendant) delivered on 30^th October 2013. As can be noted, the claim was filed about eighteen months (18) from the date the CLAC delivered its decision. Hence, at this pre-trial conference hearing an application for leave is to be considered as well for the extensionof time limit.
   
2. On 30^th July 2015, the office of the Attorney General filed defences on behalf of the First and Second Defendants.
   
3. On 13^th August 2015, the Third and the Fourth Defendants filed their defences.
   
4. This court therefore is urged to hear the Claimant’s application for leave to extend the prescribe time for filing of the claim under Rule 13.3.9, and to hear whether the claimant satisfied the test set out in Rule 15.3.18, under the current process of Chapter 15 pre-trial conference.
   

Background Facts

5. The dispute arose concerning timber felling licence issued to the Fourth Defendant over a concern area, which coversLio, Buti, Nonoand Podokana customary lands on East New Georgia, Marovo, Western Province.
   
6. The Claimant claims ownership of Nonoulu customary land. Within that area are small plots, one of which is PuavaKukuru ulu land.
   
7. In late 2013, the Claimant through its registered entity, the Nonoulu Landowning Group (“NLOG”), applied for a log Felling Licence to cover Nonoulu land including PuavaKukuru ulu land. The Western Provincial Executive (“WPE”) held a timber right hearing in April 2004 and made a determination in favour of the Claimant party.
   
8. Another tribe, Luga tribe, appealed against the WPE determination to the First Defendant. That appeal was dismissed subsequently.
   
9. In October 2012, the Second Defendant issued a timber Felling Licence No. A10208 to NLOG for a concession area that covers PuavaKukuru ulu customary land.
   
10. In early 2013, the Fourth Defendant applied for a timber felling licence over a concession area including Nono, Buti, Lio and Podokana customary lands. On a date between April and May 2013, the WPE conducted a timber rights hearing. The Claimant did attend and objected inclusion of Lio land on the basis that that land is in fact PuavaKukuru ulu land owned by Nonoulu tribe and, which was under NLOG’s concession area under its Felling Licence No. A10208.
    
11. In May 2013, the WPE made its decision and Lio land was included on two personsnamed, as grantors were two of the Third Defendants.
    
12. On 29^th May 2013, the Claimant lodged an appeal to the First Defendant against that determination. The First Defendant heard the appeal in October 2013 and made its determination on 30^th October 2013, dismissing the appeal. The Claimant then instituted a claim for judicial review in this court against the First Defendant’s decision. Hence filed the claim on 9^th April 2015, about 18 months after the WCLAC decision.
    
13. In early 2014, theSecond Defendant issued a Felling Licence No.101306 to the Fourth Defendant, which enables it to commence logging in its concession area including PuavaKukuru ulu land owned by the Claimant. An application for interlocutory injunction was filed then against the Fourth Defendant logging operation. The application was heard by another judge, but the ruling is still pending today.
    

Issues for Determination

14. Basically, there are two issues identified by the submissions for determination;
    1. Whether substantial justice requires that this court extends the prescribed time for filing of the claim under Rule 15.3.9.
    2. If leave to extend is granted, then whether the claimant satisfies the testset out in Rule 15.3.18.
       

Should a claim for judicial review be filed prior to application for leave to extend time

15. I verily noted and acknowledged that the application for extension of time period is a self-realisation failure that Rule 15.3.8 has not been complied with, hence, opted to Rule 15.3.9 prompting the court to exercise its discretionary power to grant leave in order for a claim for judicial review be filed. In fact application for leave to grant extension of time once granted, should pave the way for filing of a claim. That application should be treated as a separate action in my view.
    
16. In this case,a claim for juridical review had been filed in advance prior to filing of the application for extension of time. The purpose for this sequential action is not clear, but I presume it is for the reason of footing an application for interim injunctive orders. The Counsel for the Claimant submits that application for leave can be heard at Chapter 15 pre-trial conference, there is no legal impediment to thwart such to proceed together.
    
17. Mr. Marahareobjects, that the issue of leave to be determined at Chapter 15 conference is irregular since the issues to be determined have already been set out by Rule 15.2.18. To entertain an application for leave to extend time is adventuring beyond the process, which is an abuse of court process. Such application should be heard first, if successful then a claim for judicial review be filed.
    
18. Mr Pitakakaargues this case entails an action under S.10 (1) of the Forest Resources in Timber Utilisation Act (FRTUA). He particularly refers to two case authorities, Sina V Matupiko¹ and Zorutu Development Company Ltd V Likobovu ². The Counsel for the First and Second Defendants also refer to the same cases with an additional case of Bavare V Nerapa³ and others.
    
19. This case of action is a claim for quashing order. A claim for quashing order must made within six months (Rule 15.3.8). The Court may extend time within or outside of the prescribed period for making a claim if it is satisfied that substantial justice require it (Rule 15.3.9).
    
20. In Sina’scase, the application for leave to extend time period was refused. The parallel circumstance can be noted in Zorutucase where the court of Appeal quashed the High Court order, which granted the extension of time to apply for judicial review.
    
21. In both cases, it would appear the proceedings were commenced by way of application for leave to extend time period. In Sina’scase the application was brought by way of ex-parte. Apparently, in both cases no claim for judicial review was filed prior or first in time before the applications were filed.
    
22. From reading of the cases and the Rules, I seem not to find between the lines any provision permitting filing of the claim could be done prior to filing of an application for extension of time. It simply draws back to the issue of convenience, I suppose, and not premising on prescribed rules, practices, precepts or conventions. My personal view is that, application for extension oftime should be filed first and be dealt with immediately. If successful, then a claim for judicial review is filed. If the application is rejected then it would be a waste of time and resources filing a claim prior to application for leave. I do not think in doing so is a duplication of court processes and unnecessarily taking up of court’s time. However, there is logic in it and it does not override or waive the objective of the rules.
    
23. Noted as well, that the Counsel for the Claimant submits that filing of a claim was to necessitate and provide a footing for the application for interlocutory orders, which had been dealt with. Perhaps, that was the specificmotive here. Inspite of that, there is risk, should the court was aware of such an inordinate practices, no injunctive orders be obtained. The claim was filed out of time. It would be convenient and less complicated if Counsels stick to the Rules and act within its bounds accordingly.
    
24. In any event, for the sake of fairness I will real with the issues as they put in their sequence though irrational they are.
    

Leave application for extension of time

25. Having realised that a claim for quashing order was not filed within six months, the Claimant then filed an application to extend time outside of the prescribed period for making a claim. Clearly, there is time-bar under Rule 15.3.8. However, Rule 15.3.9 provides that time may be extended if the court is satisfied that substantial justice requires. Justice here is not in an ordinary sense or in generic term, but justice must be such as overwhelming which can impact the result of the case should it be given the chance to be heard. In other words, justice when overlooked or bypassed will prejudice the entire process as perceived from all angles of the law.
    
26. The test for extension of time for granting or refusing an application for leave to file a claim for judicial review, under Rules 15.3.9, is set out in Sina V Matupiko ч. At page 6 paragraph 2 (thesame paragraph quoted by the Counsel for the Claimant), upholds that the overriding principle is the interest of justice in each case. The factors to consider are the overriding principle is the interest of justice in each case. The factors to consider are (a) the Claimant must make out a strong case for relief (b) the Claimant must show all the relevant facts pointing in favour of granting of the relief (c) a justified delay is more likely to succeed than a delay that cannot be justified.
    
27. His Lordship’s use of the words “interest of justice” is different in meaning from the requirement of Rule 15.3.9. In fact interest of justice used in the case is a minimum of justice, if I could give it a rate. Substantial justice used in the Rules advocates a high qualify of facts that will bring about fairness and not just justice that on the balance will produce a questionable result. As a determinant of fact and law, justice this court is searching for, after scrutinizing and analysing, and what remains are facts from which conclusion can be drawn to achieve fairness. The test is demanding and anything less is deplorable. The remainder, that extension of time is a matter for the discretion of the court base on the facts.
    
28. Another important issue needs to impart is the decision in the case of Talasasa and Others V Biku&Others⁵,which was referred to in Sina’s case. It stated Section 254 (3) of the Land and Titles Act and Section 10 (2) of the Forest Resources and Timber Utilisation Act are very similar in construction, if not, using the same words. They are both to be regarded as non-certiorari provisions, except error of law going to jurisdiction.
    
29. The reason for arriving at that conclusion is that the Customary Land Appeal Court’s jurisdiction in S. 10 (2) of FRTU Act has nothing to do with the determination of ownership of customary land. The Jurisdiction is confined only to appeals arising from the determination made by the Area Councils (now Provincial Executive⁶.
    
30. His Lordship Kabui J (as he was then) refused to accept that S. 254 (3) excludes certiorari on the ground of lack of use of clears words to exclude certiorari. However, His Lordship cited S. 84(1) of Constitution as an overriding provision, which vests in the High Court supervisory jurisdiction over any criminal or civil proceedings before any subordinate court and in so doing can make orders and or issue writs⁷.
    
31. I agree with His Lordship Kabui J in adaptation and application of S.84(1) of the Constitution. On the face of the discussions as appeared and quoted in Sina’s case, it would be contrary to rule that S. 10(2) of FRTU is a non-certiorari provision except error of law going to jurisdiction on, at the same time concluded that no error of law committed by the CLAC could be corrected by certiorari in the High Court even through the error appeared on the face of the record. It would appear that the only errors of law in regards to jurisdiction can be brought up for the High Court and not all other errors of Law though they may appear, per se, in the face of the record. I think that is limiting the supervisory jurisdiction of the High Court as guaranteed by S.84(1) of the Constitution. Jurisdiction vested under the Constitution is broad and applies to all manner of cases heard in all subordinate courts. However, on page 5, paragraph 1, His Lordship Kabui J concluded in Sina case, by adopting the judgment of the Court of Appeal in Aquila Talasasa’s case, that it be only regarded as exception to Section 84(1) of the Constitution. That is to say certiorari does not lie against the decision of CLAC under S. 10(2) FRTU Act because it does not determine the ownership of customary land but rather it reviews the determination reached by the WPE, which is not a determination of ownership of customary land⁸.
    
32. It has to be noted that, though S. 10(2) is a non-certioraris provision, error of law going to jurisdiction is open and is subject to the jurisdiction of the High Court to issue certioraris orders. It is an exception provided under the judgment of the Court of Appeal.
    
33. In this case, the issue boils down to the challenge on law as to the jurisdiction of CLAC in hearing an appeal against the WPE determination.So far as general jurisdiction is concerned there is nothing. But there is a challenge to jurisdictionalpower whether the WPE can make a determination over customary land if had already made determination, therefore creating a common concession zone granted by different trustees which then become an area of dispute.
    
34. This requires explicit and eloquent submissions, perhaps requiring documents as application form 1, maps etc; it may probably boils down to the question of boundaries. It’s a grave issue, which the CLAC ought to have conducted deep investigations into. Better still it would be of great assistance if there had been a court decision in regards to the disputed land or neighbouring land where boundaries had been identified by the court. In this instance nothing had been done. Consequently, lack of providing sufficient submissions or inadequacy of CLAC knowledge to deal with such issue may deter proper and efficient adjudication by the Court.
    

Facts related to Strength of the Claimant’s Case

35. After discussing the law, I’d rather deal with the issue which was raised, as a significant point in making out the Claimant’s case. In the sworn statement of Mr. Ratusia filed on 9^th April 2015, paragraph 38 he stated, in October 2013 his appeal to WCLAC was heard. He was present as the Appellant. The Respondents were all the grantors or trustees identified by the decision of the WPE dated 9^th May 2013.
    
36. At the hearing, only one trustee attended, Mr Tahu. He claimed he was the spokesman for all the 13 trustees. Mr Tahu is not a Lawyer by profession so that he will act as a representative representing the rest of the Respondents. Spokesman meant all the named Respondents who are a party have to attend court and only one or twobe appointed from among them by way of consent to speak on their behalf as spokesman or spokesmen.
    
37. Only lawyers representing clients in court will normally excuse client from attending. Otherwise, they ought to when required for cross examinations.
    
38. My respectable view is that the WCLAC should grant privilege for all other Respondents named as party to attend court. And should not allow one Respondent to attend on behalf of the rest of the Respondents as a spokesman. The two trustees, who were identified as grantors to the land, which the Claimant has concerned, ought to have attended as answer to the claimants’ challenges. Mr. Tahu was a trustee for a different land.
    
39. Another issue noted from the WCLAC record, that the Western Provincial Executive was not named as one of the parties. The appeal was against the decision of a tribunal not dealing with the issue of ownership but merely for grant of timber rights. A similar approach should be taken as in an appeal from the determination by the Acquisition Officer, where the officer is named as a party in the appeal. There was no one representing the WPE or even named as a party in the appeal. This is important where timber rights processes were challenged, for instance the issue putting up of notices. That can be answered by WPE or a representative.
    
40. Those anomalies are termed as irregularities but are very significant which the CLAC had bypassed or ignored. They are party of the procedure, and perhaps with the inclusion of the Commissioner of Forest in this case now, will answer why these was an overlap in the concession areas. It would appear the issues which were placed before the CLAC were not fully and properly investigated.
    
41. Another issue involving Mr. Tahu, which may have negatively induced the WCLAC was the submission that felling licence No. 10208 granted to the Claimants incorporated company had been expired since their logging operation commended in 2004. Particular date of expiry was not mention at all. That may somehow give an impression that since logging operations had started long ago, by now licence could have expired.
    
42. Upon checking the exhibits attached to the Claimant’s sworn statement filed on 9^th April 2014, the same licence referred to as above was expired on 12^th October 2014, a year after WCLAC delivered its decision. At that time of the CLAC hearing the licence was still valid and not expired. Mr. Tahu’s assertion was a mere assumption which did not reflect true facts.
    
43. It boils down to the Claimant’s overriding claim that Lio land which was within Pacific Crest’s concession area comprised of two lands. One in the South was owned by Ranoro tribe and the plot in North which called PuavaKukuru ulu was owned by the Claimant’s tribe. That is the land the Claimant attested that the fourth Defendant’s concern area overlapped into which was already under license No. A10208 owned by the Claimant’s tribe.
    
44. It now materialised that WCLAC based its determination on the documents Mr. Tahu adduced as evidence in court. It accepted as credible and worthy to tilt the scale in Mr. Tahu’s favour. At paragraph 14 of the CLAC determination it stated “he (Mr. Tahu) had presented all the legal documents that clearly determining his ownership of Nonoulu land”.
    
45. Quite apart from that, paragraph 18.4(1) of Mr. Apaniai’s written submissions (former counsel for the Defendants) in the Claimant’s application for interlocutory restraining orders file on 9^th March 2015. As interested as it is, the paragraph clearly stated,
    

“theboundary issue, is the location of the boundary between Lio customary land and Nonoulu customary land. There are no decisions either from the Chiefs or the Local Court or the WCLAC to confirm that the Claimant is the owner of the disputed area, or that the boundary between Nonulu customary land and Lio customary land is as alleged by the Claimant. These are mere assertions. That means there is no triable issue, therefore, interlocutory injunction is not available to the Claimant”.

46. In paragraph 18.4(2) Mr. Apania also stressed out in his written submission “there is no evidence that the issue of ownership of the disputed area or the issue of the boundary between Nonoulu customary land and Lio customary land has been referred to the Chiefor the Local Court or the WCLAC. That is therefore no basis upon which the High Court could involve “adding jurisdiction” to grant interlocutory injunction.
    
47. If Mr. Apaniai had been well versed with fact that Mr. Tahu had owned Nonoulu customary land as an indicated by court materials adduced in the WCLAC, he would have undoubtedly with clarity stated that Nonoulu land was owned by Mr. Tahu, in his submissions, therefore the boundary issue becomes a non-issue. It would clearly indicated that the third Defendants own both Lio and Nonoulu customary lands. Hence the boundary that separated the two lands become stale and no dispute would have arisen. At that time of Mr. Apaniai’s submissions, it was clear that one party (the Claimant) is claiming Nonoulu land and the third Defendant is claiming Lio customary land. It was the conflict between the parties concerning the two customary lands, which made it necessary to consider the boundary that separated them. Whilst that yet to be settled, it is a life issue and ought to be resolved in the right forum conferred with jurisdiction.
    
48. Other issues,which are pointed out in paragraph 50 of the Claimant’s submissions are pertinent and afforded consideration as well. Issues (a), (b), (d) and (e) and correlated and are covered by paragraphs 15-17 in the Claimant’s submissions in WCLAC. The core point narrated in those submissions is jurisdictional overlapping of two licences on the area of land identified as PuavaKukuru ulu customary land. The question is whether that land is part of Nono land or part of Nonoulu land. The issue is one of boundary. That can only be ascertained through production of martial evidence such as felling licence, maps and the boundaries upon which Form 1 application was based. If nothing was produced in the WPE, as they were produced in CLAC, the court has to enquire why they were not produced in the timber rights hearing. Upon satisfaction of the reasons, the CLAC must consider admitting that evidence and made a determination on them. Failure tantamount to error is not considering pertinent evidence brought before it.
    
49. In respect to paragraph (c) it is an issue that can be agitated in the WCLAC. There was nothing noted from the Claimant’s submission as to the conduct of WCLAC. The purpose of appeal apart from two circumstances provided by section 10(2) of the FRTU Act, the issue as to the conduct of the WPE in administering the timber right processes is also a subject to be raised an appeal. As such, I would restraint from considering.
    

No Prejudice

50. I do not seem to identify the element of prejudice as one of the tests set out in Sina’s case. In fact it was discussed in the Zurutu’s case on page 4, paragraph 15. Prejudice described in that case directly derived from gross delay to the Appellant. Since Zurutu’s case concern the issue of grant of leave, it would be relevant to reserve until I elaborate on the issue of delay as required under Rule 15.3.18(c),“undue delay in making the claim”. I consider as appropriate as it refers to the same subject matter to avoid duplicity and time wasteful.
    

Delay

51. From Rule 15.3.9 extension of time can be sought in two categories of cases. One category of cases involves delay within 6 months and the other involves delay that goes beyond 6 months limit. The current case involves the latter. The reasons for refusing or granting leave in cases seeking excuse for delay in both categories of cases are the same. However, bearing in mind that the court has discretion to decide one way or the other⁹.In exercise of its discretion the court is guided by the above rule to uphold the overriding principle “that extension of time can be made upon being satisfied that substantial justice requires”.
    

Facts Contributed to delay

52. In submissions it seems that the Counsel and the Claimant have accepted delay. According to the sworn statement of the Claimant filed on 9^th April 2015, after receiving a copy of the WCLAC judgment he consulted his current lawyers in Honiara by the end of November 2013. There was still amble time for the Counsel’s firm to advise the Claimant of certain options he would take before closing the office for vacation period. The options are, if they cannot do it because of vacation, advised that Claimant to consult another Solicitor. The second option is to prepare a judicial review claim which must be filed within 6 months from the date the WCLAC decision was delivered.
    
53. Despite what could have been done, the sworn statement by the Claimant and Counsel Pitakaka himself addressed bulk of events commencing in early November 2013 when they first consulted in relation to this case. What this court is looking for are facts, which deterred the Claimant and his Solicitor not to file the claim within 6 months from the date the WCLAC gave its decision.
    
54. By way of conclusion, their submissions summed it all that the delay was a combination of factors from the Counsel’s side and from internal issues within Nonoulu tribe. In essence, the Claimant’s reasons is that he was caught between a number of court cases and disputes involving Nonoulu land and Nonoulu tribe and left the matter in the hands of the Counsel’s firm and Solicitors. In fact, that was a legitimate expectation. On the Counsel’s reasons include his predicaments between the end of 2013 and all of 2014, from clashing commitment between a major mining case, other cases, and multiple cases involving Nonoulu tribe, and the difficulty in obtaining instructions, intervening events and misleading instructions from other members of Nonoulu tribe.
    
55. I noted the culmination of many facts ranging from indulging in multiple cases, predicaments, heavy commitments, inabilities from obtaining instructions and interfering events can be treated as overwhelming.
    
56. Notwithstanding there were number of consultations between the Claimant and his Solicitors, dates were unconcisely adduced. There were mention of end November, middle of February, first quarter, second quarter, third quarter of the year, they are facts of general use. The Rule specifically requires 6 months to file a claim for judicial review. Expectation, that facts adduced must be events observed within the 6 months, which cause difficulties and delay or distorted filing of a claim. The reasons provided for the delay may not be strong enough. WCLAC decision was given on 30/10/2013; the Claimant would have consulted his Lawyer immediately, not until the end of November that is unacceptable. However, exercise of discretion provides a wide range of power to measure and conclude. Taking into account that it must be exercised unfittingly and with reasonableness.
    
57. I accept the Claimant had done what would have been expected of him. He consulted his Solicitor in good time after he had received a copy of the WCLAC judgment and gave clear instructions to file his claim. Further delay thereafter was the Counsel’s responsibility, which must accept the bulk of delay. I noted Sina’s case was a delay of 4 years and 8 months, which the court regard as gross inordinate delay and refuse to grant leave.
    
58. This case the Claimant was delayed for 1 year and 6 months. Though there was delay, it must be considered in the light of the existence of substantial justice. In considering substantial justice a delay in this case must be justified on the facts. The facts adduced to justify delay must be reassured against the facts upon which the Claimant grounded his claim. And in doing so, facts related to the jurisdiction of CLAC, which is the core issue of the Claimant case, is viewed as predominant. With inclusion of the Commissioner of Forest that issue should be clarified with precision at the review proper. In the light of my reasoning I would opted to exercise discretion by granting leave.
    
59. With that conclusion, it is unnecessary to assess the strength of the Claimant’s case, whether he is likely to succeed or not. At this stage, it would be premature to jump the conclusion. Right time would emerge when the strength of the parties’ case is analytically assessed.
    

Chapter 15 Conference

60. In a claim for judicial review, the first hurdle the Claimant ought to satisfy the court is to fulfil the requirements of Rule 15.3.18. the Rule states, “The Court will not hear the claim unless it is satisfied that:
    • (a) The Claimant has an arguable case; and
    • (b) The Claimant is directly affected by the subject matter of the claim and
    • (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.
      
61. My personal conviction is I think I have dealt with the issue of “whether the Claimant has an arguable case”, by pointing out facts I consider amount to substantial justice as required by Rule 15.3.9 together with the requirements that “error of law going to jurisdiction” as expanded in Aquila Talasasa&Others V Rex Biku&Others¹⁰. Those facts support combinations of substantial justice, issues going to jurisdictions and an arguable case. They are not facts that guarantee or contemplate the Claimant’s success at the end of the day, but he is only to show he has an arguable case. Gathering from the materials, which I could possibly read and digest, I can able to perceive that the Claimant has an arguable case.
    
62. Initial application for acquiring timber rights was grounded in Form 1 submitted by the Fourth Defendant, was purportedly to include Lio, Buti, Nono and Padokana customary lands. The Claimant says that Lio customary land covers two customary lands. The inland plot which is called PuavaKukuru Ulu was own by his tribe since time immemorial. And that land had been part of the concession area covered by felling licence No. A10208 issued to Nonoulu Landowning Group (NLOG), an incorporated body owned by his tribe.
    
63. From the Claimant’s view point, the propose concession area of the Fourth Defendant overlapped into their Nonoulu customary land, and the part that was overlapped had taken the whole of PuavaKukuru ulu land which they own and had been covered by the above licence.
    
64. Realising the rights of his tribe was jeopardised and at risk, the Claimant attended the timber rights hearing on 16^th April 2013 and mounted an objection in regards to the land his tribe was of concern. The decision was not in his favour so he appealed to the WCLAC of which his appeal was dismissed.
    
65. He now files a claim for judicial review in this court to have the decision of WCLAC be reassessed and be rescrutinised by way of review process. The Claimant has expressed by his actions, fore bearing the burden of his tribe culminated in grief, that he is, on behalf of his tribe, is directly affected by the subject of the claim.
    
66. Despite irregularities, ups and down, the first of his effort had taken the cause up till this far. He did not sit on his rights but made all necessary effort, seeking justice be done and seen to be done.
    

Is there undue delay?

67. I have addressed the issue of undue delay from paragraph 48-56 above. However, the nature of that delay is guided by the existence of substantial justice. As would appear, the element of substantial justice precisely is an overriding principle, which takes precedent over any undue delay. In other words, delay in that sense is subjective to the principle of substantive justice even if delay is forced to be grossly inordinate; the fact that there is substantial evidence available must therefore sustain justice in the case. Hence attracted discretion to be exercised in such circumstances.
    
68. In the current case, undue delay as required by Rule 15.3.9 is a requirement that stands out of itself, there is no subjective test attached to it. Simply, the Claimant must show good reasons and excuses for late filing of the claim of judicial review if the reasons are bad and unconvincing the court will not hear the claim and must be dismissed.
    
69. It is accepted by the Claimant and his Counsel that the claim was filed 1 year and 6 months late. From sworn statements and submissions it is noted that after receiving the decision of WCLAC, the Claimant travelled to Honiara towards the end of November 2013, of which no exact date identified. Consultations with the current Solicitors were ensued immediately. Amazingly, the Solicitors advised the Claimant they were preparing for close of legal year 2013.
    
70. At this juncture, a question to raise is, was two weeks before close of legal year is sufficient to get instructions and sworn statement and filed the claim for judicial review? I suppose closing of legal year is traditionally recognised as a court business and not private law firms. Hopeful the law firm of current Claimant’s Solicitors take heed to administering its firm more efficiently so as to avoid inconvenience of their clients.
    
71. The current scenario could have been avoided if the Counsel’s law firm adjust its serving period to ensure its clients are served even during court vacation periods. There are number of Solicitors in that firm and the court often opens its door two hours daily during court vacation, hence, problem of filing court documents is no longer an issue.
    
72. The conduct of the Claimant after receiving a copy of the decision of the WCLAC was swift and instantaneous by consulting his current Solicitors and gave instructions. It was one month after the decision was delivered. The Second consultation according to Mr. Pitakaka’s sworn statement filed on 18^th May 2015 was about February 2014, about a different matter. By February 2014, the Claimant still had about 2 months before the 6 months period required to file a claim for judicial review expired.
    
73. If the Claimant had made himself available within the period, why was it the Counsels failed to inquire about the judicial review case which he had conveyed instructions. At least obtained some further instructions.Instead, the Claimant’s presence in the Counsels office prompted nothing at all. And the instructions therefore lay dormant unattended until subsequently was filed on 9^th April 2015, roughly 18 months after the WCLAC decision. That is unreasonable and inordinate delay
    
74. It appears that the Counsel for the Claimant is accepting responsibility for the undue delay. Undoubtedly, that is the case here. It was a delay derived from total negligence of Counsel. Mr. Pitakaka admitted in his own sworn statement in paragraph 18, “that the Claimant should not be penalised for delay in filing these proceedings because the delay was not his doing”. That is pure acceptance of responsibilities of undue delay.
    
75. In the light of the fact that undue delay was caused by the Counsel and not of the Claimants making, the Claimant should not be deprived of his rights and his tribe’s right to be given their day in court to challenge what they belief was unjust decision by the Customary Land Appeal Court. In the circumstances, I therefore adjudged that there was no undue delay in the making by the Claimant but his Counsel who should meet the expenses of this hearing.
    

Any other remedy that addresses the matter

76. Rule 15.3.18 (d) provides for an alternative legal process through other Acts which conferred jurisdiction that the Claimant could resort to other than a claim for judicial review. Not only the process is provided in law, but is available, convenient and perhaps prior in option.
    
77. In the current case, Counsels pointed out in submissions the availability and inadequacy of referring the case to the Local Court, as a remedy available at first instance to resolve the matter.
    
78. The difficulty perceived as the major component of the claim for judicial review is the overlapping jurisdiction of two felling licences issued by the Commissioner of Forests. All other issues hang on that very major one. It was the reasons in which the WCLAC approached and dealt with that issue on appeal is now subject to review. It is nothing to do with customary landownership. Of course, landownership is a life issue, but until a party or parties willing to lodge a case with the Chiefs, there is nothing much at this stage.
    
79. To immediately suggest that Local Court is an alternative remedy to resolve the matter is quite remote. The case has to commence with the Chiefs first. To deviate in order to litigate another issue in another forum, from CLAC determination is inconvenient to say the least. The process is expected to engage bulk of time before resolving the matter.
    
80. The Counsels have never hinted the possibility of an appeal from WCLAC decision to the High Court. I accept their silence because the FRTU Act has never provided an appeal privilege from CLAC. As such, I would concur with the Counsel for the Claimant that judicial review is the only avenue opened to the Claimant to challenge what he believes as a jurisdictional incompetent and errors on the face of the record.
    
81. I am therefore satisfied that the Claimant has fulfilled all the requirements under Rule 13.3.8. in the overall adjudication of this case, I am satisfied on the facts adduced by the Claimant and therefore allowed the Claimant’s claim for judicial review to proceed to trial on its substantive merits.
    

Orders

1. Application for leave granted.
2. Claimant’s claim for judicial review to proceed to trial.
3. Counsel for the Claimant to meet expenses of this hearing.
   

The Court