Fugui v Solmac Construction Company Ltd [1982] SBHC 8; [1982] SILR 100 (11 October 1982)

[1982] SILR 100

HIGH COURT OF SOLOMON ISLANDS

FUGUI & ANOTHER

v

SOLMAC CONSTRUCTION COMPANY LIMITED and OTHERS

(Mr Commissioner D.R. Crome)
Civil Cases No. 44 & 45 of 1982
11th October 1982

Constitutional law - jurisdiction of High Court - S. 2, S. 18(1) and S. 77(1) of the Constitution - whether the Constitutional provisions override the provisions of S. 231(1) of the Lands and Titles Act.

Property - whether or not a customary right to crop produce is property or an interest in or right over property so as to bring it within the provisions of S. 8(1) of the Constitution.

Constitutional law - S. 8(1) - whether or not S. 8(1) applies where the acquisition or taking of possession is not done or purported to be done by a party by virtue of a right under statute or statutory regulation.

Facts:

The First Respondent without being the holder of a valid licence under the Forest and Timber Act as amended entered on land and in the course of clearance operations destroyed trees which the Applicants claimed they had a right to crop. The Applicants applied by Motions for redress under S. 18(1) of the Constitution.

Held:

1. that S. 231(1) of the Lands and Titles Act in- so far as the same seeks to exclude the jurisdiction of the High Court to determine an application made under S. 18(1) of the Constitution is to that extent void as being in con-flict with S.2 and S.77(1) of the Constitution;

2. that a right to crop produce is "property" or an "interest in or right over property" and so falls within the ambit of S. 8(1) of the Constitution;

3. that where the acquisition or taking of possession is not done or purported to be done under a statute or statutory regulation then it does not infringe S.8(1) of the Constitution. Consequently the Motions were dismissed.

Lands and Titles Act Cap. 93
Solomon Islands Independence Order 1978.

Cases referred to:

Lilo and Another v. Ghomo (1980/81) S.I.L.R. p. 229
In Re Earnshaw-Wall (1894) 3 Ch. p. 156
James v. Skinner 5 LJ Ch. 80
Government of Malaysia v. Selangor Pitot Association (1977) 2 WLR 901

F. Waleilia for the Applicants
A.H. Nori for the First Respondent
Attorney General for the Crown the Second Respondent
Third Respondent (Minister of Land and Natural Resources) in person

Mr Commissioner Crome: Suahu, Onoae, Loua, Malani Kwakio and Afulania lands are in Wards 17 and 18 of Malaita in the North East of that Island, and have coastline which includes Ata'a Cove, an area which forms a natural harbour. It is all customary land. The area, to which I shall now refer as "the disputed area" bears different kinds of trees, some of which yield fruit and some of which are suitable for logging and for the subsequent processing and export of the timber for commercial purposes.

This Court is moved in two separate actions which have been consolidated, by Nelson Meke and Leslie Fugui, as representing members of their clan, for redress under S. 18(1) of the Constitution, upon the grounds that their fundamental rights protected under Chapter II of the Constitution have been infringed, by the First Respondent, in particular the right of protection from deprivation of property referred to in S. 8(13 of the Constitution which I must now read:-

"8(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say -

a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town or country planning or the development or utilisation of any property in such a manner as to promote the public benefit; and

b) there is reasonable justification for causing of any hardship that may result to any person having an interest in or right over the property; and

c) provision is made by a law applicable to that taking of possession or acquisition -

(i) for the payment .of reasonable compensation (the valuable consideration of which may take the form of cash or some other form and may be payable by way of lump sum or by instalments) within a reasonable period of time having due regard to all the relevant circumstances; and

(ii) securing to any person having an interest in or right over the property a right of access to the High Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the reasonableness of the compensation and the period of time within which it shall be paid."

In each case, upon grounds to which I shall shortly refer, the Applicants claim damages, an Interim Injunction or Restraining Order, and a declaration that the Company did not have a valid licence to enter upon and occupy the applicants land. The licence referred to was one allegedly issued under the Forests & Timber Act Cap. 90.

Solmac Construction and Timber Company Limited (hereinafter called "the Company") are First Respondents to the Motion and have delivered a Defence denying that the Applicants had any property, or any interest in property, in the area.

Upon the affidavits which have been filed there is a conflict of evidence, those by and on behalf of the Applicants claim customary ownership by Suriana, Farere and Talito'o tribes in respect of the five areas of land, the disputed area, as well as customary ownership of Ata'a Cove and use of certain areas for quasi religious purposes. Those by and on behalf of the Company deny those claims.

Clearly, to establish a right to redress, the Applicants must show -

1. that they have property in the disputed area, within the terms of S. 8(1) of the Constitution and

2. that it has compulsorily been taken possession of, or their interest or right compulsorily acquired, in circumstances which are a breach of their fundamental constitutional rights.

The Second Respondent (the Attorney-General) was joined by this Court upon the application for leave to move the motion under O. 61A of the Civil Procedure Rules, as was the Third Respondent (the Minister for Land and Natural Resources) at a later stage in the proceedings, in the circumstances described in my judgment of the 9th July 1982. As originally presented this case appeared to involve a point on the validity of a logging licence and it seemed that the constitutional issue might have been as to whether logging carried on under a licence issued under Chapter 90 amounted to a compulsory acquisition. Very late in the proceedings, in circumstances I shall describe, it was conceded by the First Respondent that no licence existed and so that constitutional point collapsed. Quite a short point now remains, but out of courtesy to Counsel who have been appearing for a total of some fourteen days over a period of three months and have advanced detailed and reasoned arguments, and in deference to the public interest the case has aroused, I shall in this judgment deal with that issue rather more fully than otherwise might have been necessary. A point has been made as to whether this Court has jurisdiction to try an issue involving the ownership of customary land, and I gave judgment on the 13th July 1982 reserving the issue of jurisdiction. I must now resolve that issue, which I think can quite easily be done in this way.

Section 231 of the Lands and Titles Act (Chapter 93) provides:-

"(1) A (local) Court shall, subject to the provisions of this section, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than" -

and the rest of that subsection is not relevant -

"(2) A (local) Court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a Customary Land Appeal Court under this Act"

Under S. 77(1) of the Constitution it is provided that:-

"There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction as shall be given to it by this Constitution or by Parliament."

This Court is acting under the powers granted by Section 18 of the Constitution:-

"18(1) Subject to the provisions of Ss (6) of this Section",

which refers to rules of procedure

"if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (not applicable) then, without prejudice to any other action with respect to the same which is Lawfully available, that person (....) may apply to the High Court for redress.

1) The High Court shall have original jurisdiction -

a) To hear and determine any application made by any person in pursuance of the preceding subsection;

b) (Not applicable)

and may make such orders, issue such writs and give such directions, including payment of compensation, as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the Provisions of Section 3 - 16 (inclusive) of this Constitution."

Finally by section 2 of the Constitution, it is enacted that:-

"This Constitution is the Supreme Law of Solomon Islands and. if any other law is inconsistent with this Constitution, that other law shall to the extent of the inconsistency, be void."

the effect of Ss 2, 18 and 77 of the Constitution is that insofar as S. 231(1) of Chapter 93 seeks to exclude the jurisdiction of the High Court to determine any application made under S. 18, such application involving, as in this case, the ownership of or the existence of an interest in customary land, that exclusion is to that extent void. I have jurisdiction.

It is convenient now to turn for a moment to consider the Forest and Timber Act Chapter 90 as amended by the Forests and Timber (Amendment) Act 1972 (No. 11 of 1972) and the Forests and Timber (Amendment) Act 1977 (No. 11 of 1977), to which Act as amended, I shall now refer as "the Act". It is essential to have a firm grasp of the effect of the Act in order to understand the story in this case.

The Act seeks, amongst other things,

"to control and regulate the timber industry......"

and effects this control and regulation by making it an offence punishable by fine and imprisonment for -

"4(1) Any person (who) fell(s) any tree or remove(s) any timber from any land for the purpose of sale thereof or of the products thereof otherwise than -

(a) - (d) not relevant to this case

(e) under and in accordance with a licence issued under Section 5".

The essence of the procedure leading to the granting of a licence is to ensure that those persons who in custom are entitled to the timber rights, as defined in the Act, are traced and their consent given to the operation proposed by an Applicant for a licence. The consent must be evidenced by an Agreement which not only, in the nature of things, must have the approval of those customary owners, but also of the Minister of Lands, Energy and Natural Resources, in accordance with S. 5 E of the Act.

In order to trace the customary owners who are entitled to enter into any agreement relating to the granting of timber rights an elaborate procedure must be followed, all clearly laid down in the Act, whereby an applicant must first of all obtain the consent of the Chief Forestry Officer (in the Act referred to as the Conservator of Forests) to enter in negotiations at all, and then a formal application must be sent to the appropriate Area Committee, again as defined in the Act.

"whose membership shall include persons having particular knowledge of customary land rights in the area affected..." S. 5C (1)

The Area Committee must advertise the application widely:-

"in such manner as it shall consider most adequate and effective to the public within the area of its authority and, in particular, to persons who reside within such area and appear to it to have an interest in the land, trees or timber in question....." S. 5C (1) (b).

A "sit down" is arranged at least two months ahead of the day the application is received and, following what was obviously meant by the draftsmen of the Act to have been a public inquiry conducted by the Area Committee, a certificate is issued by the Area Committee in which the Committee states whether the persons proposing to grant the timber rights, are entitled to do so.

There is a right to appeal to the Customary Land Appeal Court by -

"Any person who is aggrieved by any act or determination of the Area Committee" (S. 5(D) (1)).

Such appeal must be lodged with the appropriate Customary Land Appeal Court within one month from the date of its determination. Once the appeal period has expired, the Chief Forestry Officer upon satisfying himself that no appeal has been lodged and that an agreement relating to the exploitation of timber rights has been entered into in accordance with the determination of the Area Committee recommends to his Minister that the agreement should be approved. The Minister's approval (Section 5 F(1) of the Act) is the occasion giving authority to the Chief Forestry Officer to issue the necessary licence, Section 5(3) providing -

"Upon application therefor and payment of the prescribed fee, if any, the (Chief Forestry Officer) may issue a licence authorising, subject to such terms and conditions as he may specify therein, the felling of trees upon and the removal to timber from:-

a) (not applicable)

b) when such felling and removal are the subject of rights granted under an agreement duly approved by the Minister under Part II A,

any customary land."

When all that has been done, the hapless Applicant is really in very little better condition then when he started out because, notwithstanding the clear words of S. 5C 4(a) where the Area Committee certifies that:

"4(a) the persons proposing to grant the timber rights question are the persons, and all the persons, lawfully and entitled to grant such rights and, if not, who persons are;"

by Section 29 of the Act:-

"No licence or permit issued under this Act shall convey construed to convey or be construed to convey any right which the Government does not have and in particular no such licence shall convey nor be construed to convey any right or authority to enter any private land nor taken any action with respect to anything without the authority of the owner of that land or thing".

All a licence amounts to, it seems, is a defence to a prosecution S. 4(1) and the possibility that the true customary owners of timber rights and any persons by whose consent the exploitation of those rights can be sold or dealt in, have been traced as a result of the lengthy procedures under the Act. No guarantee is given that the contracting customary owners are the true owners.

I am now able to turn to the facts of the case. The directors of the Company took a decision to make an Agreement with the Landowners and seek a licence to exploit the timber re sources of the disputed area and other land.

Negotiations began with the East Fataleka Area Council and by November 1981 had reached the stage where the Province appeared to be resisting the wishes of the Area Council which desired to give its blessing to an agreement the Company sought to make with local landowners. I refer to the minutes of a meeting on the 11th November 1981, between the Area and Representatives of the Province, amongst the agreed bundle of documents in the case,

"Clerk

Province does not intend to refuse Solmac's proposal or application since landowners themselves have accepted the proposal...."

I now wish to pause a moment and to refer to the words of Daly C.J. in Customary Land Appeal Case 14 of 1981 between George Lilo and David Bule (Appellants) and Gideon Ghomo (Respondent) at page 4 -

"Before I turn to (the) grounds (of appeal) I must say something generally about the difficulties which have arisen. They arise, in my view, from what is always a problem in dealing with customary land cases in the modern Solomon Islands. That problem is how can one express customary concepts in the English language? The temptation which we all face, and to which we sometimes give in, is to express these concepts in a similar manner to the nearest equivalent concept in the law received by Solomon Islands from elsewhere, that is the rules of Common Law and Equity. The result is sometimes perfectly satisfactory ..... However other concepts of received law have not developed a customary law meaning and the use of those expressions which denote those concepts can produce difficulties of some complexity. This is particularly so when the custom concepts which they are said to represent are themselves undergoing modification to fit them to the requirements of a changing Solomon Islands which is now concerned not only with the use of land for subsistence farming but with the sale of timber....."

In that case the learned Chief Justice was considering the meaning in custom of the word "trustee" which had been imported in an earlier case. In the present case, amongst the documents and pleadings, and in particular in the passage from the Minutes, to which I have referred, the word "landowners" is used as being synonymous with "the persons entitled to give permission for the logging operation now called in question."

It is well established that in custom land is owned not by a person, but by a line or family or tribe. Other persons, families, lines or tribes may have secondary rights in the land. Rights to grown crops, make gardens, take the fruit of trees, even to take the trees themselves to make canoes or houses, and son on. The permission of other lines having interests in neighbouring lands may be required, in custom, before a line can develop its own land in case that development affects adjoining land in any way. There are chiefs or big men, but they may only behave in a customary way and if they give away or sell interests in customary land against custom it is possible that not only willing the dealing be void but the chief may lose his right to be chief.

The word "landowners" in the context of customary land is one which can only be used in a loose and imprecise sense, and I have no doubt that the Company has, by the constant reference to the word, been lulled into a false sense of security in its venture.

The Company initiated the procedure under the Act, the Chief Forestry Officer wrote to the Clerk of the Province enclosing a copy of it on the 25th November 1982, adding -

"Whilst my Minister is sympathetic to the issue of a licence to (the Company) it is on the understanding that it is the wishes (sic) of the landowners and has the support of the Province. To avoid future legal complications I would be grateful if you could now carry out formal negotiations for the acquisition of Timber Rights as required by the said Ordinance. Needless to say, the issue of the licence depends on the successful completion of these procedures".

It is clear from the correspondence in the agreed bundles, that the Province began to take an active part in the negotiations and raised many conditions which were not acceptable to the Company.

The Honourable the Minister for Lands Energy and Natural Resources the Third Respondent in these proceedings, now took a hand in the matter. On the 15th January 1982 he issued a Memorandum exhibited to the affidavit of Leonard Maenu'u, Permanent Secretary to his Ministry, which Memorandum said -

"I hereby directed (sic) politically that logging and milling licences be granted to Solmac on Wards 17 and 18 and other relevant wards on the island of Malaita. It would also be included in the Licence that 28 km of road should be constructed by Solmac by the end of 1984 from Alite to Ata'a. All the consequences due to the issuing of licence shall wholly be the responsibility of the Minister of Lands Energy and Natural Resources."

I now refer to paragraph 3 of a letter dated the 23rd February 1982 from a Mr Nestor Bele, of the Investment Division of the Prime Minister's Office, the addressee is not mentioned, but it is copied to all relevant departments. The letter complains, with, I would have thought some justification, at the delay in the negotiations and goes on to say -

"3. The Investment Division is of the opinion that financial viability of a proposal as presented on paper must be proved in practice. Solmac would like to operate in Wards 17 and 18 on his own with no S. I. Shareholders, therefore if it goes bankrupt after the first year, it will be his own bad luck. Solomon Islanders have nothing to lose."

Nothing, I now add, except their trees, some 1100 cubic metres of which are now apparently lying on the ground being eaten by ants as a result of the precipitate action which was about to be taken.

A meeting was arranged for the 23rd March 1982 between the various government officials now involved in the matter including a legal advisor from the Attorney-General's Chambers, as was a representative of the Company. It is clear from the affidavits that at the meeting it was explained that a licence under the Act could not issue because the procedures had not been completed.

This advice camel from the Chief Forestry Officer and the lawyer, Philip Tegavota from whose affidavit I now read -

"6. When the meeting was almost over and lots of maters unresolved, the Minister of Lands, Energy and Natural Resources informed the meeting that he would issue a licence as a Minister and I immediately advised him that he had no power under the Act to issue a licence.

7. Then I further advised him of the legal consequences if he was to issue the licence and pointed out to him that his act could be challenged in the Courts of Law.

8. After this meeting I further advised the Minister of Lands, Energy and Natural Resources and the Forestry Division of his Ministry, orally by telephone and by way of correspondence pointing out again that the Minister had no power to issue a licence to acquire timber rights on customary land and that only the Conservator of Forests had this power and that the Minister's power was only to approve an agreement.

9. I advised the Minister of Land, Energy and Natural Resources according to law and the issuing or the purported issuing of a licence by him was done contrary to legal advice properly given to him."

The permanent secretary gave similar advice. The Minister was made fully aware of his duties and powers, but nevertheless the Minister, according to the affidavit of the Chief Forestry Officer which I accept -

"After this meeting the Minister gave me verbal directions to complete the appropriate forms and licens [sic] to enable the First Respondent to fell and remove timber in wards 17 and 18 of East Malaita. I filled in the requisite details of the appropriate licence under section 5(3) (b) but did not sign it. I forwarded this to the Minister with all the appropriate forms in blank required as a requisite to the issue of such a licence under Part IIA of the Act. I could not complete these since the appropriate procedures had not been completed. I do not know if the Minister signed the licence form I had completed."

The Minister, on the 31st March 1982, signed a form headed -

"Certificate Approving Timber Rights Agreement Negotiations"

to the effect that he approved a concluded agreement relating to the land and authorised the Chief Forestry Officer to issue a licence under the Act.

A subsequent exchange of memoranda make it clear that the Public Servants continued to, protest against the Minister's insistence that they act unlawfully.

It is not clear whether a licence was ever signed. The Minister told me it was. It has been admitted by Counsel for the Company in Court on the 31st August 1982, that there never was a licence. It is clear that if a licence had been issued it would have been of even less value than, having regard to the remarks made earlier in this judgment, about S. 29 of the Act, it would otherwise have been.

It is significant, and has not been disputed, that a representative of the Company was present at the meeting on the 23rd March and heard all that was said about illegality in the issue of any licence.

The Certificate signed by the Minister was manifestly untrue. Discovery has been made on affidavit and the only Agreement revealed is one of the 6th May 1982 between the Company and various representatives of East Fataleka Land Holding Groups. No agreement existed at the time the Minister gave his Certificate.

It seems that following the meeting on the 23rd March 1982 and in view of what I hold to be, and the recipients understood to be, the entirely unenforceable directives of the Third Respondent, the Company assumed it could go ahead and conducted negotiations and made arrangements to land its logging and support equipment at Ata'a Cove in early June.

Those administering the Company must have known that the Company was acting without a licence. I accept the affidavits to which I have referred, as being true and spelling out precisely the firm clear advice offered. Further, it has transpired in the course of these proceedings that the licence for which application had been made in November 1981 was in fact issued on the 9th August 1982, excluding the disputed area. Again, the Company must have known it had no licence in June, why else should it process and obtain the licence granted in August, based on the one and only application it had made?

Once the Company landed its equipment, roads were made and a logging camp established where a coconut plantation had been, the plantation was demolished to clear the area.

The case for the Applicants in their affidavits and the oral evidence adduced on their behalf is that their lines are saltwater people who have settled in the disputed area for nine generations. There has been intermarriage with the bush people and as a result of this and other land transactions in custom, land additional to the area their ancestors originally settled was acquired. Gardens have been established and over the generations some of the disputed area was used, or used to provide food for, custom religious purposes. In addition, the lines indulged in dolphin fishing in the cove, and has for a long time had exclusive fishing rights in the cove.

The case for the Company is that the Applicants and their lines have none of the rights and properties which they have claimed and insofar as they have a bond in being the same line with those with whom the Company made a logging agreement, particularly the Farere line, they, the Applicants, are not the true leaders of the line, and are bound by the Agreement made with a Peter Kwelisi, is the true Chief of the line.

The parties, by consent, asked for an adjournment sine die so that these matters could be resolved in the local court and, if needed, upon appeal to the Customary Land Appeal Court. I agreed, but the motion has been restored following the admission that there was no licence.

I have read the affidavits and heard the evidence, and I am satisfied that the Applicants, who may or not be the chiefs of the lines referred to, Suriana, Farere and Talito'o, or any one of them, have property in the disputed area. I will resist the temptation mentioned by Daly C.J. in the judgment I have referred to, the temptation to define the nature of their property or their interest in it, in terms familiar to those learned in the Common Law and Equity systems.

Amongst and within the tangled interplay of rights duties and possessions which I have mentioned make up customary ownership of land and interests in land, they have property, in the sense of rights of user and access. In particular, one right has been clearly established, referred to in the affidavits of Kalebeti Fugui and Madeline Adawane, the right to crop a coconut plantation.

That coconut plantation has been destroyed by the Company for the construction of its camp and storage of its equipment. The place was where Adawane was very sure she had 500 coconuts, cropped twice a year. The plantation belonged to her husband Buga, of Farere. He had died but she, having remarried away from the area, remained entitled to come and take her crop.

The interest of Adawane is typical of the sort of interest which can escape the net cast by the Act. She has in custom retained her right to crop coming twice a year for the purpose. She would not, and, as I find, did not, know of the procedures under the Act because she was out of the Area.

I find that the Applicants, and those they represent, have satisfied me that this right to crop existed, and upon the evidence I find that the plantation has been totally destroyed. It may be the Applicants are the landowners and have other rights in the area, if they are, they still are the landowners. The only property which they have proved they own and I am satisfied has gone, is the cropping rights to the coconut plantation.

And so at long last I must turn to the questions posed at an earlier stage of this judgment.

Firstly, is the property which I have found they had, "property" within the definition of S.8 (1) of the Constitution? The Section refers to "property of any description"

What is property? An old definition from a most respectable source puts it this way:-

"Property may denote the thing to which a person stands in a certain relation, and also the relation in which the person stands to the thing"

In Re Earnshaw-Wall. 3 Ch. 1894 156 per Chitty J.

An older source, quoted in Stroud (4th Ed) p. 2151 says -

"'property' is the most comprehensive of all terms which can be sued inasmuch as it is indicative of every possible interest which the party can have"

James v. Skinner 5 IJ Ch. 80.

I have no hesitation in finding that the right to crop the coconuts is "property" within s. 8(1) of the Constitution. It is a right which is granted in custom capable of inheritance as I have found and enforceable against the rest of the world.

The second question is, has the property been compulsorily taken possession of or insofar as it is an interest in or right over property, compulsorily acquired, in circumstances which amount to a breach of the fundamental rights of the Applicants?

The draftsmen of the Constitution have drawn a distinction between:

"property of any description"

which may not be compulsorily taken possession of, and

"interest in or right over property"

which may not be compulsorily acquired.

Since the farmer must include the latter it seems to me a distinction without a difference, however, since the distinction is in the section of the Constitution I am considering, I must apply my mind to the point, and yielding momentarily to the latent conveyancer within me, find that the property which the Applicants have proved they own is an interest or right over property. I do not say they are not the original landowners or that they did not own the coconuts. If I had to decide that I would refer it to the local court under S. 231(2) of Cap 93. What I do say is that they have proved an interest or right over property, a right to crop, which may exist on its own or maybe part of the larger right of actual ownership. Resisting any further temptation to import concepts of received law, I am sure that the right the Appellants' line enjoyed, has gone. The trees are no more.

The thing, that is the right to crop the coconut plantation in relation to which the Applicants line stood and had property in has disappeared, with it the right to crop.

It is further perfectly clear that all this has happened not only without the consent of the Applicant's line, but against their will. The affidavits show several times the plight of the members of the Applicants line seeking to talk to someone or find someone to stop the operation which occurred early in July.

The landing must have appeared to the local inhabitants as something of almost apocalyptical might. Ships, or landing craft, bulldozers, graders, foreign men from Australia and Papua New Guinea.

The landings were resisted. The Company's representatives turned deaf ears and proceeded. If the Company had possessed a licence, it would have given it a colour of right. As it was not only did those directing the affairs of the Company not have a licence, but they knew they did not have one and as a result of the strong and firm advice given at the meeting on the 3rd March, they knew any pretence of a licence having been issued or authorised without the procedures in the Act having been followed, would be entirely abortive. No political directive from a Minister or strong encouragement from Nestor Bele of the Investment Division of the Prime Minister's Office can hide the fact that the Company had no right to destroy the coconut plantation, and it knew it had no right and that the destruction, as was demonstrated by Michael Sanga and recorded in his affidavit, was against the wishes of the inhabitants, or some of them. Does all this add up to a compulsory acquisition?

I must now consider again S. 8(1) of the Constitution, and pick out the relevant phrases, so that it becomes as follows:-

"8(1) No .... interest in property ... shall be compulsorily acquired except where ....

(c) provision is made by a law applicable to that .... acquisition."

for certain conditions to be met, notably relating to compensation certain rights granted.

Those words, it has been argued before me, are capable of meaning that any compulsory acquisition of an interest in property is unconstitutional except that there may be such acquisition if it is done under authority of a law meeting the conditions in the section. The argument goes on that the circumstances of the taking by the First Respondents amount to compulsory acquisition and that the Applicants are entitled to a declaration (which I observe they have not sought in the Motion) that their constitutional rights have been breached and for other relief.

However, the section is capable of a quite different meaning. It would mean that of all the laws which now or hereafter may provide for the compulsory acquisition of an interest in property, only those laws which meet the conditions in the section, are constitutional. The others are and will be unconstitutional.

If that is the correct meaning of the Section then the Motion must fail because the First Respondents do not claim to be acting under any statutory authority whatsoever. I favour that second interpretation. My reasons are as follows:-

1. Considering the actual words used, whilst it is attractive to suppose any compulsory acquiring is a breach of S. 8, the draftsmen had they intended such, could have said so in much clearer words, using a "Proviso" clause instead of the "except" in the first paragraph:-

"Provided that any compulsory acquisition shall not be unconstitutional if it is done by a written law which law meets the following conditions"

Compulsory acquisition is a lawyer's term of art, used in countless constitutions and acts and always meaning taking away of title to property under statutory powers. 'The words are used advisedly. "Compulsory" means much more than "against the will of" or "forcibly". It means without the chance to object or argue. A bad man may force me to give him my canoe and then burn it. I may not chose to resist him, but the law would protect me if I did. But whatever he did he would never acquire my title to the canoe and even when destroyed the law will convert my title into a claim for damages and allow me to enforce that against him.

S. 8(1) (c) refers to "a law applicable to that taking". That is what the section is all about, the conditions to be met in any statute giving powers of compulsory acquisition.

2. Suppose any doubt or ambiguity remains we can look outside the words of the section to section 3 at the beginning of Chapter II of the Constitution -

"Whereas every person in Solomon Islands is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each of the following namely -

a) life, liberty, security of the person and the protection of the law;

b) freedom of conscience, of expression and of assembly and association and

c) protection for the privacy of his home and other property and from deprivation of property without compensation."

The succeeding sections go on to spell out the conditions applicable to any restrictions which can lawfully be made on each of those fundamental freedoms, realising that marginal notes are not part of a statute, nevertheless the marginal note to Section 8 says "Protection from deprivation of property", a direct reference to S. 3(c) where the words are added "without compensation".

In the context of the Chapter, Section 8 sets out the terms upon which the fundamental right in 3(c), will operate, within the Constitution. In the nature of things no "compulsory acquisition", and I use the words loosely, between individuals can be "without compensation". The law will always order the return of the property or payment of damages against the Tortfeasor. The section can only have a meaning in the context of statutory compulsory acquisition where someone takes my canoe and I go to Court to seek its return and he pleads an Act of Parliament allowed him to commit his wrong, then the constitutional validity of that Act can be called in question.

Many examples are reviewed in the case of Government of Malaysia v. Selangor Pitot Association (1977) 2 WLR 901 in relation to other Commonwealth Constitutions, Malaysia and India. That case is interesting in that it seeks to define a particular kind of property and, overruling some Indian cases, draws a distinction between "deprivation" and "acquisition". The draftsmen of our constitution have used the former word in clause 3(c) but only in the marginal note to clause 8. One day it will be interesting to see if anything can turn on the point in our country.

3. If there is need to go further, the interpretation I have rejected, apart from granting what would be a constitutional right for a situation already, well protected by the common law in actions for detinue and conversion, would grant an additional right in nearly every similar case. I am bound to say that the mere fact there is no authority for the interpretation advanced by the Applicants does not mean that it should be rejected. But why have the word "compulsory" at all if all that is meant is "acquisition" i.e. the tort of trespass detinue or conversion or the crime of larceny or a kindred offence? There would be a multiplicity of motions claiming compensation under S. 18 for thefts and civil takings and a whole library of case law built up to decide if the taking was "compulsory" or an "acquisition" or something else. All to no purpose because the position is already covered at common law. Only when statute challenges common law does the question of deprivation of constitutional right under S. 8(1) arise.

I have analysed the facts in this case in great detail, they must come fairly close to what one might loosely describe as compulsory acquisition, and yet I keep coming tack in my argument to the same point, the title is not destroyed, the right is converted into a claim for damages, if the Applicants are found to be landowners in the fullest sense, their land remains and the Courts will restore it to them, if trees have been destroyed, they must be paid for. The First Respondents do not claim, as at one stage it seemed they might, any statutory right to do what they have done.

In my judgment the fundamental right protected in S. 8(1) of the Constitution refers to an acquisition by right of statute or statutory regulation. In this case the First Respondents were not purporting to be acting in this way and I dismiss the motion.

The Interim Injunction is discharged.

I adjourn sine die the question of costs and any claim for damages under the undertaking in the injunction since the First Applicants remain in contempt and may not be heard.

As to the Third Respondent, the Hon. Minister, the kindest thing which I can say about him is that he seems to have a less than perfect understanding of his duties, powers and responsibilities. A Cabinet Minister cannot alter the law. The whole Cabinet cannot alter the law. Only Parliament can do that and even then that law is open to challenge as being unconstitutional and this Court will decide the issue.

The Solomon Islands are well served by officers of the moral courage of Mr Maenu'u and Mr Gavira and lawyers of the strength of conviction of Mr Tegavota who were not to be deflected from the line of duty by the demands of a Minister.

THE COURT.