Naisi v Western Province Customary Land Appeal Court [2021] SBHC 83; HCSI-CC 298 of 2012 (1 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Naisi v Western Province Customary Land Appeal Court
Citation:
Date of decision:	1 October 2021
Parties:	Gilisi Naisi and Edrick Luna v Western Province Customary Land Appeal Court, Premier of Western Province, Commissioner of Forest Resources, Royce Alekevu, David Alekevu, Shane Tutua, Kilven Benny, Opportunity Kuku and Joshua Leti, Earth Movers Solomons Limited, Attorney General
Date of hearing:	10 September 2021
Court file number(s):	298 of 2012
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Cost against the defendants to be assessed if not agreed. I will assess costs
Representation:	Mr. Lepe for the Claimants/Applicants No Appearance for First, Second, Third and Sixth Defendants Mr. Dive for the Fourth and Fifth Defendants/Respondents
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 298 of 2012

BETWEEN

GILISI NAISI AND EDRICK LUNA
(Representing the Dekurana Tribe of North New Georgia)
Claimants

AND:

WESTERN PROVINCE CUSTOMARY LAND APPEAL COURT
First Defendant

AND:

PREMIER OF WESTERN PROVINCE
(Representing the Western Provincial Executive)
Second Defendant

AND:

COMMISSIONER OF FOREST RESOURCES
Third Defendant

AND:

ROYCE ALEKEVU, DAVID ALEKEVU, SHANE TUTUA, KILVEN BENNY, OPPORTUNITY KUKU AND JOSHUA LETI
Fourth Defendant

AND:

EARTH MOVER SOLOMONS LIMITED,
Fifth Defendant

AND:

ATTORNEY GENERAL
Sixth Defendant

Date of Hearing: 10 September 2021
Date of Ruling: 1 October 2021

Mr. Lepe for the Claimants/Applicants
No Appearance for First, Second, Third and Sixth Defendants
Mr. Dive for the Fourth and Fifth Defendants/Respondents

Keniapisia; PJ

RULING ON APPLICATION FOR-SUMMARY JUDGMENT AND JOINDER

Introduction

1. Claimants applied for Summary Judgment (“SJ”) on 31/08/2020. Claimants also applied to join New Venture Limited on 23/10/2020. I heard both applications today. If I should grant the application for SJ, that will terminate this proceeding early. And the application for joinder will become meaningless. Logically, I should consider the SJ application first.
2. The major historical facts about the progress of this case shows the following:-
   • (i) Claimants filed this Judicial Review Claim (“JRC”) on 7/09/2012. An Amended JRC was filed on 18/09/2013.
   • (ii) Claimants obtained injunction orders against 4^th and 5^th defendants on 22/02/2013.

(iii) High Court’s Justice Apaniai ordered on 26/08/2013, that the amended JRC be adjourned generally. That Civil Appeal Case Nos. 04 & 05 of 2011 be remitted back to Western Customary Lands Appeal Court (“WCLAC”) to re-determine claimants appeal according to law. And the injunction orders made on 22/02/2013, shall remain in force until Civil Appeal Case Nos. 04 & 05 of 2011 have been reheard or until further orders. The remittal order was perfected on 30/08/2013.^[1]
(iv) Following High Court’s remittal, WCLAC, in a much delayed re-hearing, made its written decision on the 6/04/2020^[2], almost 7 years later. The written decision of WCLAC on 6/04/2020 meritoriously resolved the reliefs claimants sought in this amended JRC.
(v) Following the WCLAC decision of 6/04/2020, claimants have applied for SJ, in the strong belief that 4^th and 5^th defendants’ defences do not have any real prospect^[3] of defending claimants claim. That there are no more “contested issues to go to trial”^[4] because the core reliefs sought in the amended JRC have been meritoriously resolved by the WCLAC decision of 6/04/2020.

3. The core reliefs sought in this amended JRC filed on 18/09/2013 are:-
   • (i) High Court to quash the judgment of WCLAC in Civil Appeal Case Nos. 04 & 05 of 2011 made on or around 22/06/2012.
   • (ii) High Court to declare null and void ab initio, any Form 4 standard timber rights agreement executed by 4^th and 5^th defendants over Hetaheta Customary Land (“HCL”).
   • (iii) Permanent injunction order against 4^th and 5^th defendants not to operate logging within HCL, located between Malumalu and Niva Rivers, on North New Georgia, Western Province.
   • (iv) High Court to remit the matter back to WCLAC to re-hear and re-determine claimants appeal in Civil Appeal Case Nos 04 & 05 of 2011, according to law.
   • Implications of the 6/04/2020 WCLAC decision on this amended JRC proceeding – WCLAC decision of 6/04/2020 is a decision of the High Court made in this amended JRC via Justice Apaniai’s remittal orders perfected on 30/08/2013
4. The Western Provincial Executive (“WPE”) determined that the 4^th defendants are the lawful trustees for any timber rights grant over HCL on or around 10/8/2011^[5]. Claimants were aggrieved by the said determination. Claimants filed an appeal to WCLAC in Civil Appeal Case Nos. 4 & 5 of 2011. The WCLAC heard claimants appeal and made a decision on or around 22/06/2012. The WCLAC decision upheld the WPE determination, affirming that the 4^th defendants still remain the lawful trustees over HCL. Claimants were aggrieved and filed this JRC as amended on 18/09/2013. Core reliefs sought in the amended JRC are summarised above in paragraph 3.
5. As part of High Court’s efforts to progress the amended JRC to conclusion, it made orders for the WCLAC to re-hear and re-determine claimants appeal in Civil Appeal Case Nos. 04 & 05 of 2011, according to law. Note that “core relief” 1 above seeks High Court to quash the WCLAC decisions in Civil Appeal Case Nos 4 & 5 of 2011. In obedience to the High Court orders, the WCLAC reconvened, re-heard and re-determined claimants appeal in Civil Appeal Case Nos. 04 & 05 of 2011 according to law. And after around 7 years on 6/04/2020, the WCLAC quashed the WPE determination of trustees made on or around 10/8/2011. That means the 4^th defendants are no longer the trustees lawfully entitled to grant timber rights over HCL effective from 6/04/2020. That also means that any timber rights the 4^th defendants may have granted to anybody (5^th defendant or any other companies), via the execution of any Form 4 standard logging agreements, from 22/06/2012 and 6/04/2020, will have no legal effect. It also means any license issued over HCL pursuant to the timber rights acquisition process instigated by the 4^th and or 5^th defendants are null and void and will consequently have to be quashed. A license without a valid Form 4 standard logging agreement is a bare license. The license that 4^th and 5^th defendants are banking on currently is a bare license. For the trustees who gave the Form 4 standard logging agreement, resulting in the license, have been removed by the decision of WCLAC dated 6/04/2020.
6. A further fatal implication is that the “core reliefs” sought in the amended JRC have been meritoriously determined by the decision of WCLAC dated 6/04/2020. Hence there are no further real issues or real disputes^[6] about the material facts underpinning the core reliefs sought to warrant trial. The WCLAC decision of 6/04/2020, does not run in conflict with the earlier WCLAC decision made on 22/6/2012, as counsel Dive has submitted^[7]. Effectively the 6/04/2020 decision of the WCLAC is a decision of the High Court, made in this amended JRC. For the WCLAC decision of 6/04/2020 was made in accordance with the orders of Apaniai J perfected on 30/08/2013.
7. Consequently, I will answer the core reliefs sought in the amended JRC as follows:-
   • (i) I will quash the judgment of WCLAC in Civil Appeal Case Nos. 04 & 05 of 2011 made on or around 22/06/2012.
   • (ii) Any Form 4 standard logging agreement that may have been executed by the 4^th defendants over HCL is null and void.
   • (iii) Grant permanent injunction order against 4^th and 5^th defendants not to do logging on HCL.
   • (iv) Remittal orders sought (See paragraph 3 (iv) above) were successfully achieved and completed through the WCLAC decision of 6/04/2020.

Conclusion

8. The final analysis is that there are no further contentious issues for this Court to investigate at trial. Fourth and fifth defendants’ defences do not have a real prospect of defending the claimants’ amended JRC. I will therefore terminate this proceeding early via SJ. Claimants and 4^th defendants may go back and re-organise to pursue logging on HCL, if they so wish, because they have equal rights of ownership over the said land. This is the same recommendation contained in the decision of WCLAC dated 6/04/2020, when WCLAC declined to make a conclusion on trustees, only saying, parties need to go back and sort themselves out before any further development takes place. That is a wise proposal for parties to think through. Probably with the passage of time, the wounds (if any) would have healed. And parties can now work together. Cost against the defendants to be assessed if not agreed. I will assess costs.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Copy of perfected order on Pages 87 - 88, of claimants’ court book.
^[2] Copy of decision at Page 95 – 96 of claimants’ court book.
^[3] See Rule 9.57.
^[4] Rule 9.66.
^[5] See copy of WPE determined trustees (4^th defendants herein) at Page 78 - 79 sworn statement of Gilisi filed on 18/03/2021
^[6] Rule 9.66.
^[7] See Page 85 - 91, sworn statement of Gilisi filed on 18/03/2021 – for copy of earlier WCLAC decision dated 22/06/2012.