Hakatigisa'a v Attorney General [2020] SBHC 17; HCSI-CC 213 of 2015 (29 January 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hakatigisa’a v Attorney General
Citation:
Date of decision:	29 January 2020
Parties:	Richard Pautangaia Hakatigisa’a v Attorney General, Spring Hill Limited, Amos Company Limited, Magaba Timber Limited, Samlimsan Company Limited, Green Hill Enterprises Limited
Date of hearing:	1 November 2019
Court file number(s):	213 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	1. Claim for judicial review dismissed. 2. Restraining orders related to lands subject for Local Court hearing will remain, meaning the fifth defendant’s logging operation under license No. A101245 still remain in place. 3. Restraining orders concerning third defendant’s License No. A101231 is hereby discharged. 4. Restraining orders concerning fourth defendant’s license No. A101220 is discharged as well. 5. Costs incidental to this hearing to be paid by the claimant to third or fourth Defendants.
Representation:	Mr. L Kwaiga for the Claimant Mr. W Rano for the Third, Fourth, Sixth and Seventh Defendant No one for Attorney General’s Office No one for Fifth Defendant (No taking active also since)
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule, R15.3.16.17.18
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 213 of 2015

RICHARD PAUTANGAIA HAKATIGISA’A
Claimant

V

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
First Defendant

ATTORNEY GENERAL
(Representing the Rennell and Bellona Provincial Government)
Second Defendant

SPRING HILL LIMITED
Third Defendant

AMOS COMPANY LIMITED
Fourth Defendant

MAGABA TIMBER LIMITED
Fifth Defendant

SAMLIMSAN COMPANY LIMITED
Sixth Defendant

GREEN HILL ENTERPRISES LIMITED
Seventh Defendant

Date of Hearing: 1 November 2019
Date of Decision: 29 January 2020

Mr. L Kwaiga for the Claimant
Mr. W Rano for the Third, Fourth, Sixth and Seventh Defendant
No one for Attorney General’s Office
No one for Fifth Defendant (No taking action also since)

DECISION ON CHAPTER 15 PRE-TRIAL CONFERENCE.

Faukona, PJ: An amended claim was filed on 30^th July 2015, by the claimant, and was served upon all the Defendants. The first and the second defendants had filed their defences on 7^th September 2015. The third, fourth, and the seventh defendants filed new defences on 23^rd of October 2015. On 17^th November 2015 the sixth defendant filed its defence. On the outset, it could be noted that the fifth defendant had since not taking active role in this case, and was not present or represented in many covet dates.

2. This case was filed when the system stopped in the High Court was rather floating of the files than been allocated for each Civil Judge to manage.
3. Basically the amended claim was for declaratory orders, five mandatory orders, are restraining order or of course costs.
4. In the old rules relief sought one more specific on to alert need to be done or set to be done. Is the new rules they are rebelled as claim for judicial review with various such reliefs.
5. A claim for judicial review in guarded by chapter 15.3 of the new Civil Procedure Rules. Rule 15.3.16 states that or soon as practicable after the defence has been filed or rewired, the court must call a conference, which now in the language of Pre-trial conference.
6. Unfortunately a pre-trial conference was not collected until now. It could have been done in early. Practically months of 2016, acknowledging the cost party to file a defence was the sixth defendant.
7. The worrying issues which continued to cause delay was in relation to the restraining order. Its claim was properly to grand restraining orders. Subsequently they were granted. The next in the process is to conduct an inter-parte hearing. The issue to consider is whether the interim restraining orders will continue or discharge.
8. Even before the Inter- pate hearing was conducted, the parties were none reliable to move the case. Forward by seeking director’s orders for certain activities giving towards hearing of the substantive claim for review. Not realising the important part of conducting pre-trial conference, in a claim with judicial review, was never thought of or done as early as 2016.
9. Pre-trial conference in a judicial review claim was not concern none compliance with restraining instant orders. But the process is much confine to Rule 15.3.18 of the Civil Procedure Rules. Rule 15.3.17 states at the conference, to court must consider to matters in rule 15.3.18.
10. Rule 15.3.18 clearly states that the court will not hear the claim unless it is satisfied (a) the claimant has an arguable case, (b) the claimant has an arguable case, (b) the claimant is directly affected by the subject matter of This has been no undue delay in making the claim (d) the claimant is directly affected by the subject matter of the claim (c) there has been no unduly delay and (d) there is no other remedy that resolves the matter fully and directly.
11. Note that the four requirements must be fulfilled by the claimant. Any one single requirement not being fulfilled, the court will not clear the claim and will dismiss it.

1st requirement in arguable case.

12. I have read the amended claim was the reliefs sought. I have also read this court‘s ruling on 14^th March 2018, in an inter-parte hearing.
13. I noted there was a case dispute pending before the Renbel Local Court which concerned Magamaitonga (Magaitonga) area and Hanebaha (Nanakaha) areas. Those two areas were covered by felling license No. A101245 issued to fifth defendant on 6^th March 2014.
14. How many deferent customary lands side each of Magamaitonga (Migaitonga) and Hanakaba (Nanakaba) lands were definitely caused by the local court case which is yet to be decided. Besides that, is a question whether other areas where located inside those two major lands or not. For instance ands such as Sabesarea, Matahenua, Sanibaga, Naone road and Temupeka. However, that could not be verified with the concession area as well. That is an issue to recon with and can be considered at trial.
15. Ultimately, the local court cense concern lords that are caused by the felling licence No. 101245, it does not concern lands under conventions of the two licences.
16. In respect to any pending appeal before the Customary Local Appeal Court, I finally find there is none. The claimant indeed has no pending appeal which he is a party to. There is no evidence or case registered file to ascertain any pending appeals concerning the three customary lands which the Claimant claims.
17. Subsequently as I find from facts pleaded, am able to conclude that there is an arguable case. Whether there is many of it or single, but at least there is an issue to argue at trial.
18. The major issues whether the second Defendants was wrong when it determined lands in the timber rights hearing subject Niteni customary land using different customary land names.

From facts pleaded it could not be denied that the claimant is directly affected by the subject matter of the claim. But not to the extend to include lands covered by two other felling licence, except for Licence No. 101245. The two concession areas under those two felling licenses contain customary lands which were not named as among those which were subject to local court case.

19. On the third requirement, the timber rights hearing and determination of customary lands under concession of Licence No: A10123, was made on 7^th November 2012, time allowable for filing of practical review of executive decision shown by 7^th June 2013.
20. In respect to felling license A101220 the Provincial Executive had made determination as to timber right hearing on 4^th April 2013. That was in respect of customary lands within the concession area. The date for filling of judicial review against had determination should be on 4^th October 2013.
21. Concerning customary lands under concession or felling license No. A101245, these is no evidence to show when the Provincial Executive made its determination. However, I noted the Claimant commenced concerned challenging the actions by the Provincial Executive or the Commissioner of Forest since between 2012 to 2014; date not specifically clear. Another inadequacy noted or because the fifth defendant (the licence holder) not playing an active role in this case, though it was named as a party.
22. Therefore if can be concluded that the Provincial Executive had made determination in timber rights concerning license No. A10123 or 7^th December 2012, and made its decision in timber rights hearing concerning licence No: 101023 on 4^th April 2013. Time allocated to filing a judicial review claim is six month from the date of determinations. The claimant was late by filing the claim for judicial review on 30^th July 2015, a date more than six month; see paragraphs 21 or 22 above.
23. The reject of the fifth defendant’s licence No. A101245 the Provincial Executive could have delivered its decision in 2014 as well. There is no evidence clearly stated. If it was in 2014, it could be late as well, because this claim was filed on 30^th July 2015.
24. Claim for judicial review is not an ordinary Civil Case. The rules provide special process which must be complied with. It’s not because of the continues activities as logging operation is capable for extending time limit as may correspondingly read in conjunction with the limitation Act. Time limit of six months is mandatory for filing of a judicial review claim. The Rule is very vocal and clear. If the claimant is complying with or failing one or two requirement under R 13.3.18, the court will not hear the claim. In this case the requirements under R15.3.18 (c) has not been fulfilled. There is unacceptable undue delay in filing the claim. Therefore this court must refuse to hear the claim.

There is no proper explanation for the delay as well. The Claimant merely relaying on continues logging activities which constitutes no ground convincing enough to explain the delay.

25. The fourth requirement is that there is no other remedy to solve the matter. The rational enhance on by R 15.3.18 is particular (d) is on attempt to illuminate that claim for judicial review is the cost avenue to resort to. A purported or prospective claimant must proactively exhausted all avenues from where to sough remedy, before utilizing R 15.3.18 as a last resort.
26. Is this case the claimant had failed to appeal against the determination of the Provincial Executive? However, he resumed to Local Court in respect to customary lands covered under the fifth Defendant’s license No. A101745. All customary lands under two other licenses were never touched by way of appeal or reference to the chiefs for remedy. It is therefore, now claim that the judicial review process is not available to the claimant. He was late in filing the claim, or alternatively could have filed on appeal against the Provincial Executive determination as a proper remedy to resort to in the first instance.
27. The issuant of felling license is not a decision which has to be made by an authority. It was issued after pre-condition processes had been complied with. In fact it was an administrative function. The only decision which is capable of review is that of Provincial Executive. If there is no appeal then a certificate confirming there was no appeal issued by the Court. That should be sufficient enough to convince the Commissioner of Forest to issue a felling licence without hesitation. Therefore, time counts from the date Provincial Executive made its determination and not under the commission of Forest issued a felling license.
28. I find the course of action was filed in a wrong venue, out of time and ought to be dismissed accordingly. Also noted that the lands under the fifth defendant licence which is subject to Local Court Case perhaps will maintain restraining orders to allow the Local Court Case perhaps will maintain restraining orders to allow the Local Court deal with case before the orders be discharge.

Orders.

1. Claim for judicial review dismissed.
2. Restraining orders related to lands subject for Local Court hearing will remain, meaning the fifth defendant’s logging operation under license No. A101245 still remain in place.
3. Restraining orders concerning third defendant’s License No. A101231 is hereby discharged.
4. Restraining orders concerning fourth defendant’s license No. A101220 is discharged as well.
5. Costs incidental to this hearing to be paid by the claimant to third or fourth Defendants.

The Court.