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Lamana v Jovere [2014] SBHC 48; HCSI-CC 247 of 2013 (2 May 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

EDWIN LAMANA, OSCAR BISU and TALASI
BISILI (representing the Engakuiri clan/tribe)
Claimants

And:

LUXTON JOVERE, MATHIAS MAELAGI and
HENRY GUMI (representing themselves the
Kidu community and thirty others named in the
Form 2 Determination)
1st Defendants

And:

MORRIS RUNI (representing the Leana Bako
tribe)
2nd Defendant

And:

HEDI (representing the Aqo clan of Kohingo)
3rd Defendant

And:

THE METRO TEAM
4th Defendant

And:

THE PREMIER (For and on behalf of the Western
Provincial Assembly represented by the Attorney
General).
5th Defendant

Mr. P. Tegavota for the Claimants/Respondents.
Mr. G. Suri for the 1st and 4th Defendants.
Mr. S. Hanu for the 5th Defendant.
No appearance for the 2nd and 3rd Defendants.

Date of hearing: 2 May 2014.
Date of Judgment: 2 May 2014.

RULING
Apaniai, PJ:

1. This is an application by the 1st and 4th defendants ("Applicants") to strike out this claim on the ground, amongst others, that the claim is frivolous and vexatious on the following grounds:-
   

[a] the Claimants ("Respondents") were present at the timber rights hearing at which a determination was made in favour of the 1st defendants but they did not appeal against the determination;

[b] the Applicants have already obtained a Development Consent to carry out logging in Central Kohingo and so the Respondents should have lodged an appeal and not come to court seeking judicial review;

[c] the ownership of the Central Kohingo customary land has been decided in favour of the 1st defendants/Applicants on 22 January 2014. No appeal has been made to the local court against the Chiefs' decision.

2. I heard the application on 2 May 2014 and gave judgment that same day granting the application and striking out the claim. I said I would give reasons later. These are the reasons.
   
3. The Respondents have filed a claim on 31 July 2013 asking the court to make certain declarations, the main ones of which are that the Western Provincial Executive never made any determination in relation to a timber rights application by the defendants in relation to logging operations in Central Kohingo; that the Form 2 determination issued in relation to the purported hearing is invalid; that the logging agreement entered into pursuant to the determination is invalid; and, that the timber license issued to the agreement is invalid. Consequently, they seek permanent injunction to restrain the defendants from carrying out logging in Central Kohingo.
   
4. The Respondents claim that they are members of the Engakuri clan which is the owner of the Central Kohingo customary land. They say they had attended a timber rights hearing held on 24 November 2010 at which the Western Provincial Executive ("WPE") purported to have made a determination approving the application for timber rights. The Respondents claim that no formal determination was made as to who are the persons entitled to grant timber rights over Central Kohingo. They admitted that they did not file an appeal against the WPE determination. They instead filed a dispute with the Roviana House of Chiefs ("Chiefs").
   
5. They claim that while the Chiefs were yet to hear the dispute, the Applicants have entered the disputed land and commenced logging therein. As a result, they have filed this proceeding on 31 July 2013 and obtained interim ex parte orders on 26 July 2013 restraining the defendants from carrying out logging in Central Kohingo customary land.
   
6. Meanwhile, the Chiefs, after a number of adjournments, have finally made a determination in respect of the dispute on 22 January 2014. The Chiefs have determined that the Kindu tribe (represented by the 1st defendants/Applicants) is the customary owner of Central Kohingo customary land.
   
7. The Respondents have not filed any further referral to the local court to vindicate their right of ownership of the Central Kohingo customary land. This was admitted by Mr. Philip Tegavota of counsel for the Respondents. That means the Chiefs' decision is final and conclusive.
   
8. That being the case, it is clear that the Respondents have no locus standi to bring this proceeding. This ground alone is sufficient to justify a dismissal of this proceeding. It is therefore not necessary for me to address the other issues raised by the Applicants in support to this application.
   
9. It follows therefore that this proceeding must be dismissed.
   
10. The orders of the court are:-
    

[1] The application is granted.

[2] This claim is dismissed.

[3] The ex parte orders granted on 26 January 2014 are set aside.

[4] The Respondents to pay the costs of the Applicants and the 5th defendant on standard basis to be taxed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge.