Tobajahi Enterprises Ltd v Isabel Customary Land Appeal Court [2023] SBHC 151; HCSI-CC 104 of 2021 (18 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tobajahi Enterprises Ltd v Isabel Customary Land Appeal Court,
Citation:
Date of decision:	18 October 2023
Parties:	Tobajahi Enterprises Limited v Ben Rickie Kiokimo and Christian Plant, Junior Nokia, Margret 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, Samuel Kelimana, Drummond Theomae, Steward Hamilton, Hilda Roronu, Asa Heusari and Collin Harapuhi, Attorney General
Date of hearing:	29 September 2023
Court file number(s):	104 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	The First Defendant was correct in dismissing the appeal and the orders sought on this review are all refused. The Claimants are to pay the costs of the First, Second and Third Defendants on the standard basis.
Representation:	G. Suri for the first and Second Claimant F Fakari for the First and Third Defendant A Radclyffe for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Utilization Act S 8(3)(b), S 8 (3) (a) to (e)(e), S 10 (1), S 9
Cases cited:	Talasasa v Biku [1988] SBCA 5, Puleipi v Attorney General [2015] SBCA 8,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 104 of 2021

BETWEEN

TOBAJAHI ENTERPRISES LIMITED
First Defendant

AND:

BEN RICKIE KIOKIMO AND CHRISTIAN PLANT, JUNIOR NOKIA, MARGRET ELLA PENTORO, PATERSON RINI AND EDITH HESLYN GASEFORU,
Second Claimant

AND:

ISABEL CUSTOMARY LAND APPEAL COURT
First Defendant

AND:

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

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 29 September 2023
Date of Decision: 18 October 2023

G. Suri for the first and Second Claimant
F Fakari for the First and Third Defendant
A Radclyffe for the Second Defendant

RULING

1. The Claimants have brought a claim for judicial review of the decision of the Isabel Customary Land Appeal Court. Following the Chapter 15 Conference this Court set out at paragraph 35 of the ruling:
   • “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 [Forest Resources and Timber Utilisation] Act and if so what the effect of that failure if any, might be.”
2. Counsel for the Claimants has raised a preliminary matter. He seeks to admit what is alleged to be fresh evidence. He has tendered a sworn statement from Reginald Waga deposed on 6 June 2023. Having read the sworn statement carefully it is clear that it is not fresh evidence at all. What is put forward is evidence that could have been put forward at the timber rights hearing. It was certainly evidence that could potentially have been put forward on appeal before the First Defendant. Counsel has submitted that it was not available to either of those tribunals but nothing is put forward that could permit this Court to arrive at that conclusion. As a result it does not meet the test for fresh evidence. A further reason for not admitting the sworn statement is that it is irrelevant to the issue before the Court. This Court is not permitted to look at the merits of the case but rather whether the First Defendant acted within its jurisdiction.
3. In Talasasa v Biku [1988] SBCA 5 the Court of Appeal said:
   • “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.”
4. Following the Chapter 15 conference the Court noted the following passage set out by the Court of Appeal in Talasasa v Biku:
   • “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.”
5. Before turning to the submissions of counsel, it is recorded that the issue in this case is quite different from in Talasasa v Biku. In that case the area counsel (the equivalent of the provincial executive) had made a finding identifying the persons entitled to grant timber rights. At the appeal to the relevant CLAC the Court determined that the persons entitled to grant timber rights included persons who had appealed the finding of the area counsel. The issue in Talasasa v Biku then was whether in doing so the CLAC had exceeded its jurisdiction. In the present case when considering section 8 (3) (b) the provincial executive had found that those persons proposing to grant timber rights did not represent all the persons lawfully entitled to grant such rights. While the executive did not make a specific finding who such persons were, once they were satisfied that there was not unanimity or compromise about granting timber rights by those entitled to grant such rights, the provincial executive made the correct recommendation. It was open to the Claimants as persons aggrieved by that decision to appeal to the First Defendant. The Claimants did so. In a detailed decision the First Defendant deal with the appeal grounds raised. The clerk of the First Defendant has provided a sworn statement annexing the decision of the First Defendant. At paragraph 9 of his sworn statement he confirmed that the First Defendant deliberated on all issues raised by the Claimants. In the decision itself at paragraph 20 the First Defendant recorded that at the hearing the Claimants tendered two written submissions. One was the same as what had been put before the provincial executive and the other was supplementary to their main submission. They also tendered a copy of a decision from the Glave House of Chiefs. The First Defendant recorded that the material did not address the issue raised in their first ground of appeal. At paragraph 23 the First Defendant recorded:
   • “The Second Appellants were not in a position to inform or demonstrate to this Court those errors perceived to have committed by the First Respondent (The provincial executive). That is the appalling state of preparedness of the Second Appellants before this Court.”
6. The First Defendant reviewed the minutes of the provincial executive and found that the Claimants had consulted with people in Honiara but not with the people who resided in and around the concession area. The First Defendant referred to the Glave House of Chiefs decision and noted that it did not solve the issue of potential encroachments into other customary lands. That decision had not been affirmed or challenged in the Local Court. The provincial executive had said:
   • “1. That this is the third timber right hearing by the same group within the same concession area, why does the name of the concession area keep changing?
   • 2. That during the hearing the concession area is still disputed among tribe members in which they should have to settle prior to the timber right to avoid further dispute among tribe and clan.
   • 3. It has been heard and noted that there has never been any proper consultation made within the tribe members so as the surrounding communities who may subject to affect with negative impact of the operation.
   • 4. The concession area includes one of the provincial Conservation areas in which the applicant does not have respect for it saying that they have not consulted and as well not part of the conservation team.
   • 5 The objectors outnumbered the applicant and the supporter and also they have updated legal documents provide to the panel to support their objection on the portion of land included as Tobajahi customary land.”
7. The first ground of appeal is recorded as relating to the failure of the First Respondent [the provincial executive] to exercise its statutory powers under section 8(3)(a) to (e) of the FRTUA.
8. The argument before this Court is that the provincial executive had a duty to determine who the people were who were lawfully entitled to grant the timber rights. The provincial executive however were never put in a position to make such a finding because the Claimants had failed to undertake the proper consultations. Clearly when they appeared before the First Defendant they still did not address this issue. The submission of counsel is that the First Defendant did not undertake that task either.
9. The Court of Appeal has in numerous cases including Puleipi v Attorney General [2015] SBCA 8 which was referred to by counsel made it clear that the powers of the CLAC is restricted to those described in section 10 (1) of the Forest Resources and Timber Utilisation Act [‘FRTUA’] and the matters raised on appeal. In Puleipi the Court said:
   • “The powers of the court are restricted to those matters but it has a duty to consider any such matter properly brought to it on appeal from either of those two paragraphs. If an appeal includes issues of law relevant to those matters, it is within the court's jurisdiction to decide them.”
10. It is clear that the First Defendant dealt with the issues brought before it. In spite of the provisions of section 8(3) of the FRTUA both the provincial executive and the First Defendant found that those seeking to grant timber rights did not represent all those entitled to grant rights. It is clear that neither was in any position to determine who such people were because of the finding that the Claimants had failed to undertake the necessary consultation. Secondly the Claimants had not put material; before either tribunal that would enable either to make that determination. In the circumstances there was only one conclusion the provincial executive could come to and that was to recommend to the Commissioner that that the application be rejected in accordance with section 9 of the FRTUA. That is what the executive did. The First Defendant was also not provided with any basis on which it could determine who the persons were who could lawfully grant timber rights.
11. As submitted by counsel for the First and Third Defendants, the First Defendant did perform its duty to make a determination based on the material before it. The decision made was reasonable in the circumstances.
12. The First Defendant was correct in dismissing the appeal and the orders sought on this review are all refused. The Claimants are to pay the costs of the First, Second and Third Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge