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Barnabas v Solomon Islands Resources Co. Ltd [2025] SBCA 10; SICOA-CAC 25 of 2023 (11 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Judgment of the Court

Introduction

1. By his Amended Notice of Appeal filed on 25 September 2024, the appellant appeals against the decision of the High Court (Bird J) which dismissed the appellant’s judicial review claim brought against the respondents. The Learned judge dismissed the appellant’s claim under r.15.3.20 of the Solomon Islands Courts (Civil Procedure) Rules (“CPR”).
2. The appellant’s judicial review claim sought to quash the decisions of the Minerals Board “the Board” which approved the issuance of the Mining Lease No.1/22 and Mining Lease No. 2/22 to the first and second respondent respectively. The High Court, however, found that the appellant had failed to satisfy the requirements of rule 15.3.18 (a) of the CPR and struck out the appellant’s claim.

Rule 15.3.18, CPR

3. Rule 15.3.18 of the CPR provides as follows:
   • (a) “15.3.18 The court will not hear the claim unless it is satisfied that:
     1. the claimant has an arguable case; and
     2. the claimant is directly affected by the subject matter of the claim; and
     100. there has been no undue delay in making the claim; and
     4. there is no other remedy that resolves the matter fully and directly.”
4. The success of the appeal to this Court will depend on whether the appellant can demonstrate that the learned judge in the Court below erred in law in striking out the appellants’ claim under r.15.3.20, CPR on the basis that there was no arguable case.

Grounds of Appeal

5. The appellant raised five grounds of appeal. We need only summarize them here briefly:
   1. The learned judge erred and/or fact in law in finding that the appellant did not have an arguable case and thereby dismissing the appellant’s claim.
   2. The Learned Judge erred in law and or fact in challenging the decisions of the Mines and Minerals and Director without challenging the decisions of the Mines and Minerals and Director without challenging the Minister’s decision granting the Mining Leases.
   3. The Learned Judge erred in law and/or fact by failing to consider whether the appellant had an arguable case in relation to his claim for mandatory excision of the disputed land and declaratory relief.
   4. The learned judge erred in law and or fact by striking out the appellant judicial review claim without having been satisfied that there was an arguable case under r.15.3.18 capable of being tried in the High Court.
   5. The learned judge erred in law in failing to allow the appellant to amend and the pleadings or consider the appellant’s application for interim injunction. The arguments for the parties and determination.

Arguable Case

6. In Ground 1, the argument advanced by Mr. Sullivan KC on behalf of the appellant is that the learned judge (Bird J) failed to apply the proper test on what is an “arguable case” in rule 15.3.18 CPR. The proper test to apply has been confirmed in a number of cases including Winner Properties Ltd v Permanent Secretary of Communication and Civil Aviation [2023] SBCA 1, SICOA – CAC 17 of 2022 (28 April 2023) which does not require the claimant to establish its case but simply to show that the claim is more than just a frivolous or speculative claim.
7. There are contested matters of fact and law in dispute between the parties and as such, Counsel submitted, they ought to be investigated at the trial. Those contested matters include disputes over the boundaries and ownership of the customary land in the disputed area. References are also made to disputes referred by the House of Chiefs to the Isabel Local Courts.
8. There is also dispute over the Verification Report produced by the Director and relied upon by the Board and which eventually led to the Minister’s decision to grant the Mining Leases. There are also customary land disputes that have been referred to the customary land court that affect the land is question.
9. The second and third respondents support the learned Judge’s reasoning and decision that the dispute over the boundaries of the land in question, Kolosori and Havihua customary lands, is still pending before the Isabel Local Court. This, Bird J opined that until the Isabel Local Court decides on the dispute over the boundaries between the two customary lands concerned, there would be nothing before the court to assist her in making the orders sought by the appellant.
10. The appellant himself confirmed that the dispute over the boundaries of the two customary lands is still before the Isabel Local Court which “will determine the true boundaries of over Kolosori Customary land and the Havihua Land and will have an impact or affect the Tenement Areas of the Mining Leases issued to the 1^st and 2^nd Defendants.....” see paragraphs 47, page 149, Appeal Book.
11. There is no dispute that the issue of boundaries between the two customary lands, Kolosori Land and Havihua Land, is still pending before the Isabel Local Court. Mr. Sullivan KC however, submitted that there are contested matters of fact and law that are fit to be investigated at trial. These include the legality of the approvals by the Board of the mining leases, regardless of the unresolved land boundary issue. It is argued that case, since the “arguable” threshold is low, requiring only a realistic prospect of success, the learned judge should have fold that there was an arguable case. The suggestion by Counsel for the appellant is that Bird J pitched the bar too high. We do not see the learned judge pitching the bar too high. Rather, we see her Ladyship as just being realistic in view of the unresolved land issues.
12. We feel that it would be useful to set out here what the learned judge said in her judgment:
    • “23. Having discussed all the respective submissions by the claimant, the first second and third defendants as well as the claim, defences and all the materials filed, it is obvious that the contentious issues is whether or not the claimant has an arguable case under r.15.3.18 (a) of the rules. The claim of the claimants is for a quashing order against order the decision of the MMB to approve the issuance of Mining Leases No.01/22 and Mining Lease No. 02/22 to the first and second defendants.
    • 24. In this case, the Minister of Mines have already exercise his powers under s.32 (2) and s.36 of the MMA in issuing the respective Mining Leases to the first and second defendants. The claim for judicial review filed on behalf of the claimant does not seek to quash the decision of the Minister of Mines in issuing the respective Mining Leases. The final stage of the process had been reached when the Minister of Mines issued the respective Mining Leases to the first and second defendants under s.32 (2) and s.36 of the Mines and Minerals Act. If the court is minded to grant the orders ought in paragraph 1 and 2 of the orders sought, what good will that do to the claimant when the Minister had already issued the respective Mining Leases.
    • 25. The mandatory orders sough in paragraph 3 in my considered view will not be of any assistance to the claimant either. It is the claimant’s case that they have referred the boundary issue to the Isabel Local Court for further determination and therefore how could the third defendant conduct an excision of the disputed area. There must be clear demarcated boundaries set out by the relevant courts that could assist this court in determining the order sought. At present, I am not assisted by any evidence to say that there has indeed been encroachment into the boundary of the claimant’s Kolosori land except the various maps in the numerous sworn statements that tend to demarcate the said boundaries and the alleged encroachments. So minus any decisions from any relevant courts, I am unable at present to say that the orders sought in paragraph 3 of the orders sough could have been granted in favour of the claimant. The claimant could have amended his pleadings and the orders sought but that was not done and the proved to be fatal to his case.
    • 26. Taking into account all the above discussion in this case, I am not satisfied that the claimant had satisfied the requirement of r.15.3.18 (a) of the rules. I am therefore not satisfied that the claimant does have an arguable case. I strike out the claim for judicial review filed on the 16^th December 2022 with cost under rule 15.3.20 of the CPR.”
13. Counsel relied on Winner Properties case, a decision of this Court to found the proposition that the existence of “contested matters” is sufficient to satisfy the Court of the requirement under rule 15.3. 18 CPR that there is an arguable case. As each case is to be decided on its own facts, we agree that Winner Properties is authority for the proposition referred to by Counsel. However in that case, the land concerned is a registered land with a Fixed Term Estate registered in the appellant’s name. There was no dispute over boundaries with an adjacent land. In our present case, the lands involve are two customary lands and their boundaries are in dispute. As this Court pointed out in Bavare v Nerapa [2011] SBCA 22, CA-CAC 21 of 2011 ( 25 November 2011);
    • “the legislation has carefully put in place an exclusive hierarchy to deal with customary land disputes, s.254, Land and Titles Act makes it clear that a Local Court shall have exclusive jurisdiction in all civil matters dealing with customary land ......s.256 gives right of appeal from the local court to a customary land appeal court.”
14. Thus, the “contested matters” in Winner Properties, gave rise to an arguable case which was within the jurisdiction of the High Court to resolve. The same cannot be said of the contested matters in the present case, namely the disputes over the boundaries and the demarcation of the boundaries between the two customary lands. No jurisdiction is conferred on the High Court to resolve disputes over customary land boundaries. It must therefore wait until the authorities that have the exclusive jurisdiction to deal with such disputes resolves them before it can proceed further.
15. In the present case the main issue in dispute is the boundary of Kolosori land which is currently before the Isabel Local Court. It is still unresolved and until that dispute is resolved, there is nothing that the High Court can do. There is, therefore, no arguable case before the learned judge.
16. There is also the claim by the appellant that there are errors made in respect of the grant of the Mining Leases. One such error was the approvals by the Board of the surface access agreements with persons who were not landowners. However, this claim cannot be considered in isolation of the disputes now presently before the Local Court between the appellant on behalf of the Kolosori land and Wilson Mapuru, on behalf of Havihua Land. In Mining it is common to note that there are two types of disputes that often arise, issues over mining and land Issues. See AXIOM K.B. Ltd v SMM Solomon Ltd [2012] SBCA 22; CA –CAC 28 of 2011 (24 March 2012).
17. In the context of mining activities on customary land, the two groups of disputes are in many respects interlinked as the facts of the present case show. This leads us to conclude that until the final determination of the land disputes by the Local Court, the appellant’s claim that the mining leases encroach on his tribe’s land and wrong persons signed the surface access agreements lack proper factual basis. These unresolved contested matters clearly demonstrate that judicial review is not the proper forum to resolve contested factual issues, moreso where another court has jurisdiction over those contested factual matters. See R (Jones v Powys CC [2007] EWCA CIV 427; see also Bavara v Narapa (above).
18. In our view, Bird J was correct to conclude that there was no arguable case under r.15.3.18 (a) CPR. This is sufficient to dispose of this appeal.

Challenging the approvals of the Board

19. The judicial review was directed against the decision of the Board’s approvals of the mining leases. The grants of the mining leases were made by the Minister exercising his powers under sections 32 (2) and 36 of the Mines and Minerals Act. The submission of Mr. Sullivan KC is that the appellant’s challenge to quash the Board’s approval rather than the mining lease per se does not render nugatory the attack on the Board’s approvals since these are at the heart of the alternative relief sought.
20. While the Board’s action can be subjected to scrutiny, it does not necessarily guarantee that the decision of the Minister no longer has effect. The Minister exercised his statutory powers under sections 32 (2) and 36 of the Act and there is no challenge directed at the Minister exercising his powers under those provision of the law. Judicial review cannot be used to attack the Minister’s decision indirectly if the appellant has failed to challenge the maker of the decision: Sivasubamaniam v Wandsworth CC [2003] EWCA CIV 1672.
21. The other grounds raised concerned the alternative remedy and amendments to the claim arguments. We do not need to deal with those points in the light of our conclusion that there is no arguable case demonstrated before us in this appeal.
22. It is upon the appellant to establish a good “arguable case”. However, where there, is absent material which could justify the conclusion that there was a good “arguable case” to permit the matter proceeding further, the trial judge is entitled to stop the matter proceeding further: Slater and Gordon v Ross Mining (Solomon Islands) Ltd [2002] SBCA 2, CA –CAC 7 of 1999 (6 July 2000).

Conclusion

23. In the light of what we said above, we agree with the learned Judge that appellant failed to demonstrate that there was an arguable case since their claim is centred on the unresolved customary land dispute which is still before the Isabel Local Court. Secondly, there exists the alternative remedy in this case and that the matter is now being handled by the Isabel Local Court. That makes judicial review inappropriate.
24. Accordingly, the appeal is dismissed. Costs of the appeal to be paid by the appellant to the respondents.

Muria (P)
Gavara-Nanu (JA)
Lawry (JA)