Attorney General v Malai [2017] SBHC 147; HCSI-CC 462 of 2013 (14 July 2017)

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Mr E. Kii for the First Appellant
Mr R. Firigeni for the Second Appellant
Mr L. Kwana for the First and Second Respondents

Faukona PJ: An appeal against the determination and action of the Acquisition Officer was heard by the Magistrates Court, Malaita, on 11^th October 2013. The subject matter is the acquisition of ngori/bitakaula customary land or part thereof for the purpose of Church of Melanesia educational development and other related activities. This development was an initiative formulated by the Church of Melanesia. To implement its plan, land is a pre-requisite and must be acquired to accommodate and fulfil its goal.

2.	The Church Trust Board then requested the Commission of Lands to appoint an Acquisition Officer to acquire the land known as ngori/bitakaula customary land. The Commissioner then appointed Mr Penros Palmer as an Acquisition Officer.

3.	On 17^th November 2010, the Acquisition Officer conducted a public hearing at Seaview Conference room at Auki. At the end thereof a determination was made identifying the current second Appellants as the group who have rights to sell the ngori/bitakaula customary land.

4.	Being aggrieved by that determination, the current first and second Respondent appealed to the Magistrates Court. On 11^th October 2013 the Magistrate delivered his judgment in the following orders;-

	(a).			Upheld appeal ground (a)

	(b).			Dismiss appeal ground (b)

	(c).			Reserve appeal ground (c)

5.	In allowing appeal ground (a), the Magistrate unreservedly concurs with the first and second Respondents submissions, that the acquisition of ngori/bitakaula customary land under Part V Division 1 was null and void.

6.	The basic reason for nullifying the Acquisition Officer’s determination was because the determination and the process were not to facilitate the wish and the intention of the Commissioner of Lands for the National Government or the Provincial Government. In fact it was the wish of the third party the Church of Melanesia to purchase the land for its educational development and other activities.

7.	The learned Magistrate in his decision adopted the law in the case of Sipisoa V Acquisition Officer and Others^[1]. The law in that case limited the acquisition process under Part V Division 1 can only be carried out to facilitate the wish and the intention of the Commissioner of Lands (for the National Government) or the Provincial Government. The wish to purchase or lease must be established at a decision making level within the administrative machinery of the National Government or the Provincial Government. If the wish or desire is expressed by the third party to purchase or lease a customary land, acquisition process under Port V Division 1 of the Land and Titles Act is not available to the third party.

8.	Against that determination the Appellant (the Attorney-General) appeal to this Court. Manifestly, the appeal was supported by the second Appellants.

9.	In its appeal the Appellant filed two grounds in the following terms;

	1.		The leaned Magistrate erred in law when he held the word “wish” in S.61 (1) of the Land and Titles Act precludes the Church of Melanesia, hence found that the acquisition appointment and the acquisition is improper and must be set aside.

	2.		The learned Magistrates erred in law, when he held that the Church of Melanesia is not part of the National Government so that its wish to acquire ngori/bitakaula customary land tantamount to that of the Commissioner of Lands or the National Government.

10.	In submissions the first Appellant decided to abandoned appeal point 2 and confined to appeal point 1 only.

11.	The Defendants naturally defended the decision made by the Magistrate, Malaita, and add by making reference to a number of tribunal and Court decisions which reinforce their ownership of ngori/bitakaula customary land.

	The law as it applies:

12.	The issue is whether a “wish” exercised by the third party to acquire customary land by way of purchase or lease for its purpose (here, for educational purposes), utilising the law set out by Part 5 Division 1 of the Land and Titles Act.

13.	In modern times, the High Court approach to this particular issue was expounded in the case of Sipisoa V Acquisition officer and Others^[2]. His Lordship Kabui J, (as he was then) stated at page 3 and said;

		“ The wish to purchase or take lease of a customary land must first be established at a decision making level within the administrative machinery of the Provincial Government or the national Government”

14.	What His Lordship was saying is that Part V Division 1 of the Land and Titles Act only used when the Commissioner of Lands (for National Government) or the Provincial Assembly (for the Provincial Government) wishes to acquire customary land for purchase or lease and that the third party was precluded from acquiring the same status though the wishes are equally valuated for public purposes.

15.	The law in that case was adopted in the case of Taylor V Soe^[3] where His Lordship Chetwynd J said,

		“Unlike the provision of Division 2, there is no requirement the land is required or needed for public purposes. However, the purchase for lease must be by the Commissioner or the Provincial Assembly.

16.	Unfortunately, the Sipisoa case of 1996 and Soe’s case of 2011 had made erroneous approach and omissions. In fact both cases attempted to adopt a literal rule of interpreting the law rather than applying other appropriate modes or rules of interpretation. Whether the omissions were committed due to lack of assistant from the Counsels, or a total ignorant, or a wrong persistent on what is expressed, as per se, on the relevant provisions under Part 5 Division 1 of the Land and Titles Act.

17.	Should the Court was well versed with the law perhaps a different approach would have been adopted. In the case of Manele v Tiva^[4], His Lordship, CJ resumed to adopting a liberal approach which in my view upheld fairness and deplored restrictive approach. In that case His Lordship CJ stated,

		“Now what the Plaintiffs seem to be saying is that unless the Government has an interest in the acquisition of customary land and that those interest of the government are on grounds of public purposes, then any other acquisition such as that in this case would be contrary to the spirit and the intervention of the Land and Titles Act” “I do not think I can agree to this because it would over simplifying what governments concern and responsibilities are and imposing an unnecessary restrictive approach”.

		“Government’s primary concern is always for the public good, welfare and benefits but enshrined in the constitution is the responsibility to protect the rights and freedom of individuals and I would add private organisations”.

		“The government of this nation belongs to the people, and so whatever natural resources are vested in the government are held for and on behalf of the people of this nation.”

		“Government concerns are not necessarily restricted to the public good, public defence, safety, order, morality or public health. It would in fact be unwise to do so. Governments concerns go right down to the grass roots level, to the individual to Church organisations and private organisations. This is why Government makes laws and regulations and set policies to facilitate individual and private enterprise and allow growth and development to take place in the Country”

		“It would be wrong in my view therefore to say that government or Provincial Assembly cannot acquire land for purposes other than public purposes. It would be imposing a restriction on the powers of governments and Provincial assemblies to say that they cannot acquire land on behalf of others as well.

		“It is clear they can acquire land on behalf of themselves. But it does not say that it shall only for public purposes or only where government has an interest”

18.	That decision was adopted in the case of Talasasa V Lamupio and Others^[5]

19.	From the law it is apparently clear that the learned Magistrate was erred when he held that Section 61 (1) of the Land and Titles Act precluded the Church of Melanesia from acquiring land by way of purchase or lease through the provisions of Part 5 Division 1 of the Land and Titles Act.

20.	It ought to be noted that the Church of Melanesia is among other Churches that has Education Authority and had been providing education development for many years in Solomon Islands. By its nature it promotes spiritual growth and educational learning to Solomon Islanders.

21.	With the two approaches, the approach in Manele and Talasasa must be accepted as law without restriction and discrimination. From that, the learned Magistrate by adopting the other approach was erred and cannot stand. I must therefore uphold the appeal with Costs.

22.	No reason was given why ground (c) was reserved and whether the Magistrate will rehear that again and at what point. It would have been proper if that ground was determined with the other two grounds. To refer the case back is a duplication of work which I do not seem to see appropriate at this stage.

	Orders:

	1.		The decision by the learned Magistrate on 11^th October 2013 is hereby quashed.

	2.		The Commissioner of Lands, Church of Melanesia and the second Appellants to carry out further process for the purchase and registration of the ngori/bitakaula land pursuant to the acquisition.

	3.		Costs of this appeal be borne by the Respondents including costs incurred in the hearing in the Magistrates Court.



	The Court. ---------------------- REX FAUKONA PUISNE JUDGE

High Court of Solomon Islands

Attorney General v Malai [2017] SBHC 147; HCSI-CC 462 of 2013 (14 July 2017)