IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 220 of 1997

EAGON RESOURCES DEVELOMENT COMPANY (SI) LIMITED and LESLIE VAPULAKANA 
as Representative of the Trustees and Land owners of Bakobakolo Customary Land

-v-

JOHN MARABATU 
as Representative of his Matupoqe Line

High Court of Solomon Islands 
(Muria CJ) 
Civil Case No 220 of 1997 

Hearing: 3 April 1998 
Judgment: 11 May 1998 

T. Kama for plaintiff 
S. Watt for defendant 

JUDGMENT

MURIA C. J. This is an application by the plaintiffs seeking to invoke section 14 of the Court of Appeal Act. The plaintiffs ask that this Court refer to the Court of Appeal for its opinion the following question: 

“Are the parties to an agreement for the sale of timber rights in customary land, required to be approved pursuant to the provision of Part II (A) of the Forest Resources and Timber Utilisation Act (Cap. 90), entitled to negotiate amendments to the terms and conditions contained in Form 4 prescribed by the Forest and Timber (Prescribed Forms) (Amendment) Regulations.” 

Mr. Kama submitted that the question involves a matter of public interest, not only to the general public but also to the logging companies. As such, more or less Mr. Kama argued, it would be appropriate to have the final word from the Court of Appeal from the beginning on the point. Mr. Watt did not agree with the application and argued that it is not an appropriate procedure for the a party to insist on having a matter referred to the Court of Appeal where such matter is within the jurisdiction of the High Court to determine. The proper procedure, said Counsel, is that the High Court should deal with the rights and obligations of the parties under the timber rights agreement in the normal way and the point should only be taken further to the Court Appeal by way of an appeal procedure. 

In the course of the hearing the court asked for any authority on the point. Both Counsel said that they knew of no authority on the point in this jurisdiction. Clearly it appears to me that Counsel, either do not bother to research the point they are putting before court or they are simply ignorant of the development of the law by the courts in this jurisdiction. I think this is not good enough on the part of Counsel. The court expects Counsel to support their argument in court with authorities, which is both in the interest of their clients as well as in the interest of the development of the law. 

The starting point is section 14 of the Court of Appeal Act, which provides as follows: 

“In addition and without prejudice to the right of appeal conferred by this Part of this Act, a judge of the High Court may reserve for consideration by the Court of Appeal, on a case to be stated by him, any question of law which may arise on the trial of any cause or matter, and may give any judgment or decision, subject to the opinion of the Court of Appeal, and the Court of Appeal shall have power to hear and determine every such question.” 

This section had already been invoked by this Court in the past. I am amazed that Counsel did not know of the constitutional case of Francis Billy Hilly & Others -v- Moses Puibangara Pitakaka & Another, Civil Case No. 299 of 1994 (Judgment given on 22 October, 1994) which concerned the purported removal of the Prime Minister by the Governor General. The question of law arising from the hearing of the Originating Summons in that case before the High Court was referred to the Court of Appeal pursuant to section 14 of the Court of Appeal Act. The referral was made by the Court and the basis for it was the high importance of the constitutional question concerned in that case. 

Again on the question of whether the Court of Appeal has general power to give advisory opinion, apart from the specific power conferred by section 14 of the Court of Appeal Act, had already been the subject of judicial comments in this jurisdiction. See Kenilorea - v - Attorney General [1984] SILR 179 and Tri-Ed Association -v- College of High Education [1985-1986] SILR 173. The Court of Appeal clearly pointed out in those cases that the High Court and Court of Appeal do not have jurisdictions to give advisory opinions. The High Court also had expressed a similar view in a number of its decisions. See Warren Paia and Others -v- Christopher Abe and Attorney General, Civil Case No.3 of 1993 (Judgment given on 17 February, 1994) (“The Directors of Central Bank’s Case’) where His Lordship, Mr. Justice Palmer, applied the principles set out by Kapi JA in the Tri-Ed Association case. In fact, Counsel for the plaintiffs in the present case was also Counsel for the plaintiffs in the Directors of Central Bank’s Case. A little research would no doubt remind Counsel of what the Courts had already said about seeking advisory opinions from the Courts. 

Mr. Kama argued that the question posed is of great public importance and so it should be referred to the Court of Appeal at first instance for its determination. Basically what Counsel is raising by the question posed is that whether the parties who entered into the prescribed Timber Rights Agreement are entitled to vary the terms of that Agreement. It may well be that the answer to that question may affect some of the issues raised in this case, such as the question of whether non-compliance with the terms of the prescribed Timber Right Agreement render the Agreement invalid. However, I do not think it is a question of sue legal complexity that warrants this Court to invoke section 14 of the Court of Appeal Act. I may be of general interest to customary landowners and logging companies but that is no the basis for the exercise of the jurisdiction conferred by that section. 

When one also looks at section 14, it is the judge of the High Court who may refer the question by way of a case stated to the Court of Appeal. The power under that section is not exercised by the judge upon application by the parties. It is exercised by the judge during the trial of the matter having considered the importance and the complexity of the question of law involved. A clear case, by way of example, is the Francis Billy Hilly case referred to earlier. 

Mr. Watt referred to another case earlier dealt with by this Court, Enoch Sila & Others -v- Eagon Resources Development Company (SI) Limited (the plaintiff in this case), Civil Case No.4 of 1998. In that case, both Counsel in the present case, were also Counsel in that case. Having heard Counsel for the parties, the Court ordered by consent that the Logging Agreement entered between the parties in that case was not legally binding on the parties because of non-compliance with the prescribed form as stipulated under the Forest and Timber (Prescribed Forms) (Amendment) Regulations, 1985. It was further agreed and ordered that the parties were entitled to repudiate the said Logging Agreement on the ground that it not comply with the prescribed form and that the parties were entitled to substitute the said Logging Agreement with the prescribed form of logging agreement in its entirety and to include Clauses 18, 21, 29, 31 and 34 in the Prescribed Form of Logging Agreement. The effect of that order is that the Prescribed Form of Logging Agreement must be complied with and non-compliance of that renders the logging agreement invalid and not binding on the parties. The parties can repudiate it or they substitute it with the prescribed form of logging agreement. All the Clauses in the Prescribed Form of Logging Agreement must be included. The parties may agree to add to the matters specified in the Prescribed Form but cannot delete them from the logging agreement. 

With that in mind, the question posed can hardly be said to be of dire need for the Court a Appeal to deal with pursuant to section 14 of the Court of Appeal Act unless it is intended for the Court of Appeal to give its advisory opinion for future purposes. That, however, is no the intention of section 14. Also as we have seen the Court of Appeal does not have jurisdiction to give advisory opinion as such. 

In the light of all that I have said, the plaintiffs’ application to invoke section 14 of the Court of Appeal Act ought not be granted and I refuse it. 

No order for costs. 

(Sir John Muria)
CHIEF JUSTICE