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Joshua v Valahonana Company Intergrated Development [2014] SBCA 8; SICOA-CAC 23 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against a decision removing ex parte interlocutory relief and dismissing a claim for trespass and in respect of logging alleged to have taken place on land known as Bukulu and Gahu customary lands.
   
2. On an ex parte basis in January 2013, the present Appellants were successful in obtaining interlocutory relief as against the 1st 2nd and 3rd defendants. That relief restrained entry into Bukulu and Gahu customary lands and required the 3rd defendant to hand over royalty money from the felling of 408 round logs said to have been extracted from the said customary lands.
   
3. The affected defendants responded by filing application for discharge of the interim order and dismissal of the substantive claim. They assert that no logs were removed from the said customary land areas but from land over which they have a valid logging concession and that in any event, the claimants have nothing more than a mere assertion of ownership in their favour.
   
4. There is thus dispute over where in fact the logs came from and whether the claimants have any right to whatever area, the Court finds the logs came from. As to the latter question there is still pending, according to the claimants, an appeal to the Western CLAC in respect of a Timber Rights process. That Central CLAC appeal itself has been the subject of separate review proceedings in which the CLAC was ordered to hear and determine the appeal. That hearing and determination has not yet taken place even though an order for mandamus issued in 2003.
   
5. The jurisdiction of the High Court in circumstances such as may arise here is limited to ensuring that the decisions of the CLAC or other bodies responsible for determining whatever question arises as to who may exercise Timber rights or who owns customary land proceeds effectively and that decisions of the same authorities may be enforced. The High Court has no jurisdiction to determine customary ownership or Timber Rights. So much is clear from the decision in Simbe v East Choiseul Area Council [1999] SBCA 8 of 1997
   
6. Whatever relief may be available in those limited circumstances as described about will invariably take the form of interim relief and is always discretionary. It will be exercised where necessary in accordance with equitable principles.
   
7. It is part of the claimant's case that the 1st defendant holds a logging licence issued by the Commissioner of Forests in 1998 as subsequently renewed. It is the grant of that licence which the Appellants challenge in the appeal to the Western CLAC. That hearing was first ordered to take place by virtue of an order of mandamus granted in the High Court in 2004.
   
8. These proceedings for interim relief and now a permanent restraining order with damages for trespass were commenced by the Appellants not when they saw trees being felled in land that they believe to by their land but only after the logging operation had ceased and there was a revenue stream from logs felled and awaiting or in the process of being exported. This, then, is not a case where the claimant landowners seek to stop logging until the land dispute or Timber Rights issue is determined, for the logging has already stopped. The purpose of these proceedings is to restrain the money proceeds until a final determination of the Western CLAC and, if they are successful in the CLAC an injunction to stop future trespass and logging.
   
9. It is not part of the case for the Appellants that the claim for trespass can precede any determination of the Western CLAC. It is accepted that any claim cannot be finally determined until after such a CLAC decision.
   
10. There was some time spent in the Court at first instance of whether at the time of the 2004 decision a valid appeal was on foot. This question arises as at that time no appeal hearing fee had been paid. It is now recognized that an appeal is not effective until all conditions precedent are complied with, one of which is payment of the prescribed fee. Brown J in his decision to issue mandamus was concerned not with that principle, on which he expressed no opinion but at that time whether any fee had properly been prescribed.
    
11. Given that the Appellant paid his hearing fee in 2012 it seems that the question of the prescribed fee may now be settled. An appeal fee was also paid to the local court in 2013, suggesting that there is also now a reference of the decision of the local chiefs on land ownership in addition to the Timber Rights process itself being challenged.
    
12. There are three errors of law suggested in the Notice of Appeal. That the judge erred in law in determining that the Appellants lacked locus standi; in finding of no triable issue or serious issue and in striking out the claim without full trial.
    
13. The Appellants themselves agree that their claim cannot be brought to finality absent a decision in their favour of either the CLAC or the Local Court. There is no doubt still pending a CLAC hearing but that hearing has been awaited now for more than a decade. Only after eight years did the Appellants pay the necessary fee. There is no evidence that since then they have asked for a hearing date or any communication asking about a hearing date. Only after thirteen years did the Appellants refer the Chiefs decision to the Local Court.
    
14. Given that background, it is not surprising that the trial judge found that the Appellants lacked status. They are seeking equitable relief to support the findings and decisions of the CLAC and Local Court and yet they do not pursue those remedies with any diligence.
    
15. Until they receive a decision favourable to them in either, a CLAC as regards Timber Rights or the Local Court as regards land ownership there is indeed no triable issue. There may be a triable issue when the Appellants are armed with an order asserting that they are landowners or persons entitled to dispose of timber rights. Until then there is nothing but a mere assertion.
    
16. The relief that may have been available to the Appellants in different circumstances the trial judge here found not to be available. We agree with his assessment of the position. If the Appellants were, perhaps, entitled to some relief in 2004 by 2014 having taken little in the way of steps to assert their claims to ownership, it is quite rightly said that they are no longer entitled to call upon equitable relief.
    
17. Failure to grant interim relief, which is all that is sought presently, and the dismissal of the substantive claim now is not a bar to subsequent relief once the Appellants have rights granted to them in their different claims elsewhere. If they ever reach that stage there will be nothing in these proceedings that will stop them from asserting a claim for trespass and damages again at that time. For the present, it is quite right that the claim is dismissed. This appeal is therefore dismissed with costs of the Respondents to be paid by the Appellants such costs to be agreed or taxed.
    

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Goldsbrough JA
President of the Court of Appeal

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Williams JA
Member of the Court of Appeal

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Sir Ward JA
Member of the Court of Appeal