Vunagi v Isabel Customary Land Appeal Court [2022] SBHC 25; HCSI-CC 426 of 2021 (6 May 2022)

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Case name:	Vunagi v Isabel Customary Land Appeal Court

Citation:

Date of decision:	6 May 2022

Parties:	John Vunagi, Hilda Pago, Joan Mesepitu and Michael Holara, Taraoa Enterprises Limited v Isabel Customary Land Appeal Court, David Rahukolo, Lawrence Kile, Sandra Ashley

Date of hearing:	28 May 2022

Court file number(s):	426 of 2021

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota; PJ

On appeal from:

Order:	Consequently the claimant’s claim is caught by section 10 (2) of the FRTUA and must be struck out. The orders are sought are granted with cost against the claimant to be tax if not agreed.

Representation:	Kilua S for the Claimant Upwe B for the Defendant

Catchwords:

Words and phrases:

Legislation cited:	Forest Resources Timber Utilization Act cap 40, S 10 (2), S 10 (1), S 8 (3) (b) or (c), S 9 (2) (b), S ( (2) (a) (b), Solomon Island( Civil Procedure) Rule, r12.11,

Cases cited:

On 29^th July 2021 the claimant/respondent in this proceeding filed a Category (C) and seek to quash the decision of the Isabel Customary Land Appeal Court (ICLAC) in an appeal filed by the applicant against the determination of Isabel Provincial Executive made under the provision of the Forest Resources Timber Utilization Act, Cap 40. (FRTUA)

The application now before the Court is an application by the 4^th defendant for a determination of a preliminary point of law pursuant to rule 12.11 of the SI Court Civil Procedure Rules 2007.

In support of the application the applicant relied on the category (C) claim filed by the claimant on 29^th July 2021 and the sworn statement of Michael Holara filed on the same date.

The 4^th defendant’s application filed on 4^th November 2021 raised one question to be answered and seek consequential orders. The question and orders sought are as follows;

Appeals to the CLAC under the Forest Resources Timber Utilization Act are provided under section 10 of the Act. Section 10 (1) states “any person who is aggrieved by the determination of the Area Council (now Provincial Executive) made under section 8 (3) (b) or (c) may within one month from the date of the public notice was given in the manner set out in section 9(2) (b) appeal to Customary Land Appeal Court having jurisdiction for the area concerned is situated and such court shall hear and determine the appeal.

This means an appeal to the CLAC can only be made against the determination of the Provincial Executive in respect of a Provincial Executive’s determination made in respect of section 8 (3) (b) and (c) after it was given by notice as stipulated under section 9 (2) (b) of FRTUA. The appeal must be made within one month of the date the notice is given. If no notice of the determination is given under section 9 (2) no appeal can be legally made.

Section 10 (2) says’ Notwithstanding any provision to the contrary in any other law, the order of a Customary Land Appeal Court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be question in any proceeding whatsoever’.

Section 10 (1) refers to a determination of the Provincial Executive under section 8(3) (b) and (c) of the Act. I understand the submission of the respondent is that in respect of any mistake or omission not made in respect of section 8 (3) (b) and (c) is excluded thus a failure to publish the determination in the prescribe form or give notice under section 9 (2) (b) are not matters from which an appeal can lie to the CLAC and so the CLAC have no jurisdiction to consider them.

Counsel Upwe for the applicant submits that the right to appeal includes right to appeal against failure to comply with section 9(2) (a) (b) because it deals with how the Provincial Executive gives notice of it determination made in respect of section 8 (3) (b) and (c) of the FRTUA. He raises the question if this was not the case then who will deal with a failure to comply with section 9(2) (a) and (b). I am of the view that, it is a requirement that the Provincial Executive’s determination in respect of section 8 (3) (b) and (c) must issue a certificated of its determination and be made by a notice in the manner set out section 9 (2) (b) because section 10(1) says that an appeal to the CLAC is to be made within one month from the date the public notice is given under section 9 (2) (b). This means that the right of appeal only runs after the determination of Provincial Executive is given in a public notice under section 9 (2 (b).

The Provincial Executive is required to do two things, (a)The Provincial Executive must as soon as practicable issue a certificate in the prescribe form setting out its determination, section 9(2)(a) and (b) it must give notice of it determination as stipulated in section 9(2) (b). Time of appeal runs from the date the public notice of the determination is given under section 9(2)(b) By implication this means no appeal can be made if the Provincial Executive did not issue a certificate in the prescribed form of it determination and no public notice is given under section 9 (2)(b).

I think before the CLAC considers the merits of an appeal it has the jurisdiction to consider if the appeal was properly filed according to the stipulation of section 10(1) of the FRTU Act.

Counsel Kilua for the claimant/respondent submitted that section 10 (2) of the FRTU Act does not ouster the jurisdiction of the High Court in the exercise of its supervisory powers. I understand that supervisory powers would also include the power of judicial review.

Counsel Fakari’i representing the AG submits that the ousted clause refers to elements of timber right determination and that review cannot be made in relation to the determination of the elements. She submit that the High Court’s powers of judicial review only deals with procedural issues and not the merit of the case. I agree with Counsel Ms Fakari ’i’s submission.

In the present case therefore it cannot be said the ICLAC had acted ultra-vires its powers when it ruled that the Provincial Executive was wrong when it failed to issue a certificate in the prescribe form of its determination and to give public notice of it as required by section 9 (2) of the Act. Section 9(2) must be read together with section 10 (1) of the FRTUA. On this basis I accept the submission of counsel Upwe that ICLAC does not exceeded its jurisdiction when it deal with the appeal and ruled that Provincial Executive erred when it fail to comply with the stipulations of section 9(2) (a) (b) of the FRTU Act. On that basis I find that the Isabel CLAC’s decision is final and conclusive.

Consequently the claimant’s claim is caught by section 10 (2) of the FRTUA and must be struck out. The orders are sought are granted with cost against the claimant to be tax if not agreed.

High Court of Solomon Islands

Vunagi v Isabel Customary Land Appeal Court [2022] SBHC 25; HCSI-CC 426 of 2021 (6 May 2022)