HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 62 of 2008

JACK LAGOBE & DALCY TOZAKA

V

THE PREMIER OF WESTERN PROVINCE
(Representing Western Provincial Executive)
1st Defendant

ZEBEDEE LOLETI,

ALON DAUVELO,

BINET ROLE,

HAROLD SIAKA,

REGIONALD OREKITI,

CLIFF BOSEVOLOMO,

RILEY ESAPITU,

DONALD PUIQETO,

JOB TORAN,

ELLA LASA,

ANNET PERIKERA,

JANE MATARADE,

BEN DAIMEA,

JOHN BIARA,

JANET KIBULE,

ALICE SIMATA,

JOHN MEKIRONI,

ROSEMAE LEZUTUNI,

BETERIDGE RUBEN
2nd Defendant

Faukona, J

Date of Hearing: 12th & 18th September 2008
Date of Ruling: 20th October 2008

J. Sullivan & R. Kingmele for the Claimant
P. Lavery for the 1st Defendant 
J. Apaniai for the 2nd Defendant

RULING ON APPLICATION FOR JUDICIAL REVIEW

Faukona J.

This is an application pursuant to the new Rules, Rule 15.3.4 for judicial review. This court is urged by this application to review the determination by the Western Provincial Executive (WPE) dated 14th January 2008.

The relief sought in this case is by way of Judicial Review for a quashing order, pursuant to rule 15.3.4 directed to the First Defendant, and to the effect that the determination of WPE made on the 14th January 2008 (the Determination) and the certificate of customary ownership of that date (the Certificate) determining the Second Defendants are the persons entitled to grant timber rights over Pusakale customary land be removed to the High Court and thereupon be quashed.

Background history of this case

On 1st July 1994 the Vella La Vella Local Court (VLC) made a determination about the ownership of Reresare Customary Land. The decision was in favour of the current Claimants. The parties to that case were Jack Lagobe and Dalcy Tozaka representing Reresare tribe and Frank Lezutuni representing a tribe called Veala Reresare. The decision of the court was in favour of the current Claimants who were the rightful people to own Reresare land. Frank Lezutini then appealed to the Western Customary Land Appeal Court (WCLAC), subsequently the WCLAC upheld the decision of Vella La Vella Local Court (VLC).

On 12th October 2007, Pacific Crest Enterprises Limited submitted an application in Form 1, for approval by the Commissioner of Forest, to negotiate Timber Rights within Pusakale Land. The propose names of the landowners who were willing to negotiate, as appeared in Form 1 application, were the current Second Defendants. Consent was then given by the Commissioner of Forests.

On 14th January 2008, per certificate of customary ownership (Exhibit FT3), the WPE determine that the Second Defendants were the persons lawfully able to and entitled to grant timber rights within Pusakale Customary Land. Against that proceeding that this application was brought.

The basis for this application according to Mr. Sullivan is in two fold:-

1.	Section 8 (3) of the Forest Resources and Timber Utilisation Act (FRTUA) provides for five matters of which the WPE to determine at the Timber Rights Hearing. A right of appeal against WPE determination lies to the WCLAC in accord to S. 10[1] of the Act. However, the jurisdiction of WCLAC is limited to the determination of two (2) issues out of the five (5) issues in S. 8(3). With this jurisdictional limitation the only possible challenge against the WPE determination is by way of judicial review.

2.	Although there was an appeal to the WCLAC on foot, under the old rule 0.61 r3, the Court may adjourn the application for certiorari awaiting the outcome of the appeal. That has not been repeated in the new rules. Therefore makes it possible for this application for judicial review to be filed in this court.

Undisputed Facts

1.	That all the Second Defendants are either members of the Reresare tribe or clan through one Frank Lezutuni.

2.	That the boundary of Reresare land in Vella La Vella extend from between Sulukokaipe and Dula on the West Coast of Vella La Vella and between Nokosole to Ququso point on the East Coast of Vella La Vella and include all land in the interior of Vella La Vella between these points. Those boundaries had been determined by the VLC per LC1/1991 and affirmed by WCLAC per LAC2/1994.

3.	That the boundaries claim by the Second Defendants described as Pusakale lie wholly within the Reresare land as defined.

4.	That the Pusakale Clan is a sub-clan or sub-tribe of Reresare tribe.

The Law

The Blacks Law Dictionary defines the term res judicata as follows:

1.	An issue that has been definitely settled by a judicial decision.

2.	An affirmative defence having the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transaction and that could have been, but was not, raised in the earlier suit.

In the case of Majoria –v- Jino the Court of Appeal held that the principle of res judicata applied to the statutory regime in the Forest Resources and Timber Utilisation Act (Cap. 40) and stated the principle of res judicata as thus, 

"To make act estoppel per rem judicatam or "cause of action" estoppel, it is necessary to show that the earlier judgment relied on was a final judgment, and that between the former and the present litigation there is an identity of parties and subject matter or "cause of action".

The party rely on the principle not necessarily required to prove all the elements, at least one to succeed. Lord Reid’s dictum in Carl Zeiss Stiftung –v- Raynor and Theeler Ltd (No.2) outline the essential ingredients which the doctrine of res judicata would apply in judgments interparty. The Majoria case of which the Court of Appeal has approved the statement of essential elements of the principle of res judicata in Talasasa –v- Paia as follows:-

(a)	an earlier case in which the cause of action or point in dispute was really the same.

(b)	A final determination by a Court of that cause of action or point on its merit.

(c)	the raising of the same cause of action, or the same point which was distinctly put in issue, by a party who has had the action or point solemnly and with certainty decided against him.

The Court of Appeal also approved Lord Reid’s dictum that with respect to the identity of the parties there must be a privity of blood, title or interest.

If these necessary elements are present then the party seeking to raise the issue anew can be stopped from so doing and the Court will refuse to determine the matter afresh.

The current law in Solomon Islands in regards to inter-relationship with three sets of Acts, Local Court Act, Lands and Titles Act and the Forest Resources and Timber Utilisation Act had been well illustrated by the Court of Appeal in Majoria’s case. Reference is hereby made to paragraphs 38 and 39 in parts, and paragraph 43 last of sentence.

Paragraph 38

"Where a decision is made by the CLAC as to customary ownership of land as necessary preliminary to determining the disposal of timber rights that decision is binding on the parties".

Paragraph 39 – 

"Consequently, if there is a Local Court decision on the question of customary ownership that is binding on the parties in the conventional sense, they are estopped from seeking a different decision in respect of that question under the regime instituted by the Forest Resources and Timber Utilisation Act".

Paragraph 43 (last sentence)

"It follows, as we think, that a party who disagrees with a decision of the Chiefs but who declines to take advantage of the scheme for reconsidering, that determination by invoking the jurisdiction of the Local Court must be considered to be bound by the decision".

This position is true because the determination of land ownership is a prerequisite to the disposal of timber rights. Before one can determine as to who may grant timber rights, one must first determine who owns the land. In a situation where CLAC making a decision on timber rights is bound by an earlier judgment on res judicata principle, so as the Provincial Executive conducting the timber rights hearing. See Grandly Simbe v East Choiseul Area Council and Others; Pitabelama and Others v Moses Biliki; Veno v Jino. 

Issues For this Court to determine

1.	The principle of res judicata as apply to the parties and the cause of action.

2.	The principle of res judicata as apply in the statutory regime in relation to dealing with customary land by the Courts and the Provincial Executive in relation to timber rights application.

3.	Whether there are faults on the face of the record of the Western Provincial Executive determination.

To determine a cause of action is estopped it must be shown earlier judgment relied or was a final one, and that between the former and the present litigation is an identity of parties and subject matter or cause of action.

Previous Proceeding – Lagobe and Tozaka –v- Lezutuni

The above proceeding is said to give rise to such estoppel. During the course of submissions counsels for both defendants argued that the above case dealt with the issue of Chieftanship and not land. Upon reading of the proceedings of the VLC and WCLAC it clearly reflected that issue of ownership of land was the core issue. Of course, it will be noted in all cases related to customary land, chieftainship issue is automatically associated or framed into as part and partial of it. No dispute related to customary land is isolated from the issue of chieftainship. These were reflected in the decision of VLC and WCLAC.

I have briefly summarised the case in the history as above. All I have to say in addition, that the determination by the VLC and the WCLAC expressly stated that the ownership of the whole of Reresare land vested on the Reresare tribe which the claimants represent. The boundaries of Reresare land are well defined as above. The boundaries of Pusakale land which the Second Defendants claim is entirely within the Reresare land. The WCLAC stated an important recognition in its decision that any development intended to establish in the land must first be consulted over with Jack Lagobe.

After the WCLAC determination there was no further appeal to the High Court and the matter thereafter came to rest.

Having said that, it is apparently clear that the judgments of VLC and WCLAC are final and the principle of res judicata applies in this case. The two judgments bind the Claimants and the Second Defendants, and that the Second Defendants are estopped from denying that Reresare tribe owns Pusakale land and that the Claimants are the lawful representative and own the Reresare land.

Identity of parties, privity of blood, title or interest

The question to ask, has the Second Defendants parties to the earlier proceedings or privies of parties to that action. I intend to deal with the issues under this topic on two fronts. One is Pusakale as a sub-tribe of Reresare main tribe, secondly the status of Pusakale sub-tribe in the previous proceedings. To determine those issues I have taken cognisance of the criteria to apply and do they apply in the present case. In doing so the matter must turn upon an examination of the previous litigation, in particular the parties thereto and the issues raised therein, and its relationship to the parties and matters raised in the present litigation – Talasasa –v- Paia.

Mr. Sullivans submitted that the first 17 Second Defendants are members of the Reresare tribe, and the last two second Defendants claim through Lezutuni. And that by virtue of VLC and WCLAC which awarded customary ownership of Reresare land including Pusakale land to the Claimants. All the Defendants are bound by the judgments of the courts. They cannot take themselves out of the large tribe and say that they are not bound by the decisions. However Mr. Apaniai submitted that the parties to the present case though related, are different between previous parties, and it is an internal tribal dispute and it concerned all members of Reresare tribe, in regards to the Veala Reresare portion of land within the main Reresare tribal land. The present dispute between the Claimants and the Second Defendants who again are the members of the main Reresare tribe, concerning Pusakale portion of land within Reresare tribal land. In this context the parties are not the same, therefore, there is no final decision in respect of Pusakale land. Whilst he agrees with the principles of res judicata it does not apply in this case. A similar submission was made by Mr. Lavery in paragraphs 4, 5-9 of his written submission.

Meaning of Sister tribes and sub-tribes

In addressing whether the Second Defendants are parties or privies to earlier proceedings, we have to look at it from the view point of Solomon Islands context, that is tribal connection to Reresare tribe and land. 

On the outset I agree with Mr. Apaniai in his outline of the status of sub-tribe and its relationship to the main tribe with some exceptions. In addition to what Mr. Apaniai stated, and in order to appreciate the meaning of sister tribes and sub-tribes and their relationship to the main tribe. The words sister tribes had been the main focus in the past by the Second Defendants even right up to the timber rights hearing. The words sub-tribe was used graciously by Job Toran, Belenge and Chief Elobule, on the 24th of October 2003, to describe Pusakale people, during peace and reconciliation ceremony between Reresare mother tribe and Reresare Pusakale sub-tribe (Exh. AL1). Not until in this Court that Mr. Apaniai confirm that Pusakale is a sub-tribe and not sister tribe as previously known.

In Solomon Islands custom where land was divided among the children by a common ancestor, each child acquired full right of ownership over his portion of land, and functions separately from one another, appoints their own chiefs, manages their own affairs, recites their own history and totally separated in existence. This is what I term as sister tribes. For instance, in Talasasa –v- Paia where one sister own left-hand Kazukuru and the other own right-hand Kazukuru. Both exist as sister tribes, function separately and manage their own affairs. A sub-tribe will never be a sister tribe to the main mother tribe. It will always be a part of the main tribe. This can equally be said where land is not divided. All members of the main tribe including sub-tribes have equal rights to the main tribal land. And they are bound by certain customary factors. They have one common ancestor from whom they derived rights to land, one history, and one main chief at one given time, one geneology including sub-tribes and one tribal customary land. These elements formed the basis of peaceful co-existence of a tribe. And the main chief being the head ensure all things work together for the good and benefit of all the members of a tribe. Their rights to land descend through the matrilineal or patrilineal linage.

Of course some sub-tribe own land with distinctive boundaries. If that land was given from the main tribal land it must be publicly pronounced and witnessed by the members of the tribe. There must be transaction of customary valuables. There must also be food staff transacted. All these transactions must be done publicly and not secretly with few people attended.

In this case Pusakale land was said to have been given as compensation to Seri for the wrong her uncle did to her. That was the story of Binet Role at the timber rights hearing. Whether that giving was in accordance to Vella La Vella custom or by word of mouth, there was no further explanation as to that. 

The relationship between Reresare tribe and Pusakale sub-tribe is supposed to be one of social unity. That oneness is confirmed by Job Toran in this speech during peace and reconciliation ceremony between Reresare mother tribe and Pusakale sub-tribe on 24th October 2003 that both tribes are one. Mr. Loleti confirmed when cross-examined in the VLC that he was from Reresare. He did not mention that he was from Pusakale sub-tribe.

Those facts confirm my perception that Reresare tribe and Pusakale sub-tribe are one. It may be true that privity of blood relationship in England may mean a relationship between father and son. However, in the context of Solomon Islands, including Vella La Vella, where land rights to a tribal land were acquired from one ancestral source, and descended down through matrilineal lineage, and bounded by the customary ingredients stated above, they are one and the same people. Therefore, there is privity of blood exist between the Claimants and the Second Defendants.

The use of the terms "sister tribe" at the timber rights hearing was to give effect to the fact that Pusakale land existed separately from Reresare land, with separate boundary and chief, and deny that Pusakale land was never been a part of Reresare Land. Mr. Apaniai finally settled the issue that Pusakale is a sub-tribe of Reresare tribe. In that context Pusakale sub-tribe is still a subject of Reresare tribe and Mr. Lagobe is the overall chief who has the overriding authority over the entire Reresare Tribe including Pusakale sub-tribe.

On the second approach, the VLC record of proceeding revealed certain very significant points (Exh. FT8). Mr. Lezutuni’s statement in VLC record Page 15 end of paragraph 3 and 4, and I quote:-

Paragraph 3

"Overiko gave birth to Pusakale at Veala land. Matebangara belong to Veala Land (head of Chiefs) stayed at Bunasao at Veala land. This Matechangura, the Chief of Veala Reresare, Sibora Reresare, Pusakale and Vinesare. Their tambu place is at Logeo belong to Virasare and Sibiore, Pusakale and Veala Reresare." 

Paragraph 4 –

The name of this tambu devil is Sielekolo and Siakale. At Luqa you can find a Sope belong to Pusakale tribe. At Luqa too you can find a Sope belong to Veala Reresare ordinary people. Their custom money was at Leveilado, this is between Jemo Mountain and Tubuo Mountain. The land shell money belongs to Veala Reresare and Sibiore, one of my witnesses will tell you later.

And on Page 17 paragraph 4, first sentence.

"Now I am going to put custom money. This is a custom money that a chief to sit on. First Chief is Soka. He is the chief of Veala Reresare, Sibiore Reresare, Pusakale and Vinasare."

On page 20, paragraph 1, last three sentences, Mr. Loleti said, 

"She said this baby will not be called Reresare but will be called Pusakale. Since that time the parcel of land was looked after by Frank Lezutuni, this is because we stayed far away from this land."

On page 29 Gladys Luluka was questioned by the Plaintiff and I quote 14th question.

Q.	When did your father change this land’s name? From Reresare to Veala Reresare?
A.	I heard it from Zitubulu Zarasope at father Silas Lezutuni.

Though there is no clear indication as to the boundaries of Veala Reresare land at the time of litigation in the lower Courts, the quotes above indicated with certainty, that Pasikale land is right within the bounds of Veala Reresare which was claimed by Lezutuni. The child which Loleti said was called Pusakale was born within Veala Reresare according to Lezutuni. There is no doubt that both refer to the same and one child. They have certain things in common. They have one Matebangara (head chief). They have tambu devils located in one area called Luqa and one custom shell money at Laveilado. They also have one custom money as a foundation when a chief was installed. Eventually Gladys summed it all, that the name Reresare was changed by Silas Lezutuni to Veala Reresare. It becomes clear that the boundaries of Reresare land as claimed by the Claimants may have been the same as boundaries of Veala Reresare as claimed by Lezutuni. Therefore Pusakale land is right in the centre of dispute. Logically, it is prudent to say that Pusakale land at the time of litigation was claimed under Veala Reresare land by Lezutuni and Loleti. Unfortunately Lezutuni lost the case, so it would be just right to say that Pusakale land also lost to the Claimants according to VLC and WCLAC Court decisions on appeal.

To answer the initial question asked, it is true the Second Defendants are not physically a party to the previous proceedings. In the absence of that, the next question to ask, are they not privies of parties to that action. In short the answer is in the affirmative, they are privies of parties to those actions. Mr. Loleti and Mekironi gave evidence in support of Lezutuni. Loleti was the Chief of Pusakale sub-tribe in the proceedings. He raised the issue of ownership of Pusakale land, and how they acquired rights from Pusakale child who commenced the sub-tribe of Pusakale which own Pusakale land.

From the two perspectives the Second Defendants (first 17) are privies to the Claimants and are bound by customary principles of tribal ties that make Reresare tribe and Pusakale sub-tribe one, therefore render them privity of blood. On the second front all the Second Defendants (first 17) were right behind their Chief Loleti in supporting Lezutuni. Unfortunately Lezutuni lost the battle; therefore they are privies of parties to those actions. In regards to the last two Second Defendants, it is not disputed that they claim through Lezutuni hence privies of parties to those proceedings as well. As such all the Second Defendants were bound by the judgments of VLC and WCLAC and estopped from denying that Reresare tribe own the whole of Reresare land including Pusakale land.

Privity of matter or Cause of Action

The question to ask is, is the cause of action in the two previous proceedings, or point in dispute, really the same as in the timber rights hearing. Accordingly to Sullivans the issue in the current case is whether Pusakale land is being part of Reresare land which has been finally determined by the VLC and WCLAC, hence a final judgment. However, Mr. Apaniai submitted that the WPC determination on 14/1/08 in favour of the Second Defendants relate to Pusakale land. In Simbe’s case, until a binding decision on the ownership of Pusakale land by the LC or Chiefs or CLAC under S.10(1) of FRTUA between the current parties, the WPE determination stands and can only be changed by appeal under S.10(1). The issue whether Pusakale sub-tribe owns the land and whether in custom Chief Lagobe has the authority over Pusakale land and any dealing by Pusakale sub-tribe in relation to Pusakale land must have the approval of Chief Lagobe. These are issues the WCLAC has jurisdiction to decide.

Mr. Lavery submitted that the issues in question in the two previous cases which came before WPE were not the same.

In the previous proceedings the Claimants claim ownership of Reresare land and the boundaries are well defined as above. They claim ownership from a woman named Viledonga who started the geneology of Reresare tribe. Mr. Lezutini claim ownership of Veala Reresare. The boundaries of Veala Reresare was eventually revealed by Gladys in VLC to cover the area of land which had the same boundaries as Reresare land of which Pusakale land was also situated within. Mr Lezutuni claim ownership of Veala Reresare land through women named Solorodu.

The issue before the VLC and the WCLAC was the ownership of a customary land which the Claimants called Reresare land and Mr. Lezutuni called it Veala Reresare. The boundaries of the disputed land should be the same after Gladys’s verification.

In the VLC Loleti and Mekironi two of the Second Defendants gave evidence to support Mr. Lezutuni. The issue of ownership of Pusakale land was raised by Loleti. He said he owned it with his tribe Pusakale. That evidence is directly connected to Mr. Lezutuni’s evidence which bind them together as one package of evidence, or shared equally certain custom things in common, example Matebangara (head chief), tambu devil, custom shell money, chief’s installation custom money.

Those evidence had been considered among others by VLC and the WCLAC and had made their decision to that effect, and subsequently gave ownership of Reresare customary land to the Claimants including Pusakale land. In essence the Pusakale land could have been completely taken over by the Claimants with no remains whatsoever.

Will the Second Defendants raise those cause of actions again in the timber rights hearing? A simple answer is no. However, Mr. Binet Role raises those custom issues at the timber rights hearing. Mr. Alone Dauvelo also repeats those issues again in his submission paper tendered to the WPE at the timber rights hearing (Exh. "AL1). This is clear case where the same cause of action or point previously raised in the VLC and on appeal to the WCLAC, in which those courts had already made a determination, was raised again at the timber rights hearing. Had the WPE inquired fully as to who owned the land, a full repetition of what had been said in previous proceedings will be brought into light. Obviously one of the criteria’s required under the principle of res judicata had been established.

In Solomon Islands customary land cases usually involve the interest of a tribe or sub-tribe to a particular land. In this case the Pusakale sub-tribe’s interest is Pusakale land which wholly within Reresare land which the Claimants have won in the VLC and WCLAC. The judgments had made it clear that whoever wishes to establish development in Reresare land must consult with Mr. Lagobe. Avoiding this important order the Second Defendants invited Pacific Crest Ltd to log in Pusakale land which they had lost. Under the principle of res judicata all the Second Defendants are estopped because all were bound by the previous proceedings. 17 are members of Reresare tribe and two a claim through Frank Lezutuni. They cannot bring that interest up again to be redetermined [see Gleeson v. J. Wippell and Co. Ltd]. 

Principles of res judicata as apply in connection with Local Court Act. Land and Titles Act and Forest Resources and Timber Utilisation Act

The current law apply in respect of those three sets of acts when dealing with customary land ownership, and granting of timber rights, had been finally settled in the case of Majori v. Jino. The relevant paragraph of the case has been quoted above. What the case was saying, is that if there is a judgment given by the Chiefs under the Local Courts Act or the Local Court under the Land and Titles Act, that judgment will bind the Customary Land Appeal Court giving a decision on timber rights under the Forest Resources and Timber Utilisation Act. If it can be shown that the latter is covered by res judicata. The same can be said where a prior decision on timber rights judgment on ownership under the Land Titles Act will be bound if res judicata apply. This position is true because determination of customary land ownership is a prior essential step in the process of determination as to who will grant timer rights.

Where a CLAC making a decision on timer rights is bound by an earlier judgment on res judicata including the PE holding the relevant timer rights.

In the case of Pitabelama & Others v. Moses Biliki, the respondent has obtained a decision from the CLAC, in connection with the grant of a timber agreement under Forest and Resources and Timber Utilisation Act, to the effect they were the customary owners of the relevant land, not the appellants. The appellant then commenced proceedings before the Council of Chiefs and obtained a decision in their favour on the question of customary ownership of the same land, the respondents not appearing, and sought to enjoin the respondents from logging on the land. The Chief Justice refused relief holding that the respondents were estopped from disputing the decision of CLAC. The house of chiefs has no jurisdiction to rehear the same issue, as had been agitated before the PE and confirmed on appeal for CLAC [see Simbe’s case; and Veno v Jino].

In the present case WPE has determined that the Second Defendants are lawfully and entitled to grant timber rights over Pusakale land, which undeniably situated within Reresare land. The question then is who owns the land. The judgments in VLC and WCLAC affirmed that the Claimants are the owners of Reresare land which has boundaries encompassing Pusakale land. Issue in previous proceedings involved ownership of whole of Reresare land including Pusakale land. It is apparent that there is privity of parties in Lezutuni’s case and the Claimants and the Second Defendants in the present case. The reason is because the Claimants were the successful party or held to be persons to represent Reresare tribe as to ownership.

Having determined the issue of ownership of Reresare land by VLC and WCLAC which Pusakale land is situated wholly within, can the Second Defendants go to WPE to determine the ownership of Pusakale land which the VLC and WCLAC had already decided; to entitle them to grant timber rights on Pusakale Land. The Second Defendants cannot do that now. The WPE has no jurisdiction to entertain the same issue again as the Second Defendants are privity to the Claimants, and Mr. Lezutuni as parties in the previous litigations. Therefore bound by the decisions of VLC and WCLAC.

Having identified the Second Defendants as persons, represent all the person lawfully entitled to grant timber rights on Pusakale land, which is wholly within Reresare land owned by the Claimants by virtue of decision of BLC and WCLAC, it would seem therefore that Pusakale land, after the determination, is subjected to duel ownership. One ownership was given by the Courts and the other by WPE. Indeed in my view, there is a conflict of ownership on Pusakale land. But which determination should prevail then. The very crux of the Majoria –v- Jino is to uphold the principle that whoever owns the lad owns the trees; and this has been widely accepted by customary land owners in Solomon Islands and appreciated that the law in Majoria –v- Jino is a good one.

How would then this concurrent ownership be resolved. For me it is clear that judgment of the Courts must prevail. It would have been resolved, even at the initial stage, if Second Defendants simply comply with the WCLAC order to consult Mr. Lagobe before development commenced. Mr. Tozaka and Dalcy had reiterated that in the timber rights hearing. That they would have agreed if consultation was done at the first place. That consent was subjective to consultation. It was not a free and flowing consented kind of agreement. It was consent but strings tied to it, and it can only be made when subjective requirement is met, that is consultation.

To undo this complexity of duel ownership the Second Defendants have to relinquish their rights by virtue of the principle of res judicata which applied in this case, and this court is prepared to do so.

WPE Function under FRTUA

S. 8(1) of FRTUA provides that WPE to conduct a meeting (timber rights hearing). S. 8(3) sets out matters to discuss and determine with appropriate government, customary landowners and the applicant. The matters are:-

(a)	Whether or not the landowners are willing to negotiate for the disposal of 	their timber rights to the applicant.

(c)	Whether the persons proposing to grant timber rights are the person and represent all the persons lawfully entitle to grant such rights, if not who such persons are?

(d)	the sharing of profits in the venture with landowners.

(e)	the participation of the appropriate government.

By S.8 (4) any agreement reach under subsection 3 be reduced in writing and forwarded to Commissioner with the recommendation by the WPE with reference to:-

(a)	the quantum of profit sharing, if any, agreed upon.

(b)	the extend of participation, if any, of the appropriate government,

S. 9 make provisions for two things. One where no agreement is reached the WPE to recommend to the Commissioner that it rejected the application. On making its determination under S. 8(3) the WPE as soon as practicable issue a certificate in prescribed form setting out its determination; then given public notice of its determination, and retain the original certificate which shall be forwarded to the Commissioner and a copy sent to the applicant.

S. 10 (1) of the Act, provides for right of appeal to WCLAC within one month from the date the notice was given. On appeal the CLAC can only determine issues under S. 8(3) (b) or (c) and make a determination on it.

At this juncture both Counsels for the Defendants argued that by utilising this process whilst an appeal is on foot is an abuse of process. There is no short cut to this court. Questions of fact can best be left with the WCLAC to determine. Mr. Sullivan explained earlier that WCLAC’s jurisdiction is limited to S. 8(3) (b) or (c). It cannot entertain the questions of law. This application encompasses both facts and law, in particular on the principle of res judicata which WCLAC lacks jurisdiction to entertain. Both Counsels may have been correct under the old rules. In Talasasa v. Biku the court stated on page 8 that, "whatsoever, an order or decision of that kind has been held to be immune from review by certiorari in the High Court. However Mr. Sullivan submitted that there is no provision under the new rules which bar the application of this nature to be filed in the High Court. I agree with that as the Talasasa’s case was determined when the old rules were still in place. It would have been a valid argument should the old rules still apply. I see no breach of any rule or law to come to court and sought judicial review. Secondly the issues of res judicata, a point of law, cannot be argued in WCLAC. Have to wait until the appeal from the WCLAC is heard. Certainly that would take months or even years before that can be done.

The question to ask is has the WPC discharge its duty in accord to S. 8(3) FRTUA. That section required that WPE as a preliminary matter to inquire and identify who are the landowners of Pusakale land. Then ask are they willing to negotiate. This process will assist the WPE to determine whether persons propose to grant timbers are the person; lawfully entitle to grant timber rights, if not who such persons are.

A number of issues were raised by the Counsels. The first and the foremost is a requirement under S. 8(3). Mr. Sullivan argued that should the WPE diligently inquire into the issue of ownership it would have no doubt concluded that Pusakale land by judgments in Lezutuni’s cases was owned by the Claimants who represent Reresare tirbe as whole and not Pusakale sub-tribe. However Mr. Lavery submitted that the assertion that the Claimants who own the whole of Rerersare land including Pusakale is a wrong assertion. In fact Pusakale land is different, the parties were different and the cause of action is not the same. The same sentiment is shared by Mr. Apaniai.

I do not intend to repeat myself again, as I have already decided that the parties are the same by virtue of tribal ties and by virtue of privies to the parties in VLC and WCLAC. Mr. Loleti gave evidence in support Mr. Lezutini in the VLC. The issue of ownership of Pusakale land was raised among other things, and the Court had already decided those issues considering Lezutuni’s full entire case.

Upon reading of the WPE determination there seemed to be no consideration in regards to the preliminary requirements of S. 8(3) FRTUA. However sworn statement of Alex Lokopio indicated that WPE determination was based on the following facts. One that Lagobe and Freedom Tozaka would not object unless consultation was first sought. Secondly they took account of the determination of South Vella La Vella Council of Chiefs which held that a block of land within Reresare land was owned by Pusakale tribe. Thirdly that the issue of separate rights of Pusakale tribe to the land derived from Reresare tribe was not an issue in the previous courts. And lastly that no copies of judgment of previous proceedings was presented during the timber rights hearing.

The issue of Pusakale land did emerge in the VLC. Mr. Lezutuni did combine Pusakale sub-tribe to his in which they shared a number of custom heritages together. I have mentioned something about this earlier in this ruling. Even if separate rights of Pusakale tribe was not an issue in previous proceeding, that would not stop WPE altogether from complying with S. 8(3) FRTUA. They have to inquire whether the persons propose to grant timber rights were the persons or represent all persons lawfully entitle to grant timber rights. In fact what actually expected of WPE is to find out who the landowners are. To identify landowners it is not sufficient to accept mere objection or who owns this or that. It warrants customary evidence in relation to ownership of Pusakale land. That has not been done by one WPC.

And then relying on Lagobe and Freedom Tozaka that they would not object unless consultation was first sought. In ordinary English, are the words mean objection or no objection. In my view, it means had consultation first took place both would not have objected. It does not mean they agree altogether. They agree but subjective to consultation. There was no consultation so there was no agreement. In Solomon Islands, reference to consultation denotes authority and respect and no one would over ride it. It may be true that both recognise the rights of the Second Defendants because they were all from Reresare mother tribe but not to the extent as to their status of separate tribe and land.

The third consideration taken account of is the South Vella La Vella Council of Chiefs determination (FT12). Undoubtedly the WPE is entitled to consider Simbe v. East Choiseul Area Council and Others; Veno v. Jino and Others; Majoria v. Jino; but the problem the WPE unawared of is the case of Reresare Resources Development Co. Ltd. v. Dive which concluded that only the Chiefs Council within the locality where the land is situated can hear and determine the issue of land ownership within its jurisdiction or area. Pusakale land is in the north and the Chiefs are from South Vella La Vella, therefore the Chiefs Council lacks jurisdiction to determine Pusakale land issue. Further more that dispute was not between the Claimants and the Second Defendants. In fact it was a combination or a joint effort to oust Bolapoe tribe, a different tribe altogether.

Earlier on there was another Chief’s determination on 23rd June 2005. [FT11]. I find there were some irregularities in the record of this particular chiefs hearing. There was no opposition party. It was one sided hearing. Only one chief presided and the other was the secretary. It’s not a council. How could a single person determine an issue in custom? In fact there was no dispute and no issue to determine. Again if it was not a proper hearing then Dive’s cases above apply. That determination is void and of no effect. The Chiefs Council had no jurisdiction.

Mr. Lavery argued that South Vella La Vella Council of Chiefs have no territorial jurisdiction analogous to a Local Court. We can argue as much as we like but the law in Dive’s case makes the finality. Therefore the Chiefs determination on 23/6/05 must be void and of no effect as well.

Whilst WPE may have done their best to uphold the rule of natural justice by conducting a fair hearing and weighing matters that were made available before them, I must say, in my view, it was not the best that they could have done.

The practice adopted by WPE here is that their mind set was focussed on propose persons whose names appeared in Form 1. Evidence of objection not considered or has very little effect when measured against the desire of propose persons. It seemed that S. 8(3) of FRTUA was often forgotten altogether. As a result WPE failed to inquire further about the objections and previous court proceedings. Had they have done so they would have been in a better position to decide whether Reresare tribe or Pusakale sub-tribe own Pusakale land. And whether the Claimants or the Second Defendants are the persons lawfully and entitle to grant timber rights. Even further, had they tune their minds and enquire into the two court cases, and the status of Pusakale land, they would have concluded that the Claimants were the persons lawfully and entitle to grant timber rights; or resort to the fact that the Claimant’s objection were valid and should therefore reject the application.

WPE Record of determination

Mr. Sullivan alluded that the determination nor the certificate had no map annexed in proper form or seal, contrary to Forest Resources Timber Utilisation (Prescribed Forms) Regulation reg. 3(a) of the prescribed Form 2. On the other hand Mr. Lavery argued that the Regulations and prescribed form do not prescribed the form or scale of the map to be attached to the application Form 1 or Form 2.

Where a foreign company is invited into a customary land to undertake logging, a map is a requirement under the regulations. Not necessary that it be drawn to scale, but at least a sketch plan that will show the boundaries as near as possible. In this way it confines the logging activity within the bounds of which a licence was granted and regulate those persons lawfully and entitle to grant timber rights, that their rights to grant extend as far as the boundaries of the map and not beyond. In the absence of a sketch plan with well demarcated boundaries, the applicant and the landowners would not know how far their rights extend. In other words determination by WPE should follow the map. In the absence of a map it would be futile. No one would know which area of land the determination is concern with.

Mr. Sullivan also does, point out the determination nor certificate made any determination as to the nature and extends of timber rights. And this is contrary to S. 8 (3) (c) FRTU Regulation reg. 3 and paragraphs 3 (b) and (c) of prescribed Form 2. Mr. Lavery in rebutting said in the absence of any express derogation from these defined rights in the schedule the court may infer that rights were granted. Those rights indeed should be recorded as part of the determination. It is a requirement under the regulations. In the absence, the court cannot make inferences as they suppose to be part of the determination. All I have to say is that WPE failed to determine those specific rights, therefore failed to comply with the regulations. First Schedule under Form 2 is blank. Nothing was mentioned therein. In 2nd Schedule concerning rights which may not be granted there was nothing said even in the determination. In regards to profit sharing and participation by WPA there was no record of it in the determination or the certificate. Again Mr. Lavery advanced that in the absence of anything stated in the relevant Schedule the court may be inferred. Those are requirements under S. 8(3) (d) and (e) of FRTUA. Should the WPC failed to consider or made determination on, then the court cannot infer. It’s a requirement under the law which WPE must comply with. If WPE failed to consider and did not make a determination to include them there is no compliance. The WPE has failed to fully perform its functions required under FRTU Act, therefore the record of determination and certificate of customary ownership were uncompleted.

I now will turn to a point of law which Mr. Apaniai had submitted. His submission encompasses the question of jurisdiction, whether this court should entertain application for judicial review whilst an appeal to WCLAC is on foot. He said there is difference between appeal and Judicial Review. He objected to Mr. Sullivan’s line of argument that the proper procedure to come to this court is not by way of Judicial Review. Judicial Review concern with the legal issues whilst an appeal is based on merit of the case but encompasses both issues of law and facts. He submitted that the appeal to WCLAC be allowed to proceed and deal with the issues of facts raised in WPE, and as well as legal errors committed during WPE hearing. He refers to the case of Bollen and Others v. Sade and Others.

Mr. Sullivan at the commencement of this hearing explained the basis for this application. I have outline it above and need not to restate them again. As it would be appreciated that WCLAC lacks jurisdiction to entertain legal issues of law. It cannot entertain the issue of res judicate which engage a good majority of time argued before this court. The jurisdiction is confined to S. 8(3)[b]or(c) FRTUA, and no more. Mr. Sullivan also made it clear that under the old rules 0.61r3 in which the court may adjourn an application for certiorari awaiting the outcome of the appeal. That has not been repeated in the new rules. Therefore makes it possible for this application.

I have read Bollen’s case and noted that the ruling do really supports Mr. Apaniai’s argument. However under the old rules any application for certiorari, leave must first be sought. Mr. Tegavota who represented Mr. Bollen did not sought leave at first instance. Secondly application for certiorari is to invoke the court to exercise of its discretionary powers. His Lordship Awich has made it clear at page 4 quoted by Mr. Apaniai that discretion to make the orders is normally not exercised where statute provides for remedies such as appeal and review.

Though Judicial review may serve the same end result as certiorari, that is quashing order, from reading of His Lordship’s ruling it appears to me that discretion cannot be exercised where statute has provide for appeal and review. Simply put, in my personal view, that discretionary power is not exercisable in cases of judicial review. The Claimant has chose to come to court to review the determination of WPE, and among other things stated in Rule 15.3.18 there is no other remedy that could resolves the matter fully and directly.

If Mr. Apaniai is correct, and this application is forgone, then the issue of res judicate will not for sure be raised in the WCLAC. It lack jurisdiction to hear. That has to be wait until on appeal is lodged in the High Court, and that will of course take months, even a year before it can be heard. By then things will be come complicated. There will be WPE determination and also WCLAC decision to consider.

I accepted Mr. Sullivan’s explanation. Coming to this court with an application for Judicial Review, whilst appeal to WCLAC is on foot, has not cause any legal complication but timely.

Having said all that, I concluded that this application succeeds, and therefore make the followings orders:

Orders:

1.	That quashing order is hereby directed to the First Defendant and to the effect that the Determination of the Western Provincial Executive (WPE) mad on 14th January, 2008 ("the Determination") and the Certificate of Customary Ownership of that date (the Certificate") determining that the Second Defendants, are the persons entitled to grant timbers over Pusakale Customary Land "be moved to the High Court and thereupon quashed.

2.	Order that First and Second Defendants pay the costs of an incidental to this action on the standard to Queens Counsel cost.

THE COURT