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Majoria v Lomulo [2010] SBHC 46; HCSI-CC 27 of 2007 (3 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

HAVEA MAJORIA
(representing the Rodo tribe of Marovo, Western Province)
Claimant

AND:

BEN LOMULO
First Defendant

AND:

ATTORNEY GENERAL
(representing the Customary Land Appeal Court
Western Province)
Second Defendant

AND:

OLIVER JINO
Third Defendant

Date of Hearing: 19 July 2010
Date of Decision: 3 August 2010

Mr. Apaniai for plaintiff
Mr. Tegavota for first defendant
Mr. Firigeni for second defendant
Ms. Bird for third defendant

DECISION ON JUDICIAL REVIEW
SEEKING QUASHING OF DECISION
OF WESTERN CUSTOMARY LAND
APPEAL COURT

Cameron PJ:

1 The claimant Havea Majoria applies for an order quashing a decision of the Western Customary Land Appeal Court (WCLAC) dated 23 December 2006.

2 In that appeal, under the Forest Resources and Timber Utilisation Act, the Court identified the first defendant Ben Lumulo as the person lawfully entitled to grant timber rights on Rodo land (Vangunu Islands, Marovo Lagoon, Western Province).

3 That decision reversed the determination of the Western Provincial Executive following a timber rights hearing on 15 August 2002, which identified the claimant Havea Majoria (and others) as the persons entitled to grant timber rights in respect of Rodo land. This was despite opposition at that timber rights hearing by the first defendant, who asserted that his tribe owned Rodo land and not Havea Majoria's tribe.

4 Following the timber rights hearing and determination, the disaffected first defendant and others appealed the decision to the WCLAC. A notice of appeal dated 4 October 2002 was filed, which was signed by 13 appellants, including the first defendant and the third defendant Oliver Jino. In that notice of appeal, the appellants asserted that the Western Provincial Executive was wrong in identifying the claimant and other named persons as the persons entitled to grant timber rights. Instead, the appellants argued that those rightfully entitled were 3 persons, namely Oliver Jino (the third defendant), Raevini Revo and Seth Puruku.

5 The WLAC first heard and determined the appeal on 8 July 2005. In that appeal, the WLAC quashed the decision of the Western Provincial Executive, but did not itself identify those entitled to grant timber rights. The High Court on 22 November 2006 (255 v. 2005) ordered that the WLAC reconvene to hear the appeal and to identify the persons rightfully entitled to grant timber rights.

6 The WLAC did so reconvene on 21 December 2006, and on 23 December 2008 issued its decision identifying the defendant Ben Lumulo as the person entitled to grant timber rights in respect of Rodo land.

7 The first ground advanced for challenging the WLAC decision was that the WLAC erred in identifying the first defendant as the rightful grantor because the first defendant in his notice of appeal argued that not he but Oliver Jino (and 2 others) should be so identified. The complaint is that it was only when a written submission was filed on behalf of the first defendant prior to the 21 December 2006 WLAC reconvened appeal that the first defendant changed tack and asserted that it was he and not Oliver Jino (the third defendant) who was the rightful grantor of timber rights. It is argued that the WLAC should have refused to treat the first defendant Ben Lumulo as an appellant in his own right, as he had filed no appeal and supporting grounds in respect of himself, and had only participated in a joint appeal with 12 others advocating that Oliver Jino (and 2 others) were the rightful grantors.

8 It is clear from the WLAC decision itself that it felt constrained at the second appeal hearing to consider the matter on the basis of the submissions and representations already before it, and not to accept new evidence at that appeal hearing. However, this course appears to have been accepted by all parties, and I do not consider anything turns on this.

9 It is clear that the WLAC was entitled to determine afresh the identity of rightful grantors of timber rights. It had before it submissions of the claimant asserting that he was the rightful person to grant timber rights, and the competing claim of Ben Lumulo and others. The fact that Ben Lumulo had not put himself forward as that person in the notice of appeal which he and 12 others signed does not in my view preclude the WLAC deciding that he was the rightful person. If this change of tack by Ben Lumulo took the claimant or others by surprise, there is nothing in the material before the court to support that any objection was made at the time of the reconvened WLAC hearing.

10 No do I consider there is any validity in the challenge that on the face of the WLAC decision, only 4 appellants were identified, and that there was no direct reference to the 9 other original appellants. It is clear that from the directions hearing which preceded the WLAC appeal hearing that all the appellants sorted themselves out at that preliminary hearing as being aligned with one of the four remaining appellants (p. 282 Casebook 2).

11 For these reasons the first ground of challenge fails.

12 The second ground is that the decision was wrong because it was against the weight of the evidence. In this respect it was pointed out that the submission to the WLAC by the claimant attached various decisions, with genealogies supporting them, establishing the claimant as the rightful owner of Rodo land. By contrast, it was argued that the submission by the first defendant Ben Lumulo was a mere assertion of ownership unsupported by any chiefs or court decisions. It was argued that the WLAC appear to have effectively ignored the evidence as to ownership of Rodo land tendered by the claimant.

13 It is significant that the WLAC had before it a 1994 decision by a headman (the equivalent of a chief) recognising one Rikana as the owner of Rodo land. That 1994 decision was considered valid by this court in its decision of 8 April 2003 (261 v. 2002). Geneologies were provided to the WLAC showing the link between the claimant to Rikana (the winner of the 1914 case), and the link between Luje (the loser of the 1914 case) to the first defendant Ben Lumulo and the third defendant. There was also before the WLAC a decision of the Marovo Council of Chiefs date 7 August 2003 confirming that the Kadiki tribe (of which the claimant is a member) owns Rodo land, and confirming that the first defendant and others are not members of that tribe and therefore have no interest in that land. That decision has apparently been referred to the Local Court by either the first or third defendants as an unaccepted settlement; but that hearing has not yet taken place (there is a Court order in existence precluding that hearing pending the outcome of this decision).

14 The WLAC decision states that the claimant "claimed himself to be from Kadiki tribe who own Rodo land and raised issues relates to ownership and boundary of Rodo land". From this I infer that the WLAC did consider the material to which I have referred. However, nowhere in the decision does the WLAC appear to give any weight to that material, or to provide reasons for not doing so.

15 The WLAC in its 23 December 2006 decision several times referred to the fact that it lacked jurisdiction to decide issues of land ownership, and emphasised the distinction between land ownership and the right to grant timber rights. It seems reasonably apparent that as a result, the WLAC has attached little or no weight to the evidence in favour of the claimant as to land ownership in deciding on who was lawfully entitled to grant timber rights. In so doing I consider that the WLAC has erred, because in most cases the owners of the land will be those entitled to grant timber rights. I note that the WLAC has provided no reasons as to why it attached little or no weight to the land ownership decisions, or considered that notwithstanding land ownership the rightful grantor of timber rights was a different person to the owner. For these reasons I consider the decision was against the weight of the evidence, and a new appeal hearing will need to be conducted.

16 It is not necessary for me to consider any other ground of challenge advanced.

17 In so finding, I do not intend that this decision be taken as indicating which party ultimately has the stronger case. I also see no reason why the WLAC should not accept any new evidence which may have become available.

18 I accordingly quash the decision of the WLAC dated 23 December 2006.

19 I direct that the Western Customary Land Appeal Court rehear by way of appeal CLAC no. 6 of 2002. In view of the inter-family relationships and the fact that no one party took an unreasonable position, I decline to make any order as to costs.

BY THE COURT

__________________________
Justice IDR Cameron
Puisne Judge