Kinio v Attorney General [2023] SBHC 171; HCSI-CC 528 of 2016 (24 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kinio v Attorney General
Citation:
Date of decision:	24 November 2023
Parties:	Rolton Kinio & Freeman Rebi v Attorney General, Chachabule Rebi Amoi, Mala Moseslila, Fairtrade (SI) Company Limited
Date of hearing:
Court file number(s):	528 of 2016, 130 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. Chachabule Rubi Amoi and Seri Hite and replacement of James Puleipu (deceased) with Mala Moses Lila, Casper Rubi and Redley Vaga to have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land is upheld. 2. The application for the Judicial Review on ultra vires has no basis and is dismissed. 3. The Applicants to pay the costs of the Respondents. 4. No further order.
Representation:	Tongarutu for the Appellant Damilea D for the First Respondent Rano for the Second Respondent Rano for the Third Respondent
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilization (Amendment) Act 2000[cap 40] S 10 (1), S 8 (3) (c), 8 (3) (b or (c)
Cases cited:	Lolo v Kwaioloa [2014] SBHC 25

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 528 of 2016

BETWEEN

ROLTON KINIO & FREEMAN REBI
Appellants

AND:

ATTORNEY GENERAL
First Respondent

AND:

CHACHABULE REBI AMOI, MALA MOSESLILA, CASPER REBI AND REDLEY VAG
Second Respondent

AND:

FAIRTRADE (SI) COMPANY LIMITED
Third Respondent

Date of Judgment: 24 November 2023

Tongarutu for the Appellant
Damilea D for the First Respondent
Rano for the Second Respondent
Rano for the Third Respondent

RULING

Maina PJ:

1. The applicants ROLTON KINIO & FREEMAN REBI filed an application for the judicial review on the decision of the Western Customary Land Appeal Court (WCLAC) on the decision they made on an appeal of timber right hearing of Riki, Guanahai, ChoChole and Njalere customary land on Vagunu Island, Maroro Lagoon, Western Province.

Background

2. The Western Provincial Executive (WPE) heard the timber rights on Riki, Guanahai, ChoChole and Njalere customary land. On 24 May 2013, the WPE delivered its decision, which identified Chachabule Amoi, Seri Hite, and James Puleipu (deceased) as persons having rights to grant timber rights on the land.
3. The Applicants appealed the determination of the WPE to WCLAC and the Court heard the appeal on 21 October 2016. The WCLAC allowed the appeal and made the ruling which it described as “afresh” as follows:
   • (i) The WCLAC recognise Chachabule Amoi as caretaker chief of Tebakokorapo tribe.
   • (ii) The members of Tebakokorapo tribe Chachabule Rubi Amoi, Seri Hite, Mala Moses Lila, Casper Rubi and Redley Vaga have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land.
   • (iii) Any member of Tebakokorapo tribe may be included as trustee upon their tribal settlement.
4. The Applicants with this judicial review seeks to quash the decision to the WCLAC on the following grounds that:
   • (i) The WPE is wrong in law to determine over the timber right hearing on Riki, Guanahai, ChoChole and Njalere customary land to the people who are not right people to grant timber over it. No proper consultation among the all the landowners (Tobakokorapa tribe)
   • (ii) The WPE fail to accept submission that the ten blocks of land had been subdivided among members of Tobakokorapa tribe,
   • (iii) The WPE failed to consider that there was no replacement of the five trustees of Tobakokorapa tribe,
   • (iv) The WPE erred when they declined to consider the objectors main point of contention that Fairtrade fail to distribute the royalty payment to the tribal members
5. There are two applications for judicial review purportedly filed under Clause 15.3.2 Civil Procedure Rules 2007 to review the decision of WCLAC when it exercised its power under section 10 (1) of the Forest Resources and Timber Utilisation Act (Cap 40) as amended in the Forest Resources and Timber Utilisation (Amendment) Act, 2000.
6. Whitlam K. Togamae Lawyers representing the Applicants filed the first application on 2nd December 2016 under Category C (Civil Claim No. 528 of 2016). The Applicants named the Attorney General (First Defendant) representing the WCLAC as the only the Defendant.

The applicants seeks the court orders:

• (i) To quash the decision of Western Customary Land Appeal Court on 21^st October 2016 for that it acted ulter ultra vires.
• (ii) Consequent upon quashing of the decision, an order that the determination by Western Provincial Executive (WPE) be also quashed.
• (iii) Costs
• (iv) Any other orders the court deems fit in the circumstances

7. On 5^th April 2017, DNS & Partners Law Firm representing the FAIRTRADE (SI) COMPANY LIMITED (Third Respondent) filed a claim under Category A (Civil Case No. 130 of 2017) to declare the WCLAC had erred in law by:
   • (a) afresh the determination made by the WPE on 24^th May 2013 in favour of the Defendant (Third)after allowing the appeal by the Claimants.
   • (b) Including three additional trustees as person entitled to grant timber rights when either parties made no submission for such persons to be made trustees during the timber rights hearing.
   • (c) Failing to give weight to the deed of settlement signed by the Claimants and one of the three trustees identified by WPE as person has rights to grant timber right on the subject customary land.
   • (d) In addition, other subsequent orders.
8. ANT Lawyers for Civil Claim No. 528 of 2016 and Civil Claim No. 130 of 2017 filed notices of change of advocate for the Appellants.
9. ANT Lawyers then filed what she named an “Amended Claim” for Civil Claim No. 528 of 2016 and seeks the orders of the court to quash the decisions of the WCLAC of 21^st October 2016 on grounds the contradiction and ultra vires made by the WCLAC in the Judgment.

Consequent upon quashing of the decision, an order that the determination by the Western Provincial Executive (WPE) on the 24^th May 2013 be quashed and cancel or suspend the felling licence issued to the third defendant. This amended claim named the defendants.
With the amended claim, ANT Lawyers named the Attorney General as the First Respondent.

10. Different counsels/firms, a change of advocates with reasons not disclosed to the court however the two cases although were filed the separately. They are or relate to the same applicants for the judicial review of the WCLAC decision on the timber hearing of Riki, Guanahai, ChoChole and Njalere customary land. On the fact this concerns the same applicants and similar orders, I directed the consolidation of the cases.
11. Now the Civil Claim No. 528 of 2016 and Civil Claim No. 130 of 2017 is consolidated with the amendments. It is important to note that the matter before the court is a judicial review and not an appeal.
12. Further, at the hearing of the matter on 1^st September 2017, Tongarutu for the Applicant/Defendant, Damilea D for the First Respondent and Rano for the Second and Third Respondents made oral and tendered to the court written submissions to the court and the ruling was reserved.
13. However, on 1^st February 2018 when the ruling was pending, another notice of change of Advocate was filed by L & L Lawyers that the Claimants now acts in place of ANT Lawyers and then on 12 February 2018 they filed an application for joinder of Chief Seri Eroni Hite to the court.
14. This intended joinder was also named by the WPE as one of the persons to grant the timber rights on the concern land. He raise the issue of his appointment as chief of Tebakokorapo tribe and ownerships of land. These matters may relate to the people and land timber acquisition but were outside the jurisdiction of the CLAC under the process of appeal against the timber right.
15. I note a notice to discount the Civil Case No. 528 of 2016 and Civil Claim No. 130 of 2017 filed on 16^th February 2018 by one of the Appellant/Applicant Mr FREEMAN REBI.

The issues

16. This is a judicial review matter and it is whether the WCLAC had complied with the law when determining the matters appealed to them and or matters under section 8 (3) of the Forest Resources and Timber Utilisation Act amended in 2000.

The Judicial Review

17. For the cases before the court it is an application for judicial review filed under clause 15.3.2 Civil Procedure Rules 2007 to review the decision of WCLAC in the exercise of its powers under section 10 (1) of the Forest Resources and Timber Utilisation Act (Cap 40) as amended in the Forest Resources and Timber Utilisation (Amendment) Act, 2000
18. First, it is important to highlight the provisions that gives power to CLAC to hear appeals from the Provincial Executive on timber rights.
19. The appeal on the timber rights to the CLAC is limited solely to the matters stated under section 8 (3) (b or (c) of the Act. The matters are:
    • “(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;”

It is important to note the jurisdiction of the Customary Land Appeal Court is limited to the above matters. For the judicial review, it is on the process of the WCLAC when it determined the above matters.

Submission from the Counsels

20. Counsel Tongarutu for the Applicant submitted the WLAC allowed the Ground 1 of the appeal in its judgment however made orders adverse to the appellants, which includes, afresh of the WPE determination of the 24^th May 2013 with the inclusion of additional new trustees. The WCLAC fail to give weight to the deed of Settlement and allowing the Third Respondent to proceed to Form IV.
21. She submitted that it is under trite law that processing of document leading to the issuance of felling licence must be by unanimous consent of all people lawfully identified as timber right grantor by the provincial Executive responsible for timber right hearing of the Customary Land Appeal Court.
22. Mr. Damilea for the First Respondent submitted that as far as they were concerned the appellants appealed against a timber right determination on 24^th May 2013 to the WCLAC. Further adds that Mr Chachabule Amoi was a caretaker chief of Tobakokarapa tribe and the differences with them to be settled among them or with chief and the trustees of Riki, Guanahai, ChoChole and Njalere customary land.
23. He submits that there were persons determined the WCLAC on 21^st October 2016 to grant timber rights over the said customary lands, therefore they deny the acting ultra vires as pleaded by the claimant.
24. With the deed of settlement, Mr. Damalia stated that it is a document between the Mr. Seri Hite and the claimants and is nothing to do with First, Second and Third Defendants. It is binding to those who signed the deed; it is not a court document or order.
25. Mr. Damalia further stated the issues raised by the claimant are internal tribal issues between the landowners and Chachabule Amoi a member of the tribe and was named in the WCLAC decision.
26. For the First Defendant the Counsel Damalia seeks to dismiss the judicial application on basis that WCLAC upheld with the persons to grant timber rights on the concerned land and the inclusion of other persons who should be the person to grant timber right.
27. Counsel Rano for the Second Defendant submitted that this application by the Applicant should be strike out under rule 9.75 of the Civil Procedure Rules 2007 as the Applicant claim are defective and is an abuse of the Court process.
28. Mr Rano stated it is so because the decision of the both the Applicant have not commenced or challenged the issue of the ownership of these lands either in this court or the local court. As an alternative, they come to the court now as the basis for the claim and; seeks reliefs’ essence suitable only for a claim of trespass and damages.
29. He submitted that there is no reasonable cause of action and referred to many cases and among them as noted^[1]. This claimant claim built on ownership of Chochole customary land but the claim is devoid of factual proof. The claim of ownership by the applicants is based on mere assertion.
30. Mr. Rano submitted that this claim by the Applicant ought to be struck out in any event for abuse of process. It is so as the claim by the applicant is using this court to ignite ownership when in fact their case should go before the local court within the categories as described by Kubui J in the Kere v Karana^[2].
31. Counsel stated that the Claim and looking at the sworn statement of the Applicants there is no evidence of ownership that would put the Second Respondent to disprove their claim.
32. For the purpose of abuse of process., Mr. Rano referred to the case of Lolo v Kwaioloa^[3] when Apaniai j (as he was then said:
    • “A claim can also be struck out and dismissed at an early stage if it is shown that the claim is an abuse of the legal process. The legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end. The process is said to be abused because it had been used to effect an object not within the scope of the process”
33. Mr. Rano submitted that case is nothing but only serves to oppress the third Respondent’s operation at Riki, Guanahai, Chochole and Njaele customary lands. He submit that on that basis as noted above the claim should be strike out.

Analysis

34. The background of the cases as consolidated is that the applicants concerned on the grant of timber rights to the Second Respondents and they are all members of Tobakokorapa tribe who claims the owners of Riki, Guanahai, Chochole and Njalere customary land.
35. Counsel Tongarutu for the Applicant on her “Amended Claim” submitted that the WLAC allowed the Ground 1 of the appeal in its judgment however, the court made orders adverse to the appellants by the “afresh” of the WPE determination with the inclusion of additional new trustees.
36. Counsel the claim seeks the orders of this court to quash the decisions of the WCLAC of 21^st October 2016 on grounds the contradiction and ultra vires made by the WCLAC in the Judgment.
37. However the counsel did not present evidence and no substantial submission for these claim for judicial review and to overturn the so called afresh decision of the WCLAC than making submission on processing of document leading to the issuance of felling licence.
38. The WPE heard the timber rights on said customary land on 24 May 2013 and identified Chachabule Amoi, Seri Hite and James Puleipu (deceased) who are all members of Tobakokorapa tribe as persons having rights to grant timber rights on the said customary land.
39. The Appellant (now Applicant in this proceeding) appealed the determination of the WPE to WCLAC. The WCLAC heard the appeal by the under section 10 (1) of the Forest Resources and Timber Utilisation Act as amended in the Forest Resources and Timber Utilisation (Amendment) Act, 2000 and allowed the appeal.
40. The WCLAC said that it allowed the appeal and described its decision as “afresh” by upholding the persons identified by WPE i.e. Chachabule Rubi Amoi and Seri Hite and named or included three other persons i.e. Mala Moses Lila, Casper Rubi and Redley Vaga to have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land
41. The law is quite straightforward that the matters for appeal to customary land appeal court is stated in section 8 (3) (b or (c) of the Forest Resources and Timber Utilisation Act. These must be on 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 nature and extent of the timber rights, if any, to be granted to the applicant.
42. Counsel Tongarutu for the Applicant is concern that when the WCLAC allowed the Ground 1 of the appeal thus the afresh of the WPE determination with the inclusion of additional new trustees and or the orders were adverse to her clients,
43. I have read and noted the judgment by the WCLAC on 21^st October 2016 and with Ground 1 which the court stated:
    • “The WCLAC is wrong in law to determine over the timber rights hearing on Riki, Guanahai, ChoChole and Njalere land to people who are not right people who are not people to grant timber right over it. No proper consultation among all the landowners (Tobakokorapa tribe)”
44. With this ground, there was no evidence present to the WCLAC except the written submission by Appellant Rolton Kinio, which he stated that the Appellants and the Respondent are brothers born into same tribe known Tobakokorapa. He is the son of Jimi Kinio who has the legal declaration of the lands.

Prior to the timber hearing the Respondents Chachabule Amoi, Seri Hite and James Puleipu (deceased) did not consult all the people from the tribe. Chief Amoi is the owner of the Fairtrade Company and he was not speaking for the interest of the tribe. He raised concern that he was present at the WPE hearing but they did not take into account his concern.

45. In response, Chief Amoi denied the lack of consultation with the tribe and referred to the minutes with the tribe and documents he presented to the WPE at the timber hearing.
46. It is with the appellant’s presentation, which the WCLAC allowed this Ground 1 of appeal and it made orders, and called the orders as “afresh”.
47. Among the orders, it still maintain the two persons to grant timber rights i.e. Chachabule Rubi Amoi and Seri Hite (the other James Puleipu was deceased at the time of appeal to WCLAC). The WCLAC added Mala Moses Lila, Casper Rubi and Redley Vaga to have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land.
48. There is no explanation in the judgment on how the other three members of the tribe was included as new persons to grant timber right of the lands concern. However, it is not disputed that Mala Moses Lila, Casper Rubi and Redley Vaga are members of the Tebakokorapo tribe it appear to be the replacement of the other, the late James Puleipu.
49. For the WCLAC to allow the ground one of the appeal with the appellant’s submission is rather vague or do not satisfy such order of upholding the Ground 1 of the appeal.
50. In fact, the so-called “afresh” maintained the two persons and replaced another who had passed away with the other three other persons from the tribe. That cannot be afresh or anew but replacing the deceased person (late James Puleipu).
51. The WCLAC maintained the two persons identified by WPE and the inclusion of new persons to replace late James Puleipu to grant timber right of the lands concern. It is within the jurisdiction of the customary land appeal court under section 10 (1) as read with section 8 (3) (b or (c) of the Forest Resources and Timber Utilisation Act as amended in 2000.
52. With the WCLAC the deed of Settlement that was not presented to WPE but made after the WPE’s determination, the allowing the Third Respondent to proceed to Form IV and any member of Tebakokorapo tribe, they are not matters for judicial review, as these are for member of the tribe to sort out among them or other process.
53. For the persons to grant timbers on Riki, Guanahai, ChoChole and Njalere customary land had been settled by the afresh orders.

Conclusion

54. While there appears to misunderstanding of the WCLAC on its part to what it stated as allow the Ground 1 of the appeal that does not have any basis as the person were properly identified by the WPE to grant time right.
55. It is also clearly reflected or shown in the so called afresh orders of WCLAC when it reinstated Chachabule Rubi Amoi and Seri Hite and replacing (the other James Puleipu (deceased) with Mala Moses Lila, Casper Rubi and Redley Vaga to have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land.
56. On the basis, the WCLAC order to allow Ground 1 of the appeal is revoked and dismissed.
57. The orders of the people named for the replacement of James Puleipu (deceased) is upheld and I am satisfied that the application of the applicant for the judicial review on being ultra vires has no basis and therefore is dismissed.

Orders of the Court

1. Chachabule Rubi Amoi and Seri Hite and replacement of James Puleipu (deceased) with Mala Moses Lila, Casper Rubi and Redley Vaga to have the right to grant timber rights on Riki, Guanahai, ChoChole and Njalere customary land is upheld.
2. The application for the Judicial Review on ultra vires has no basis and is dismissed.
3. The Applicants to pay the costs of the Respondents.
4. No further order.

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

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^[1] Kere v Karana [2000] SBHC 48; HC-CC 258 of 2000 (27 November 2000)

• Australia and New Zealand Banking Group Ltd v Ashley [2001] SBHC 89; HC-CC 287 of 2001 (4 December 2001)
• Sau'eha v Tema [2016] SBHC 92; HCSI-CC 634 of 2015 (9 June 2016)
• Tikani v Motui [2002] SBHC 10; HC-CC 029 of 2001 (18 March 2002)
• Zupukana v Sogati [2016] SBHC 118; HCSI-CC 117 of 2015 (22 July 2016)

^[2] See above
^[3] [2014] SBHC 25; HCSI-CC 140 of 2013 (7 April 2014)