Katovai v Attorney General [2017] SBHC 86; HCSI-CC 467 of 2013 (8 June 2017)

ROLTER KATOVAI AND -V- ATTORNEY GENERAL,
WILLIE KATOVAI, MARK CHIEF MATHIAS
PITAKAJI , SIMON RINTO VILAKA, PHILIP BAVARE,

(1^st 2^nd 3^rd Claimants) MICHAEL PITAKAKA AND OTHERS (1^st 2^nd Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.467 of 2013

Date of Hearing: 17 May 2017
Date of Judgment: 8 June 2017

Mr. A. Hou for 1^st 2^nd claimant
Mr. G. Fa’aitoa for 3^rd claimant
Mrs. R. Soma for 1^st defendant
Mr. G. Suri for 2^nd defendant

JUDGMENT

Brown J:

1. This claim for judicial review was filed on the 12 December 2013 seeking a quashing order “against the determination of the Western District Customary Land Appeal Court in civil case no 12 of 2012.”

The basis of the claimants’ plea for relief is set out in the statement of case. The relevant parts are:-

“4. On or about 12 August 2012, the Provincial Executive (CPE) convened timber rights hearing at Taro in respect of an application by Middle Island Investment Pty Limited to acquire timber rights over the land.

5. On or about 18 August 2012, the CPE published its determination in which it held that the application for timber rights was not in order and was in breach of the Forest Resources and timber Utilisation (Amended) Act.
6. On about 10 October 2012, Philip Bavare appealed to the Western District Customary Land Appeal Court (WDCLAC) against the CPE’s determination.
7. The Appellant, Philip Bavare and the WDCLAC administration did not serve the claimants with the notice of the appeal and the date of the hearing
8. This was so despite the WDCLAC and, in appellant, Philip Bavare, knowing very well the fixed place of address of the claimants.

9. Consequently, the claimant did not attend the hearing.

10. The issue, therefore is, whether the WDCLAC could have lawfully proceeded with hearing the appeal without serving the claimants with a notice of the appeal including the date of the hearing
11. The WDCLAC proceeded to hear the appeal in the absence of the claimants, who would have attended as respondents.
12. In its determination, the WDCLAC rules that the persons lawfully enable and entitled to grant timber rights over the land are the second defendants.”
    
2. By section 10(2) of the Forest Resources and Timber Utilization Act (Cap 40) the orders or decision of a customary land appeal court shall be final and conclusive and shall not be questioned in any proceedings whatsoever.
   
3. Mr. Suri for the applicants seeking to dismiss the claim for judicial review, argues that this exclusionary clause means that this claim is barred by the statute by section 10(2).
4. The Court of Appeal, in Pitabelama v Biliki^[1] accepted this court had a limited jurisdiction to exercise review, for instance where the decision under review was made without jurisdiction. Such is not the case here, rather the Claimants, plead they were not given notice, relying on a breach of natural justice or a right to be heard at the CLAC hearing.
   
5. The limited jurisdiction touched on by our Court of Appeal fell to be decided on the principle stated by the Appeal Court (UK) in Anisminic’s case;^[2]

“an error as to whether the tribunal has jurisdiction whether it is an error as to fact or as to law renders the decision a nullity and a proper subject for certiorari.”

6. The claimant’s case has been argued on the basis of absence of notice of the hearing given the respective claimants. Much material has been filed going to that issue to show the claimants had neither knowledge nor notice of the fact of the proposed CLAC hearing at Gizo. Just as much material has been filed by the defendants to refute the claimants assertions by showing the various claimants had reason to know of the hearing and may consequently be presumed to be aware of the date and place. It may be said to be a matter of common knowledge that individuals or groups sometimes choose not to attend meetings of tribunals where they perhaps mistakenly feel their absence will invalidate any decisions or determinations by such tribunal. The Court of Appeal impliedly recognized such practice^[3].

Conflicting evidence going to knowledge in the claimants would need this court to make findings on the individual claimants assertions, on balance of probabilities, taking into account all of the filed statements, including those of the defendants seeking to refute. For the claimants deposed to the absence of notice given them or subjective knowledge of the hearing. The defendants, on the other hand, have sought to show, objectively, that while the claimants may have failed to have attended the CLAC hearing, there was reason to show they were aware, and chose not to attend.

7. In this case, the circumstances are different, for the CLAC is subject to Regulations by the Minister “for the better carrying out of the provisions and purposes of this Act,-”^[4]
   
8. The effect of the Regulation is to deny the court a subjective approach to whether or not a particular individual or group has had notice of or knowledge about the proposed enquiry under s.10 of the Act, and has provided an objective method, disseminating by public notice the intended enquiry by the CLAC to all persons claiming any timber rights over the area that an enquiry may be held.^[5]
   
9. I am satisfied the claimants are persons claiming timber rights and consequently persons falling within those groups or individuals affected by the Regulation.
   
10. I am further satisfied of proof of service message broadcast by SIBC twice on 27 May 2013 and 8 May 2013.^[6]
    
11. The precondition to the hearing of the CLAC by those service messages has been satisfied. The CLAC has not been shown to have acted in excess of its jurisdiction.
    
12. The Claimants have not shown denial of the right to be heard. The right to be heard may have been exercised in accordance with the broadcast notice, no right existed in these circumstances to a personal notice to be individually served on them. Such notice of hearing, by regulation may be given by broadcast. It is not necessary for the court to speculate about whether and if so, why these claimants did not know of the time and place of the enquiry when they presumably by these proceedings were interested. The fact remains the object, public notice required by the regulations to all persons claiming any timber rights, has been shown by the broadcasts.
    
13. I need not to address other arguments, although the defendants’ argument concerning the claim for judicial review is but a disguised appeal against the findings of the CLAC (and consequently may be said to seek to circumvent the finality of the determination allowed by S. 10(2) of the Act) is shortly answered by reference to the right in the claimants to attempt to show the CLAC had acted in excess of jurisdiction. They have exercised that right.
    
14. The claimants have failed to satisfy this court has discretion to allow this claim for judicial review. The claim is accordance struck out in accordance with R.15.3.20.

The claimants shall pay the defendants costs on the 3^rd schedule scale.

__________________
BROWN J

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^[1] (2007) CA-CAC 4 of 2006, dated 10 May 2007
^[2] Anisminic Ltd v Foreign Compensation Commission (1967) 3WLR 382, (1967) 2 ALL.E.R.986
^[3] Majoria v Jino [2007] SBCA 20; CA-CAC 36 of 2006
^[4] S.44 Forest Resources and Timber Utilization Act
^[5] Regulation 3 of the Forest Resources and Timber Utilization Act (Appeal) Regulations (Section 44)
^[6] Annex “PE-1” To Statement of Elijah Pitakaji filed 9June 2015.