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Ne'e v Commissioner of Lands [2024] SBHC 134; HCSI-CC 517 of 2023 (10 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 517 of 2023

BETWEEN

FRANCIS TAFEA NE’E
(Representing himself and members of his Family)
Claimant

AND:

COMMISSIONER OF LANDS
Defendant

Date of Hearing: 7 October 2024
Date Decision: 10 October 2024

Mr J To’ofilu of the Claimant
Mrs C Bird for the Defendant

Judgment

1. Francis Ne’e is the owner of customary land at Ambu, Auki in Malaita Province. The Commissioner of Lands [‘the Commissioner’] administers the Land and Titles Act has the duties and powers are set out in that Act [‘the Act’].
2. In 1995, the Malaita Provincial Secretary appointed Laury Palmer as an acquisition officer with a view to acquiring a portion of land in Ambu. A determination was made in favour of Francis Ne’e. An aggrieved party appealed that determination in civil case number 3 of 1997 in Malaita Magistrates Court. That appeal was struck out in 2018, as was an appeal to the High court from that decision. Those two decisions are related to the delay in prosecuting the appeal rather than being appeals on the merits of the acquisition process.
3. After the appeals, the Commissioner has not implemented the finalisation of the acquisition. On 27 July 2023 the Commissioner wrote to counsel for Mr Ne’e in which he rescinded the acquisition in reliance on the section 68 of the Land and Titles Act. In that letter, he explained his reasons for doing so. He attached to that letter what he called a purported resolution of the Malaita Provincial Assembly on 25 November 2021. That purported resolution related to the acquisition. The Commissioner pointed out that he had carried out enquiries and there had been no resolution of the Malaita Provincial Assembly on 25 November 2021. He also pointed out that the acquisition process must commence with such a resolution and not end with it.
4. Section 69(1) (c) makes it clear why that should be so. An agreement made between an acquisition officer for the purchase or lease of the land with the purported owners of the land would commit the Provincial Assembly to pay to the Commissioner the purchase money set out in the agreement and in turn the Commissioner would be required to pay such money to those persons named in the agreement. The Commissioner has referred to the failure to have a resolution of the Provincial Assembly prior to the appointment of the Acquisition Officer by the Provincial Secretary and the purported resolution in November 2021 when there was apparently no such resolution, as a serious case of fraud. If that is so then by implementing the agreement the Commissioner would become a party to the alleged fraud.
5. Mr Ne’e alleges that the Commissioner did not have the power under section 68 to rescind the acquisition. He says the power is limited to rescinding an agreement made under section 62(b) of the Land and Titles Act. Secondly he alleges that the Commissioner did not have the power exercised under section 68 once the appeals had been determined. Thirdly he claims that the Commissioner did not have the power to rescind under section 68 when the determination stood in favour of Mr Ne’e.
6. The Commissioner, on the other hand alleges that the acquisition process was flawed right from the start. He says that there is a process which must be followed to prevent abuses and that process requires an authority from the Provincial Assembly for the Provincial Secretary to appoint an acquisition officer. He says that this acquisition was required to commence with a resolution of the Malaita Provincial Assembly. In this case that did not happen.
7. On 9 May 2024, at a directions hearing, counsel for the Claimant advised the Court that he intended to file an application to determine preliminary points of law. The case was adjourned to a further directions hearing on 16 May to set a date to hear any application that may be filed. On 16 May 2020 there had been no application filed. Counsel for both parties asked the Court to determine the matter on the papers. They both agreed to directions as follows:
   1. The Defendant (being the Commissioner) had until 7 June 2024 to file any sworn statement on which he wished to rely.
   2. The Claimant (Mr Ne’e) had until 14 June 2024 to respond to that sworn statement.
   3. The Claimant had until 21 June 2024 to file written submissions in support of the application.
   4. The Defendant had until 5 July 2024 to file written submissions in response.
   5. Both parties agreed that the matter could be dealt with on the papers.
   6. Leave was granted to bring the matter on with 3 days’ notice if counsel wished to address the Court.
   7. Costs were to be costs in the cause.
8. Counsel for the Claimant filed those draft orders on 22 May 2024. The Court perfected the orders the following day. On reviewing the perfected orders there was one error that now is of no moment. The date for the Claimant to file and serve his submissions was recorded as 5 July 2024 when the order in Court was that he was to do that by 21 June 2024.
9. It is understandable why the Commissioner may have chosen to file no sworn statement as the relevant facts were not really in dispute. The Court has not received any application to determine any point of law. Nor has the Claimant filed any submissions in support. Accordingly the Commissioner has had no submission to which he can respond. There has been no application to extend the time for filing any of the documents. However on 30 August 2024 being the date allocated for hearing the indicated application counsel for the Claimant explained that the application was not to be pursued and that the matter could proceed to trial relying on the evidence already adduced. The date of 7 October 2024 was set for the hearing of closing addresses. The Court made orders in accordance with the request from counsel that the Claimant file and serve his submissions by 13 September 2024 and that Defendant file and serve his by 27 September 2024
10. Mr To’ofilu for the Claimant set out the history of the matter. He submitted that section 66 of the Act provided for the process to be followed if any person is aggrieved by the determination of the acquisition officer. He submitted that litigation set out at paragraph 2 of this ruling finalised the matter. He said that the Attorney General was a party to the proceedings in the Magistrate’s Court and also the High Court. That is not strictly correct. In the Magistrate’s Court the First Respondent was the Acquisition Officer but he was represented by counsel from the Attorney General’s Chambers. The Commissioner of Lands was not a party to the proceedings. In the High Court the Attorney General was the Second Respondent representing the acquisition Officer but again the Commissioner of Lands was not a party to the proceedings.
11. Section 4(3) of the Act provides:
    • “(3) The Commissioner shall have the power to institute or defend any proceedings under his official title.”
12. In legal proceedings the Commissioner sues and is sued in his own name. It is therefore irrelevant who counsel was in the proceedings. The Commissioner was not a party to either proceedings. It is correct however that the proceedings brought by the aggrieved person, in this case John Walenenea, has come to a conclusion.
13. Counsel submitted that the Commissioner does not have the power to rescind the agreement made pursuant to section 62(b) of the Act with the persons purported to be the owners of the land or their representative. He further submitted that the Commissioner had acted ‘ultra vires’ his power under section 68 of the Act when he rescinded the ‘10^th January 1996 Ambu Church Land Acquisition’ by letter dated 27 July 2023.
14. Section 62 of the Act provides as follows:
    • “62. The Acquisition Officer shall -
    • (a) cause the boundaries of the land to be demarcated on the ground or upon a map or plan in such manner as to bring them to the notice of the persons affected;
    • (b) make a written agreement for the purchase or lease of the land required with the persons who purport to be the owners or with the duly authorised representative of such owners.”
15. Section 68 of the Act provides as follows:
    • “68.- (1) Where the Acquisition Officer or, in the event of an appeal under section 66, the court, has determined that any claimant has established a claim, the Commissioner may-
    • (a) implement the agreement made under section 62 (b) only to the extent to which a claim so established has not affected the right of the vendors or lessors named in that agreement to sell or lease any part of the land; or
    • (b) rescind such agreement.
    • (2) Where the Commissioner rescinds an agreement under subsection (1) (b), he may enter into a fresh agreement relating to the same land or any part thereof with those persons who have been found by the Acquisition Officer or the court, as the case may be, to have the right to sell or lease the land and receive the purchase money or rent, and the terms of such fresh agreement may be implemented without further notice, inquiry or hearing.”
16. Mr To’ofilu submitted that the Commissioner can only rescind an agreement under section 68(1) in accordance with the acquisition officer’s determination or the Court’s determination. He said that the Commissioner cannot rescind such an agreement at his own will.
17. He further submitted that when the Commissioner rescinds an agreement under section 68(1) (b) of the Act he must comply with section 68(2) of the Act. He submitted that he erred in law when he rescinded the acquisition in his letter dated 27 July 2023 and as a result was ‘ultra vires’ his powers when he did so. He submitted the Commissioner did not have the power under section 68 to rescind an acquisition. Finally he submitted that section 68 power to rescind under section 68 is limited to rescinding an agreement which he said can only be done in accordance with the acquisition determination or Court’s determination.
18. I declined to receive written submissions from counsel for the Commissioner as they had not been filed in accordance with the order of the Court and no application had been made to extend time for doing so. The Court Registry had contacted counsel for the Commissioner regarding the submissions on Thursday 3 October 2024 but none had been received. At the hearing counsel for the Commissioner was permitted to make oral submissions.
19. Mrs Bird submitted that the application was misconceived. She then referred to the provisions of the Act commencing with section 61(2) which provides:
    • “(2) Where a Provincial Assembly wishes to purchase or to take a lease of any customary land under section 60, the Provincial Secretary may appoint an Acquisition Officer to act as his agent for the purposes of the acquisition.”
20. Mrs Bird submitted that the Provincial Secretary may appoint an acquisition officer once the Provincial Assembly has agreed to do so. In the present case, the evidence before me is that set out in the letter from the Commissioner, which is annexed to the sworn statement of the Claimant filed on 20 October 2023. There is no evidence before me that the Provincial Assembly resolved to appoint the acquisition officer in 1996. If it had there would have been no need for the resolution in 2021. I make no finding as to whether the purported resolution in 2021 was fraudulent.
21. Where such an important process as the acquisition of land is concerned, there is good reason to require the process to be followed strictly. Clearly, the appointment of an acquisition officer cannot be authorised retrospectively as that would create a greater risk of an abuse.
22. Assuming an acquisition officer has been correctly appointed, which appears was not the case in these proceedings, section 62 of the Land and Titles Act requires the acquisition officer to cause the boundaries of the land to be demarcated, and to enter into an agreement for the purchase or lease of the land.
23. Section 67 then makes provision for the implementation of an acquisition. That section provides:
    • “67. Where the Acquisition Officer or, in the event of an appeal under section 66, the court, has determined that there are no claimants or has dismissed the claims, the Commissioner may, when the time limited for appeal under section 66 has expired and no appeal has been made, or on receipt of the order of the court, as the case may be, implement the agreement.”
24. It is noted that the section uses the word ‘may’ in relation to the Commissioner implementing the agreement provided for in section 62(b) of the Land and Titles Act. This discretion in the Commissioner is a further protection for abuses of the process. The discretion remains after the appeal process has been exhausted.
25. Section 68(1) also uses the word ‘may’. That means that once a claim has been determined either by the acquisition officer or the court following appeals, there is a further discretion in the Commissioner. He ‘may’ either implement the agreement as in paragraph (a) or rescind the agreement as in paragraph (b).
26. Section 68 makes it clear that even after a court has determined that any claimant has established a claim the Commissioner has a discretion to either implement the agreement or rescind the agreement. The legislation does not use the word ‘must’ or ‘shall’ in respect of implementing or rescinding the agreement as it does when dealing with the duties of the acquisition officer in sections 61, 62, 63, 64 and 65. Parliament must have intended to give the Commissioner a discretion when using the term ‘may’ in sections 67 and 68.
27. Mr To’ofilu’s submission that the Commissioner can only rescind an agreement under section 68(1) in accordance with the acquisition officer’s determination or the Court’s determination requires cautious consideration. If the Commissioner is required to implement the acquisition officer’s determination as submitted by counsel the words of section 68(1) (b) would have to be ignored. The use of the word ‘or’ between paragraphs (a) and (b) make it clear that after the acquisition officer’s determination there is power to either implement or rescind. The same power exists after a court determination that a claimant has established a claim. Similarly the word ‘may’ is used in section 68(2) of the Act. It permits the Commissioner to enter into a fresh agreement in relation to the same land or part of it with those persons found by acquisition officer or by the Court to have the right to sell or lease the land or receive purchase money or rent and it goes on to permit the terms of such agreement ‘may’ be implemented without further notice, enquiry or hearing. It is an empowering provision not a requiring provision as submitted.
28. In this case the acquisition officer made a determination. There was an objection to that determination which resulted in the appeal to the Magistrate’s Court. That appeal was struck out on the basis of delay. In the High Court the appeal was against the Magistrate’s decision to strike out the appeal. The appeal to the High Court was struck out. No reasons appear to have been given. The appeals therefore do not appear to have dealt with the substantive issues before the acquisition officer.
29. The discretion given to the Commissioner remains a check on the proper use of the provisions of the Act. The effect of rescinding the agreement is to bring the implementation of the acquisition to an end as there would then be nothing to implement.
30. The words used in the letter from the Commissioner to counsel for Mr Ne’e dated 27 July 2023 are understood to mean that the Commissioner, having identified regularities in the process, has rescinded the acquisition agreement. The effect is to rescind the acquisition from Mr Ne’e. The penultimate sentence of that letter reads as follows:
    • “ finally, in light of the above, and my earlier letter of 1 December 2022, and in accordance with the power vested in me by section 68 of the Land and Titles Act, I hereby formally rescind the 10 January 1996, Ambu church land acquisition.”
31. Although the Commissioner could have inserted the word ‘agreement’ after the final word in that sentence, the effect is the same and is quite clear. The Commissioner is required to exercise his discretion to ensure compliance with the Act. He has done so and explained his reasons for doing that. The Commissioner has therefore not acted beyond his powers as set out in section 68 of the Land and Titles Act.
32. A close reading and consideration of the provisions of sections, 60 to 70 of the Land and Titles Act make it clear that the claim cannot succeed. The claim would defeat the checks and balances that are set out in the Act. Judgment must be entered for the Defendant. I consider the Claimant should pay the costs of the Defendant on the standard basis.

Orders

1. Judgment is entered in favour of the Defendant.
2. Costs are to be paid by the Claimant to the Defendant on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge