Mwelo v Xiang Lin Timber (SI) Ltd [2018] SBHC 8; HCSI-CC 418 of 2017 (31 January 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS

(BROWN J)

Civil Case No. 418 of 2017

JOHN CHRIS MWELO, -V- XIANG LIN TIMBER (SI)
JOHN METALVI AND JOHN LIMITED, THE PREMIER
KEA OF TEMOTU PROVINCIAL
(Claimant) ASSEMBLY AND ITS
EXECUTIVE, ATTORNEY
GENERAL
(1^st 2^nd 3^rd Defendant)

Date of Hearing: 27 October 2017
Date of Judgment: 31 January 2018

M. Bird for claimant
W. Rano for 1^st defendant
No appearance of 2^nd defendant

Claim to set aside interlocutory injunctive order preventing logging.

Brown J:

Following the grant of an earlier ex parte injunctive order, an inter party hearing was carried out on the 4 October when the order was continued in effect. During that hearing, Mr. Rano, counsel for Xiang Lin objected to the claimants standing and to the manner by which Category. C proceedings under the Rules had been used. By reason delivered on the same day, on the material before the court, I accepted that the balance of convenience rested with the claimant and allowed the application, finding such pleadings available in the circumstances.

Since then the claimants have filed an application for extension of the restraining order preventing logging to cover other customary lands, namely; Bomalu, No’oka & Taipe/Maleu. That application was not served before the defendant’s application to set aside the interim injunction heard on the 27 October. I shall deal in any event, with the claimants’ further application, for I am satisfied a real question arises in relation to their standing to bring these proceedings.

On hearing on the 27 October both counsel relied on the various statements already filed.

I should say when extending the effect of the injunction earlier on the 4 October I had read the defendant’s statement of the 8 September by Chua Kock Chuan, Managing Director of the 1^st defendant company, the logger. I criticized Mr. Rano’s attack on the claimant’s “standing” to bring proceedings, for while the claimants asserted ownership of particular lands (not trialed on the day, since the order is but interlocutory) the defendant’s response, by Mr. Chua’s statement, conceded he was not familiar with the tribes in Santa Cruz (or presumably their landowing) and was reliant on “my landowners” who had advised me “that these men are not from within the tribes owning land within Blocks 1 to 12 of our logging concession”. He did raise the issue of entitlement to act very clearly. He “therefore demand that these men provide proof of their entitlement to act in the representative capacities they claim.” At that time, no supporting statement by Mr. Chua’s “landowners” denying standing in these claimants had been before the court.
That has changed.
What has not changed is that the parcel of land claimed by the defendant company to form part of their concession to log and more importantly land where timber rights have been granted to Xiang Lin Timber (SI) Ltd, are those parcels claimed by these three claimants.
By John Chris Mwelo’s statement filed in support, the defendant company’s Form 1 application made to the Commissioner of Forests on the 17 August 2015 was attached as annexure. The blocks to be subject to logging were 1. Niirvao, 2. Nooka, 3. Kala Bay, 4. Bomalu, 5. Taipe, 6. Nelua, 7. Poa, 8. Nenelu, 9. Nirtia (Nepia), 10, Malue, 11. Luenopolo and 12. Naudang (referred to Maba and Nangu land).
The Timber Right Hearing was appointed for 30 October 2015 at Kala Bay by notice of the Provincial Government dated 7 August 2015.

I am satisfied Mr. Mwelo was cognizant of the intention and effect of the application when I have regard to the whole of his statement. Nowhere in his statement does he purport to name the tribe for which he stands “representative” in the proceedings, or how such tribes’ interest has been adversely affected by the Province Certificate of Customary Ownership Form II (following hearing on the 30 October) dated 5 November 2015 with its attached list of person able to grant (as representatives so found) timber right.^[1]

As a consequence various standard Logging Agreements –Form IV were made with those “representatives” found able by the Provincial Executive.^[2] On the 30 May following execution of the Form IV Standard Logging Agreement, the Commissioner of Forest wrote to the Provincial Secretary asking for execution of the Form 3 Certificate approving such agreements. A felling licence A101549 issued on the 5 July 2016.^[3]

The claimant, John Chris Mwelo’s statement attached a letter dated 24 February 2016, by the Acting Provincial Secretary appearing to show the Government resiled from its earlier determination.
“Public Notice
The minutes of the Timber Rights Hearing (TRH) at Carlisle Bay on the 30^th of October 2015 was not accepted by the Executive.

The Premier and the Executive, however, approved a rehearing. Accordingly, a new public notice was hanged up dated 14^th Jan 2016 as follows. Venue-Nangu. Date-05^th Feb. Time-10am. This notice was again postponed by the Premier/Executive.

You are hereby informed that Form 1 in respect of Xiang Lin Timber (SI) Limited, the applicant is still valid, as per the attached blocks of land, especially on land blocks 11 and 12.

The land owners of Nangu desiring to give their forest resources to Xiang Lin Timber (SI) Limited, now therefore give we notice to the people of Nego, Lagoon area, Birbir, Nangu, Luemoada, Masoko, Boa, Mirmawa and Nole Road Head area; that a TRH shall be convened for the above and other land blocks as follows.

Venue: Nangu
Date: Friday 24^th April 2016
Time: 10 am
The Temotu Provincial Government Officers and some members of the Executive, witnessed by an Officer from the Ministry of Forest in Honiara, shall preside over the TRH.

Thank you
Samuel Kafukese
Provincial Secretary Acting
Temotu Provincial Government

Cc: Commissioner of Forest
Cc: Premier and all executive members”
No further hearing has been had.
It is necessary to address the effectiveness or otherwise, of this apparent removal of the Government earlier determination, and the approval of a rehearing for if effective it would make voidable all actions premised upon the determination of the 5 November 2015, a determination subsequently acted upon, leading as has been shown, to the grant of the logging licence of the defendant.

Whilst not directly addressing the issue, Ms. Bird for the claimants in her submission accepts the restraining orders granted were granted by this court reliant on the claimant, John Chris Mwelo’s statement, including the purported renunciation of the findings and determination by the Province of the 5 November 2015.
Such implied reliance may be seen to accept the effect, at law of the subsequent letter of the Secretary of the Provincial Executive of the 11 November 2015 (evidenced by the later notice of the 24 February, set out above), effectively allowing these claimants opportunity to attack the subsequent logging licence of the defendant.

Mr. Rano, for the defendant has argued the determination (and publication by Form II) under S.8 (3) of the Forest Resources and Timber Utilization Act is a decision once made and promulgated, bringing the Provinces power to an end. The purported renunciation by letter of the 11 November is denied as having no force or effect on the earlier determination of the 5 November evidenced by the Form II.

The power to issue a certificate in accordance with S.9(2) of the Forest Resources and Timber Utilization Act, on determination may not be said to include a power to resile from such determination under S.8(3)

The power to act, once exercised pursuant to S.8 (3) by meeting and determination with customary landowners, gives rise to a duty to act in accordance with S.9 (2) of the Act. The requirement to issue a Certificate is mandatory, for S.9 (2) states “the appropriate Government shall as soon as practicable-...” It is because prejudice may be shown, by the Provincial failure to carry out its duty to act in accordance with S.9 (2) [by the use of “shall” in the subsection], that it may be said the section places a mandatory duty to act.

Conversely once the Province has acted by its determination and certificate, as I have found, the determination and certificate were lawful acts within power and duty so that the act by Hon. Menale on the 11 November in purporting to set aside or remedy the earlier lawful act by the Executive of the 5 November must fail. For Hon. Menale was not revisiting a decision of a discretionary nature based on an erroneous conception of factual matters, rather he was attempting to rehear the application for purposes unrelated to any erroneous understanding of the law set out in S. 8 (3) of the Act. The Act Interpretation Act which provides by implication, that unless the contrary intention appears, a power may be exercised or a duty performed from time to time as occasion requires, does not help the claimant, for in this case the Province (and Executive) is functus officio. The wording of these two sections of the F.R. & T.U. Act directly leads to the determination of the matters required of it, findings involving rights of persons, groups or tribes whose rights of redress, if aggrieved, are specifically spelt out in S.10(1). In this case, a Province in absence of an express power to revisit its determination, may not presume to revisit its own decision. It has, to use the expression, “discharged its office” in relation to the matter at hand, the application by this defendant Company.^[4] Certainly for reason which later become apparent, it would seem this purported attempt to set aside its earlier determination is attributable to influence on the member of the Executive, not because of procedural failure for instance, leading to the timber right hearing.

What can be gleaned from a view of the purported cancellation of the “determination” is that the person signing the document of the 11 November, the Hon Menale was not party to the determination^[5] and rather illustrates the conflict of interest engendered by the actions of these claimants.

I am satisfied the determination of the 5 November 2015 was one made according to law and beyond power of the Executive to unilaterally cancel. Person aggrieved by the determination are enabled by the provision of the Act, S.10 (1) to appeal such determination but no appeal had been made within the time limited. The absence of appeal by these claimants has been explained by the absence of knowledge of the fact of the determination of the 5 November (in light of the purported cancellation of such determination) although I am satisfied these claimant were aware of the hearing conducted on the 30 October, failed to take opportunity to dispute the logging application at that hearing on the 30 October or by reason perhaps of the Hon. Menale’s letter of 11 November, failed to appeal the determination of the 5 November, in accordance with the procedure laid down by the Act.

On the 6 October 2017, the 3^rd named claimant, filed statement in support. He stated he was head of his Noubu tribe which owned Bomalu, No’oka and Taipe/Maleu customary lands. His tribes ownership was confirmed through various chief’s decisions dated 15 June 1994, 7 November 2007 and 28 November 2016, copies of which were annexed to his statement.^[6] When I read that latest customary land dispute [accepted settlement] before the four named chiefs, I see the complaint is by David Natei of Palq Village, S/Cruz, T/Province and the defendant is Philip Metali of Palq Village. The description of land in dispute is: Palq Village-the ancient village of Nooka, Village, Santa Cruz. The nature of the dispute was listed as: Nonqlqu, Manobler-I
Newa nyie Beu
Boa Luetabao, Luenooka

Luebiabe- Plots of land within Palq

The findings included the decision that both parties had all rights under S/Cruz Island Constitute [sic] custom to access into Palq village land block. No findings supporting John Kea’s assertions of either tribal leadership or tribal ownership of the logging disputed land parcels are minuted in these chiefs decision.

The earlier decision involved:
Mr. George Tego or Mr. John Kea
Venga Village SICHE
Santa Cruz P. O. Box R113
Honiara
And defendant – Mr. Gabriel Paikai
Carlisle Bay
And was described “The land is not a parcel of land but a customary land which is inside and part of the ancient village of Bomelu”.

No appearance was recorded of the defendant. The finding was the village land block belonged to the complainants. Again, this does not advance John Kea’s claim, either to represent or support tribal ownership.

The June 1994 Maleu disputed boundary decision does not advance John Kea’s case either.

In support of the application to set aside the interlocutory order, the defendant filed a statement sworn by McPherson Ara, land consultant, Ulau and Nagu village, Santa Cruz Island. He was formally a police officer, having spent some 8 years as a criminal Investigator at Central Police Station.
He confirms he supports the 1^st defendant company and is one of the landowners who invited it to acquire timber rights around Santa Cruz Island.

His statement addresses matters which in Mr. Rano’s argument amount to instances of non-disclosure of such nature to undermine the claimant’s right to the equitable remedy of injunctive relief. He also says this claim is but a disguised appeal from the determination of the Province, an appeal statute barred.

The statement of Mc Pherson Ara suggests after meeting with block 1 and 2 owners that John Kea neither represented them nor was their chief^[7]. Further, John Kea failed to disclose the fact that he is related in some way to George Tego, David Nata and Andy Metake “all of whom were mandated by the tribe who reside on the land”. John Kea resides in Honiara. George Tego with David Netu had granted timber right to the defendant. After speaking with those named person who granted timber rights in respect of blocks 7, 8, 9, 10, 11 and 12, they made declaration attached to the sworn statement.^[8]
They deny relationship with John Mwelo, John Kea or John Metalvi. They further say were unaware of John Mwelo.
These people were those found at the timber rights hearing on the 30 October and determined as “representatives” of all the landowners. Their standing has not been impugned.

There is a refusal to accept “standing” in these three claimants to bring these proceedings. They deny John Metalvi, saying his interest is commercial, reliant on his interest in the Nende Resources Development Association. This Association it is stated, lodged its timber rights application in June 2016, corresponding with the abortive attempt by the Executive to re-hear the timber rights application. It is stated Mr. Mwelo is chairman.

Whilst the annexed declarations are not strictly evidence on trial in interlocutory proceeding of this nature, I propose to take notice of them as relevant and if in proper form, admissible for these persons live a very long way from Honiara and the High Court.

I am consequently satisfied the defendant has put in serious issue these claimant’s right to “standing” sufficient for the purposes of R.3.42 of the Rules.

The claimant’s failure to exercise their right of appeal is by reason of the absence of publication of the Form II until time for appeal had expired. I need not address this issue and make a finding at this time in this interlocutory application, but I am satisfied the claimants were cognizant of the act of Hon Menale on the 11 November in which he sought to avoid the earlier “determination” of the Executive for reasons connected with these claimants separate and conflicting interest to log by Nendo Holdings Development.

I am further satisfied, on the evidence that the claimants have failed to disclose material matters concerning the interest of Nendo in logging these particular parcels of land and the connection at least two of the claimants have with Nendo.

When it has been shown the claimants have not been wholly open with the court through suppression of facts going materially to their commercial interest through another logging Association, the interlocutory order may be said to have been irregularly obtained and the court may without any thing further, discharge the injunction.

I am also minded to discharge the injunction for it was founded on a decision reliant on an act shown to be void and having no force or effect on the determination of the Executive of the 5 November leading to the defendants licence to log. The proper determination of the Provincial Government of the 5 November 2015 has not been shown to have validly been overturned.^[9]

The claimant’s standing to prosecute these proceedings has been denied and on the evidence, must be a matter to be taken into account against the continuation of this injunction.
As can be seen, the Claim has dubious grounds on which to be maintained. This is not a matter, however, for this time, and it may proceed, where the defendant company may either file a defence within a further 28 days or a Response with any other application as it sees fit.

The claimants application for extension of restraining orders is refused, for the reasons above. I make no order as to costs.
The discretionary nature of these injunctive orders previously granted allows me to revisit such orders and they are discharged forthwith. The claimants’ undertaking as to damages is extant.

The 1^st defendant costs of this application to set aside the orders shall be paid by the claimant. Costs to be assessed or taxed on the 3^rd schedule basis and paid within 28 days of agreed assessment or taxation.

BROWN J

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^[1] Statement of Chua Kock Chuan, annex “CKC-7”
^[2] Annex “CKC-10”
^[3] Annex “CKC-13”
^[4] R v Parliamentary Commissioner for Administration exp Dyer (1994) 1WLR 621 DC 629 per Simon Brown LV, Re 56 Denton Road Twickenham (1953) 1 Ch. 51, 56, 57 per Vaisey J, Roothin v Kent Country Counsel (1981) 1WLR 1186, CA, 1197 per Eveleigh J.
^[5] Sworn Statement of Menale in CC 320/16 para 7
^[6] Statement of John Kea filed 6 October 2017
^[7] Annex “AM-6” to statement
^[8] Annex “Am-3”
^[9] Regent Oil Co Ltd v J.T. Leavesley ( Inch field Ltd (1966) IWLR 1210, (1966) 2 AII.E.R.454