Putuika v Attorney General [2018] SBHC 52; HCSI-CC 13 of 2016 (16 May 2018)

JOHN PUTUIKA Claimant

V

ATTORNEY GENERAL MUGABA ATOLL RESOURCES COMPANY OCEANIA TRADING COMPANY LIMITED 1st 2nd 3rd Defendant

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, PJ)

CIVIL CASE NO. 13 OF 2016

BETWEEN:	JOHN PUTUIKA (Representing Te’ana Tribe of Rennell Island)	Claimant
AND:	ATTORNEY GENERAL (Representing the Commissioner of Forests)	First Defendant
AND:	MUGABA ATOLL RESOURCES COMPANY	Second Defendant
AND:	OCEANIA TRADING COMPANY LIMITED	Third Defendant

Date of Hearing: 5^th March 2018

Date of Ruling: 16^th May 2018.

Mr W. Rano for the Claimant
No one for the Attorney-General
Mr G.Fa’aitoa for the First Defendant
Mr M. Pitakaka for the Third Defendant

RULING ON APPLICATION TO DISMISS CLAIM

Faukona PJ: A claim in category C, for judicial review, was filed on 19^th January 2016.

2.	The major contentious issue focussed on whether the claim for judicial review was time barred, or filed outside of time limit. Thus prompted filing of this application to dismiss the claim for being filed out of time. I do not seem to see any alternative remedy as a cause of substitution to the one and only possible remedy available in law.
3.	On the outset, it is relevant to note that the Defendants had attested that te’ana and tekungagoto customary lands are two distinctive lands. An opposite view was held by Claimant persisted that te’ana and tekungagota lands are the same and one customary land.
4.	To ascertain the truth of the matter, a rehearsal of the background chronology is of very significant.
5.	The application for timber rights concerns five customary lands on Rennell Island known in traditional dialect as tekungagoto, tebaipuke, gagoniu, magalea and kagua. The application was endorsed by the Commissioner of Forest on 8th December 2011.
6.	On 12th July 2012, the Renbel Provincial Executive made a determination over gagoniu customary land only. The Provincial Executive had determined that Eric Baiabe and his brother Samuel Tesua were the persons entitled to grant timber rights over gagoniu customary land. All other lands inclusive in the concession area mentioned in the timber rights hearing were excluded, see Exh. ‘JP2’ attached to Claimant’s sworn statement and Exh “WNT5” attached to Mr Tekiou’s sworn statement.
7.	The fundamental importance derived from the timber rights processes is that tekungagoto or te’ana customary land was excluded from the determination. The reason was clear, it was heavily disputed.
8.	Despite the status of the subject land is undoubtedly clear, felling licence No. A101182 was issued on 26th September 2013, in respect of gagoniu customary land only and took effect on the same date. Nine months later, on 26th June 2014, the same felling licence was reissued by the Commissioner of Forests but took effect as from 26th June 2013. This time it included tekungagota or te’ana customary land to be logged by the second Defendant.
9.	Amazingly, on 11th November 2013 a certificate of no appeal was endorsed by the 2nd Class Magistrate, Mrs Lelapitu, who certified there was no appeal lodged against determination of Provincial Executive on 18 May 2012, concerning tekungagoto land, after appeal period had expired.
10.	How could this be, when there was no determination, no identification of any land trustee in respect of tekungagoto customary land? Had the Magistrate well versed with the case before issuing the certificate, or was she presented with the minutes of the timber rights hearing and form II determination. If not, or even so, was she not influenced by any outside sources? Still, was she authorized by the Chief Magistrate to do what she did?
11.	Apparently, what transpired from issuing of the Certificate of no appeal, a standard logging agreement was signed on 21st May 2014 in respect of tekungagoto customary land, and (Form III) a certificate approving the timber rights agreement was issued on 4th June 2014, by the Provincial Secretary. Subsequently an amended felling licence No. A101182 was issued on 26th June 2014 in respect of gagoniu inclusive of tekungagoto customary lands, to take effect from 26th June 2013.
12.	The Claimant was also desirous to conduct logging activities so a Form 1 application was submitted and endorsed. A timber rights hearing by Provincial Executive was convened and a determination made in favour of Claimant’s brother and others. An appeal against that determination was filed and heard, and was dismissed on 6th November 2013. A logging feeling licence No. A101231 was issued to Springhill Limited on 4th February 2015, and took effect from 3rd July 2014.
13.	It would appear then, that on the face value of both licences, per se, tekungagoto or te’ana customary land was covered by both licences.
14.	From pleadings the Claimant stated he was not aware that the second Defendant’s licence also covered tekungagoto or te’ana customary land.
15.	There was no specific date mentioned when the Claimant conducted the search. It is important to ascertain when the Claimant became aware, that the second Defendant’s licence also covered tekungagoto/ te’ana customary land.
16.	However, evidence from bar table stated that the Claimant discovered in December 2015 or January 2016 when he made a search at the Forests Office. He concluded that third Defendant was trespassing onto his land. As a result this case was filed on 19th January 2016.
17.	By virtue of Rule 15.3.8 a claim for quashing order must be made within 6 months. However, the second licence No. A101182 was issued on 26th June 2014. This cause of action should be filed by 26th December 2014.
18.	The Second Defendant comes to court by way of application utilising the above rule and plea that the claim be dismissed taking into account late filing of the claim. And Further the claim is frivolous and vexatious under R9. 75.
19.	The Claimant in fact relies on S.17 of the Limitation Act which provides for a cause of action shall deem to accrue on the date on which the right of relief sought by an action first arises. That reliance was objected to by Mr Pitakaka who submits that Limitation Act does not apply in Category C claim, the proper authority is Rule 15.3.8.
20.	The problem the Claimant encounters is there is no evidence as to the actual date or month upon which the Claimant discovered existence of logging licence No.A101182 that covered tekungagoto land. What is available before Court is an evidence from the bar table that the Claimant was aware of the licence including tekungagoto land in January 2016, and this cause of action was filed on 19th January 2016. I also noted the revelation was a result of some search done at the Ministry of Forests. In any event it does not assist the Court in this context. When was the search conducted was not exactly revealed.
21.	In any event, my opinion is that Limitation Act is an Act that universally applies to all circumstances in all categories of cases. Issuant of a logging licence is an administrative function of the Commissioner of Forests. It is not a judgment on decision that often delivered in public Courts, which public would be aware of instantly. In logging industry only the licencee and the Commissioner of Forest will know the exact date a logging licence was issued. I do not think other landowners would aware of. They would only know when logging operations commenced.
22.	Secondly, the Claimant also relies on R15.3.9 which provides for discretionary power of the Court to extend time limit. In any course, I am not dealing with an application to extend time. Hence, I must abandon such issue as being irrelevant.
23.	However, when all has been exhausted, and nothing more left as a remedy available, R1.14 must come into play. That a Court may in the interest of justice dispense with compliance with the Rules at any time. The rule explicitly upholds the discretionary power of the Court to be exercised to dispense with the compliance with the rules, in order to sustain the interest of justice.
24.	It appears the interest of justice is of paramount importance and prevalent in all legal litigation. I agree with Mr Rano on this point as he emphasizes.
25.	All levels of court in any jurisdiction functioned to ensure justice of the case prevails. Justice must be seen done not by words of mouth but by practical manifestation.
26.	I have noted certain anomalies in this case which by justice ought to be rectified and explained. Why the Commissioner of Forests should issue an amended licence to cover a customary land which had not been determined by the Provincial Executive. There was nothing in Form II determination, and no land trustees were identified us being entitled to grant timber rights on tekungagoto customary land.
27.	The whole entire episode Commenced by endorsing a certificate of no appeal by Magistrate Lelapitu, in respect of a customary land which no determination was made in its respect by the Provincial Executive, see paragraphs 9-11 above.
28.	Justice requires the Commissioner of Forest to explain why at initial stage issued licence No. A101182 on 26th September 2013 to cover gogoniu customary land only. And then reissued the same licence as an amended licence to cover gagoniu and tekungagoto customary lands on 26th June 2014, back date to operate on 26th June 2013, first in time before the other licence was to come into effect from 26th September 2013.
29.	The irregularities must be justified by the Commissioner of Forests. This requirement is necessary to justify what he had done, and to uphold the interest of justice in this case.
30.	Therefore, although filling of this case was late by 24 days, that lateness is not unreasonable or inordinately late. As I have stated above the circumstances of this case demanded that it progress to trial as interest of justices is best required. I must therefore dismiss this application with costs.
	Orders.
	1.	Application to dismiss the claim on the ground of time limit is hereby dismissed.
	2.	Costs incidental to this hearing is to be paid by the first and second Defendants to the Claimant.
	The Courts.