Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Laise v Kajapala [2023] SBHC 35; HCSI-CC 439 of 2020 (6 June 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 439 of 2020

BETWEEN

CHIEF RUSSEL LAISE
(Representing Kurikuri Sarapaito Tribe)
First Claimant

AND:

KUBOKALE SARAPAITO ASSOCIATION TRUST BOARD INC.
Second Claimant

AND:

JEFFREY KAJAPALA
First Defendant

AND:

SHALOM LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Third Defendants

AND:

ATTORNEY GENERAL
(Representing the Western Provincial Government)
Fourth Defendant

Date of Hearing; 2 August 2022
Date of Judgment: 6 June 2023

Duddley J for the Claimants
Kilua S for the 1^st and 2^nd Defendants
Bula C for the 3^rd and 4^th Defendants

RULING ON APPLICATION TO DISMISS CLAIM

Kouhota PJ

This proceeding was commenced as an application for judicial review. However, before the Court proceed to consider the matter under rule 15.3.8 counsel for the First and Second defendant moved an application to struck out the claim. The Court therefore decided to deal with both applications and claim for JR together. It is appropriate to deal first with application to struck out the claim because if the application is successful that will end whole proceeding without having to consider the matter under rule 15.3.8

The dispute in matter emanates from logging operations on the island of Vella La Vella, Western Province. The facts leading up to this proceeding are long but were summarised in paragraphs 1 to 15 in the submission of counsel for the First defendant/ applicant. The facts relevant to this application were;

1. On the 11^th of Apri12016, the Malean House of chiefs determine that Kukuri tribe is the owner of Kurikuri Land,
2. On 19^th February 2016, the Western Provincial Executive under the application of Maxland (SI) for Timber rights made a determination in favour of the claimant over Kubokale Sarapaito but rejected the application over wagina tribe. The defendant arrived by the determination appealed to the Western Customary Land Appeal Court. Case No.4 of 2016 alleging that the boundary of Kubokale land encroached into Kurikuri Land. The appeal was withdrawn by the defendant and they entered a deed of settlement.

The First and second defendant application was to strike out the orders the claimants is seeking in his claim filed on 8^th September 2019. The orders the claimant is seeking are;

(a) An order quashing the determination of the Western Provincial Executive made on 28^th October 2019
(b) An order directing the Commissioner of Forest to suspend or cancel Felling licence Al 01942.
(c) A permanent order restraining the First and Second defendants and their agents and servants from entering Kubokale Sarapaito land blocks 3and 4 for logging purposes.
(d) An order directing the Commissioner of Forest to approve extension of the applicant's harvesting plan to cover land blocks 3 ad 4 on Kubokale Sarapaito land.

Counsel for the applicants submit the issues for consideration are;

(a) Did the claimants have a legal standing to file the claim,
(b) Did the claimant have all possible remedies exhausted to settle the ownership before filing the claim
(c) Should res judicata be applied
(d) Was the claim made out in the required time,
(e) Whether all these aforementioned issues amounts to frivolous and vexatious proceeding

In respect of issue (a) applicant submit that claimant have no interest on the land as there was no evidence of his ownership of the disputed land. On 22^nd April 2016 there was a hearing over the Kurikuri Sarapaito land by the Malean House of Chiefs between the First defendant tribe and Wagena 2 tribe. The decision was in favour of the First defendant. The claimant was present at the hearing but he took no action to refer the chief decision to the Local Court.

The First defendant withdrew his appeal CLAC No 4 of 2016 and entered into a deed of settlement agreed on the boundary between Kubolake and Kurikuri as determine by the Malean House of Chiefs decision of 22^nd April 2016 and since the claimant does not dispute the chief decision the ownership rest with the First defendant.

The Court is satisfied that the claimant is present but took no action in these proceeding he seem to have no interest in the proceeding which may mean that he does not own the land in dispute.

With regard to issue (b) counsel for the applicant submit that judicial review will not normally be granted when statute provides for an appeal remedy. She submit that claimant was aggrieved by the determination of the Western Province Executive but made no appeal pursuant to section 10(1) of FRTUA. There are remedies available to the claimant but he failed to utilize them. She submit that claim should be stuck out on that basis.

Counsel Tongarutu for the claimant submitted that the judicial review was because the process taken by the Provincial executive did not comply with the procedure to acquire timber rights. The difficulty encountered when one considered with this submission is that section 10(1) of the Forest Resources Timber Utilization Act because section 10(1) of the FRTUA specifically provide for an appeal if a person’s thinks that the procedure taken by the Provincial Executive is incorrect.

I think there are merit in the Counsel for applicants' submission. The claimant's claim is in respect of a decision made by the Western Province Executive in respect of a timber right hearing alleging noncompliance with procedural requirements.

The Forest Resources Timber Utilisation Act section 10(1) specifically provide the avenue for those who are aggrieve by the Provincial Executive decision in Timber rights to pursue their claim. The claimant did not do that in the time allowed by law. I think it is not proper for him to raise the issue in a claim for judicial review when an avenue is specifically provided by legislation for that.

With regard to issue ( c ) counsel submitted that the First defendant's right was determined by the WCLAC in CLAC case No 3 of 2016 on 5^th August 2019, The claimant was a party in the CLAC proceeding. Thus counsel submit that the claimant been a party to the CLAC proceeding, the principle of res judicata applied to him. I think counsel for the applicant is correct in her submission.

On the issue (d) counsel for applicant submit that the decision of the CLAC was made on the 5^th of August 2019 in favour of the First defendant and the Western Province Executive determination on the 28^th of October 2019, so the claimants claim was filed more than 5 months after the 6 months period stipulated by legislation and the rules. Claimant also provide no reasonable cause why the judicial review claim was filed out of time.

Thus counsel for the applicant submit that all of the above make the claimants claim frivolous and vexatious. She submit that the claimant has no locus standi to bring this action and that the Court cannot be satisfied, there is no other remedy to resolve the matter fully and directly. She submit that the claim for quashing orders must be made within 6 months. In the present case the claim for judicial was filed 5 months out of time and the Court does not give an extension time.

I am of the view that even if the Court proceed with the claim for Judicial Review the claimant would find it difficult to satisfied the requirement that there is no other remedy to resolve the matter fully and directly in view of section 10(1) FRTUA. Having considered the application and the submissions of counsel I am satisfied that the issues raise in the application has rendered the claimants claim to be frivolous and vexatious and show no reasonable cause of action. On that basis I see no sufficient reasons to extend time for the claim for judicial review but dismissed the claim.

The Court
Emmanuel Kouhota
Puisne Judge