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Maneniaru v Attorney General [2016] SBCA 22; SICOA-CAC 28 of 2015 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. On 25 January 2013, a claim for Judicial Review was filed seeking quashing, mandatory and declaratory orders and injunctive relief in respect of decisions, determinations and/or actions of the Respondents. This followed a Timber Rights hearing in May 2011 and a determination in June 2011 under the Forest Resources and Timber Utilisation Act [Cap 40] by the 1^st Respondent (MPE). The resultant Felling Licence was issued by the 2^nd Respondent in the form of Licence number 101108 and logging began. There is evidence from the Appellant that the first he knew of the determination and the subsequent licence was when logging began on the land. That evidence is not included in the Appeal Book before this court but was before the trial judge.
2. A defence to the claim was filed by the 4^th and 5^th Respondents on 25 February 2013 and by the 1^st 2^nd and 3^rd Respondents on 24 May 2013. A Conference under the Solomon Island Courts (Civil Procedure) Rules 2007 (CPR) was arranged and submissions made by counsel in the matters to be considered at that conference.
3. Following that conference the trial judge made a finding that there was another remedy available to the Appellant which would resolve the matter fully and directly. This remedy, it was found, was an appeal against the Timber Rights determination. We deal with this more specifically at paragraph 14 of this judgment.
4. The basis of the claim, to be found in the sworn material of complaint, is of a failure to publish a public notice about the holding of a Timber Rights hearing in the area affected, which notice is provided for within the statutory scheme under Cap 40 and a subsequent failure to publish the consequent determination. This complaint is made even though some of the Appellants tribe or line actually attended the Timber Rights hearings and made their views on the application for timber rights known to the adjudicators. The evidence does not show whether the same people remained at the hearing until its end nor when they themselves became aware of the determination, which followed the hearing.
5. Following receipt of notice of the determination, the clerk to the Malaita Customary Land Appeal Court (MCLAC) issued a Notice of No Appeal, given that no appeal had been lodged against the determination, a step without which the Commissioner of Forest could not proceed to issue the Felling Licence. To date no appeal has been filed to the MCLAC by this Appellant against the MPE determination. There is a statutory time limit for such an appeal prescribed in Cap 40.
6. To the extent that the Appellants do not assert that an appeal has been filed by them, they do not seek to criticize the clerk in his issuing the Notice of No Appeal. Their criticism is that, in their view, the failure to display the required notice of hearing prior to the Timber Rights and the subsequent failure to display the determination after the hearing before the MPE renders subsequent process ineffective.
7. During the hearing of the appeal, no submissions were made that the
   MCLAC was vested with the power to extend the prescribed appeal period of one month found at section 10 of Cap 40. The extent of submissions on that point were that the Appellant, asserting as he was that the proper notice had not been given under section 8 (2) and9 (2) (b), the time to appeal had not commenced. The import of this is that, as the MCLAC had not been approached it is not possible to know what decision would have been made on that point by the MCLAC. By failing to raise the matter with the MPE or the MCLAC the opportunity for either body to enquire into the alleged failure to publish the notices did not arise.
8. Equally during submissions on this appeal, no counsel sought to submit that the alternative of Judicial Review was not available in these circumstances. Counsel for the 1^st2nd and 3^rd Respondents submitted that, provided full disclosure by the Appellants as to why and whether they had chosen one route rather than the other (but not both on the same material), either route could have been taken. He further submitted that if the MCLAC had been approached and determined against the Appellant on the question, perhaps that decision itself could have been the subject of a review in the High Court.
9. This was hypothetical, as the Appellant chose to bring the matter only to the High Court and only in January 2013 when the determination had been made in April 2011. Although there was some suggestion from counsel that an explanation for the delay appeared in a sworn statement of the Appellant, examination of that statement shows otherwise. It must suffice, for present purposes that the Appellant through counsel assets that he only became aware of the determination some timeafter it was made and when logging had begun.
10. The matters which must be taken into account at the conference called under Rule 15 CPR are fourfold. They are: -

(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; and

(d) there is no other remedy that resolves the matter fully and directly.

Under Rule 15.3.18 the court may not hear the claim unless it is satisfied on each of the four matters. To reach that conclusion the court may consider the material filed in the case and hear argument from the parties (Rule 15.3.19). If satisfied the court may determine the claim or may give directions and fix a date for the trial (Rule 15.3.21). If not satisfied the court must decline to hear the claim and strike it out. (Rule 15.3.20).

11. At trial, written submissions were called for and were filed. Those submissions form part of the appeal book. Whereas counsel focussed on only one of the four matters, the learned judge considered, as he was obliged to do, all four matters.
12. Nowhere in the appeal material is there any reference to Rule 15.3.10 where it is provided that a claim for a quashing order must be made within 6 months of the decision complained of. That time may be extended by the court if it is satisfied that substantial justice requires it (Rule 15.3.9). Whilst this was not the subject of submissions we refer to it for this purpose. If an applicant could satisfactorily demonstrate that a claim was brought, although more than six months after the decision claimed of but yet still within six months of the decision being brought to his attention, a court could consider extending the time period if substantial justice required it.
13. Whilst we cannot suggest that a similar approach would be adopted by MCLAC we can say with some certainty that a similar approach should be adopted by the High Court faced with such a situation. Thus if the present Appellant had asked MCLAC to consider leave to appeal outside of the one-month period on the grounds of no notice but within one month of the Appellant becoming aware of the decision, the Appellant may have been granted permission to file an appeal. If he was not, he could have brought that decision to the High Court for review.
14. None of this took place and it was only in 2013 that these proceedings were instituted in the High Court with no explanation of the decision not to attempt an appeal. It was this that led to a focussing on the ‘no other remedy that resolves the matter fully and directly’ provision. The trial judge found against the Appellant on this point, but also went on to consider the remaining three provisions. It is not correct to say, as counsel for the Appellant submitted, that through not making submission on the other three requirements, that there was a concession made on those three issues. Even were it the case that such concessions had been made, it remained incumbent on the trial judge to satisfy himself on all of the matters.
15. In dealing with the remaining three matters, that is (i) arguable case, (ii) directly affected, and (iii) no undue delay, the judge found the there exists an arguable case. It is also clear that the Appellant is directly affected. Thereafter the judge was sidetracked into a discussion of the merits of the proposed appeal, which in our view was not helpful. What appears to be missing from the judgment is any discussion of the bar to declarations being sought beyond a six month period and any useful discussion of undue delay. That may be explained by what the Appellant regards as a concession, about which we speak earlier in this judgment but it was nevertheless a matter which should have been considered by the judge whether or not counsel chose to include it in their submissions.
16. There appears a substantial delay between the determination and the filing of this judicial review. The determination was made in June 2011 and this claim filed in January 2013. There is no satisfactory explanation available to explain this delay. Bearing in mind the fixed six month period for seeking declarations, it does not require any significant judicial intervention to conclude that nineteen months amounts to an undue delay in bringing a claim.
17. In the event this appeal is dismissed. Whilst we may not agree with all of the reasoning as set out in the judgment below we find that the Court was under an obligation not to hear the claim and must strike out that same claim in compliance with the Civil Procedure Rules. Costs of and incidental to the appeal will be paid by the Appellant such costs to be agreed or assessed.
    

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Goldsbrough P

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Lunabek JA

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Young JA