Kulasaru v Attorney General [2017] SBHC 135; HCSI-CC 106 of 2014 (16 February 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case Number 106 of 2014

BETWEEN: JEFFERY KULASARU, ROMANO ZESAPA, STEPHEN- Claimants
GAGA, RENCE PIRUKANA, CHILLION QOLONI, ZEBEDEE

SOKENI, FRANCIS QALOGAVE, RATA QALOKAMAKE,

VINCENT KUPA, ALBINO NGASUKANA and CHARLIE

QALO
(Representing themselves and Members of their Mamala
Tribe of Choiseul Province)

AND: ATTORNEY-GENERAL - First Defendant (Representing the Western Customary Land-Appeal court)

AND: CHIEF LEO LEKETO - Second Defendant
(Representing himself and Members of his Bapoqo

Tribe of Choiseul Province)

Date of Hearing: 18^th January 2017.
Date of Judgment: 16^th February 2017.

Mr. J.Taupongi for the Claimant.
Mr. E. Kii for the First Defendant.
Mr. W. Rano for the Second Defendant.

KENIAPISIA; PJ:

JUDGMENT

Introduction

1. This is a judicial review matter. Claimants seek to quash the decision of the first defendant made in October 2013. This dispute stemmed from a determination by Choiseul Provincial Executive (“CPE”) emanating from a timber rights hearing, that determined the claimants of Mamala tribe as the rightful persons entitled to grant timber rights over Mamala Customary Land, North East Choiseul.
   
2. Being a judicial review claim, the matter had gone through a Chapter 15 Conference in January 2015. Counsels consented that this matter should proceed to trial, beyond Chapter 15 conference. Trial was conducted without cross examination of witnesses who deposed statements. Counsels agreed to proceed this way due to high cost in bringing witnesses to Honiara. First defendant rely on its decision and play a dormant role during trial and submissions.
3. In 2013, Delta Timber Company with support from claimants’ tribe applied for felling licence over Mamala customary land (“Mamala”). In May 2013, CPE conducted a timber rights hearing. Claimants say that the timber rights hearing was to determine those who should grant timber rights over Mamala. That is not quite right. Statute also obliged CPE to determine (decide) other matters in Section 8 (3) (a) – (e) of the Forest Resources and Timber Utilization Act (Cap 40) as amended (“FRTUA”). Will return to this later.
   
4. Second defendant objected the timber rights application by Delta, on behalf of his tribe. CPE determined in June 2013, that eleven (11) members of the claimants’ tribe are to become the timber rights granters over M. At the timber rights hearing, claimants and second defendant have competing claims of ownership over M.
   
5. Second defendant appealed CPE determination to Western Customary Land Appeal Court (“WCLAC”) in October 2013. Court is satisfied that the appeal was properly brought under Section 10 (1) of FRTUA as read with Section 8 (3) (b) and (c). Second defendant challenged claimants’ determination as trustees, over a land they called Bakobangara, which the claimant called Mamala. Before the WCLAC could hear the appeal, the second defendant also referred a dispute to the Ririo House of Chiefs, on the ownership of M. By a decision dated 12^th September, 2013, Ririo House of Chief decided in favour of claimants’ tribe on ownership. Chief’s decision also found that the two disputing parties are not related by blood.
   
6. On 3^rd October 2013, the first defendant heard the second defendant’s appeal. On 15^th October 2013, WCLAC delivered its written judgment. The appeal was allowed, CPE determination set aside and court ordered that parties (claimant and 2^nd defendant) pursue customary means of settlement instead. Claimant is seeking judicial review of that WCLAC decision.
   

Jurisdictional Issue and “Ouster clause” in the FRTUA

7. Is it an abuse of process for an aggrieved person to appeal against the decision of WCLAC, in view of the “ouster clause” in Section 10 (2) of the FRTUA (Cap. 40), as amended? Upon hearing of submissions and consideration of the law, Court is of the considered view, that the “ouster clause” referred above, does not bar this Court from reviewing the decision of WCLAC. Court reached this conclusion on the basis of Veno –v- Jino^[1], where the Court of Appeal held that High Court can hear cases in spite of the “ouster clause”, where it is necessary or desirable, because the tribunal has acted outside its statutory prescriptions. And in Kitu^[2], where Customary Lands Appeal Court (“CLAC”) has failed to exercise jurisdiction, High Court can intervene, but only to confine the lower tribunal to exercise its own jurisdiction. The Pitabelama^[3] case is also in agreement, in that the High Court can review CLAC decision, if satisfied that CLAC made a decision without jurisdiction. The line of cases cited have laid down the law that a decision of CLAC is not final and conclusive, but can be questioned in the High Court for judicial review, if there is jurisdictional issue. Jurisdictional issue would arise for in instance, where CLAC failed to make a determination on trusteeship or on other matters on appeal, which relates to those matters under Section 8 (3) (b) – (c) as read with Section 10 (1) of the FRTUA.
   
8. In this case, there is indeed a jurisdictional issue. The decision of WCLA records at paragraph 23 that it has no power to consider who owns the land. The WCLAC as a result decline to determine trusteeship, saying that there is ownership dispute over M. And therefore parties should pursue a resolution of their dispute through a customary settlement before venturing on logging operation.
   
9. Majoria –v- Jino^[4], later supported by Pitabelama – Court of Appeal held in both cases, that FRTUA is also a regime for determination of customary land ownership. And that under FRTUA, CLAC has power to enquire into ownership as a pre-requisite to determining trusteeship. The crucial point is, where a decision is made by the CLAC as to customary ownership of land as a necessary preliminary to determining the disposal of timber rights, that decision is binding on the parties and Section 10 of the Forest Resources and Timber Utilization Act applies to it^[5]. There is good logic for this - ownership and trusteeship are not separable. Whoever owns the land, owns the trees that grow on the land. And so FRTUA regime gives power to CLAC to determine customary land ownership, if desirable, for determining timber rights trusteeship.
   
10. It follows that when WCLAC was faced with ownership dispute over M, it is hard to determine trusteeship under Section 8 (3) (b) of FRTUA. WCLAC must first determine ownership before determining trusteeship. Accordingly, WCLAC should enquire into ownership, either by itself or by delegating it to the appropriate forum and then WCLAC must thereafter decide on trusteeship. It is normal for a court to stay a case in this instance. But WCLAC cannot shy away from its roles (powers), by not determining trusteeship, when there is dispute on ownership, in the manner it did, by referring the ownership dispute to be settled through customary means and declining to decide on trusteeship. Court is of the view that WCLAC evaded duty when it did that. It should assume jurisdiction, resolve ownership and then determine trusteeship.
    
11. This Court noted from evidence that at the material time of WCLAC hearing, the Ririo chiefs’ decision was already out. There is also evidence before this Court, in which the Ririo chiefs’ decision is currently on appeal to Local Court by second defendant. It may be prudent that WCLAC await the decision of Local Court (stay the appeal) and then decide on trusteeship, when Local Court decide on ownership. This may be a proper coordination between different statutory tribunals charged with resolving customary land ownership disputes. Court of Appeal in the two above cases, recognised the inter-relationship between these tribunals under Lands and Titles Act (Cap 133), Local Courts Act (Cap 19) and FRTUA (Cap 40) charged with customary land ownership dispute resolution. That is to say customary land ownership disputes are resolved by Local Court, through the regime under Cap 133 and Cap 19. Must first start with Chiefs. And that customary land ownership disputes that are tied to timber rights should be resolved through the regime under FRTUA by CLAC under Cap 40. Court of Appeal said in Veno that Cap 40 regime is an exception to the exclusive jurisdiction of the Local Court in disputes over customary land ownership. I should add that CLAC should do a proper work in resolving ownership in timber rights; including calling of evidences, hearing arguments and carrying out a survey. Ownership dispute is not complete without demarcation of boundary. And if for any reason, CLAC lack expertise, they should delegate the work to local court and stay the proceedings. If as in Pitabelama, where the evidence is overwhelming, CLAC should decide ownership on those evidences. In Pitabelama, evidence on ownership had been tested through the land courts three times in 1933, 1978 and 1979. In this case, ownership dispute is not yet fully tested in view of the local court pending appeal, by second defendant.
    
12. Court is satisfied that WCLAC in declining to determine trusteeship, failed to perform its statutory function or failed to exercise jurisdiction. This is incorrect and amounted to a refusal to exercise jurisdiction (an error of law or error of jurisdiction) and ought to be quashed. This Court shall accordingly quashed the WCLAC decision and remit the second defendant’s appeal to WCLAC to rehear and determine the appeal. As a guide to WCLAC, it should deal with ownership dispute, settle the dispute and then proceed to determine trusteeship. When dealing with ownership, WCLAC may enquire into ownership itself or refer ownership dispute to the relevant forum and stay the appeal. When ownership issue is determined in the relevant forum, WCLAC proceeds to hear the appeal and decide on trusteeship. In the Pitabelama case, evidence on ownership was overwhelming and so CPE and subsequently WCLAC relied on that evidence to decide on trusteeship.
    

CPE Determination

13. Court should also comment on the determination by CPE. The Minutes of CPE is at Exhibit PR 1 of statement by Rence Pirukana filed 7/04/2014. You cannot tell where the hearing took place and which executive members presided at the hearing. You cannot deduce from the Minutes whether CPE determined the matters that statute require of it under Section 8 (3) (a) - (e) of FRTUA. You cannot deduce from the Minutes how and why CPE determined one group of trustees over the other group. There are no reasons given for arriving at the preferred group of trustees. One cannot see how CPE had dissected the materials before it, to support the conclusion it reached, preferring one group of trustees over the other (claimants over second defendants). CPE did not identify the competing ownership issue, did not dissect the information and did not explain how it arrived at the decision on trustees. CPE made its decision without proper analysis of the materials and how it arrived at a particular decision. All you see is questions and answers. And then CPE went straight to identify the claimants as trustees. There is cause for concern when CPE exercised its functions contrary to statutory procedure and prescription under Section 8 (3) (a) – (e) of the FRTUA in relation to Delta’s timber rights application.
    
14. Determining of timber rights is a serious business. It affects people’s resources and livelihood. The provincial executive ought to show seriousness, diligence and proper disposal of its statutory functions. The Minutes must show conclusiveness and be comprehensive on the executive’s determination of matters under Section 8 (3) (a) – (e) of FRTUA. This is lacking in the Minutes. Matters under the said Section include things besides just trusteeship, which the executive must also decide. CPE must determine these other matters as well – profit sharing; whether or not land owners are willing to negotiate for disposal of their timber rights; participation of appropriate government in the venture and nature and extent of timber rights to be granted. In an appropriate action, the CPE determination could be quashed, as well. Court is making these comments not to criticise; but to offer assistance to provincial executives, when deliberating on timber rights applications.
    
15. The orders of the Court are:

15.1. The decision of WCLAC is hereby quashed.

15.2. WCLAC to re-hear the timber rights appeal by second defendant.

15.3. Claimants awarded costs against first defendant only.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Veno –v- Jino (2006) SBCA 22; CA-CAC 002 of 2004 (12^th April 2006).
^[2] Kitu –v- Pitu (2010) SBHC 67; HCSI-CC 90 of 2010 (14^th October 2010).
^[3] Pitabelama –v- Biliki (2007) SBCA 21; CA-CAC 04 of 2006 (10^th May 2007).
^[4] Majoria –v- Jino (2006) SBHC 153; HCSI-CC 255 of 2005 (22^nd November 2006).
^[5] Majoria quote from paragraph 3 at page 13, paclii version.