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Kioto v Watts [2017] SBHC 32; HCSI-CC 46 of 2015 (13 March 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 46 of 2015

BETWEEN: OPIO BILLY KIOTO - Claimant

AND: SIANA WATTS, RUSSELL TIMOTHY, - 1^st Defendant
BELINDA BILUSU, PATTERSON PUDI,
BERRY WATTS, JOHENSO SESALA,
MORENCE PAPAE

AND: PACIFIC EVEREST LUMBER LTD - 2^nd Defendant

AND: WESTERN PROVINCIAL GOVERNMENT - 3^rd Defendant

AND: ATTORNEY GENERAL - 4^th Defendant
(Representing Commissioner of Forests)

Date of Hearing: 6^th February 2017
Date of Ruling: 13^th March 2017

Mr. Toifai for Claimant
Mr Tovosia for 1^st Defendant

RULING ON APPLICATION TO STRIKE OUT THE CLAIM AND
INTERIM ORDERS

Maina PJ:

Introduction

The First Defendant applies to the court for orders to strike out the Claimant’s claims or declaratory and quashing orders that the timber licence granted to Second Defendant was null, void ab intio and permanent injunction orders against the Defendants on Bulo Islands, Marovo.

The First Defendant alleges that the Claimant has no locus standi to bring the action and/or that the claim discloses no reasonable cause of action and/or that the claim is otherwise frivolous and vexatious. And in the event application to strike out sought is not granted, an order that ex parte interim orders dated 3^rd March 2015 be discharged.

Brief Background

In or around July in 2014, the second Defendant applied to the 3^rd Defendant for approval for negotiation to acquire timber right on Bulo Islands. And on the 18^th July 2014, the Western Provincial Executive Committee (WPEC) determined and identified the 1^st Defendants as the persons rightfully entitled to grant timber rights over the Bulo Island land. On that same day a public notice of the determination was also published.

On 19^th February 2015, a logging licence No. A101430 was issued to the 2^nd Defendant – Pacific Everest Lumber Co. Ltd.

On 17^th February 2015, the Claimant filed this case (Claim Category A) seeking declaratory and quashing orders that the timber licence No. A101430 granted to 2^nd Defendant by the 4^th Defendant was null, void ab intio, a permanent injunction restraining the Defendants, servants or agents or otherwise, from entering, carrying out and construction of any kind cutting, felling or removing trees within the disputed land and; an order that all activities conducted by the Defendant is stopped until the ownership of the land in question to be determined by the local court.

Also on 3^rd March 2015, Claimant obtained the interim orders restraining the 1^st and 2^nd Defendants from logging on Bulo Island, Marovo.

Issues

This application is supported by a sworn statement of Siana Watts filed on 2^nd April 2015. It appears from that sworn statement and his counsel’s submission that this application to strike out the claim is founded on issues of absences of locus standi, no reasonable cause of action and or frivolous and vexatious.

Locus Standi

The position of the Claimant on this issue is as stated in the written submission para: 13, 14 and 15 and as emphasised by the Claimant’s counsel with his oral submissions. It states that Claimant represents his late farther Billy Koto who asserts that his tribe is the customary owners of Bulo Island.

The Claimant’s assert of ownership is as referred to in paragraph 2 of Jerry Tekopo’s sworn statements which also states that claim has been subject of a local court hearing which is pending in the Western Province Local Court.

The Claimant had not filed any claim of trespass or a sworn statement to support this case but rely on Jerry Tekopo’s sworn statements for his case.

For the Claimant’s case and or he argued that standing or locus standi does not equate to having a meritorious case but someone need to demonstrate that they are an aggrieved party and one only need to show that they have sufficient interest in the matter which affected or likely to be affected. Counsel submits the two tests as discussed by ACJ Muria in the case Dr. Ronald Ziru (on behalf of SIMA Medical Centre v Attorney General HC CC 21/1993 when he concluded that the appropriate test to use was that of “sufficient interest”. And it is a liberalised test and should be taken for this Claimant’s case.

Counsel for the Claimant further submits that the issue of standing cannot be determined in isolation. The Claimant is an aggrieved party and the fact that he appealed against the decision of the chiefs to the local court or the case is still pending to date makes or gives him sufficient interest in this matter.

Flaw

The claim and submissions with the documents filed by the Claimant relates to the timber right or the WPEC’s determination of Bulo Island on 18^th July 2014 but he did not appeal against that determination in accordance to section 10 of the Forest Timber Resources Utilization Act. Instead he uses the ownership claim which he said to be pending with local court as his basis or ground for bringing up this case.

One of the 1^st Defendants, Siana Watts deposed a sworn statement and annexed exhibits (“SW 1-7”) the evidences that the Claimant has no locus standi to bring this action.

I read the sworn statement with the documents and exhibits. They disclose the Claimant’s tribe lost the timber right determination by Marovo Area Council in 1995 and also lost appeal for the timber right before the WCLAC.

In 1995 the Claimant or and his parties also took the ownership issue on Bulo Island to the MCC but lost the customary land ownership. At that MCC’s hearing, the 1^st Defendant’s father and tribe was determined as customary owners of Bulo Island.

And on the 18^th July 2014 at the WPEC the Defendants were identified and determination as the rightful person to grant timber right on Bulo Island which basically replaces or successors of the persons (deceased) that were determined by Marovo Area Council in 1995).

Claimant acknowledged receiving the public notice for the recently WPEC determination but he did not appeal against the persons to grant timber to the Western CLAC. The facts are not challenged or disputed by the Claimant.

The Claimant relies on sworn statement of Jerry Tokopo that states an appeal against the decision of the chiefs on 23^rd October 1996 is pending before the local Court.

With the above, there is no other evidence or claimant and his counsel were not able provide a proof with a letter of document from the concerned local court office. For this case it should be the former Marovo Local Court now the New Georgia Local Court based at Western Magistrate Court office in Gizo, Western Province.

And I would emphasise that for the filing of a customary land case in a local court there is a requirement under section 12 of the Local Court Act. The party referring the dispute need to state the necessary requirement. The requirement or prerequisite is as best described by Brown J in Eddie Muna and Smiley Muna v Holland Billey and Toben Muna and Attorney General HCSI-CC 284 of 2001, 11^th December 2003 and Veno v Jino [2006] SBCA 22; CA-CAC 002 of 2004 (12 April 2006). It is to be stated in the Form 1 (Unaccepted Settlement), a party to state, as a necessary requirement, matters that arose or in the nature of things. Whatever so could only be known to the Claimant for this case?

In other words, a proceedings in the Local Court only be commenced by production of the Form I or the Form I must be produced by the aggrieved party as to comply with sub s 12(3) of the Local Court Act. For this case the Claimant is unable to provide any evidence for this requirement but just rely on Jerry Tokopo’s sworn statement an appeal against the decision of the chiefs on 23^rd October 1996 is still pending before the local court.

From 1996 to date is 21 years and to come to court in this way would be unreasonable and unbelievable. And as Brown J held in Muna v Billey & Others and adopted by Palmer CJ in Veno v Jino (upheld by the Court of Appeal) that in such instances, it can be presumed that no dispute has been referred in accordance with section 12(3) of the Local Court Act. That comfortably fall in well here and I also employ and apply in this Claimant’s case.

And I would conclude that there is nothing or no proof of the referral in accordance with section 12(3) of the Local Court Act as claimed by the Claimant and so this is an assertion on part of the Claimant.

No reasonable cause of action or frivolous and vexatious

With regard to the timber right it was first determined in 1995 by Marovo Area Council where the persons from the 1^st Defendants group were identified as person to grant timber right over Bulo Island. The recent determination by the WPEC and identification of new persons to grant timber rights merely or is to replace the people who are now deceased and old.

The evidences shows the Defendants had complied with the requirements of the Forest Act. Claimant knew the hearing of the application for timber when he acknowledged seeing the determination notice for the new persons to grant timber rights on Bulo Islands. He did not oppose the hearing and also did not appeal against the determination within the period of one month as required under section 10 the Act. The Claimant cannot come to court and question the determination or acts under the Forest Act by or other process of law as the Claimant is trying to undertake with this case.

In simple term, the law is clear that if you are aggrieved by the determination of the Provincial Executive Committee, you may appeal to the customary land appeal court (Western Customary Land Appeal Court) within one month from the date public notice which the claimant did not do.

For the other process of law or judicial review as the Claimant is trying to undertake with this case it is not so because of the notably requirement under the Forest Act.

The Claimant is like crying over split milk with this timber right issues as the appeal time is already over. On that fact and evidences, all acts are presumed to have been legitimately done until contrary is proved should apply or that is the position in the Claimant’s case on this timber right matter.

The issue raised by the Claimant is no less than issue of ownership, a matter that well settled in this jurisdiction to be pursued under the appropriate law, in this case is the Local Court Act.

The orders sought by the applicant is granted with costs.

ORDERS

1. The order sought by Applicant (1^st Defendant) is granted,
   
2. Claims for declaratory and quashing orders of the timber licence granted to 2^nd Defendant Application and permanent injunction orders against the Defendants on Bulo Island is strike out and dismissed,
   
3. The interim orders restraining against the 1^st and 2^nd Defendant/Applicants from logging on Bulo Island, Marovo of 3^rd March 2015 is strike out and dismissed,
   
4. Cost of this proceeding is paid to the Defendants by the Claimants.
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge