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DP Development Ltd v Sego [2014] SBHC 41; HCSI-CC 151 of 2012 (15 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

CIVIL CASE NO. 151 of 2012.

BETWEEN:

DP DEVELOPMENT LTD
1st Claimant

AND:

HICKS SEGO, STEPHEN RAMO, LUKE
2ndClaimant

GEDI AND GERALDINE VIDO
(Owner/Land Trustees of Lot 2 LR 685)

AND:

ATORNEY-GENERAL
Defendant
(Representing the Isabel Provincial Executive)

Date of Hearing: 26th March, 2014.
Date of Ruling: 15th April 2014.

Mr. P. Tegavota for the 1st and 2nd Claimants
Mr. E. Kii for the Defendant.

RULING.

Faukona J: A claim for judicial review was filed on 18th May, 2012. The essence of the claim is for this Court to review the determination by the Isabel Provincial Executive made on 4th May 2012. At the timber rights hearing the Executive had the statutory duty required to consider and determine the matters set out in section 8 (3) (a)-(e) of the Forest Resources and Timber Utilisation Act.

2. Mr Tegavota submits that the Executive did not consider those matters instead considered matters outside based on majority vote of 4 is to 3.

3. Rule 15.3.16 of the Solomon Islands Courts Civil Procedure Rules 2007 ("Rules") requires that as soon as practicable after the defence has been filed and served, the Court must call a conference, often and traditionally refer to as Chapter 15 Conference. At the conference, the Claimant has to satisfy the Court of the four requirements in Rule 15.3.18.

4. If the Court is not satisfied on the papers filed and the arguments (Rule 15.3.19), the Court must decline to hear the claim and strike it out (Rule 15.3.20). If the Court is satisfied it may determine the claim or give directions and fix date for trial (Rule 15.3.21).

5. Emanated from submissions, it is clear that the only matter in issue is requirement (d) of Rule 15.3.18, that there is no other remedy that resolves the matter fully and directly. It would appear from the rule that claim for judicial review sits on second priority. Simply, if other processes are directly available to resolve the matter, that course has to be taken as a priority rather than running to Court for judicial review. This forms the basis for the Attorney-General's argument.

6. On 27th April, the Isabel Provincial Executive sat to hear application for timber rights (form 1). On 4th May 2012 they published their determination by way of form 2. On the same date the Provincial Secretary informed the Commissioner of Forests by letter disclosing (a) minutes of timber rights hearing and (b) a copy of Executive determination, which the Provincial Executive has rejected the application. Right of appeal to CLAC within one month from the date public notice was given is provided for in section 10 of the Act.

7. The Claimants who appear to be aggrieved by the determination did not know what action to take to challenge (appeal) the decision of the Defendant rejecting form 1 application which the Defendant affirms constitute a determination. This raises a question of interpretation of section 10 of FRTU Act as to what constitutes a determination.

8. The view express by Mr Tegavota is that determination constitute a finding as to the persons entitled to grant timber rights and a finding as to the nature and extent of the timber rights to be granted. He argues that the Defendant did not make a finding as required by S.8 (3) (b) and (c) of the Act. Even if an appeal was lodged there would be no basis for CLAC to determine. He refers to the case of Livingstone and Others V Nepate and Others[1] and quote a passage on page 3;

"...... the CLAC is obliged to consider the appeal before it and make a determination, that is, to determine whether the findings made by the Marovo Area Council as to the persons lawfully entitled to grant timber rights should be upheld, and if not, who such persons were".

9. The quote in fact reinforces what may appear similar to S.3 (b) but applying the requirements to another institution. My own perception and interpretation of S.10 (3)(b) of FRTU Act is that the Provincial Executive was given a discretionary statutory power to determine whether the persons propose to grant timber rights, are the persons who represent all persons (e.g. sub-clan, clan and tribe) lawfully entitle to grant timber rights, if not, which mean if the Provincial Executive is unable to identify who such persons are ( the rightful person), then what would the Executive do in such circumstances. Will it adjourn the case so that further evidence is required to identify who other persons are, or will it forced itself to identify those it thinks and who are the rightful person against their conscience; or will it reject the application. The reason as stated for rejection was because the land being the subject of this case was under dispute.

11. Section 8 of the Act places emphasis and specifically refers to discussion and determination. Section 9 sets out where no agreement has been reached between the applicant and the landowners then Provincial Executive shall recommend to the Commissioner to reject the application. The question here does not reflect much of any discussions, but seemingly confine to identifying persons lawfully entitled to grant timber rights, and if not who such persons are. In an attempt to identify who such persons are the Provincial Executive confronted the situation where the land was under dispute and perhaps difficult to identify any person at all. At this point the Provincial Executive is duty bound to make recommendation to the Commissioner to reject the application. In this case Provincial Executive had actually determined rejection of the application on the 4th May 2012. On the same date it informed the Commissioner of its determination. If the Provincial Executive has found the impasse it confronted and recommended rejection to the Commissioner as required by S.9 then of course an appeal should be against that recommendation. Section 10 refers to an appeal against the Provincial Executive's act and determination and nothing against the Commissioner although it was the determinant body. And that is the purpose of Section 10. Rejection of Form 1 application is not an end. The application can be re-submitted on a future date. My view is that rejecting timber rights application is a determination in this sense. It has to be noted that there is clear process of appeal through the hierarchy of appeals provided by the law. Aggrieved party is given the privilege to challenge any determination or act by a lower institution. In this case the CLAC has discretionary power to allow any appeal, dismiss it or refer the case back to the Provincial Executive to rehear the application. It also has the power to determine who such persons are should the Provincial Executive failed to determine, authority is in the above case Mr Tegavota refers to.

12. It is my respectable view that S.10 of FRTU Act provides sufficient remedy for persons aggrieved by a determination of the Provincial Executive to utilise. The Claimants failed to utilise. As it is that is the remedy available to resolve the matter fully and directly.

13. Other requirements are not dealt with because they are not disputed. From R. 15.3.18 it is clearly spelled out that all the requirements must be to the satisfaction of the Court. Should one fail the Court will not hear the claim.

Orders:

1. I am not satisfied that there is no other remedy available to resolve the matter fully and directly. It means requirement in Rule 15.3.18 (d) has not been satisfied.

2. By virtue of order 1 above renders the claim for judicial review is dismissed with cost payable to the Defendant.

The Court.

^[1] Civil Case No.150 of 1997.