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Livingstone v Napata [1998] SBHC 70; HCSI-CC 150 of 1997 (9 January 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 150 of 1997

DAVID LIVINGSTONE & OTRS

-v-

ISSAAC NAPATA & OTRS.

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 150 of 1997

Hearing: 29th October, 1997
Judgment: 9th January, 1998

P. Tegavota for the Applicants
S. Watt for the Respondents

PALMER J.: This is an application by Notice of Motion filed 17th July, 1997 for orders inter alia, for a Writ of Certiorari to be issued to quash the decision of the Customary Land Appeal Court dated 6th June, 1997 in Land Appeal Case No.6 of 1997.

Two main grounds were relied on in support of the application. First, that the Customary Land Appeal Court (CLAC) wrongly set aside the whole determination covering all of the four lands, OZANGA KIKI, HIHIOVO, CHOCHOLE, & KOLOMBANGARA, instead of setting aside the determination covering Hihiovo Land only in that the objection of Mr. Brown Lamu in respect of Susuvirano Land only affected Hihiovo Land.

Secondly, that the CLAC wrongly considered the map submitted in respect of Land Case No. 4/76 for the sole purpose of showing to the Court that Kuvotu Land claimed by Wiutlyn Viulu was outside the four lands as shown by the map attached to the Form I Application.

The decision of the CLAC read as follows:

“Since the objection was made in the strongest term of landownership to an application canvassing one concessionary area, that single objection affects the whole application. We therefore decided to allow the appeal and refer the matter to be sorted out in the appropriatied (sic) Court.”

The Appellants argue under the first ground that Susuvirano Land claimed by Mr., Lamu only affected one of four lands in the concession area; namely Hihiovo Land. The other three lands, Ozanga Kiki, Chochole and Kolombangara were not affected. Accordingly they argue the CLAC should only have set aside the determination of the Marovo Area Council in respect of Hihiovo Land and not the whole concession area.

In its judgment, the CLAC made the following comments, at paragraphs (2), (3), (4) and (7) of page 3 in respect of this issue:

“According to Appellant 2 (Brown Lamu) who submitted a letter of objection dated 3/2/97 addressed to the President of Marovo Area Council. In his letter, in particular paragraph 2, he claimed that he was the owner of a portion marked “A” in a map attached to his letter (App. Exh C).

Para. 2:

“As an owner of the portion of customary land traditionally known as Susuvirana Land. Whose traditional boundary is located between Nama River and Lulupebu River (see map attached). The portion land in question is clearly marked “A”. I was not consulted before the portion concession area”.

The respondents version as to the objection was that, there was no name of such land exists, although it was true their grandfather gave a portion of land to him within Hihiovo land to use and not for ownership.

...................................

There is no doubt that there was some overlapping and encroachment of the concessionary area into other lands which was admitted by the respondent spokesman. There is no doubt, that objection was raised by Mr. Brown Lamu in respect of a portion of land within the concessionary area which he claimed as a landowner.”

The CLAC concluded there was a dispute over land ownership within Hihiovo Land and ruled that the Marovo Area Council had no jurisdiction to entertain the application further. This decision was based upon an earlier ruling by this Court in Hyundai Timber Co and Others v The Attorney-General and Others, Civil Case No. 79/93 in which this Court stated that if it was clear to the Area Council that there is a land dispute, that it should reject the application and advise the parties to take up the land dispute pursuant to the Local Courts Act. In a more recent decision however, Gandly Simbe v East Choiseul Area Council and Others, Civil Case No. 33 of 1997, judgment delivered on 17th July, 1997, I held that the ruling given in Hyundai’s Case (supra), should no longer be relied on and followed in view of the recent pronouncements by the Solomon Islands Court of Appeal in two cases which touch on the same subject. In the interlocutory judgment delivered on 10th October, 1997 in this case, I reiterated what I said in Gandly Simbe’s Case. In the light of that case, the CLAC was obliged to consider the appeal before it and make a determination; that is, to determine whether the findings made by the Marovo Area Council as to the persons lawfully entitled to grant the timber rights should be upheld or not, and if not, who such persons were.

The CLAC therefore committed an error of law when it allowed the appeal and ruled that there being a dispute on questions of land ownership within the concession area that the matter should be referred to the appropriate courts to deal with. With respect, that did not amount to a determination as required by the section 5E of the Forest Resources and Timber Utilisation (Amendment) Act, 1990. What merely occurred was that the CLAC did consider the appeal but failed to make a determination.

As to the question of whether Kuvotu land was inside or outside of the concession area, that was a matter within the jurisdiction of the CLAC to consider. I am satisfied it was raised in appeal and that the CLAC did consider the question of overlap of Kuvotu Land into the concession area. Although it did not make any findings on the issue it appears that the CLAC did accept that a dispute exists on whether Kuvotu Land overlapped into the concession area or not. It appears that this was one of the grounds on which the decision of the CLAC was based to allow the appeal and refer the matter to the appropriate courts to deal with.

It was not correct therefore to merely allege that the CLAC wrongly considered the issue of overlap and thereby committed an error of law. It had jurisdiction to do that. Unfortunately, it did not go further to determine whether the persons held by the Marovo Area Council as being entitled to grant the timber rights in respect of the said concession area to be correct or not, and if not, then who such persons were. Therein lies the error committed by the CLAC.

So whilst it was quite correct for Mr. Watt to submit that the CLAC did not wrongly consider the issue of overlap, the CLAC did commit an error of law in any event in failing to make a determination on the appeal and this Court must intervene in the circumstances.

This in a way deals with the main issues raised in the appeal.

A number of preliminary matters however were raised by Mr. Watt and I will attend to these briefly. One preliminary matter raised relates to paragraph 5C (3) (a) of the Forest Resources and Timber Utilisation (Amendment) Act 1990. That paragraph reads:

“(3) At the time and place referred to in subsection (1), the area council shall in consultation with the appropriate Government discuss and determine with the customary landowners and the applicant matters relating to -

(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;”

He asks, if the landowners are not willing to dispose of their timber rights under paragraph (a) above, whether this should also be included in the determination of the Area Councils.

With respect, I fail to see how this should pose any difficulties. In this case for instance, where there appear to be competing claims of landowners within the concession area, that is a matter within the jurisdiction of the Area Council to determine who amongst those landowners as opposed to the persons proposing to grant the timber rights are the persons lawfully entitled to grant such rights. Only until that matter has been sorted out can it become clear which landowners are the rightful persons entitled to grant timber rights and whether they are willing to do so or not. All that the landowners are doing at that point of time is to let the Area Council know that they have an interest or claim over the trees in that area or parts of the area which the persons proposing to grant timber rights are claiming to be the rightful owners of and that accordingly the Area Council would have been obliged to hear their claims as well and to make a determination as to who are the rightful owners of the trees and entitled to grant timber rights over them. The fact that Wiutlyn Viulu and Brown Lamu claim to be landowners who do not wish to negotiate for the disposal of their timber rights to the applicant company is no impediment to the jurisdiction of the Area Council and the CLAC on appeal, to discuss and determine with the customary landowners whether the persons proposing to grant the timber rights are the persons and represent all the persons lawfully entitled to grant such rights.

Another preliminary matter raised was whether the CLAC or even the Area Council, would have the power to exclude any areas within the concession area found to have been owned by someone else. The answer in my respectful view should be fairly obvious. If that were the case, then it should make a finding to that effect.

The appeal should be allowed and the matter remitted to the CLAC for a re-hearing. If no objection is raised and the members of the current CLAC including the Clerk are not embarrassed about re-hearing the appeal, then I see no reason why the matter should not go before the same panel of members of the CLAC.

ORDERS OF THE COURT:

1. Uphold appeal.

2. Remit case to the CLAC for re-hearing.

3. Each party to bear their own costs.

ALBERT R. PALMER
THE COURT.