Jino v Attorney General [2024] SBHC 71; HCSI-CC 498 of 2021 (10 May 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Jino v Attorney General
Citation:
Date of decision:	10 May 2024
Parties:	Hanz Here Jino v Attorney General, Ferral Dai, Ian Kuku, Lawson Kuku, Darcy Timothy, Ireke Harrington, Ferral Kituru, Jimmy Sura and Peterson Karugeto, Dokoso Lumber Company Limited
Date of hearing:	18 August 2023
Court file number(s):	498 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1 The Claimants’ application for a declaration that the Second Defendants were not the right persons lawfully entitled to grant timber rights over Dokoso customary land is refused with the exception of that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974 and the persons lawfully entitled to grant timber rights over Oloana are the Claimants. 2 The Court declines to make the second declaration sought as the finding in Native Land Appeal case No 6 of 1974 is limited to that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974. 3 The Court declines to make the third declaration sought as the finding in relation to patrilineal descent in Native Land Appeal case No 6 of 1974 is binding only in relation to that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974. 4 The finding that the Second Defendants were the right persons lawfully entitled to grant timber rights over Dokoso customary land is confirmed with the exception of that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974. 5In the circumstances of this case the parties are each to bear their own costs.
Representation:	Mr J. Apaniai for the Claimant Ms F Fakarii for the First Defendant Mr A Radclyffe for the Second and Third Defendants
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilization Act S 10 (2),
Cases cited:	Talasasa v Biku [1988] SBCA 5, Sina v Matupiko [2001] SBHC 65, Chief Constable of North Wales Police v Evans [1982] AER 141, Wale v Governor General [2019] SBHC 43, Anisminic Ltd v Foreign Compensation Commission [1969] 2AC 147, Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 498 of 2021

BETWEEN:

HANZ HERE JINO
(Representing the Dokoso Tribe, Vangunu Island Marovo, Western Province)
Claimants

AND:

ATTORNEY GENERAL
(Representing the Western Customary Appeal Court
First Defendant

AND:

FERRAL DAI, IAN KUKU, LAWSON KUKU, DARCY
TIMOTHY, IREKE HARRINGTON, FERRAL KITURU,
JIMMY SURA AND PETERSON KARUGETO
Second Defendants

AND:

DOKOSO LUMBER COMPANY LIMITED
Third Defendant

Date of Hearing: 18 August 2023
Date of Decision: 10 May 2024

Counsel
Mr J. Apaniai for the Claimant
Ms F Fakarii for the First Defendant
Mr A. Radclyffe for the Second and Third Defendants

Lawry PJ

RULING

1. In May 2020 the Western Province Executive [‘WPE’] heard an application for the grant of timber rights brought by the Third Defendant in relation to Dokoso Customary Land. At that hearing the WPE noted the support for the objectors. In their determination the WPE recorded: “This means the application by the Applicants has been rejected by the Executive”.
2. Then on 25 August 2020 the Marovo Council of Chiefs heard a dispute concerning the ownership of Dokoso customary Land between persons said to represent the Dokoso tribe of Vangunu Island in Western Province and those representing Green Jino, Jino Here Hanz and their families of Vangunu Island in Western Province.
3. The decision was clear and in favour of the Appellants before the Council. That means it was against the Claimants in the present case. The Chiefs found that the Appellant was a descendant on the matrilineal line of Dokoso Tribe and had and has rightful ownership within Dokoso Customary Land.
4. Relying on that decision the Third Defendant brought a fresh application for the grant of timber rights for Dokoso Customary Land. That application was heard on 19 November 2020. The Western Province Executive heard from those supporting the application and the objections and asked questions of them. These questions dealt with those who had a beneficial interest in the time on the land as well as the interest in acquiring the timber rights by an overseas company named Sonic Phase Co Ltd. At the conclusion of the timber rights hearing the WPE approved the application by the Third Defendant.
5. The Claimants then appealed that determination before the Western Customary Land Appeal Court. The appeal was heard on 4 June 2021 with a verbal judgment being given on 11 June 2021 and the written judgment being delivered on 16 August 2021. The Western Customary Land Appeal Court [‘WCLAC’] dealt with the matters raised on the appeal dismissed the appeal upholding the determination of the WPE.
6. The Claimants have brought an application for Judicial Review of the decision of the WCLAC.
7. The central issue is whether the decision of the WCLAC was final and not open to challenge as a result of section 10 (2) of the forest Resources and timber Utilisation Act. For the Defendants Mr Radcliffe submitted that the claim in effect was an appeal in the guise of a claim for judicial review. He submits that section 10 (2) is clear and the “ouster” provision in that subsection applies.
8. Section 10 (2) of the Forest Resources and Timber Utilization Act 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.”
9. As a result this Court has no jurisdiction to entertain an appeal against the decision of the WCLAC. The Court however does retain a supervisory role over the WCLAC whereby on Judicial Review the Court may look at the decision of the WCLAC, not on the merits of the decision, but to determine whether the WCLAC acted within its jurisdiction. The Court of Appeal in Talasasa v Biku [1988] SBCA 5 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.”
10. The remedies sought by the Claimant are set out as:
    • “1. A declaration that the Western Customary Land Appeal Court (“WCLAC”) erred in law in rejecting Ground of 1 of the Claimants’ appeal points that the 2^nd Defendants were not the right persons lawful entitled to grant timber rights over Dokoso customary land (“Dokoso land”) and that the right persons lawfully entitled to grant timber rights over Dokoso land were the Claimants.
    • 2. A declaration that the WCLAC erred in law in accepting that the Marovo Council of Chief’s Decision dated 25^th August 2020 (‘2020 MCC Decision”) was a valid decision of the ownership of the Dokoso land when the High Court had already the hereditary owner of Dokoso land was Chief Here who was the great grandfather of the 2^nd named Claimant and the great grandfather of the 1^st named Claimant.
    • 3. A declaration that WCLAC erred in law in failing to take into account the fact that Chief Here as the overall chief of Dokoso tribe has overall authority over Dokoso land and that such overall authority passes down to the next chief of the Dokoso tribe and therefore the 2^nd named Claimant, being the current chief of Dokoso tribe, has overall authority over Dokoso land and that the 2^nd Defendants have not obtained the authority of the 2^nd named Claimant when they applied for timber rights over Dokoso land.”
11. Counsel has drawn the Court’s attention to a number of cases including Sina v Matupiko [2001] SBHC 65 where the High Court confirmed the role of judicial review in adopting the words of Lord Bingham in Chief Constable of North Wales Police v Evans [ 1982] AER 141 at 152:
    • “Judicial review is concerned not with the decision, but with the decision making process.”
12. The Chief Justice in Wale v Governor General [2019] SBHC 43 reviewed the common law of Judicial review from the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2AC 147 and Council for Civil Service Unions v Minister for the Civil Service [ 1985] AC 374 which both predate the decision in Talasasa v Biku. In Council for Civil Service Unions Lord Diplock re-classified the grounds for judicial review as “illegality,’ “procedural impropriety” and ‘irrationality” which he went on to discuss.
13. Do the declarations sought each meet the criteria of whether the decision of the WCLAC was beyond the jurisdiction of the WCLAC in light of the further guidance set out in these Houses of Lords decisions. The heart of the argument for the Claimant was that it was claimed to be inconsistent with Native Land Appeal Case No. 6 of 1974.
14. Ms Fakarii for the First Defendant drew the Court’s attention to the consideration of that case by the WCLAC. She correctly submitted that the issue was concerned with the ownership of land called Oloana, not with the whole of Dokoso customary land. The decision in the case concerned whether that land had been gifted. The Claimants rely on the discussion set out by the Chief Justice in that case concerning on whether the land had passed down the male line or the female line. The Court said:
    • “There is also no dispute that the hereditary owner in customary tenure of Dokoso land was a chief called Here. The appellant is the great grandson of Here by direct male descent. The respondent claims descent from Here by the female line of descent...Hence the respondent and Nobu are cousins descended on the female side from Here. The parties do not seem to be very clear as to whether in the case of this land the descent is patrilineal or matrilineal. The appellant certainly stands on his patrilineal descent as owner of Dokoso land.”
15. The Chief Justice found in favour of the appellant. His finding was as follows:
    • “In the result I find that the respondent’s claim is baseless and I set aside the decision of the native court in his favour accordingly and declare that the respondent and members of his line have no title to Oloana land in customary tenure.”
16. Mr Apaniai therefore says the Court has determined that the land in Dokoso has been passed down the male line. Since that time the present system has been set up so that there is proper enquiry into customary ownership. The decision of the Native Land Appellate Case number 6 was limited to Oloana and comments about the rest of Dokoso land must be obiter. I am concerned that in that case concerning Oloana the decision was made without the Court having the benefit of the assistance now available through the customary Courts. However, back in 1974 the High Court was the Court which heard appeals from the Native Land Court. The finding of the Chief Justice in Native Land Appellate case number 6 of 1974 was therefore binding on the descendants of Here so far as Oloana was concerned.
17. After the timber rights hearing in May 2020 there was a further Chief hearing in relation to Dokoso customary land. I am advised by counsel that the decision of the chiefs has not been appealed. For Dokoso customary land excluding Oloana the evidence before the WPE was that the ownership of Dokoso was in favour of the Second Defendants. The WPE then determined who the persons were who were entitled to grant timber rights in accordance with section 10 of the Forest Resources and Timber Utilisation Act. The WCLAC affirmed those findings in the course of the appeal.
18. For the Claimant Mr Apaniai submitted that the finding was inconsistent with the ruling in Native Land Appeal Case No. 6 of 1974. As submitted by Ms. Fakarii the WCLAC considered that ruling and made a determination in custom. The WCLAC did not accept the submission that Dokoso customary land passed down the male line. With the exception of Oloana this Court cannot say that that was a decision the Court was not entitled to make. Mr Apaniai submitted that had the WCLAC properly analysed Native Land Appeal No. 6 of 1974 the WCLAC would not have accepted that the WPE was correct in concluding that those proposing to grant the timber rights were the persons and represent all those lawfully entitled to grant such rights.
19. A careful reading of No. 6 of 1974 does not persuade me that this Court should come to that conclusion. The effect of Native Land Appeal No 6 of 1974 was the finding in relation to Oloana was binding on the lesser Courts. It would not be binding on them in relation to the rest of Dokoso customary land. The proper authority to decide that was the House of Chiefs and the decision of the WPE and the WCLAC is consistent with their finding. I emphasise that the Chief Justice in 1974 was required to make the decision on the basis of the material placed before him in relation to the piece of land that was in issue in that proceeding. Given his comment that the parties did not seem to be very clear whether in the case of Oloana the descent is patrilineal or matrilineal, it would be wrong to extend his ruling beyond Oloana to the whole of Dokoso. Mr Apania submitted that the WCLAC has not sufficiently considered the material before and has therefore fallen into error.
20. Turning to the questions raised for this judicial review it is clear that the WCLAC was entitled to reject ground 1 of the appeal points relating to the finding as to who were the right people lawfully entitled to grant the timber rights for all the land with the exception of Oloana. It could not be said to be an illegal decision, nor an irrational one, nor one that demonstrated procedural impropriety in respect of the rest of Dokoso customary land. In relation to Oloana the WCLAC was bound by the determination in Native Land Appeal No 6 of 1974 so that for that portion of land the decision made was not one that could lawfully be made by the WCLAC. This Court accepts that in relation to the rest of Dokoso customary land the submission by Mr Radcliffe that the ground is an appeal in a question of law that cannot be considered on judicial review.
21. The Second and Third grounds relate to questions of custom. The WCLAC considered both issues and made a ruling that was within their jurisdiction to make. Indeed the WCLAC dealt with all the appeal grounds raised in the appeal. The evidence of Clifton Ruele which was not challenged recorded at paragraph 12.
    • “It was noted that the Court cases referred to by the Appellants of the Dokoso Customary land but a portion of land called Oloana situated at the coasts of Dokoso inner land.”
22. In relation to both the second and third grounds, this Court is not persuaded that the WCLAC did not have jurisdiction to make the findings they did so far as they relate to Dokoso customary land excluding Oloana. If follows that the application for judicial review must be refused with the exception of the land called Oloana.

Orders

1. The Claimants’ application for a declaration that the Second Defendants were not the right persons lawfully entitled to grant timber rights over Dokoso customary land is refused with the exception of that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974 and the persons lawfully entitled to grant timber rights over Oloana are the Claimants.
2. The Court declines to make the second declaration sought as the finding in Native Land Appeal case No 6 of 1974 is limited to that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974.
3. The Court declines to make the third declaration sought as the finding in relation to patrilineal descent in Native Land Appeal case No 6 of 1974 is binding only in relation to that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974.
4. The finding that the Second Defendants were the right persons lawfully entitled to grant timber rights over Dokoso customary land is confirmed with the exception of that part of Dokoso named Oloana as described in Native Land Appeal case 6 of 1974.
5. In the circumstances of this case the parties are each to bear their own costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge