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Aujara v Athena Investment Ltd [2012] SBHC 59; HCSI-CC 278 of 2011 (17 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 278 of 2011

BETWEEN

CHIEF ERIC GNOKRO AUJARA
(Representing Pau Tribe)
First Claimant

And

CHIEF SILAS BAKO
(Representing Hoi Tribe)
Second Claimant

And

ATHENA INVESTMENT Ltd
First Defendant

And

ATTORNEY GENERAL
(Representing Isabel Provincial Executive)
Second Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
Third Defendant

Mr Kaboke for the Claimant
Mr Suri for the First Defendant
Ms Maefiti for the Second and Third Defendants

Date of Hearing: 16th May 2012

Date of Judgment: 17th July 2012

Ruling on Application

1. The defendants have applied to have the whole claim dismissed. The First Defendant says it is frivolous and vexatious and shows no reasonable cause of action. The Second and Third Defendants say it is an abuse of the process of the court in that in reality the claimants are seeking a judicial review of the decision of the Second Defendant dated 10th December 2009 and as the claim was lodged in July 2011 it is out of time.

2. The Claim filed on 21st July 2011 has one claim for relief, namely a declaration that the determination by Isabel Provincial Government on 10th December 2009 with regards to LR 707 land is void, based on fraud. The claim then asks for consequential declaratory reliefs relating to a certificate of no appeal and an order restraining the Commissioner of Forests from issuing a felling licence. The Claim has not been amended since issue.

3. It is plain on the face of the pleadings the claimants are seeking a review of the decision of the "appropriate Government" following a timber rights hearing convened pursuant to section 8 of the Forest Resources and Timber Utilisation Act [Cap. 40] ('the Act"). In submissions the claimants try to shuffle past this issue by saying the claim is really a quia timet application and was made because the claimants fear the First Defendant will remove all their trees. The claimants are therefore applying to the court "for interim injunction orders". There is no explanation why all the usual paraphernalia associated with injunctions is missing from this matter. For example, there is no undertaking as to damages or any application relating to any undertaking. One of the consequential orders sought is the restraining order against Commissioner. No explanation is given as to how such an order could be made given the provisions of section 18 of the Crown Proceedings Act [Cap.8]. The biggest problem with the claim though is the reference to the determination in December 2009. If the claimants are relying on the court to rule that as void then they are too late.

4. This is a claim that should be struck out. Unfortunately if that were to happen there is a very real danger of justice being miscarried. The reader will have gathered by now the case involves logging. It has all the usual hallmarks of a logging case with dis-respect, deceit, dissimilation and disharmony in abundance. The case involves an obviously long running dispute as there is evidence of a 1997 Chiefs' "decision". That decision, no matter which version is read (unfortunately there are two versions of it), carries the sage advice, "the land belongs to all of you" and a recommendation the three tribes, Pau, Esi and Kefu should form a land council of trustees to make "policies concerning the usage and regulation of" the land. Of course even then there was no real respect for the Chiefs and so what they said was ignored.

5. Had the Chiefs been heeded then what happened in 2009 could have been avoided. The First Defendants apparently applied for a felling licence in August 2009. The application was approved by the Commissioner and he forwarded it to the appropriate Government, Isabel Provincial Assembly. As required by section 8 of the Act a meeting was arranged. This is the meeting commonly known as a timber rights hearing. There is no complaint about the procedure up to this point. The timber rights hearing took place in November 2009. It dealt with several areas known as LR703, LR704, LR705, LR706 and LR707. This case only involves LR707. There is a copy of the minutes available ^[1] and there appears to be no dispute they are accurate. The Chairman of the meeting is noted as saying LR707 is disputed.

6. That is when it all starts to go wrong. The evidence of what happened after the timber rights hearing is contradictory and there is no doubt in my mind it involves perjury by at least one of the deponents in this matter. From the evidence, the Provincial Secretary wrote to the Commissioner on 4th December 2009. The letter and apparent attachments are shown as annexures to the First Claimant's sworn statement (as CEGA 3). There is a "Public Notice" attached which says the Isabel Provincial Government, "endorsed the granting of timber right to Anthena Investment Limited". This was in respect of LR703, LR704, LR705 and LR706. There is evidence of a second Public Notice containing a "determination" dated 10th December 2009 for LR707. The language it contains is confusing. It appears to use the adjective "pending" as a verb. It says, "the Executive has voted pending the granting of Timber Rights to Athena Investment Limited". However, it makes a kind of sense because there is no doubt Isabel Provincial Executive were aware of disputes and they were leaving it to the "applicants and objectors" to resolve the disputes amicably. The problem is the then Provincial Secretary denies any knowledge of the second Public Notice. It is not clear why because, taking into account the mangled language, it would make perfect sense for the Isabel Provincial to think they could make a determination not to make a determination.

7. The Act is quite clear as to what should have happened. The Court of Appeal in the oft quoted case of Gandly Simbe set out, in simple language, what should have happened. First the Act and section 9(1):

Where no agreement is reached between the applicant and the customary landowners, the council shall recommend to the Commissioner to reject the application and the Commissioner shall reject the application accordingly.

Next the case of Gandly Simbe^[2]:

"5. Certification. If no agreement is reached between the applicant and the customary landowners, the area council is by s.5D(1) bound to recommend rejection of the application for a timber licence, and the Commissioner is required to reject it".

And later:

"Without a certificate under s.5D(2)(a), there is no power to grant a timber licence under s.5(1A), and it has been held that a licence issued in the absence of such a certificate is invalid: see Beti v. Allardyce Lumber Co. (CAC 5/92, at pp. 11-12 )"

The section referred to in Gandly Simbe is as set out now in section 9.

9. Isabel Provincial Executive should have informed the Commissioner that there was no agreement in respect of LR707 and should have recommended he refuse the application. Instead, no doubt with the best intentions, the appropriate Government said they were going to wait for the applicants and objectors to resolve their differences and then make some kind of determination. That middle course, although practical, even sensible, is not one which was open to them. Following a timber rights hearing the appropriate Government can only make a positive determination as required by section 8(3) of the Act or make a negative one (i.e. there is no agreement) and recommend refusal.

10. What the Isabel Provincial Executive should have done, if they believed the "applicants and objectors" were capable of reaching some kind of consensus and eventual agreement, was to adjourn the timber rights hearing. Instead Isabel Provincial Executive made a determination. Even though the "determination" was effectively to adjourn the difference is once a determination is made and published the involvement of the appropriate Government is at an end in that part of the process under the Act. The determination is the trigger which allows any person who is aggrieved to appeal (see section 10 of the Act) and/or sets up the next stage of the process (see section 11). By simply adjourning the timber rights hearing Isabel Provincial Executive could have maintained their involvement in the process. They would have had to have reconvened the hearing by notice published in the same way as the original notice of the hearing and could then have concluded the timber rights hearing and made a determination. If their optimism had proved realistic and the parties had resolved their differences they could have made a positive determination. If the parties were still at loggerheads they could have made a negative determination. Either way section 10 would allow an aggrieved person to appeal.

11. In the present case they apparently made a determination to postpone any determination. That is the effect of the notices published on 4th and 10th December 2009. The problem was then compounded because the Isabel Provincial Executive was persuaded to issue another public notice, the one dated 4th April 2011. If they had simply adjourned, then reconvened the meeting and then made a determination as set out in the Form II dated 4th April 2011, the due process required by the Act would have been validly completed. Having already published one determination (the disputed one dated 10th December 2009) Isabel Provincial Executive could not publish another.

12. That is why there could be a miscarriage of Justice if I were to strike out the claim. The Claimants may be well out of time to try and challenge the December 2009 determination(s) but they are certainly within the six month limit in respect of the April 2011 one. They will of course need to amend the claim.

13. The practical effect of the dual determination is the Commissioner should not, as he appears to have done, have relied on the Form II certificate of April 2011. Instead he should have said the determination published on 10th December 2009 meant there was no agreement and he should have refused the application for a licence in respect of LR707. Even if the 10th December 2009 document is a complete fiction the Commissioner had no Form II certificate in respect of LR707 and he should have had no option (in 2009/1020) but to refuse a licence in respect of that land. The Act is quite clear, the Commissioner has to be satisfied as set out in section 11. He then makes his recommendation to the appropriate Government. They then deal with the requirements of section 12 (1). It is only when they send the certificate required by section 12(1) to the Commissioner that he can be satisfied as to the requirements of section 5 and issue his licence.

14. There are other issues which complicate this case. There is some dispute as to whether the First Claimant has the right to represent the Pau tribe. That is a matter for a preliminary hearing and evidence properly adduced. It is an issue which has been touched on by the disputed Chiefs hearing in January 2012.

15. Much has been made of the nature of the hearing in January 2012. There is talk of the proper practice and procedures of the Chiefs. There is a grave danger in doing so in moving away from what is supposed, in the Local Courts Act, to be traditional means of solving disputes. As the claimants point out in submissions, the definition of chiefs is set out in the Local Courts Act and simply means, "chiefs or other traditional leaders residing within the locality...... and who are recognised as such by both parties to the dispute." There is a growing tendency to object to those sitting as chiefs or traditional leaders on spurious grounds and solely in order to delay matters. It seems to me to be disrespectful to simply object and refuse to attend rather than attend and voice the objections in person. Then there are the objections raised on quasi-legal grounds, improper notices, public notices put up by interested parties, hearings not sanctioned by some superior body of chiefs or leaders, etc, etc. These are tribunals of customary law and the whole point of them is they arrive at a resolution of a dispute according to custom. They are not required to deal with disputes according to the rules of evidence as applicable in the High Court and certainly not in accordance with the formal rules of procedure. They are bound solely by custom and if a person involved in the dispute does not find the result wholly acceptable, either in itself or because of the manner in which it was reached, their remedy is to go to the Local Court. There they must put forward the reasons why, according to custom, the result was incorrect.

16. In this case there was even the suggestion the High Court was involved and there were issues of land boundaries "still pending a hearing and decision" of the High Court. Complete bunkum of course because the High Court is not able to decide customary land boundaries.

17. Fortunately, the chiefs who heard this dispute took little notice of these objections and went ahead and made a decision. If there is anyone who finds their decision wholly unacceptable they should do what is required by section 12 of the Local Courts Act and refer the dispute to the Local Court. It does not appear from the evidence produced that the dispute has been referred to the Local Court. In that regard it is important to bear in mind what was said in Gandly Simbe:

"The jurisdiction of the High Court to grant an injunction in a case like this is, however, not unlimited. To the extent that a local court or customary land appeal court has, and the High Court has not, jurisdiction over questions of disputed ownership of customary land, the power of the High Court to grant relief by injunction is restricted to injunctions aiding the exercise by a local or customary appeal court of its jurisdiction to decide such disputes. An injunction of that kind is designed not to facilitate determination of that ownership dispute by trial in the High Court, where there is no jurisdiction, but to enable it to be determined in the local or customary appeal court specifically invested by Parliament with the power to decide it."

18. Finally there is also the plain fact, determinable from the evidence; the claimants have not brought this matter before the court for altruistic reasons. This is not a case involving a desire to protect the environment and stop logging. It is a case where the claimants also want to log the land but with a different company and on different terms. It is all about the money.

19. Bearing all this in mind it would not be appropriate to strike out the claim totally at this stage. Much of the claim is misconceived but (see paragraph 12 above) there is possibly one valid point to argue. The Claim will need amendment and the claimants are given leave to amend. Any amended claim must be filed within 14 days. Any defences to the amended claim must be filed 14 days thereafter. Although most of the costs to date have been incurred as a result of the pleadings being in their present form it would be equitable to order costs be in the cause.

Chetwynd J

^[1] See Annexure CEGA 3 to the sworn statement of the First Claimant filed 8^th December 2011
^[2] Gandly Simbe v. East Choiseul Area Council and Others CA-CAC No. 8 of 1997