Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Vunagi v Isabel Customary Land Appeal Court [2024] SBCA 31; SICOA-CAC 8 of 2022 (1 August 2024)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal by the first and second Appellants, (“the Appellants”) against the orders of the Court below, dated 6 May 2022 in which the Court dismissed the claim for judicial review filed by the Appellants (Claimants in the Court below) on the 29^th July 2021 and awarded costs in favour of the Respondents.

Brief background.

2. The dispute relates to a timber rights hearing convened under the Forest Resources and Timber Utilisation Act (cap. 40) (“FRTU Act”), in which the First Appellants had sought a determination as “the persons lawfully entitled to grant” timber rights over Varei customary land.
3. This is a prescribed process under the said Act, ultimately leading to the grant of timber rights, and subsequently the granting of a timber licence by the Commissioner of Forest Resources (“CFR”), to enable commercial logging process to be undertaken over customary land.
4. It is not in dispute that a timber rights hearing was convened by the Isabel Provincial Executive (“IPE”) on or about the 22^nd September 2020 to determine matters set out in section 8(3), in particular in relation to the question, whether the persons, in this case the first Appellants (first Claimants in the Court below) “... are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are....”.
5. The relevant section is set out in more detail as follows:
   • “8(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.”
6. Following that hearing, a determination was issued by the IPE on the 2^nd October 2020 purporting inter alia to endorse the application of the Second Appellant (“Taraoa Enterprises Ltd”) as the appropriate company to be granted the timber licence and thereby implying that the application of the First Appellants as the persons entitled to grant timber rights were the rightful persons. The IPE however felt obliged to impose a condition requiring the tribal members to agree on the issue of management of the logging arrangements sought to be put in place.
7. That determination read as follows:
   • “That the Isabel Provincial Executive members have noted all submissions from both parties (Applicant and Objectors) and have considered the following matters of concern:
   • That the Applicant has submitted updated legal documents as prove (sic) that they are the right ownership (sic) of the LR 698 Varei Customary Land.
   • It was noted during the hearing and from the submission received that both the Applicant and Objectors from Taraoa tribes themselves has agree to into logging operation but only have differences with the management.
   • The Objectors although present their reasons for their objection, copies of those legal notices has been seen to be overtaken precedence over by the recent legal documents presented.
   • With these findings the Executive has awarded the timber rights hearing to Taraoa Enterprises Ltd with the following terms and conditions that needs to be fulfilled before proceeding further:
   • That the Taraoa Enterprises Ltd must compromise and get all Taraoa tribe members together and such must be provided with a minute to the Executive as the proof.
   • Land Owner’s / License holders to make Supplementary Agreement with the Isabel Provincial Government.
   • The Taraoa tribe must harmonise those reside within the concession area and the disputing parties.
   • As provided for with section 10 of Forestry and Timber Utilisation Act, “Any person who is aggrieved by the determination may within one (1) month from the date of this notice be able to appeal to the Customary Land Appeal Court (CLAC) who shall hear and determine the appeal.”
8. As usual on publication of the determination of the IPE, section 10(1) of the FRTU Act, fixes a period of one month for appeal to the Customary Land Appeal Court (“CLAC”) by any person aggrieved by the decision of the IPE.
9. Three appeals, (ICLAC LAC no. 07 of 2020, ICLAC LAC no. 08 of 2020, and ICLAC LAC no. 09 of 2020) were lodged following the determination of the IPE, by the Second, Third and Fourth Respondents. On the 15^th June 2021, the Isabel Customary Land Appeal Court (“ICLAC”) delivered its decisions on the three appeals.
10. The orders of the ICLAC was to uphold the appeals and quash the determination of the IPE made on the 27^th September and 2^nd October 2020.
11. It is relevant to note that there is an earlier determination dated 27^th September 2020 issued but was not published. This determination sets out as follows:
    • “Upon the conclusion of its considerations the said Provincial Executive determined:
    • That the following persons are the persons lawfully able and entitled to grant timber rights in the area bounded in red on an attached map being land held by the land holding group:
    1. Johnson Vunagi of Tarao Tribe/ Samasodu village;
    2. David Rahukolo of Tarao Tribe/ Samasodu village;
    3. Hilda Pago of Tarao Tribe/ Samasodu village;
    4. Joan Mesepitu of Tarao Tribe/ Samasodu village;
    5. Michael Holara of Tarao Tribe/ Samasodu village.
    • That the timber right set out in the First Schedule may not be granted by the above persons,
    • That the timber rights set out in the Second Schedule may not be granted by the above persons in respect of the said land.”

The Decision of the ICLAC.

12. The decision of the ICLAC can be summarised as follows. Apart from other reasons that it gave, the crucial decision was premised on a finding of a procedural error or failure by the IPE. We quote:
    • “20. In our view, the action of the IPE in making two separate determinations, (2nd October 2020 determination and 27th September 2020 Determination) in respect of one timber rights hearing, and in only giving public notice of one set of determination (2nd October 2020 Determination) and not giving public notice of the other set of determination is fatal to the whole timber rights process.
    • 21. Firstly, the requirement under section 9 (2) (a) of the FRTUA is very clear. Once a determination under section 8(3) had been made, the council (now Provincial Government) shall as soon as practicable issue a certificate in the prescribe form setting out its determination.
    • The law is clear, the forms prescribed by the FRTUA are laws. Thus it is important that determinations are issued in the prescribed form. In this case it is clearly that part of the determination of the IPE, had not been included in the prescribed form and as such the whole determination cannot be said to be issued in the prescribed form.
    • 22. Secondly section 9 (2) (b) of the FRTUA require in mandatory terms that public notice of the notice under section 8(2) was given.
    • 23. IPE in our view failed to issue the whole of its determination in the prescribed form and determination. The provisions of section 9(2) (a) and (b) of the FRTUA as read with section 8(2) of the FRTUA in our view is mandatory. We hold the view, that it is not for IPE to choose which part of its determination to give public notice of. We therefore find that the IPE failed to give public notice its determination made on 27th September 2020. This alone in our view is sufficient to quash the timber rights determination made by IPE on the 2^nd October 2020 and 27^th September 2020. We do so.”
13. In essence, apart from other grounds that were relied on and considered, the ICLAC held that the Determination of the IPE dated 2^nd October 2020 was not in the prescribed form and so fatal to the decision of the IPE. It also considered a decision issued on the 27^th September 2020 and also held that it did not comply in terms of the requirement that it be in the prescribed form and that no public notice of that decision was issued.
14. Note, that for the determination of the 2^nd October 2020, the only flaw was that it was not in the prescribed form, it accepted that notice was duly given to the public as required. We will say something about this issue of form later in this judgment.
15. On the 29^th July 2021, the First Appellants (First Claimants in the court below) filed a category C claim for review of the decision of the ICLAC. Orders sought were to quash the decision of the ICLAC and have consequential orders issued, including a declaration that the First Claimants were the persons having the right to grant timber rights over Varei customary land to the Second Claimant. The orders sought in the Court below are set out as follows:
    • “The Claimants seek:
    1. An order quashing the decisions of the Isabel Customary Land Appeal Court in CLAC Case Numbers 7, 8, and 9 of 2020.
    2. A consequential declaration that:
    3. the First Claimants are the persons entitled to grant timber rights over Varei Customary Land to the Second Claimant; and
    4. the timber right shall cover the balance of Varei Customary excluding, for the time being, the portion from Hurepelo to Heple.
    5. An order that the First Claimants are entitled to execute timber right agreement with the Second Claimant.
    6. Any other orders deem fit by this Honourable Court.
    7. Costs of this proceeding to be paid by the Defendants severally and jointly on indemnity basis.”
16. In essence, the Claimants sought a review of the determination of the ICLAC on the grounds that the ICLAC exceeded its jurisdiction and thereby erred in law, when it held that the failure of the IPE to comply with section 9(2) (a) and (b) of the FRTU Act by only publishing its determination by letter dated 2^nd October 2020 instead of having the Form II published in the prescribed form was fatal and therefore no determination was issued.
17. In the meantime, on the 20^th November 2021, the Fourth Respondent (Fourth Defendant in the court below), filed an application to have a preliminary question of law dealt with, and a consequential order for strike out if the question was answered in the affirmative.
18. The preliminary question posed was intended to seek a determination from the court to confirm that the determination of the ICLAC regarding the purported failure to comply with section 9 (2) (a) and (b) of the FRTU Act was valid and binding on the parties, and could not be the subject of the claim of judicial review filed by the Claimants in the High Court.

The question posed was as follows:

• “(i) Whether the decision of the Isabel Customary Land Appeal Court of 15^th June 2021 is final and conclusive pursuant to section 10(2) of the FRTU Act (cap. 40).
• (ii) In consequence to the Order (i) if the answer to the question is affirmative, the claimant Category C filed on 29^th July 2021 to be struck out.”

The Decision of the High Court.

19. At paragraph 8, page 2 of its judgment, the presiding judge stated:
    • “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.”

At page 3, paragraph 3, the Court continued:

• “In the present case therefore the ICLAC cannot be said to have 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 to give public notice of it as required by section 9(2) of the Act. ... 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 the Provincial Executive erred when it fail to comply with the stipulations of section 9(2)(a) and (b) of the FRTU Act. On that basis I find that the Isabel CLAC’s decision is final and conclusive.”

20. The court agreed with the submission of the Fourth Applicant (Defendant) and dismissed the claim.

The Grounds of Appeal.

21. There are five grounds of appeal which are set out herewith as follows:
    1. That the learned Judge erred in law and, or fact on his discretion when he struck out the Claim without considering the merits and issues raised in the Claim were issues and maters fit for consideration at trial.
    2. That the learned Judge erred in law and or fact by misconceived (If not misguided) himself on the application of Section 10(2) of the Forest Resources and Timber Utilization Act [Cap 40]. This is an ouster clause intended to exclude the jurisdiction of the High Court to question the decisions of the Customary Land Appeal Court (CLAC) of appeals on timber rights issues under FRTUA Act. This in fact does not prevent the jurisdiction of the High Court in exercising its supervisory power to scrutinize the decisions of the lower courts.
    3. That the learned Judge erred in law and, or fact on his discretion and miscarried when he struck out the Claim without properly considering that the Claim was for judicial review of a decision of the First Defendant and the appropriate process was for a conference to be called under Rule 15.3.16 of the Solomon Islands Courts (Civil Procedure) Rules 2007 rather than by way of determining an application for preliminary point of law given that the issues of both law and fact are continuous.
    4. That the learned Judge erred in law and, or facts in the exercise of his discretion in that he failed to take into consideration the process or guidelines enunciated by this Court in AG v. Ji Hui Chan [2017] SBCA 5 (5 May 2017) in preparing an application on preliminary questions of law and or fact under Rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
    5. That she learned Judge erred as a matter of law in failing to take into account a relevant consideration and instead took into account irrelevant considerations.
    • The First and Second Appellants seeks the following judgement in lieu of that appealed from:-
    1. That the appeal be allowed;
    2. That the Ruling/Judgement dated 6 May 2022 be set aside in its entirely;
    3. That the matter be referred back to the High Court to be tried de novo before a different Judge; and
    4. That the Respondents pay the Appellants costs of, and connected to, this Appeal to be assessed if not agreed.
22. In his submissions, Mr. Rano of Counsel for the Appellants summarises the appeal grounds as follows:
    • (a) The learned judge erred in both law and fact or on law because there were disputes as to facts and issues;
    • (b) Applications under Rule 12.11 requires that factual issues or matters of law be agreed and approved; but if it is purely a question of law (Rule 12.12), facts must be agreed as set out in the case of AG v. Jui Hui Chan [2017] SBCA 5 (5 May 2017).
    • (c) That given there are contentious factual issues coupled with the fact that the proceeding was a claim for judicial review, the matter should have proceeded to rule 15.3.16 conference rather than on preliminary basis; and
    • (d) The learned Judge in any event took into account and considered irrelevant matters.
23. Mr. Rano points out that while the preliminary question posed raised issues of law, there was one essential requirement that was not complied with. This related to the question of settlement of the relevant facts and issues which related to this case. He submits that there were certain factual issues which were disputed or not settled when the court proceeded to deal with the preliminary question of law posed.

Determination of preliminary issues of fact and law.

24. Rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”) provides that the court may deal with preliminary issues of fact or law that may be raised with the intention to resolve the dispute early.
25. We quote:
    • “12.11 The court may hear legal argument on preliminary issues of fact or law between the parties if it appears likely that, if the issues are resolved, the proceeding or part of the proceeding will be resolved without a trial, or the costs of the proceedings or the issues in dispute are likely to be substantially reduced.”
26. The court may proceed to hear preliminary issues of fact or law if it assists in the early resolution of the proceedings or part of the proceedings raised.
27. Further, rule 12.12 provides that if the question is one of law, then the parties must have agreed on the facts before the Court proceeds to deal with the question. We quote:
    • “12.12 If the parties have agreed on the facts but there remains a question of law in dispute, the court may hear argument from the parties about the question of law.”
28. This Court in the case of Attorney-General v. Jui Hui Chan^[1] had set out in clear and plain terms the importance of having the facts settled or agreed upon.
29. At paragraphs 31 and 32 this court said:
    • “31. This can be a useful mechanism for early resolution of proceedings without incurring the financial and other costs of a full trial. However, the question for determination must be carefully framed and recorded. If it is a question of law, it may not be possible for it to be determined in advance of the determination of relevant facts. If it is a mixed question of fact and law, it may not be possible for it to be determined as a preliminary question.
    • 32. Usually an application for the determination of a preliminary question should be filed and decided before argument on that preliminary question proceeds. Once an order for the determination of the preliminary question has been obtained, and, in the usual case, a date for the hearing of that preliminary question has been set, the parties can make their submissions on it. Those submissions should be strictly confined to the point in issue. The hearing of the preliminary question should not go beyond the preliminary question, and the court’s decision should be confined to answering that preliminary question.”
30. For clarity sake we restate what was said above:
    • (a) The questions for determination must be carefully framed and recorded;
    • (b) If it is a question of law, the relevant facts must first be agreed upon;
    • (c) If it is a mixed question of fact and law, it may not be possible for it to be determined as a preliminary question;
    • (d) Any application for preliminary issues should be filed and the questions agreed upon;
    • (e) The court then must make an order for the questions to be heard and fix a date when the parties will make their submissions;
    • (f) The submissions should be strictly confined to the preliminary questions;
    • (g) The hearing of the preliminary question must not go beyond the preliminary question; and
    • (h) The Court’s decision must be confined to the preliminary question.

Discussion.

31. The preliminary question of law posed^[2], in our view makes the faulty assumption that facts are settled without having them agreed to and resolved, and so when the matter came before the Court below, it was misled in turn to make a finding based on the facts and submissions presented by the Applicant (Fourth Defendant), that there was a failure by the IPE to comply with the requirements of section 9(2) (a) and (b) of the FRTU Act. This being the failure to:
    • (i) Issue a certificate in the prescribed form setting out its determinations; and
    • (ii) Give the public notice of its determination.
32. These factual presentations however were the very issues that were being challenged by the Claimant (Respondent) in the Court below, but were not given the opportunity to do so when the application was ruled upon and accepted by the learned Judge.
33. In his submissions on appeal, Mr. Rano for the Appellant submits that the Court below committed basic errors, first that the ICLAC had jurisdiction to determine (bearing in mind this point was never raised in appeal before the ICLAC), if the appeal was properly filed or not. By this the court assumed that the purported failure to comply with the requirements of section 9(2) (a) and (b) of the FRTU Act meant that the appeal was not properly filed and so should be struck out.
34. The second error was in concluding that the ICLAC was not acting ultra vires and that its decision accordingly was final and conclusive and could not be interfered with.
35. On this appeal ground we accept the submission of learned Counsel, Mr. Rano, that the learned Judge erred in his conclusion because there were disputed facts and issues that were not resolved prior to the determination of the question of law posed.
36. We do not need to restate them for they have been adeptly set out by Mr. Rano in his submissions. Suffice to point out that one of the more obvious disputed matters related to the question of validity of the determinations issued by the IPE and notice given.
37. We are satisfied this is a valid and relevant factual issue which amounts to a question involving a mixture of law and fact. In Attorney-General v. Jui Hui Chan, at paragraph 31, this Court had pointed out that if “it is a mixed question of fact and law, it may not be possible for it to be determined as a preliminary question.”
38. On this issue, we note that there was a question of law that was overlooked in relation to the point that, a “deviation from form” does not necessarily invalidate the form, if it was not calculated to mislead and does not affect the substance of the form. This is expressly provided for in section 59 of the Interpretation and General Provisions Act [Cap. 85) which states:
    • “Where a form is prescribed for use, the use of the form is not invalidated by any variation or alteration of the form that is not calculated to mislead and does not affect the substance of the form.”
39. We are satisfied that apart from the other issues of fact pertaining to the determinations of the IPE and whether notice was given or not as required, that were contentious in the court below, we note that had this piece of legislation for instance had been taken into account, the findings or determinations of the Court below may have been different.
40. We are satisfied accordingly, that this appeal should be allowed and the matter to be referred back to the Court below for hearing de novo before a different judge.
41. On the issue of costs, the Respondents are to pay the costs of the Appeal, to be assessed if not agreed.

Orders of the Court.

1. The Appeal is allowed and the orders of the High Court dated 6 May 2022 are hereby set aside.
2. The matter is reverted back to the High Court to be heard de novo before a different judge.
3. The Respondents are to pay the costs of the Appellants to be assessed if not agreed.

Muria (P)
Palmer (CJ)
Gavara-Nanu (JA)

^[1] [2017] SBCA 5 (5 May 2017)
^[2] “(i) Whether the decision of the Isabel Customary Land Appeal Court of 15^th June 2021 is final and conclusive pursuant to section 10(2) of the FRTU Act (cap. 40).
(ii) In consequence to the Order (i) if the answer to the question is affirmative, the claimant Category C filed on 29^th July 2021 to be struck out.”