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Haemala v Attorney General [2023] SBHC 103; HCSI-CC 331 of 2019 (3 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 331 of 2019

BETWEEN

CHIEF JOHN HAEMALA & PAUL TELOVAE
(Representing Tarikachi Tribe)
Claimants

AND

ATTORNEY GENERAL
(Representing the Customary Land Appeal Court)
1^st Defendant

AND:

JAMES RONNIE KABOKE
(Representing the Pokalogo Tribe)
2^nd Defendant

Date of Hearing: 22 August 2022
Date of Decision: 3 March 2023

Ms L Ramo for the Claimant
Mr M Pitakaka for 2^nd Defendant
No one for 1^st Defendant (AG absent)

DECISION ON CHAPTER 15 CONFERENCE

Faukona R, DCJ: A claim for judicial review was filed on 30^th May 2019, which later amended on 11^th June 2019.

2. A review order was sought to review the decision of the Western Customary Land Appeal Court. (WCLAC) dated 30^th November 2018.
3. The decision the Claimant sought to review was brought by an appeal from the Choiseul Provincial Executive (CPE).
4. The claim alleged that the Western Customary Appeal Court decision was erroneous in law, biased and unfair.
5. The Second Defendant filed his defense on 24^th February 2020, supported by a sworn statement filed on 3^rd December 2020.
6. R15.3.16 specifically states, as soon as practicable after the defense has been filed and served, the Court must call a conference. At the conference the Court must consider the matters in rule 15. 3. 18.
7. Matter in rule 15.3.18 are pre-requisite requirements, they are:
   1. The Claimant has an arguable case; and
   2. The Claimant is directly affected by the subject matter of the claim; and
   3. There has been no undue delay in making the claim; and
   4. There is no other remedy that resolves the matter fully and directly.

Arguable Case.

8. The main arguable point in this case is whether the Native Court decision in 1954 binds both parties invoking the Babatana Council of Chiefs decision on 14^th July 2007; which subsequently led to the WCLAC decision dated 30^th November 2019.
9. Other arguable points perhaps may include the Conduct of the CLAC in the November proceedings.
10. As such, it is perceivable that there is an arguable case established by the Claimant.

Has Claimants directly affected by subject matter of claim:

11. The claim concerns basically a common boundary between two customary lands located in Choiseul Island. Precisely, the 1954 Native Court had identified and set the western boundary of the land between the two litigated tribes as from Daokaso river. In the 2007 Chiefs determination that boundary was extended to Lokovara river, and hence confirm by the WCLAC in 2018 appeal.
12. From the varying views by the land courts it is cognizable that such will affect the Claimants directly so far as the substantive issue is concerned.

No undue delay in filing the claim

13. The requirement whether there has been no undue delay in filing the claim. Rule 13.3.8 provides that a claim for quashing order must be made within six months from the date the decision was made.
14. The decision by the WCLAC was delivered on 30^th November 2018 and this claim was filed on 30^th May 2019. Thereafter amended on 11^th June 2019.
15. I noted the emphasis expressed by the word “and” at the end of each pre-requisite; simply implicate that each requirement must be considered in isolation, should the Claimant failed to establish one requirement to the satisfaction of the Court, the Court will not hear the claim.
16. The Counsel for the second Defendant argues the claim has not been filed within six months. The filing on 30^th May 2019 and the amendment done on 11^th June 2019 did not constitute within six months limitation prescribe by the Rules.
17. From the records of the court the claim was filed on 30^th May 2019. On the first motion date 7^th July 2019, the Defendant appeared personally whilst no one represented the Claimant nor the 3^rd Defendant.
18. On that date there was no sworn statement yet filed in support of the claim? The Defendant then verbally applied for unless order and was granted. The reason was for the Claimant to serve him with a sworn stamen in support of the claim.
19. The next motion day was on 8^th August 2019. All Counsels were present. Counsel for the Defendants were informed that they will be served with the amended claim for judicial review, but still not accompanied with any sworn statement.
20. The legal tenor of the unveiling facts is that if there is no application for leave to file an amended claim of which the period for had lapsed, then another intervention legal problem protrudes. And that is an application for leave to extend time to file an amended claim.
21. The risk the Claimant encountered is that the original claim was filed on the last date of the six months period allowance by R15.3.8. Therefore, to file an amended claim without leave is definitely out of time. Not only must that be, but an application for leave to extend time to file amended claim must also be filed.
22. The trick or the illusion is this, since the second Defendant received the claim on the last date under R15-3-8, any amendment to it must sought leave of the Court. If there is no leave granted the Claimant cannot rely on the amended claim. And since it was filed eleven days after the required period, it was therefore filed out of time.
23. So far as the first Defendant is concerned, it received the claim somewhat between 3^rd December 2020 and 11^th February 2021.
24. On this particular issue, since no leave was granted by the Court for the Claimant to file and serve any amended claim, the amended claim which they had served upon the second Defendant was out of time limit. And there was no application for leave to extend time limit.
25. In respect of the claim being served upon the first Defendant, indeed by the facts, it was served more than six months after the original claim was filed.
26. On the second aspect of Mr. Pitakaka’s argument under S.10 (2) of the Forest Resources and Timber Utilisation Act (FRTU), that any order or decision of CLAC on any appeal under subsection (1) shall be final and conclusive and shall not be questioned in any proceedings whatsoever. This provision acts as oust clause.
27. Bedside what appears to be an exception to the exclusive jurisdiction of the Court, the CLAC should only entertain appeals that deals with matters expressed in S. 8(3) of the Act. If it entertain issue outside of that scope, then it lacks jurisdiction.
28. I am able to read the case of Pitabelama V Biliki^[1] but am unable to cite the case of Teikagei V AG which the Counsel for the Claimant refers to.
29. In the Pitabelama case which Mr. Pitakaka refers to, I noted very pertinent conclusive. In paragraph 3 page 6, the Court referred to the case of Simbe V East Choiseul Area Council and Others (CAC – 718 of 1997). In paragraph 7 of the case the Court stated,
    • “... that in many, if not most instances the task of identifying the customary owners is likely to be all essential step in the process determination under S.8(3) of FRTU Act”.
30. In paragraph 8, the Court stated,
    • “It remains true to say that, in making a determination for limited purpose of S. 8(3), it is no part of the function of an area council to decide question of ownership to customary land in a way that is either binding or final effect. It has long been recognized that its determination gives rise to no guarantee that the contracting customary owners are the true owners. If a binding determination is desired it must be obtained from the Local Court or on appeal to the CLAC.”
31. Further the Court stated in Simbe that identification of customary owners is likely to be essential step in the process of determination under S. 8(3). That will almost in variably be the customary owners of the land on which the timber stands but if the purpose of the decision of the Provincial Executive and an appeal to CLAC is different to that which is describe in S.12 of the Local Court Act.
32. As the Court concluded in Pitabelama case by stating in the final paragraph stated,
    • “As this Court said in Veno such a privative or exclusionary clause do not entirely exclude the examination by Courts of general jurisdiction. The limited jurisdiction left to the Courts may, for example, be exercised where the decision under review was made without jurisdiction. There can be no suggestion Customary Land Appeal Court acted in access of its jurisdiction in this case. It was required of the Provincial Executive to determine the identity of the persons carefully entitled to grant timber rights. It did so on the basis of extensive and it seems compelling evidence.”
33. In addressing Mr. Pitakaka’s argument in the exclusive clause as in S.10 (2) FRTU, do not entirely excluded the general jurisdiction of the court to hear and determine, even the question of ownership, except where the decision under review was made without jurisdiction.
34. In this case the determination by the CLAC was made under its general jurisdiction. And the issue brought for review by this Court is of a legal nature. Whether the CLAC should base its decision on 1954 case, and Civil Case No. 165 of 2004 which involved the same tribes. There are other criminal cases which the Court found members of the second Defendant’s tribe guilty for trespass instead the CLAC relied on the recent decision by the Babatana Council of Chiefs in upholding the second Defendant as representing persons having the right to grant timer over Tarekubo land which previously was granted the Claimant in 1954 case.
35. I acknowledge the major issue in dispute is in the nature of a point of law. The question as to which decision should take precedent over the other, which the CLAC could have considered in its determination in considering the appeal.
36. The question whether the CLAC was not well abreast with the 1954 decision, is not a matter for this court to answer, but for the Claimant to answer.
37. I have no doubt there are real arguable issues that the Court should wish to entertain at the trial of the substantive case. However, R15.3.18 (c) requirement was not complied with, or in another word, was not established. The claim was filed eleven days late from the time limit ascribed in R15.3.8. There was no application for leave to extend time to file and serve the amended claim. There was no leave granted at all. Therefore, I must refuse to hear the claim, however, dismiss it accordingly.
38. On the issue of whether other remedies are available to resolve the matter fully and directly, it is to conclude no other remedy is available. The Claimants had lost their opportunity to appeal the decision of the CLAC. This process is the last resort, yet they mess it up.

ORDER:

1. Claim for Judicial Review dismissed pursuant to R 15.3.18 (c).
2. Cost of this hearing be paid by the Claimants to the Defendant on standard basis.

THE COURT.
Hon. Justice Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2007] SBCA 21; CA – CAC 04 of 2006.