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Quity v Isabel Customary Land Appeal Court [2023] SBHC 149; HCSI-CC 559 of 2022 (14 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 559 of 2022

BETWEEN

LANDFRANK QUITY, JOHN COLERGE, ELLISION RIUGITA AND FRANK WELCHMAN
Claimant

AND:

ISABEL CUSTOMARY LAND APPEAL COURT
First Defendant

AND:

NOEL MAJAJA, MATHEW FROBO, ISAAC LEGU, AND JOHNSON ROHI, REUBENSON RAVA AND FRED KLOUTU
Second Defendant

AND:

VALEPELO DEVELOPMENT COMPANY LIMITED
Third Defendant

Date of Hearing: 8 August 2023
Date of Ruling: 14 August 2023

Iroga for the Claimant
Harara for the First Defendant
Ipo for the Second and Third Defendant

RULING CHAPTER 15 CONFERENCE

Kouhota PJ

The Claimant on the 5^th of December 2022 file a Judicial Review claim in respect of the Ruling by the First Defendant dated 10^th November 2022 which dismissed the Claimants Appeal. The Claimant seek the following orders;

1. Quash the First defendant determination on 10^th November 2022 which dismissed the

Claimants appeal.

2. Prohibit the Second Defendant and Third Defendant by themselves and through their Agents

Associates, and or Servants from carrying out logging activities within Logahaja Customary

Land until Judicial review is completed.

3. Damages if any to be assessed
4. Cost.

The Claimant appeal to the Isabel Customary Land Appeal Court (ICLAC) against the decision of the Isabel Provincial Executive dated 9^th August 2022 in a timber right hearing in which they are the Objectors. The appeal was made when the Isabel Provincial Executive has not yet published its determination as required by section 9 of the Forest Timber Utilization Act (FRTUA). In its decision dismissing the Appeal the ICLAC Ruled “decree and declare that there is no publication of the Timber Rights determination being made by the 3^rd Respondent (Isabel Provincial Executive) (emphasis mine) in respect to the Logahaja Customary Land as required under section 9(2) (b) of the Forest Resources and Timber Utilisation Act, (Cap 40) of which can invoke the jurisdiction of this court to hear appeal arising from it”.(sig) It is against this Ruling, that the Claimant filed a claim for judicial review.

At this conference, Rule 15.3.17 required the Court must consider the matters set out in Rule 15.3.18. The Rule states; the Court will not hear the claim unless it is satisfied that:

(a) The Claimant has an arguable case; and
(b) The Claimant is directly affected by the subject matter of the claim; and
(c) There has been no undue delay in making the claim;
(d) and there is no other remedy that resolves the matter fully.

All Counsels’ submissions refer to Rule 15.3.18 and agreed on the requirement of that Rules. Counsel for Claimant submit that his client has an arguable case on the basis that the ICLAC did not consider his other grounds of appeal but only considered the Issue of the Provincial Executive failure to put up a notice of its determinations. Counsel for the Claimant also submit that ICLAC fail to consider the Issue of Land Ownership. He submits that the decision directly affect the Claimant and that there is no other remedy available.

Counsel for the First Defendant submit that the First Defendant had no Issues with the matters set out in Rule 15.3.18 but submits that the Claimant have no arguable case as required by the Rules. Counsel submit that the ICLAC does not have jurisdiction to hear the case by virtue of section 10 of the FRTUA.

Counsel Ipo for the Second Defendant submit that Judicial review is concern with Judicial making process so he submits his client should not be named as a party since his client was not involved in the decision making. He submits Claimant had no arguable case for Judicial Review claim. He also submits that the claimant should wait for the Provincial Executive to publish its determination on Timber rights and then appeal. He submits that any appeal only runs from the date of the publication of the Notice under the FRTUA. He therefore submits that the claimant had not satisfied the four-requirement set out in Rule 15.3.18 and the claim must be dismissed.

I had considered the submission of the Counsels and agreed with the submission of the Counsel for the First and Second defendant that the First Defendant did not have jurisdiction to hear the appeal by virtue of section 10 of the FRTUA. I still hold the view I expressed in the case of Johnson Vanagi and others V Isabel Customary Appeal Court HCSI CC 426 of 2021, that the right of appeal only runs after the determination of the Provincial Executive is published in a public notice under section 9 (2) (b) of the FRTUA. In the present case the Isabel Provincial Executive had not yet published its determination when the Claimants filed their appeal. In this instance clearly no right of appeal is yet available to the Claimant when he filed the appeal and so the Isabel ICLAC was correct in dismissing the Claimants appeal on the basis that it had no jurisdiction to deal with the appeal.

I also consider that the decision of the ICLAC is subject to Appeal to the High Court so the Claimant also has other remedies to resolve the Issue. This means that the Claimant failed to satisfy requirement of Rule 15.3.18 (d)

Rule 25.3.20 states “if the Court is not satisfied about the matters in rule 15.3.28 the Court must decide not to hear the claim and to strike it out”

I am satisfied that the Claimant fail to satisfied the requirement of the Rule 15.3.18 hence the Court must strike out the claim with cost against the Claimant to be assed if not agreed.

The Court
Justice Emmanuel Kouhota
Puisne Judge.