IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 4 of 2016

BETWEEN:

AMOS TEIKAGEI
Claimant

AND:

ATTORNEY GENERAL
(Representing Clerk to Central Islands Customary Land Appeal Court)
First Defendant

AND:

PATRICK SANGA & JESSIE TEKIOU
Second Defendants

AND:

SAUEHA GB TEIKAHOKI
Third Defendant

AND:

JONATHAN TOHUIKA
Fourth Defendant

AND:

MAX TANGOSIA
Fifth Defendant

Date of Hearing:  25 May 2016
Date of Judgment: 31 May 2016	

Rano W for the Claimants
Laurere N for 2nd Defendants
Manaka M for 3, 4 & 5th Defendants

BROWN J:

DECISION 
on Application for Judicial Review

1.	The claim is to quash the decision of the CLAC (Central Islands) given on the 6th November 2013 for that the CLAC acted ultra vires S. 10(2) of the Forest Resources &Timber Utilization Act (Cap 40) in that it upheld the 2,3,4 & 5 Defendants appeals from the Provincial Government Executive; the claimant says that the fact of the CLAC finding was one  “which constitute claims of customary land ownership”[sic].

2.	Consequent upon the quashing of the decision, the Claimant seeks an order that the appeal from the Rennell and Bellona Provincial Executive be reheard by a differently constituted CLAC.

3.	The Rules, C15.3 regulate judicial review and by 15.03.17 provide for a conference to address the requirements of 15.3.18. They are 
a)	The Claimant has an arguable case;
b)	The Claimant is directly affected by the subject matter of the claims;
c)	There has been no undue delay in making the claim; and 
d)	There is no other pending that resolves the matter fully and directly.

4.	If the court is not satisfied about these matters, the court must decline to hear the claim and strike it out.

5.	The Claimant was one of the persons determined by the Renbel Provincial Executive (RBPE) on the 26 May 2007 as having the right to grant timber rights in respect of Tehakamagohu customary land in West Rennell. Following that decision these defendants appealed to the CLAC. The appeal was heard in October 2013 and decision given on 6 November 2013. 

6.	The claim for judicial review was brought on the 8 January 2014, within the 6 month time limit. I have not been told why the CLAC hearing had been postponed since presumably 2007.

7.	The CLAC upheld the appeal and set aside the Executives decision. The CLAC also directed the parties to put their claims to ownership through appropriate avenues before considering making any Form 1 application under the FR & TU Act. For the CLAC, relying on an earlier High Court decision (Ezekiel Mateni v Seri Hite HC CC No. 155 of 2003 at 3) said; 
“Section 10 (1) of the FTRU Act gives power to the CLAC to hear and determine the appeal. The function of the CLAC is to exercise the question a fresh and to make its own determination. In this case there are customary issues and ownership that are in dispute therefore this court is unable to examine the question afresh”

8.	The CLAC, by this statement apparently reliant on the reasoning in the High Court decision, has unfortunately mistaken the law as it applies to the obligation resting on the CLAC in such appeals. It is plain from reading the decision of the CLAC that these defendants, then appellants before the CLAC, were opposed to the Provincial Executive finding that Amos Teikagei was the appropriate person having the right to grant timber rights over this parcel of land.  This finding by the Provincial Executive is clearly one giving Amos Teikagei “rights” in relation to the management of the timber resource. The CLAC set aside the Executive’s decision. The claimant then has clearly lost that “right” and is directly affected by the CLAC decision.

9.	It is unnecessary in an application for judicial review to name as defendants the appellants who appealed the Provincial Executives’ decision. This court is concerned to see only whether there has been some mistaken act by the CLAC going beyond its jurisdictional limits, or a failure to carry out its function pursuant to the FRTU Act. To name these defendants is clearly a misunderstanding of the purpose of judicial review since the claimant has confused his cause of action if he thinks this court can make orders affecting these defendants in a judicial review concerned wholly with the acts of the court impugned, the CLAC. To join them is this cause is an abuse of process. They were parties to the CLAC proceedings but that is irrelevant in these judicial review proceedings.  It is the court, in this case the CLAC against which judicial review will lie, not these individuals.

10.	The matter which counsel have addressed at some length is whether the Claimant has an arguable case.

11.	I am consequently satisfied that Amos Teikagei is directly affected by the CLAC finding for his “rights” found by the Provincial Executive have been extinguished by the CLAC finding setting aside the Executives decision. There has been no undue delay in making the claim although the time between appeal and hearing before me is unfortunate. He has not relied in his claim on the apparent error of law on the face of the record, rather on what he implies as a finding by the CLAC that the defendants were afforded claim to customary ownership of the land in question.  No such finding was made by the CLAC, rather it refused to enter upon the inquiry which in its opinion was one for other forums. This is the error of law. The original claim badly pleaded the claimant’s right to judicial review.  The CLAC did not uphold these defendants’  “claims to customary ownership”. It set aside the earlier finding about the right of Amos Teikagei as owner, leaving the questions which the CLAC was obliged to deal with, unresolved. The fact of the error is apparent on the face of the record and it enables me to entertain the application for to ignore the error would result in a miscarriage of justice. The reasoning decision by the CLAC was flawed for it considered in the face of the conflicting claims that it was obliged to pass the conflict resolution elsewhere and it failed to carry out the function expected of it in terms of the Act. I say this not by way of criticism for the CLAC apparently had not been aware of the plethora of cases, both in this court and the Court of Appeal since 2003 dealing with logging appeals. The legislation calls for and the Court of Appeal decisions given on similar facts, reiterate that the CLAC should hear an appeal under s. 8[3] [b] or [c] of the FRTU Act when the appeal falls within the terms of those paragraphs. [see James Pupeipi anors v Attorney General [representing Western Customary Land Appeal Court]

12.	The CLAC is obliged to make findings and may not, as in this case, suggest other tribunals better suited to resolving the disputes before it. For by s.10 [1] of the FRTU Act the person aggrieved by the RBPE may appeal to the CLAC having jurisdiction and such court shall hear and determine the appeal made under s. 8 [3][b] or[c] of the Act. 

13.	Section 8 [3][b]-whether the persons proposing to grant the timber rights in question are the persons and represent all of the persons, lawfully entitled to grant such rights, and if not, who such persons are; 
[c] the nature and extent of the timber rights, if any, to be granted to the applicant;
These are the questions which the CLAC need address. (see Puleipi v Attorney General] 	At paragraph 19 the Appeal Court said;
 “the question the CLAC must ask when any apparent problem arises within an appeal from S. (3) (b) or (c) is whether it falls within the terms of those paragraphs. If it does, they should hear it. If it does not, they should refuse to do so.”

From the reasoning of the CLAC in this case it is plain that these defendants [then appellants before that court] denied the sole right in Amos Teikagei to represent all of the persons lawfully entitled to grant the timber rights in relation to Tehakamagohu customary land. The RBPE had been satisfied, in terms of s.8 [b] & [c] that Amos Teikagei was such a person. That finding had followed the timber rights process requiring notice before hearing. The RBPE may have found to the contrary by deciding that Amos Teikagei was not the person entitled to grant timber rights since he was not lawfully entitled [through perhaps an erroneous claim to the land or because he could not speak for particular parcels of land in Tehakamagohu belonging to others in custom] but decided in his favour on the evidence before it. That RBPE decision was appealed to the CLAC and now comes before me by way of judicial review.

14.	There has been no appearance of the Attorney General, in spite of my earlier order directing an appearance. This was not taken out, it seems so I do not propose to comment further, except to say that proceedings for judicial review of this kind, involving a judicial tribunal, the CLAC, automatically calls for the representative of the Clerk to the CLAC, the Attorney to appear. He may choose to oppose the application and argue the matter or concede an error on the face of the record for instance or abide the decision of the court but not to appear is unacceptable. It is a matter for critical comment that there has been no appearance in this case.

15.	These other defendants have responded since they see their customary interests in land affected by the decision of the RBPE refusing to recognise their claims as somehow tied up with those of the Claimant in the CLAC decision. Their response is unnecessary, for this court is only concerned to see to the application of the principles affecting judicial review.  I can understand their concern, since they have been served with High Court process. Apart from pointing out the error, I do not propose to make an order for costs in their favour since they may have immediately applied to have their names as defendants struck since they have no part in the review of the decision, it is not an appeal.

16.	I have heard the other defendants legal representatives, for other proceedings have been separately instituted by these parties over this land and it would be sensible to know whether those proceedings had been finalised or not and if so, did they reflect on the claim before me. They have not been dealt with, so I am able to proceed to hear this application without having to consider any other court decisions. In fact there are presumed Chiefs findings on this very issue, predating the CLAC hearing in October and afterwards, and consequent appeals to the Local Court but they have no bearing on the judicial review question.  They may be relevant matters for a CLAC however.

17.	In Havea Majoria v Oliver Bikomoro Jino , & Clerk to the CLAC [Western] the Appeal Court said; “It is not necessary to repeat here the discussion of the interrelationship of the Land and Titles Act, the Local Courts Act and the Forest Resources and Timber Utilization Act. The crucial point is, where a decision is made by the CLAC as to customary ownership of land as a necessary preliminary to determining the disposal of timber rights, that decision is binding on the parties and s. 10 of the FRTU Act applies to it. Here, the decision of the Marovo Council of Chiefs was given before the WCLAC made its decision. Can a party to the former decision go behind it to re-litigate the same question in the WCLAC?” and later it said; “In this case there is no judgment of the Local Court on the question of customary ownership: the question here concerns the status of the decision of the Marovo Council of Chiefs. It should be observed that s. 12 of the Local Courts Act assumes that, before the local court exercises its jurisdiction to determine a customary land dispute, there will have been a reference to the chiefs, all traditional means of resolving the dispute have been exhausted and no decision wholly acceptable to the parties has been made by the chiefs. More than that, the local court cannot exercise its jurisdiction to determine the dispute until these events have occurred. This gives involvement of the chiefs and their decision statutory recognition.  If the decision of the chiefs is acceptable to the parties, the jurisdiction of the local court is ousted”

18.	In the case before me, the RBPE apparently had before it a decision of the local court given in 1979 in respect of Tehakamagogu customary land in favour of Amos Teikagei, the claimant in these proceedings. What is not clear is whether these people named as defendants in this case were parties in the original dispute in 1979 and whether the land, Tehakamagogu included lands claimed by the aggrieved persons who appealed to the CLAC, for that court, perhaps quoting from the local court decision, said that decision only awarded ownership of eight pockets of [and namely Tegepa, Malemale, Kangingo, Tangomata, Niupani, Nukunanog, Bogauga and Mullbaga] to the second respondent, Amos Teikagei.  In the CLAC hearing, Amos Teikagei relied on the local court decision.  As I say, it neither appears from the record who were all the named parties in that local court case, nor whether the appellants to the CLAC were amongst the parties in 1979.  

19.	Of course that case was 16 years ago so the persons disputing then, whether on their own account or as representatives, may well have moved or passed away yet these appellants to the CLAC may or may not be representatives of land then in dispute before the local court.  Where persons now complaining were not named parties to those earlier proceedings any orders then made, do not bind those now complaining unless those now complaining are representatives of earlier unsuccessful claimants.  Of course that would be a matter for the CLAC to determine if it arose, not for this court, especially if those now complaining are representatives of stakeholders in the earlier proceedings and the earlier proceedings affected the same land parcels. The decision would need to be proved, for the decision of the local court as to customary ownership is “final and conclusive, and shall not be questioned in any proceedings whatsoever…”[Section 254 of the Land and Titles Act.] To quote from an English concept, a local court decision may ground a “good root of title”.

20.	The difficulties are exacerbated with the passage of time. Tribes, clans and families relationship with each other can but alter, especially if land is assigned or permitted usage in accordance with custom and marriages contribute to the altered relationships.  The CLAC is the appropriate court to unravel these difficulties.

21.	For this is a case where the applicant, Amos Teikagei claims as landowner reliant on that local court decision and the findings of the RBPE so that the question posed by s. 8 [3][a] for consideration by the RBPE, “[a] whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant” would appear to have been answered in the affirmative since Amos Teikagei had been found to speak for Tehakamagogu customary land, the RBPE apparently relying on the 1979 Local Court decision. That local court must be presumed to have followed due process [S. 12 Local Courts Act] and have heard a dispute relating to the ownership of Tehakamagogu customary land referred from a chief’s decision, before awarding ownership to Amos Teikagei, if that be the record of the court. Due process of course, refers to the need for an aggrieved person to appeal a Chief’s decision to the local court. There have been more recent decisions of the West Rennell Council of Chiefs, especially one relating to Tehakamagoku land dated 2 July 2013 naming Patrick Sanga [one of the defendants named in these proceedings] as the rightful custodian.  [This finding has been appealed to the local court and the appeal is awaiting hearing.] Whether the recent Council of Chiefs were appraised of that earlier Local Court decision of 1979 or not does not appear on the face of the record which I had exhibited in these proceedings, Exhibit 1. But what is clear is that it post-dates the earlier decision which failing appeal, “is final and conclusive…” [S. 254 Land and Titles Act]. 

22.	The Court of Appeal has made plain that if a CLAC has mistaken its function, that is an error of law, and the CLAC has acted beyond jurisdiction. Its decision then is liable to be quashed. I am satisfied that is the case.

23.	I will hear argument on the appropriate orders.
ORDERS
1.	The decision of the Central Islands Customary Land Appeal Court in Case No 6,7,8 and 9 of 2007 delivered on 6 November 2013 is brought up to this Court and quashed.

2.	The matter is referred to the Central Islands Customary Land Appeal Court for re-hearing de novo in accordance with law.

3.	No orders as to costs. 

THE COURT