Tobajahi Enterprises Ltd v Isabel Customary Land Appeal Court [2022] SBHC 4; HCSI-CC 104 of 2021 (5 April 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tobajahi Enterprises Ltd v Isabel Customary Appeal Court
Citation:
Date of decision:	5 April 2022
Parties:	Tobajahi Enterprises Limited and Ben Rickie Kiokimo, Chief Christian Plant, Junior Nokia, Margaret Ella Pentoro, Paterson Rini and Edith Heslyn Gaseforu v Isabel Customary Land Appeal Court, Hon. Dr. Culwick Togamae, Lorreta Kelimana, Judith Siota, Wilson Hane Sedere, Re. Samuel Kelimana, Drummond Theomae, Steward Hamilton, Hilda Roronu, Asa Heusari and Collin Harapuhi, Attorney General
Date of hearing:	2 September 2021
Court file number(s):	104 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The parties will appear for mention on a date to be set by the Registrar in consultation with counsel. 2. The judicial review will be limited to the issues identified in paragraph 35 of this ruling. 3. The parties are to bear their own costs.
Representation:	G. Suri for the First and Second Claimants Attorney General for First and Third Defendants A Radclyffe for Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilisation Act S 8, S 8 (3) (a) and (b), S 9, S 10 (2), Land and Titles Act S 256 (4), S257, Constitution 1978 S 77 and 84
Cases cited:	Veno v Jino [2006] SBCA 22, Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, Vunagi v Palmer SBCA [2019] 2, Pitabelama and others v Biliki and others SBCA [2007] 21, Kitu v Pitu [2010] SBHC 67, Talasasa v Biku [1988] SBCA 5, O’Reilly v Mackman [1983] UKHL 1, Ridge v Baldwin [1963] UKHL 2; [1964] AC 40,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 104 of 2021

BETWEEN

TOBAJAHI ENTERPRISES LIMITED
First Claimant

BEN RICKIE KIOKIMO, CHIEF CHRISTIAN PLANT, JUNIOR NOKIA, MARGARET ELLA PENTORO, PATERSON RINI AND EDITH HESLYN GASEFORU
(All of the Nagi Clan of Tobajahi Tribe in Maringe District of Isabel)
Second Claimant

AND:
ISABEL CUSTOMARY LAND APPEAL COURT
First Defendant

HON. DR. CULWICK TOGAMAE, LORRETA KELIMANA, JUDITH SIOTA, WILSON HANE SEDERE, REV. SAMUEL KELIMANA, DRUMMOND THEOMAE, STEWARD HAMILTON, HILDA RORONU, ASA HEUSARI AND COLLIN HARAPUHI
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 2 September 2021
Date of Decision: 5 April 2022

G. Suri for the First and Second Claimant
Attorney General for the First and Third Defendant
A Radclyffe for the Second Defendant

Lawry; PJ

RULING

1. The First Claimant applied to the Commissioner of Forest Resources for a licence authorizing the felling of trees and the removal of timber from land described as Tobajahi, in Isabel Province.
2. On 4 May 2020 a timber rights hearing in respect of that application was conducted at Buma Village in Isabel Province in accordance with section 8 of the Forest Resources and Timber Utilisation Act [“the Act”].
3. At that meeting the Executive was not satisfied that the requirements of section 8(3) (a) and (b) of the Act had been satisfied. The effect of their decision was that the Executive recommended to the Commissioner that the application be rejected. Section 9 of the Act then required the Commissioner to reject the application.
4. The First and Second Claimants appealed that decision to the Isabel Customary Land Appeal Court in accordance with section 10 of the Act. There were 6 grounds of appeal. The First Defendant gave reasoned decisions in relation to all six grounds. All six grounds were dismissed.
5. The First and Second Claimants have applied for a judicial review of the decision of the First Defendant. The Claimants have filed an amended Claim and the Defendants have filed a defence to that claim. In accordance with rule 15.3.16 the Court called a conference at which it must consider the matters set out in rule 15.3.18. The Court has considered the papers filed in the proceeding and heard argument from the parties.
6. Mr Radclyffe of counsel for the Second Defendant has submitted that the amended claim is in reality an appeal from the Customary Land Appeal Court brought as a judicial review, no doubt because of the provisions of section 10 (2) of the Act. That section provides:
   • “(2) Notwithstanding any provision to the contrary in any other law, the order or decision of a customary land appeal court on any appeal entertained by it under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever.”
7. Mr Radclyffe submits that the effect of section 10(2) is that the decision of the First Defendant is final and is not subject to an appeal to this Court. Section 10(2) of the Act is what has been referred to as an “ouster” clause. Mr Suri of counsel for the Claimants has referred the Court to the Court of Appeal decision of Veno v Jino [2006] SBCA 22 where the Court said:
   • “Provisions such as s 10(2) of the Forest Resources Act are frequently found in legislation creating specialist tribunals for determining disputes of particular kinds. Variously labelled "privative", "exclusionary" or "ouster" clauses, they do not, as phrased in the provision we are presently considering, prevent courts of general jurisdiction from examining the proceedings conducted by such a tribunal for certain limited purposes. A useful starting point for a consideration of the supervisory powers of courts of general jurisdiction is Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 but it is not necessary to deal with this matter in the present case since it is not suggested that the CLAC acted in excess of its jurisdiction.”
8. In Veno v Jino the Court found there had been no decision made in the CLAC and accordingly there was no decision of the Customary Land Appeal Court [“CLAC”] that would have brought the provisions of section 10 (2) into play. What then are “certain limited purposes” that would permit this Court as a Court of general jurisdiction to examine the proceedings in the CLAC? To answer this question, it is helpful to look at the Court of Appeal decision of Vunagi v Palmer SBCA [2019] 2 which concerned a similar clause set out in section 256(4) of the Land and Titles Act. At paragraph 14 the Court said:
   • “Section 256 (4) is limited to decisions given in the exercise of jurisdiction given by the section itself. When that decision is given other than in the exercise of that jurisdiction, the subsection has no application and the provisions of section 257 may be brought into play. This will be the case when it is said that the decision is based on an erroneous view of law which should not be permitted to pass without further scrutiny.”
9. At paragraph 15 the Court discussed the case of Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147. The House of Lords had found that if a tribunal mistook the law applicable to the facts as the Tribunal found them it must have asked itself the wrong question and therefore enquired into an issue it was not empowered to enquire, therefore acting beyond its jurisdiction. Its determination would therefore be a nullity.
10. Mr Suri referred this Court to Pitabelama and others v Biliki and others SBCA [2007] 21 where the Court of Appeal said:
    • “As this Court said in Veno such privative or exclusionary clauses do not entirely exclude the examination by courts of general jurisdiction. The limited jurisdiction left to the courts may, for example, be exercised where the decision under review was made without jurisdiction. A starting point is Anisminic Limited v Foreign Compensation Commission [1969] 2AC147. There can be no suggestion that the Customary Land Appeal Court acted in excess of its jurisdiction in this case. It was required of the Provincial Executive to determine the identity of the persons lawfully entitled to grant the timber rights. It 'did so on the basis of extensive and it seems compelling evidence. That decision was upheld by the C.L.A.C. In those circumstances there is no reason why s.10 (2) should not be given full effect. The appeal is dismissed. The respondent is entitled to costs.”
11. In Kitu v Pitu [2010] SBHC 67 the High Court referred to the Court of Appeal decision of Talasasa v Biku [1988] SBCA 5 which dealt with the previous equivalent section to section 10(2) of the Act. Goldsbrough J as he then was said in Kitu v Pitu:
    • “The Court of Appeal in Talasasa v Biku[1] considered the effect of a previous equivalent section and determined that whilst such a section was to be regarded as effective in ousting the jurisdiction of the High Court to hear and determine an appeal, it did not effectively oust the jurisdiction of the High Court to confine an inferior tribunal to its own jurisdiction.”
12. In Talasasa v Biku the Court of Appeal said:
    • “Having said so much we do not wish to encourage attempts to bring appeals from the Customary Land Appeal Court to the High Court in the guise of applications for certiorari.”
13. At the conclusion of the decision of Talasasa v Biku the Court of Appeal said:
    • “We are of the opinion therefore that s. 5D (2) is to be regarded as a no-certiorari provision. It follows that it is effective to oust certiorari for errors of law not goinj to jurisdiction ... It has of course long been established that a no-certiorari provision will not oust the jurisdiction of the superior courts to confine inferior courts to their jurtion, on the footing that that the Parliament could not have intended a tribunal of limited jurisdiction to be permitted to exceed its authority. The exact limits of the residual jurisdiction of the High Court notwithstanding s. 5D (2) need not be examined for the purposes of this appeal. ... What is clear however is that an error of law by a Customary Land Appeal Court in arriving at a decision or determination on a matter within its jurisdiction cannot be challenged before the High Court by certiorari even though that error appears on the face of its record. This conclusion will have the beneficial effect that decisions of a Customary Land Appeal Court on questions of custom will not be open to challenge in the High Court by bringing appeals under the legislation under the colour of applications for certiorari.”
14. Rule 15.3.1 now calls an order for certiorari a “quashing order”. Rule 15.3.4 permits a claim for a quashing order to be made to this Court for judicial review. Section 10 (2) of the Act then prevents this Court from hearing an appeal but would permit this Court to review a decision of the CLAC made in excess of its jurisdiction.
15. Mr Suri has referred the Court to the speech of Lord Diplock in O’Reilly v Mackman [1983] UKHL 1 which in turn referred to the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40. Those two cases broadened the scope of tribunals that could be subject to judicial review. In O’Reilly v Mackman Lord Diplock said:
    • “Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz to have a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made.”
16. The cases of Ridge v Baldwin and O’Reilly v Mackman both pre-date the decision of the Court of Appeal in Talasasa v Biku. It follows that this Court is bound by the Court of Appeal in Talasasa v Biku. Section 10 (2) therefore prevents an appeal from the decision of the CLAC. However, an application can be made to this Court for the decision to be judicially reviewed if the CLAC has made a decision in excess of its jurisdiction or for errors of law going to jurisdiction. In addition, the Court has a discretion to review a decision when the CLAC has failed to do something it was obliged to do.
17. As a general rule a judicial review is not to enquire into the merits of a decision rather it is concerned with the lawfulness of the decision.
18. In the Amended Claim for Judicial Review the Claimants set out in letter A to G the orders the Claimants seek as a result of the review.
19. The Claimants have abandoned their claim in relation to order A to G which related to the standing to be a party to the appeal to the CLAC.
20. The second order sought (B) and the fifth (E) will be dealt with later in this decision. ‘B’ concerns the allegation that the First Defendant failed to determine the matters prescribed in section 8(3) (b) of the Act. ‘E’ concerns the allegation that the First Defendant failed to deal with the nature and extent of the timber rights sought.
21. ‘C’, ‘D’ and ‘F’ are all issues going to the merits of the decision and are not relevant on an application for judicial review.
22. Returning to the second order sought identified as ‘B’, the Claimants submit that the First Defendant failed to determine the matters prescribed in section 8(3) (b) of the Act. Section 8(3) provides:
    • “(3) At the time and place referred to in subsection (1), the area council shall in consultation with the appropriate Government discuss and determine with the customary landowners and the applicant matters relating to -
      • (a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;
      • (b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are;
      • (c) the nature and extent of the timber rights, if any, to be granted to the applicant;
      • (d) the sharing of the profits in the venture with the landowners; and
      • (e) the participation of the appropriate Government in the venture of the applicant.”
23. It is clear that at the timber rights hearing the executive was not satisfied that the persons proposing to grant timber rights were the person and represented all the persons lawfully entitled to grant such rights. On the evidence provided the executive did not go on to discuss and determine with the customary land owners who such persons were. It appears however that the executive may have been clear that those persons were the objectors present at the hearing opposing the grant of the timber rights.
24. The First Defendant set out its role in paragraph 22 of its decision. It noted the submissions made by the Appellants (here the Claimants) and went on to say:
    • “This Court sits purposely to hear the grounds of appeal brought by the Appellants. Our scope of enquiry or deliberation is determined or confined to the appeal grounds encapsulated in the Notice of Appeal. This is not a re-hearing or a re-conducting of the timber rights hearing at the Buma village but a sitting of the CLAC pursuant to the FRTUA.”
25. The First Defendant heard submissions and gave a decision on each ground of appeal that had been put forward. It is necessary to consider the Court of Appeal’s directions given in Talasasa v Biku referred to in paragraph 11, 12 and 13 above. The Court said:
    • “Section 5C(4) (a) placed on the Area Council a statutory obligation to determine and certify whether the persons proposing to grant the timber rights in question were the persons and all the persons lawfully able and entitled to grant such rights and, if not, who such persons were. The function of the Customary Land Appeal Court once an appeal was instituted is, as set out in s. 5D (1), to hear and determine the appeal. In this statutory context this must mean that it is the duty of the appellate Court to examine the determination certified by the Area Council and determine whether it correctly identified all the persons lawfully able and entitled to grant the rights in question. Moreover it is clear that the jurisdiction of the appellate Court was not simply to determine whether the decision below was correct or not for s. 5D (3) imposes on the duty of clerk to the Customary Land Appeal Court to notify the Conservator, when the appeal is finally determined, "of such determination and the terms thereof". It follows that it is the function of the Customary Land Appeal Court to examine the question afresh and to make its own determination. This has occurred here. To deny to the Land Appeal Court the power to identify a person as one of the persons lawfully able and entitled to grant such rights is to deny it the right to perform the very duty which is cast upon it by the legislation. Once the Land Appeal Court's examination of the facts and consideration of the custom led to the conclusion that the Chief of Dunde was one of those able and entitled to grant the rights in question, it was their positive duty so to determine and certify. Certiorari could not possibly go on the ground that the answer to the question required by the legislation to be answered involved identifying a person as having a function to perform under custom, although he had taken no part in the previous proceedings. It was suggested that the inclusion of Simion Mamupio in the decree of the Land Appeal Court went to that Court's jurisdiction, the argument being that the proceedings being inter partes, the decree of the Court could not lawfully grant rights to or impose obligations on persons other than parties. This is to misunderstand the nature of the jurisdiction being exercised here. Neither the Area Council nor the Land Appeal Court is empowered to make appointments. The statutory duty is to identify the persons who are lawfully able and entitled to grant the rights in question on the application of the rules of custom to the facts. To do so cannot on any view be regarded as an excess of jurisdiction.” [Emphasis added]
26. In section 8 (3) (b) the executive had a statutory duty to identify the persons entitled to grant the timber rights. It did not do so. An issue for judicial review is therefore, whether the court of Court of Appeal decision of Talasasa v Biku imposed a duty on the First Defendant to identify the persons entitled to grant timber rights. The failure of the executive to do so was not however an issue raised on the appeal to the First Defendant.
27. Section 8(3) (c) required the executive to discuss and then determine the nature and extent of any rights to be granted to the applicant. The Claimants submit that the executive and the First Defendant failed to consider objections made at the timber rights hearing relating to this subsection. That argument must fail as the executive considered that no timber rights should be granted to the applicants. The First Defendant agreed with that finding.
28. Beginning at paragraph 27 the First Defendant said:
    • “The First Respondent (the Isabel Provincial Executive) was correct to refuse the grant of the timber right over the Tobajahi Customary Land.
    • 28. However what is important to note as the gist or core of this appeal is the apparent lack of consent or compromise or consensus by the landowners for the disposal of their timber rights for the Tobajahi concession area. We are satisfied that was the situation (that) unfolded at the timber rights hearing as disclosed in the minutes. In all timber right hearings ensuring that there is a collective “concensus” or “agreement” by the land owners for the disposal of their timber rights is one of the fundamental decisive elements to grant timber rights over a customary land. The presence of “no consent” or “no agreement” means there is existence of dispute over the concession area, a valid ground for the rejection of the timber right.”
29. At paragraph 29 the First Defendant records that it was satisfied there were competing or unresolved claims over the concession area. It follows that there were no timber rights to be granted to the applicant. The First Defendant was therefore not in error in relation to section 8(3) (c).
30. Questions about the weight to be given to the decision of the Glave House of Chiefs in the absence of the Second Defendant and the standard of practice and procedure relating to the appeal are not matters relevant to jurisdiction. They are therefore not relevant in the judicial review of the decision of the First Defendant.
31. The Claimants have submitted that the finality of the decision of the First Defendant as provided in section 10 (2) of the Act should be subject to section 77 and section 84 of the Constitution. Those two provisions respectively provide:
    • “77.- (1) There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or by Parliament.
    • (2) The judges of the High Court shall be the Chief Justice and such number of Puisne judges, if any, as may be prescribed by Parliament:
    • Provided that the office of a judge shall not be abolished while any person is holding that office unless he consents to its abolition.”
    • 84.- (1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.
    • (2) Where any question as to the interpretation of any provision of this Constit other ther than Chapter II arises in any subordinate court and the court is of opinion that the question involves a substantial question of law, the court shall refer the questionhe Hiurt.
    • (3) Where any question is referred to the High Court in pursuance of the preceding subsection, the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal, in accordance with the decision of the Court of Appeal.”
32. Counsel has referred the Court to Veno v Jino referred to in paragraphs 7 and 8 above. As set out in the extract from Veno v Jino quoted in paragraph 8 the High Court can examine the proceedings conducted by a tribunal that has an ouster clause “for certain limited purposes”. This is where the role of judicial review comes in. The High Court can review a decision to determine whether the Tribunal has acted within its jurisdiction but it does not mean that there is a right to appeal to the High Court. Counsel has not put forward any authority nor has the Court located any authority to support a submission that section 10(2) of the Act is unconstitutional. Section 77 and section 84 are provisions which support the use of the judicial review procedure as supervision of subsidiary Courts and Tribunals. The Court is not persuaded that section 10(2) of the Act contravenes either section 77 or section 84 of the Constitution.
33. As conceded by counsel the First Claimant had no standing before the First Defendant. Similarly, the First Claimant does not have an arguable case in this judicial review as the First Claimant was not a person whose interests were affected by the decision of the executive. However, the Second Claimant is affected by the subject matter of the claim. The Second Claimant does have an arguable case so far as whether the First Defendant was under a duty to identify the persons able to grant timber rights and failed to do. A further issue if the Second Claimant succeeds in that argument is what the effect of that failure would be.
34. Identifying the persons legally entitled to grant timber rights over the concession land may make little difference in the end given the finding that there was no agreement between the landowners as to the granting of timber rights. The finding of the Glave House of Chiefs does not help much given previous findings and given the fact that it was made in the absence of the Second Defendant.
35. This Court is not in a position to determine matters of custom. “The issue to be determined on judicial review in this case is therefore limited to whether the First Defendant was under a duty to make a finding in terms of section 8(3)(b) of the Act and if so what the effect of that failure, if any, may be”. The parties are to appear on a date to be set by the Registrar in consultation with counsel and a date can be set for the hearing of the judicial review for the limited purpose identified. In the circumstances of this case each party will bear its own costs in relation to the Chapter 15 conference hearing.

Orders of the Court

1. The parties will appear for mention on a date to be set by the Registrar in consultation with counsel.
2. The judicial review will be limited to the issues identified in paragraph 35 of this ruling.
3. The parties are to bear their own costs.

By the Court
Justice Lawry
Puisne Judge