Ma-ash v Sino Capital (SI) Ltd [2017] SBHC 33; HCSI-CC 426 of 2011 (2 June 2017)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No. 426 of 2011

LENNICK MA-ASH -V- SINO CAPITAL (SI) LTD,
(Claimant) ATTORNEY GENERAL
(1^st & 2^nd defendant)

Date of Hearing: 3 March 2017
Date of Judgment: 2 June 2017

Mr. G. Suri for applicant
Mr. W. Rano for 1^st defendant
Mr. D. Damilia for Attorney General

Judgment in relation to Claim for Judicial Review in relation to the grant of logging licences.

Brown J:

1. On the 9 April 2014 His Honour Justice Apaniai (as he then was) heard argument in relation to the Category C Claim for judicial review. The judicial review relates to the grant of logging licences A10762 & A10714.
   
2. On the 9 March 2012, Chetwynd J heard an application, in relation to licence A10714 to prevent logging by injunctive order over particular land known as Ghorotina and Kologhai customary land, by the claimant. The ruling in favour of the application was handed down on the 27 April 2012 when his Lordship reserved on the question of costs. He acknowledged the applicants usual undertaking as the damages.

In the course of his reasons, the judge stated that the Provincial Executives determination had not been the subject of appeal to the Customary Land appeal Court and that any such appeal was long out of time.

While said obiter, (for the issue concerned the logging licences and the particular blocks of customary land) having read the various submissions by the parties counsel, nothing in the submissions causes me to question the veracity of the judges’ statement. In relation to licence A10714, the balance of convenience at that time favoured the applicant, thus justifying the ruling made by the judge in his discretion.

3. Whilst the reasons have been published, no formal interlocutory orders appear to have been taken out.
   
4. The Judge, on the evidence, did find that the development consent required under the Environment Act had been given with respect to both Licences.
   
5. After that hearing, the proceedings, originally instituted in 2011, were the subject of various interlocutory orders and directions made pursuant to Rules of Court, until the Chapter 15 Conference conducted by Apaniai J, on the 9 April 2014. The judge reserved his ruling but unfortunately had not delivered it by the time he departed the Bench. By consent of counsel on the 3 March last, the parties have accepted hearing by way of Chapter 15 Conference predicated on the various submissions and written material relied on at the time of the hearing before Apaniai J in 2014.
   
6. The 1^st defendant, Sino Capital (SI) Ltd held the two logging licences. The judicial review, [amended on the 26 January 2012] seeks declarations that both licences are null and void as they affect the particular land claimed by the Chacha-Kebenisbo Clan of Garavu tribe, for that the Licences contravened

Ss. 8(2) & (3) and S.9 of the Forest Resources Timber Utilization Act and Ss. 17, 19, 22, 24 & 25 of the Environment Act.

7. In his reasons, Chetwynd J made a finding in relation to compliance with the Environment Act, where on the evidence any challenge to the licences based “on lack of proper process under the Environment Act is doomed to failure”^[1]. No evidence to undermine that finding has been produced before me.
   
8. The remaining issue, whether the licences are void by reason of contravention of the F.R. & T.U. Act, have been addressed by the parties. For the basis of the challenge to the timber rights process was the failure to give notice of the timber rights hearing by the Province as required by the legislation.
   
9. The 1^st defendant relies on the findings and ratio of Chetwynd J in his judgment.^[2] At page 3, he said

“The licences are also challenged on the basis there were defects in the process which, under the Act, led to them being granted. Section 8(1) of the Act requires the Appropriate Government to fix a place, “within the area the customary land is situated” to hold a meeting. This is the meeting commonly called a Timber Right Hearing. The Claimant says there was insufficient advertisement and publication as required by section 8(3) (b) of the Act. The section requires the Appropriate Government to given notice of the meeting in what it considers to be the most effective manner to those persons who reside within the area and appear to have an interest in the land, trees or timber. We know what notices were published and we know where some were published. This came from unchallenged evidence of John Stewart (who at the time was the Provincial Secretary (AG)). He attended court and gave evidence. He listed a number of places he could remember the notices being posted at. He added that arrangement had also been made for land co-ordinators (the Defendant’s admittedly) to assist administration officers to post further notices, “in the interior”.

Whilst I accept that a detailed consideration of the evidence is not requires at this stage the court should ask what it is the Claimant says about this aspect of his claim and what he says he has by way of evidence to support it. All the Claimant effectively says is I live a long way (21 Kilometres) from the coast and I didn’t see any notices. It is also relevant to bear in mind Mr. Stewart attended court to give evidence because the Claimant issued a summons to attend. The clear implication being the Claimant does not know where any notices were published. His Case is simply that he did not see any notices. There is a clear and marked difference between saying I did not see any notices because you did not adequately publicise and saying I did not see any notices. In my view the former would raise the probability a serious issue to be tried whereas the latter would not. ”

The test proposed by the judge is an objective one not subjective as asserted by the claimant where he says he did not see any notices. I accept the test to be objective and find on the evidence of the claimant that the presumption of regularity in so far as publication of notice was concerned had not been displaced.

Mr. Suri for the applicant, relied on:-

“(c) By Micah Jack Asaoli filed 01/03/13 where he said in paragraph 18 that: “no one from the Forestry Department and Environment Department who came to consult us about the planned logging”.

(b) By John Laerau filed 31/07/13 where said in paragraph 2 that: “As far as I am aware, there was no timber rights hearing conducted within the Kolokarako Ward. There was no notice published in Kolokarako Ward for us to know about a timber rights hearing by the Guadalcanal Province or an environment assessment by people from the Department of Environment....”

(e) By John Kelly (a former provincial member) filed 16/09/13, where he said in paragraph 4 that: “.... The application by SINO Capital was for timber rights within Aola Ward only, not Valasi Ward and not Kolokarako Ward. Indeed, the Public Notice annexed to the Sworn Statement of Alvin Pehu filed 8^th February 2012 as Annexure “AP8” .... Shows clearly that the lands on the list attached to the Public Notice were within Aola Ward.”

10. That statement of Micah Jack Asaoli rather avoids the issue. John Laerau denies knowledge of the timber right hearing while John Kelly treats the application by SINO Capital as concerned with Aola Ward, not Valasi Ward or Kolokarako Ward. Clearly John Kelly, at least, was aware of the timber rights hearing.
    
11. These statements go rather to the timber rights hearing and are unassociated with the process in accordance with the Act, leading to the issue of the licences. There are steps to be taken following the hearing, including publication of the Provincial Governments findings which give rise to rights of appeal but no such rights have been exercised. It must be remembered the declarations sought relate to the acts of the Commissioner going to the grant of the licences, not whether any appeal had been instituted within time in relation to any findings of the Province affecting the subject customary land when persons likely to be affected may reasonably be expected to address the effect of the Governments’ determination.
    
12. Mr. J. Muria Jnr, for the Attorney-General representing the Commissioner of Forests responsible in accordance with the Act, for the licences, argued in terms of Rule 15.3.18(c) there has been undue delay for judicial review and by terms of R 15.3.18 [d] there is other remedy that resolves the matter fully and directly. For the delay is directly related to the time concerned with the absence of appeal over the Provincial Governments determination and the events leading up to the grant of licences following a timber rights agreement between the representative landowners and the licencee contractor.

The case was originally filed as a Category A Claim on the 25 October 2011. The Court extended time for the claim to be pleaded in terms of judicial review, on the 1 December 2011. The Licence in question issued on the 26 August 2009. By R. 15.3.9, a claim for a “quashing order” must be made within 6 months of the decision. The relief claimed, by declaration, is in the nature of a “quashing order” (formerly called “an order of Certiorai”) for it seeks a declaration that the felling licences are null and void. In support of his argument, Mr. J Muria Jnr, relied on the unreported decision of Chetwynd J who, in Kimisi anors v A.G^[3] held that relief seeking declarations voiding a logging licence is in effect request for a quashing order setting aside the decision-makers determination.

The undue delay then is the lapse of approximately 25 months from the date of licence to the issue of proceedings.

13. I accept Mr. Muria’s argument in relation to the declaration being a claim for a quashing order. The statements in support of the application suggest these particular people, represented by the applicant, were unaware of the timber rights hearing leading to the grant of the licences. As I say I am not persuaded on balance, having read all of the evidence, of these assertions.
    
14. I am not satisfied, on the evidence of delay when it may reasonably be expected that knowledge in the claimant of the intention to log about the subject land would follow the Provincial Governments publication of determination, and thus be unaware of the fact of the timber rights hearing. Such an important event in the community would be expected to be common knowledge. I am supported in this finding by the evidence of John Laerau for contrary to his statement in denial there was both a hearing and an environment assessment carried out.
    
15. The claimants argument that the order of Mwanesalua J allowing the Claim to be categorized as “C” or one for judicial review, effectively extended the time to make a claim for a quashing order, for the judge did rely on R.15.3.9, by expressing he was “satisfied that substantial justice requires it”. Consequently leave had been granted for the extension of time but the order does not obviate the fact quite some time beyond the time reasonably allowed by the rules had passed and that fact must be considered when considering an exercise of discretion.
    
16. The Act, however, requires an agreement with the landowners to log before the Commissioner may consider the grant of a licence (S.5 of the Forest Resources Timber Utilization Act).

The Act also provides provision for any aggrieved person to appeal, within one month of the publication of the notice set out in S.9(2)(b)[the Government determination required by S. 8], to the Customary Land Appeal Court.

In this case, no appeal has been made. Again the absence by the claimant to exercise his right of appeal at the time is a matter to consider in the exercise of my discretion, for the 1^st defendant argues the claim for declarations is but an attempt to avoid the time limitation for appeal under the Act. Whilst I need not comment on the underlying intention, I accept that the rights of the applicant in this case, to a review of the Provincial Governments determination under S. 8(3) is no longer available.^[4]

After referring to that Appeal Case of Vino v Jino, both a hearing and an environment assessment carried out, the Court of Appeal, in Pitabelama v Biliki^[5] said:-

“As was said in Simbe the identification of the customary owners is likely to be an essential step in the process of the determination under s.8 (3).

The Appeal Court referred to the following part of the earlier decision in Simbe^[6]. (The section numbers in the Forest Resources Timber and Utilisation Act have changed):-

“It remains true to say that, in making a determination for the limited purposes of s.5C(3), it is no part of the function of an area council to decide questions of ownership of customary land in a way that is either binding or final in effect. It is one of the features of the statutory procedure under Part 11A that an area council is a tribunal, and not a court of record, or indeed a court of any kind whether of customary or common law. It has long been recognized that its determination gives rise to no guarantee that the contracting customary owners are the true owners. See Hyundai v A-G (1993) CC 79/93, at pp.8-10 [72-74] citing with approval the remarks in the High Court of Commissioner Crome in Fugui v Solmac Construction Co. Ltd [1982] SILR 100, 207. If a binding determination is desired it must be obtained from a local court under s.8 of the Local Courts Act as amended by the Local Courts (Amendment) Act 1985 inserting ss. 8C, 8D and 8F; or on an appeal, instituted under s.5E(1) of the Forest Resources Timber and Untilisation Act by a person who is aggrieved by a determination of the area council under s.5C (3)(b) of that Act, to a customary land appeal court having jurisdiction for the area in which the customary land is situated. In contrast to an area council determination, the order or decision of a customary land appeal court on an appeal pursuant to s. 5E (1) is “final and conclusive”: see s. 5E(2). Such an order or decision has been said to create an estoppel by judgment as between the parties: Beti v Allardyce Lumber Co. Ltd (1992) CAC 5/92, at p.9; and, since by s.5E (2) it is “not [to] be questioned in any proceedings whatsoever”, an order or decision of that kind has been held to be immune from review by certiorari in the High Court: Talasasa v Biku (1988) CAC 2/1987, at pp 8-10. ”

The applicant’s case, having not appealed the Provincial Governments determination, then (in the absence of argument perhaps over the supervisory powers of this Court, in terms of the principles in Anisminic Ltd v Foreign Compensation Commission (1969) 2AC 147) falls to be decided in relation to the matters for consideration by R. 15.3.18.

17. The amended Claim for judicial review goes further than merely seeking declaratory order in relation to the logging licences. By paragraph 5 it seeks,

“Damages, to be assessed (to) be paid by the 1^st defendant in respect of all logs or trees felled and wasted and for environmental destruction and pollution within the lands in dispute.”

By Statement of Case it is clear the applicant says, at (3);

“The 1^st defendant was issued Felling Licence no. A 10714 to fell trees or carry out logging on specified lands in Kolokarako Ward 14, which includes the claimants’ lands, namely Ghorobuta (Horotina) and Kologhai. The 1^st defendant has not, at the date hereof, felled trees for sale of logs on these two named lands”

And at (4),

“The 1^st defendant also holds. Felling Licence no A10762 fell tress etc in Kolokarako Ward 14 and upper Aola Ward which includes .....Vatulikuvu Kuvu. On or about 13 January 2012, the 1^st defendants employees or agents felled and removed 24 logs from Vatulikuvu Kuvu and took them away for sale”

And at (10);

“On the 24 January 2012 the 1^st defendant disclosed the names of person it relied upon as the grantors of timber right as appears in the Annexure attached to his Claim. The Claimant denies that the persons named as grantors of timber rights belong to the same clan or even reside in the upper Aola Ward or Kolokarako Ward or have the right to grant right over the lands pleaded”

18. On the Statement of Case, it is apparent the subject land had fallen to be part of those lands considered in relation to the grants of timber right by those “trustees” found by the Provincial Government to be so able. Such “trustees” rights are by (10), denied by the applicant, speaking for the Chacha-Kebenisibo Clan. This determination of “trustees” by the Province is such as to given rise to a right of appeal by the Chacha-Kebenisibo Clan, as “aggrieved” persons in accordance with S.10(1) of the Act. No such appeal had been instituted.

The lands in question were, by (3) and (4) admittedly lands subject to the timber rights hearing.

The Claim, at 5, for damages is not based on a claim for trespass, which would, following the Court of Appeal’s decision in Sa’oghatoga v Mugaba Atoll Resources Company^[7] allow proceedings as a reasonable cause of action and which would likely defeat any application to strike out the balance of the claim. The claim for damages, (5) is clearly related to the determination of the Province in accordance with S.8 (3) of the Forest Resources Timber Utilisation Act. No appeal from that determination has been made

19. The fact that a subsequent hearing of a “custom chief’s court” may have indicated the applicants plea that the “trustees” found in relation to the particular land had no standing as such in custom may afford these applicants custom rights for reparation from such “trustees” if money have not been already distributed, but no claim has been shown against the 1^st defendant.
    
20. The Court is not satisfied of the applicant case for judicial review, for the reasons given. The Court declines to hear the claim and it is struck out.

The asserted associated substantive claim for damages is also struck out as showing no reasonable cause of action. No claim against the “representatives” found by the Government to represent all the landowners, “representatives” who were party to the Timber Agreement-Form 4, was pleaded, rather judicial review was claimed disputing the 1^st defendants logging rights. I also discharge any existing interlocutory injunctive orders existing in relation to the land. I give liberty to apply in relation to the terms of these orders.

The defendants shall have their costs from the applicant on the 3^rd schedule basis. The undertaking given by the claimant as to damages is extant.

__________________
BROWN J

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^[1] Ma-ash v Sino Capital (SI) Ltd (2012) SBHC 33, HCSI-CC 426 of 2011 (27 April 2012)
^[2] Ma-ash (Supra)
^[3] HC Civil Case no 163 of 2010, (23 August 2010)
^[4] Vino v Jino (2006) SBCA 22) CA-CAC 002 of 2004 (12 April 2006)
^[5] (2007) SBCA 21, CA-CAC 04 of 2006 (10 May 2007)
^[6] Simbe v East Choiseul Area Council anors CAC-F18 of 1997 (9 Feb 1999)
^[7] (2015 SBCA4, SICAO-CAC 2 of 2015 ( 224 April 2015)