Talasasa v Attorney General [2017] SBHC 150; HCSI-CC 463 of 2013 (10 November 2017)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Talasasa v Attorney General
Citation:
Date of decision:	10 November 2017
Parties:	Ronald Bei Talasasa v Attorney General, North New Georgia Timber Corporation, Ramrakah Talasasa
Date of hearing:	25 Hearing
Court file number(s):	463 of 2013
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Brown PJ
On appeal from:
Order:	The claims must be refused and struck out. The defendants shall have their costs of the proceedings to be assessed or taxed and paid within 28 days of assessment or taxation.
Representation:
Catchwords:
Words and phrases:
Legislation cited:	provisions of the “Act
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No. 463 of 2013

RONALD BEI TALASASA
Claimant

ATTORNEY GENERAL
1^st Defendant

NORTH NEW GEORGIS TIMBER CORPORATION
2^nd Defendant

RAMRAKAH TALASASA
3^rd Defendant

Date of Hearing: 25 May 2017
Date of Judgment: 10 November 2017

N. Laurere for Claimant
N. Tongarutu for 1^st 2^nd defendant
S. Banuve for the Attorney General

Claim for declaration that appointment of 3rd defendant by the Minister of Forests as a member of Board of Directors of the North Georgia Timber Corporation representing tribe of late Milton Talasasa is null and void.

Brown J:

This application was instituted in December 2013 and unfortunately only was heard in July this year. The claimant also seeks recognition as the proper representative of the tribe of the late Milton Talasasa and thus entitled to be appointed to the Board in substitution of Ramrakah Talasasa.

The North New Georgia Timber Corporation Act [the “Act”] by s.3 provides for the establishment of the Corporation, the principal object of which shall be to promote the utilisation of the timber resources of North New Georgia for the benefit of customary landowners.

By s. 3(2)-There shall be a Board of Directors of the Corporation which shall be responsible for the policy and affairs of the Corporation.

S. 3(3)-The Second Schedule shall have effect in relation to the appointment of the Board of Directors, and other matters connected therewith.

S. 3(4)-The powers of the Corporation shall not be affected by any vacancy in the membership of the Board.

By SECOND SCHEDULE (3) (a) (i) Milton Talasasa was named as one of the inaugural Tribal Chiefs to represent the customary land area of Koroga.

By A(1) In paragraphs 1(3)(a), 1(3)(c), 1(3)(d) and 1(3), the title of the Tribal Chiefs over the customary land of their respective tribes, as specified therein shall be and shall be deemed to have been based on the final decisions of the courts, and for this purpose, “final decisions of the Courts” means such decisions of a local court, or a Magistrates Court or a Customary Land Appeal Court or the High Court as have, or shall, become final in accordance with law.

By Where the Tribal Chief specified in paragraph 1 ceases to be such Chief, his successor appointed in accordance with customary law applicable to his tribe shall have the authority to nominate, from time to time, any one of the members of his tribe, to represent his tribe in the Corporation.

In this case, the inaugural Director, Milton Talasasa had passed away and the 1st defendant, the Minister, acting pursuant to the Act had appointed the 3rd defendant, Ramrakah Talasasa to the Board in 2012, said to be effective to September 2013. For by paragraph 8 of the claimant’s statement of case;-“ Despite the proper endorsement of the claimant in accordance with the applicable customary law the 1st defendant (the Minister) on the advice of the 2nd defendant, is facilitating the appointment of the 3rd defendant instead of the claimant thereby contravening the provisions of the “Act”.”

The defence of the Minister at para. 6 says;

“The 1st defendant has no knowledge of para. 8 of the statement of case to the extent whether the claimant was properly endorsed to be appointed as a member of the Board of the 2nd defendant, however further adds that the 1st defendant received a letter from the legal representatives of the 2nd defendant attaching a list of names of persons nominated by their tribal leader and/or chiefs and/or representative to hold office of directorship. The 1st defendant accepted the letter from the 2nd defendant’s legal representative over that of the claimant due to the 2nd defendant being the legally authorized corporation and further that the names submitted by the 2nd defendant’s legal representative had complied with the “Act”.”

By his statement of case the claimant pleads that, at all material times he is the eldest son of the late Milton Talasasa and successor and Chief of Koroga Tribe.

By the 2nd and 3rd defendants defence, that statement is denied.

The parties then entered upon a succession of sworn statements to show, by custom who should or has succeeded to that role as Chief. For the 3rd defendant pleads the Chiefs of the Koroga tribe reside on North New Georgia and not at Nusa Roviana where the claimant lives.

This court has no powers to enter upon any consideration of the customary succession following a passing of a chief and may not be seen to be entertaining such question by way of declaration. Declarations of right whilst a discretionary power may not be used in a matter in which its jurisdiction is excluded by a law which gives exclusive jurisdiction to another tribunal.

Where there is a dispute over customary matters, especially those involving succession, and it cannot be resolved by sitting down and talking, the appropriate House of Chiefs may entertain the dispute and resolve the question. If a party is aggrieved by the Chiefs decision, only in that circumstance may an “unacceptable settlement” form be filed with the local court when the local court only then, will be invested with jurisdiction to hear the matter. No other avenue is available to settle the issue of the succession, least of all assertion and counter-assertion. The claimants assertion based as it is on support by others of his tribe overlooks the step necessary in this case, to have his succession accepted in custom for it is so obviously denied by others arguing standing to deny Ronald Bei Talasasa Snr’s right as chief.

In an endeavour to resolve this apparent impasse, the parties have agreed that the court address an issue for determination, a preliminary issue which may substantially reduce the issues in dispute.

“Whether the direction made by the Local Court is proper in answer to question 4 in the proper process to appoint a successor and consequently prevents the Claimant from asserting appointment by his father before his father passed away, thus the act of the Minister in appointing the third defendant is whether or not ultra vires his powers?”

The Roviana Local Court [LC no. 6/90] on the 27 February 1994, considered and answered questions referred from the High Court. The reference to “question 4” in the issue, above is as follows in the minutes of the Local Court determination

“Q. 4- Who is the successor in custom as tribal chief to the late Milton Talasasa?
A: This court can’t really identify at this stage of whom will be the successor in custom as tribal chief to the late Milton Talasasa. However we are satisfied that his eldest daughter namely Eulie Suganame will be the successor to the late (MT) private properties {family properties]. We suggest that it is a matter for the three tribes namely Nuatali, Losa and Dudi to come together and choose the successor in custom as tribal chief to the late Milton Talasasa.”

The Local Court accepted it did not have jurisdiction to enter upon the argument of succession for it had not accepted a proper referral by a house of Chiefs by unaccepted settlement from an aggrieved party. What may be accepted without contradiction is that the Local Court by referral from the High Court found Milton Talasasa to be the tribal chief in Koroga. In answer to other questions concerning the rights to benefit by others claiming royalties from the timber resource [of the Corporation’s logging] the Local Court determined:-

“Q 3. If the answer to question 2 [Nuatali tribe entitlement] is yes, from which tribal chief in Koroga land should the Nuatali tribe receive royalties?
A. The answer to Q. 2 is yes, this court then satisfied that the late Milton Talasasa was the tribal chief in Koroga by which the Nuatali tribe should receive royalties from. The three tribes namely Nuatali, Losa and Dudi were all descendants of Potobatu. The late {MT} was their identified tribal chief.”

On the basis of this presumably unappealed decision of the Roviana Local Court, these named “tribes” of Milton Talasasa as representative chief on the Board of Directors have custom rights to be heard in relation to any replacement chief and consequently any replacement Board Member of the Corporation. Of course all that material argued before me by way of sworn statements is relevant, I presume when the tribes come to consider who shall be representative Chief to replace late Milton Talasasa (and interim representative Ramrakah Talasasa for again his appointment relied on the Ministers discretion, and apparently not on any agreement or court determination of the chief able to nominate a tribal representative). After all concur by a minute to that effect, they may recommend to the Minister to make the appropriate replacement of the Director on the Board in place of the late Milton Talasasa.

It is apparent from the inaugural appointment of Directors that Milton was one of 4 tribal chiefs named to represent the customary land area of Koroga. It may be accepted those tribes named as represented by (i) Milton Talasasa in the Local Court decision are separate tribes to those represented by (ii) Nginabule, (iii) Reuben Guabule; and (iv) Holy Mamma. What may be said is that the appointment period of a director of the Corporation is 2 years with the right of reappointment. It would be necessary, then if those tribes represented by the late Director wished to have appointed a replacement director by the Minister, they need to agree on the appropriate person or refer the dispute to an appropriate House of Chiefs for determination.

In answer to the question posed for the court, I am satisfied the Minister had power to allow the representative, Ramrakah Talasasa to sit on the Board of Directors for that short 2 year period and the Ministers restricted exercise of his discretion has not been shown to have miscarried.

Pending proper establishment of the Chief to replace the late Board member, by manner shown above, the Minister may not re-appoint a replacement for the deceased.

Having addressed the issue in this fashion, I find I am unable to exercise my discretion in the claimant’s favour to make the declarations sought.

The claims must be refused and struck out.

The defendants shall have their costs of the proceedings to be assessed or taxed and paid within 28 days of assessment or taxation.

__________________

BROWN J