v
THE ATTORNEY-GENERAL
Hearing: 22nd and 23rd September, 1997
Judgment:
19th November, 1997
Counsel: F. Waleilia for the Combined Fera Group and
Aimarako Tribe;
R. Teutao for Billy Mae and O;
Sol-Law for Aisisiki
Tribe;
Attorney-General in person
yle="margin-tgin-top: 1; margin-bottom: 1">PALMER J.: This case arose under the provisions of Part V of the
LandTitles Act (Cap. 93) (hereinafter referred to as
"LTA
Cap. 93") for leas lease of an area of land
commonly described as the "Market Area", which
area
includes the Auki wharf, measuring some 80 metres
out from the high water mark and more clearly defined
(coloured
yellow) in the plan submitted to court marked
"exhibit W. The boundaries of the land in question
and that
the whole site was reclaimed land were not in
dispute.
Pursuant to section 60 of the LTA Cap. 93, an
acquisition officer was appointed for the task of
determining the
identity of persons who had the right to
lease the land and receive rent (ss 61, 62, 63). A public
hearing was
held in accordance with the provisions of
section 63 after which the following determination was
made:
"(1) That the strip of land which is
identified below the high tide mark (HWM) and the
lowest tide
mark (at low tide) is in general
principle according to custom is a part of the
customary land base (part
of the main dry land base).
(2) and ... that the re-claimed customary land
at Auki Market with the re-claimed area at the Main
Wharf
Land base including 80 metres strip of low tide
water mark (between HWM and L.W.M) (as per attached
map
- edged Red - Marked) is jointly owned by the
Saletafii's family (his descendants) who holds the
primary
ownership of 70% and the Bosokuru family
descendants who holds secondary ownership of
30%."
That decision was appealed against to the Magistrate's
Court under section 65 of the Land and Titles Act. In his
judgment the learned Magistrate held pursuant to the
"old" Land and Titles Act (Cap. 56), the Land
and Titles (Amendment) Act - No. 22 of 1964, and section
10(4) of the current Land and Titles Act (Cap. 93), that
the area of land disputed was not customary land but land
vested in the Government, though not
registered. He set
aside the determination of the Acquisition Officer and
replaced it with the finding that the
land belonged to
the Government and that it could be transferred to the
Province if not already done. The Appellants
now appeal
to this Court, claiming in essence that the said land was
customary land with competing customary rights
vested in
each of them.
Before this court, learned Counsel, Mr Teutao, for
Billy Mae and Others did not make any separate
submissions on
the basis that his client's grounds of
appeal were essentially the same as that of the Combined
Fera Group. This
was also the position with Aimarako
Tribe's ground of appeal as confirmed in Court by their
Spokesman, Willie Fioru.
The grounds of appeal of the Combined Fera Group were
as follows:
1. The learned Magistrate erred in law in holding
that the area of land under acquisition was not
customary
land.
2. The learned Magistrate erred in holding that
the land under acquisition was vested in the
Commissioner
of Lands as public Land by operation of
section 47(1) of the former Land and Titles Act (Cap.
56) as amended by Act number 22 of 1964.
3. The finding and order of the Magistrate Court
was not just according to law in that:
(a) The Appellants were denied an opportunity
to present evidence pertaining to their grounds
of
appeal and
(b) The learned Magistrate failed to give due
weight or due consideration to the Land
Adjudication
conducted in respect of lots 90 and
91 in 1975.
4. The finding that the land under acquisition was
vested in the Commissioner of Lands or the Province
contravened
or did not comply with the requirements
and the spirit of section 8 of the Constitution.
The learned Magistrates findings on grounds (1) and
(2) can be summarised as follows:
(i) that in accordance with this Court's judgment
in Allardyce Lumber Company Limited v. Laore (High
Court Civil Case No. 64 of 1989), land which was
permanently and naturally covered by the sea was not
customary land;
(ii) by virtue of section 47 of the old Land and
Titles Act (Cap. 56), the Land and Titles (Amendment)
Act, No. 22 of 1964, and the saving provisions of
section 238
of the LTA Cap.93, he ruled that the said
land was Public Land and title vested in the
Commissioner of
Lands.
Mr Waleilia's submissions on those grounds were as
follows. He argued that the vesting provisions in section
47
of the original Land and Titles Act (Cap. 56)
(hereinafter referred to as "LTA of Cap. 56")
and section 13 of the Land and Titles Amendment
Ordinance
No. 22 of 1964 (hereinafter referred to as "the 1964
Amendment") do not confer absolute ownership
of the
seabed and foreshore on the Commissioner of Lands. By
virtue of subsection 47(4) of the LTA of Cap. 56 as
unamended, and subsection 47(5) of the 1964 Amendment,
the vesting provisions should be read subject to any
rights or interests that any person might have in respect
of native customary land. The rights of the Commissioner
of Lands as conferred by the vesting provisions therefore
could not be exercised or registered in areas owned as
native customary land. He argued that section 10(4) of
the LTA Cap. 93 is consistent with this view in that it
only saved the Commissioners rights to apply to register
a perpetual estate in the foreshore and seabed; not an
absolute right to be registered as owner. Thus under the
scheme of the present LTA Cap. 93, the fact that an
application had been lodged does not guarantee
registration. It is still subject to the satisfaction of
the Registrar of Titles. Of-course once registration has
been effected, title is secured.
Mr Waleilia also submits that the common law doctrine
applied by this Court in the Allardyce Case (supra) is
inconsistent
with the intention of section 10(4) of the
LTA Cap. 93, as regards registration of land permanently
below mean
low water. He points out that if land
permanently below the sea is not "land" within
the meaning of section
2(1) of the LTA Cap. 93, then no
perpetual estate in such seabed is capable of being
registered under section 47(1)
of the repealed Ordinance,
or section 10(4) of the LTA Cap. 93. The better approach
he submits is to define "land"
in the
definition section as including land covered by the sea
below mean low water. He then referred to a decision
of
an adjudication officer appointed pursuant to the
provisions of sections 17 and 18 of the LTA Cap. 93 in
which it was held that land comprised in lots 90 and 91,
which included the current disputed land, were held to be
customary land. That decision is contained in Application
No.11/1/73 and was made by the Deputy Registrar of
Titles, H J Broughton. He submits that that decision is
binding, if not evidence of customary ownership over part
of or all of the said area and should have been taken
cognisant of by the courts.
Mr Sullivan on behalf of the Aisisiki Tribe, submits
on the same point, that the crucial words to note in
section
10(4) of the LTA Cap. 93 are the words "as
vested in him under paragraphs (a) and (b) of section
47(1) of the repealed Ordinance". He argues that
unless the foreshore and seabed were vested in the
Commissioner of Lands under the LTA of Cap. 56,
he could
not apply to have them registered under section 10(4). He
does not subscribe to the view presented by
Mr Waleilia
that "land covered by water" included land
below mean low water. Thus disagreeing with the
proposition that native customary land could include the
seabed. His main argument nevertheless focuses on the
crucial question when reclamation occurred. If
reclamation occurred prior to the commencement of the LTA
Cap. 56 on 1st February, 1963, then the said area of land
could not have been part of the foreshore and therefore
subject to the vesting provisions in section 47(1). The
crucial question he submits for the Courts to determine
should have been when reclamation occurred and whether
customary rights and interests had been acquired over the
said land in that period prior to 1st February, 1963.
The learned Attomey-General on the other hand takes
the view, that once a vesting had taken place according
to law,
it subsists, unless or until it had been
cancelled or withdrawn. His analysis and conclusion on
the relevant legislation
is that the title to the
reclaimed area of land had vested in the Commissioner of
Lands by virtue of section 47(1)
of the LTA of Cap. 56 on
1st February, 1963 and that it had never been divested.
He did acknowledge though, that
according to subsection
47(4), those vesting provisions would not have applied in
respect of native customary land.
He also does not
subscribe to the view presented by Mr Waleilia that
"land covered by water" includes
land below
mean low water.
The crucial issue this Court has to determine is
whether the findings of law of the learned Magistrate
correct;
that the disputed land before him was not
customary land.
The acquisition proceedings in this case is somewhat
different from normal in that the land the subject of the
acquisition
was at one stage foreshore and seabed; thus
bringing into focus the perplexing question whether the
foreshore and
the seabed could be regarded as customary
land or part of customary land. If the seabed and the
foreshore could
be customary land, then the Acquisition
Officer was correct in treating it so and commencing
proceedings on that
footing. If it was not, as held by
the learned Magistrate, then obviously he had no
jurisdiction to commence acquisition
proceedings. The
relevant provisions pertaining to the seabed and the
foreshore therefore would have to be considered
to
determine whether the area in dispute is customary land
or public land as held by the learned Magistrate.
The starting point as correctly put by Messrs Waleilia
and Sullivan is section 10(4) of the LTA Cap. 93; which
is
the applicable clause. It reads:
"The Commissioner may apply to be
registered as the owner on behalf of the Government
of the perpetual
estate in such land
(a) below mean low water; and
(b) between the points of mean high water and
mean low water,
as vested in him under paragraphs (a) and (b)
of section 47(1) of the repealed Ordinance."
The significant feature of subsection 10(4) is that
it- enables the Commissioner of Lands to apply for
registration
in respect of land which is foreshore or
seabed as vested in him under the repealed Ordinance. It
is important
to appreciate that subsection 10(4) merely
gives the Commissioner a right to apply for registration,
not a right
to registration of title. If the Registrar of
Titles is not satisfied with the title claimed, he may
refuse to
register. This appears to have been the case
referred to by Mr Waleilia in Application No. 11/1/73;
where the Adjudication
Officer appointed by the Registrar
of Titles after conducting a public enquiry into the
claims of the Commissioner
as to Lots 90 and 91, decided
that the said land was customary land and declined to
register.
The crucial provisions therefore are paragraphs (a)
and (b) of section 47(1) of the LTA Cap. 56. As amended
they
read:
"(1) There shall vest in the Commissioner
of Lands as public land by virtue of this subsection-
(a) all land below mean low water within the
territorial limits of the Protectorate;
(b) the seashore between the points of mean
high water and mean low water;
(c) all land adjoining the sea coast within
sixty-six feet of the mean high water mark;
(d) the subsoil of every road and the bed of
every river;
(e) all land within sixty-six feet on each side
of every road and every river.
(2) The Commissioner of Lands may grant to any
person, in accordance with the provisions of section
33,
a licence to occupy any such land as is mentioned
in paragraphs (b), (c) and (e) of subsection (1).
(3) It shall not be necessary for the
Commissioner of Lands to cause any entry to be made
on the land register
in respect of any land vested in
him by virtue of subsection (1).
(4) If the Commissioner of Lands desires to
procure the registration of any public land vested in
him by
this section, he shall cause the Crown
Surveyor to prepare the necessary registry maps, and
shall serve
upon the Registrar a Certificate signed
by him certifying that the necessary registry maps
have been prepared
by the Crown Surveyor and that the
land in question is vested in him by this section,
and the Registrar
shall thereupon register the land
as public land.
(5) This section shall not apply to land
comprised in an interest of which any person becomes
or is entitled
to become registered as owner pursuant
to the provisions of the Second Schedule, or to any
native customary
land."
Subsection 47(1) vests in the Commissioner of Lands as
public land, inter alia:
(a) all land below mean low water (the seabed);
and
(b) all land between the points of mean high water
and mean low water (the foreshore).
By virtue of subsection 47(3), it was not necessary to
have the land vested in the Commissioner as public land,
registered as required under the definition of
"public land" under the said Ordinance. Note
the definition
of "public land" under the
repealed Ordinance reads:
" means land which is shown by the
register to be vested in the Commissioner of Lands
for and on behalf of
the Government of the
Protectorate`.
Subsection 47(5) however provides:
"This section shall not apply to land
comprised in an interest of which any person becomes
or is entitled
to become registered as owner pursuant
to the provisions of the Second Schedule, or to any
native customary
land."
The effect of this subsection was that if the land
being dealt with is native customary land, then the
vesting provisions
shall not apply. In other words,
subsection 47(1) must be read subject to subsection
47(5). So much so that, if
the seabed and the foreshore
is customary land or part of customary land, then
paragraphs 47(1)(a) and (b) cannot
apply to them.
The crucial question this court has to determine
therefore is whether the seabed and foreshore can be
part of native customary land, bearing in mind what
his Lordship Ward C.J. found in Allardyce Lumber
Company Limited v. Laore (unreported) Civil Case No.
64 of 1989.
The Kings Regulation relating to Land (Cap. 49)
defined "native land" as:
" means land owned by natives or subject
to the exercise by natives of customary rights of
occupation, cultivation
or other uses;"
The Kings Regulation was then superseded by the Land
and Titles Ordinance (Cap. 56) on l 1st February 1963.
Under
that Act, the definition of "native customary
land" was expanded to read:
" (1) land (not being registered land)
owned by a Solomon Islander or group of Solomon
Islanders,
(a) which has, at some time or times during the
twenty-five years immediately preceding the first day
of
January, 1958, been actually used, for the purpose
of occupation or cultivation, by the owner or owners
thereof, or by some person or persons permitted by
him or them so to use it; or
(b) in respect of which the owner or owners
thereof have, at some time or times during the
twenty-five years
immediately preceding the first day
of January, 1958, received a payment or payments in
consideration of
his or their permitting some or
other person or persons, or the Government of the
Protectorate, to occupy
or cultivate or exercise any
rights over such land; or
(c) which has been adjudged to belong to the
owner or owners thereof by a court or by the Sole
Commissioner
appointed, pursuant to the Solomon and
Gilbert and Ellice Islands (Commissions of Inquiry)
Regulation,
1914, to inquire into and report on
certain claims to land in the Protectorate;"
Paragraph (a), which is the relevant clause for our
purposes, placed emphasis on actual use of land for
purposes
of occupation and cultivation for the period of
twenty-five years immediately preceding the first day of
January,
1958.
This was amended in 1964 to read:
"any land lawfully owned, used or occupied
by a person or community in accordance with current
native
usage,"
The term "current native usage" is defined
as "means the usage of Solomon Islanders
obtaining in relation to the matter in question at the
time when that
question arises, regardless of whether
that usage has obtained from time immemorial or any
lesser period;"
Land in turn is defined under the LTA Cap. 56 as
unamended, as follows:
" includes land covered with water, or any
buildings on land, or any cellar, sewer drain, or
culvert
in or under land, but does not include
(a) land covered by the sea at mean low water;
or
(b) any minerals (including oils and gases) of
any nature whatsoever or any substances in or under
land
which are of a kind ordinarily worked for
removal by underground or surface working;"
Under the original meaning of "land" above,
the term "land covered with water" did not
include
inter alia, land covered by the sea at mean low
water (that is areas of land permanently and naturally
covered
by the sea) (see paragraph (a)). The seabed
therefore was not land, and pari ratione, it could
not possibly be part of native customary land either.
This in short was the position his Lordship Ward
C.J.
held in Allardyce Lumber Company Limited v. Laore Civil
Case No. 64 of 1989 regarding his finding on
customary land.
The definition of "land" however was amended
in 1964 to read:
"includes land covered by water, any
estate or interest in land, all things growing on
land and buildings
and other things permanently fixed
to land and any cellar, sewer, drain, or culvert in
or under land, but
does not include any minerals
(including oils and gases) of any nature whatsoever
or any substances in
or under land which are of a
kind ordinarily worked for removal by underground or
surface working;"
The amendment omitted paragraph (a) in the original
definition of land so that the question of whether the
seabed
could now be included under the term "land
covered by water" was left open ended. Mr Walelia
thus takes
the view, that by necessary implication, the
expression "land covered by water" should now
be liberally
interpreted to include the seabed.
It is also interesting to note that the original
section 47(1) did not include the seabed (that is, land
below mean
low water) as land which could vest in the
Board. This is consistent with the original definition of
land; that
it does not include the seabed. Thus before
the amendment, only the foreshore could vest in the Board
as public
land. Interestingly, when the 1964 Amendment
was introduced, not only was the definition of land
changed, but there
was in my respectful view a
corresponding amendment made to the vesting provisions to
include an additional paragraph
(a), whereby all land
below the mean low water (that is the seabed) could now
be vested in the Commissioner of
Lands as public land. A
coincidence? I do not think so. It is not surprising
therefore that Mr Waleilia should
take the view that the
better approach is to view the term "land covered by
water" as including not only
the foreshore but the
seabed as well. If land covered by water was now capable
of including the seabed, and could
vest in the
Commissioner as public land, then it raises a very strong
presumption in favour of the view that the
seabed could
also become part of native customary land.
This brings me next to consider what appears to be a
contrary view expressed by his Lordship Ward C.J. in
Allardyce
Lumber Company Limited v. Laore Civil Case No.
64 of 1989 (the "Allardyce Case"); that native
customary
land is to be confined strictly to the
definition of land as the opposite to sea. In other
words, the LTA Cap.
93 did not intend to include the
seabed as land covered with water. It therefore could not
be customary land or
part of customary land. This was
what his Lordship held in the above case when he ruled
that the Lofung reefs were
not customary land.
The question his Lordship had to consider, was whether
the Lofung reefs around parcel no. 019-001-29, Lot 1 of
L.R.
158 Lofung, Shortland Islands, (the fixed-term
estate of which was owned by the Plaintiff Company),
customary land
or not. It was not in dispute that those
reefs were all submerged and formed part of the sea. The
Defendant (representing
the Saraba and Kome families)
sought to claim customary ownership of those reefs and
surrounding areas, including
the foreshore. The
Plaintiffs submission as presented by Mr Sullivan (also
appearing in this case for the Aisisiki
Tribe), was that
the said reefs was part of the sea and therefore
ownership vested in the State. This was based
on common
law principles. After considering the definition of
"customary land" as defined under the LTA
Cap.
93, his Lordship said:
" The definition of land includes
"land covered by water". A similar
definition is used in
English Acts and a number of
authorities deal with the point. I do not cite them
individually but the general
thrust is that land
covered by water does not include the seabed. On a
consideration of these authorities
it is clear that
the essence of the definition is the word land and
that is used as the opposite to sea.
Thus areas
covered by lakes or rivers may be included as land
whilst the tidal stretches of rivers will
not.
Similarly, if a man excavates his land and allows the
sea to flood the excavated area, it does not,
by
that, cease to be land.
If the local courts are to consider the
ownership of customary land, it must be land. This
Court must determine
that and I am satisfied that
areas permanently and naturally covered by the sea
are not land covered with
water in the definition in
the act. It cannot therefore be customary land and
the Lofung reefs equally
are not customary
land."
The thrust of his Lordships reasoning and conclusions
as drawn from the authorities on the common law cited
before
him was that land covered by water does not
include the seabed. Unfortunately, this overlooked
the clear express terms of subsection 10(4) of the LTA
Cap. 93, which provided inter
alia, that the perpetual
estate in such land below the mean low water which vested
in him under the repealed legislation,
could be
registered by the Commissioner of Lands as owner. Section
47(1) of the repealed legislation had vested
the seabed
in the Commissioner as public land, subject of-course to
the provisions of subsection 47(5). If the
seabed should
not be regarded as land, then why include paragraph
47(1)(a) in the 1964 Amendment; and why amend
the
original definition of land which had conveniently
expressly excluded land covered by the sea at mean low
water (section 2(1) LTA Cap. 56 as unamended), by
omitting that paragraph? It would have been more
convenient
to simply leave that original definition
intact if it was intended that land covered by water does
not include
the seabed. In my respectful view, it is
implicit under the amended definition of land that land
covered by water
was to include the seabed and the
foreshore. Otherwise, it would not make much sense of
section 47(1) as amended.
And if the seabed and the
foreshore are capable of becoming public land, then
surely it must have been envisaged
that they could form
part of native customary land through claims of
ownership, use or occupation that had been
in place for
time immemorial or for a lesser period (that is "in
accordance with current native usage").
The
statutory test for native customary land is as contained
in the definition of native customary land as amended,
under the LTA Cap. 56. As applied to the facts of this
case, the question to be determined is whether there is
evidence of ownership, use or occupation demonstrated by
the Appellants and any other persons claiming in respect
of the Market Area?
One thing is clear, that all land below the mean low
water vests in the Commissioner of Lands as public land,
for
and on behalf of the Government by virtue of statute
law and not some principle of the common law (see
sections
47(1) of the LTA Cap. 56 as amended and 10(4) of
the LTA Cap. 93). Also by virtue of the same legislation,
it is
clear that land covered by water includes the
seabed and the foreshore. It is my respectful view
therefore, that
this Court does not need to look to
common law principles to determine the question whether
the seabed is land
or not. This Court is obliged to take
into account, that statutory definition of land and apply
it to the definition.
of native customary land as defined
under the same legislation. In so doing, I find with
respect that I have to
differ from the former finding of
his Lordship Ward C.J that land covered by water does not
include the seabed
and that thereby the seabed could not
be part of native customary land.
It is immaterial that the land was formerly the seabed
and the foreshore. The crucial issue that the learned
Magistrate
and the Acquisition Officer should have
considered was whether there is evidence of ownership,
use, and occupation demonstrated by the Appellants in
respect of the said
area of land, in the period prior to
1st January, 1969 (being the date of commencement of the
LTA Cap. 93). If there is no evidence of lawful
ownership, use or occupation of the said land by the
claimants in this appeal
in accordance with current
native usage, then in accordance with paragraphs (a) and
(b) of section 47(1) of the
LTA of Cap. 56, as amended,
the said area of land would have vested in the
Commissioner of Lands and he would have
been entitled
thereby to apply for registration under section 10(4) of
the LTA. If on the other hand there is found
to be
evidence of ownership, use or occupation in accordance
with current native usage by any of the claimants,
prior
to 1st January, 1969, then no vesting could have occurred
pursuant to section 47(1) of the LTA of Cap.56
as
amended. The date of 1st January, 1969 is crucial as the
cut off date for any vesting to have occurred by, in
order for the right to apply for registration can be
exercised under section 10(4) of the LTA.
The learned Magistrate therefore jumped the gun when
he held that the said land was public land and that it
vested
in the Commissioner of Lands under the provisions
of the repealed Land and Titles Ordinance (Cap. 56), as
amended.
That amounted to a wrong interpretation of the
repealed legislation and an error of law. Secondly, he
did not consider
and declined to hear, (wrongly) any
customary evidence pertaining to the question whether the
said land was lawfully
owned, used or occupied by the
claimants prior to 1st January, 1969. That was also an
error of law. In contrast
the Acquisition Officer did
hear customary evidence pertaining to the question of
ownership, use and occupation
of the said land, though he
did not address his mind specifically it would seem, to
any time frame before the 1st
January, 1969.
Nevertheless, I do not think this would have made much
difference, because the claims in custom
of the claimants
would have been based in any event from time immemorial
as users, or rights of ownership and occupation
traced
well beyond 1969. The Acquisition Officer therefore would
have addressed satisfactorily in my respectful
view the
questions whether the claimants were the lawful owners,
users or occupiers of the said land in the period
before
1969; though he was not aware of the legal implications
of section 10(4) of the LTA, the vesting provisions
of
section 47(1), and the definitions of "native
customary land" and "land" under the
repealed legislation.
As pointed out earlier, one of the interesting
arguments put forward by the learned Attorney General was
that the
foreshore in the Market Area had vested in the
Solomon Islands Land Trust Board and later the
Commissioner of Lands
under section 47(1)(b) of the LTA
Cap. 56 as unamended on 1st February, 1963 (date of
commencement of that Ordinance).
By virtue of section 16
of the Interpretation and General Clauses Ordinance (Cap.
1) 1961 Revised Laws, that right
so conferred subsisted
despite the amendment of section 47 under the 1964
Amendment and the amendment of the definitions
of the
words `land', "native customary land" and
"public land". The appropriate cut off date
he
submitted was the 1st of February, 1963 and the relevant
definition of native customary land to be applied was
the
original definition under the said Ordinance. The
question that should be considered therefore was whether
prior to 1st February, 1963, the foreshore was native
customary land or not. If it could be established that
prior to 1st February, 1963, the foreshore in the Market
Area was native customary land, then the vesting
provisions could not have applied. If not, then the said
land vested in the Commissioner of Lands and subsisted to
the present.
That crucial question whether the foreshore in the
Market Area was customary land or not however never arose
during
that period between 1st February, 1963 and 30th
December, 1964. The test contained in that definition
accordingly
was never considered in that period. On 30th
December, 1964, the original definition of native
customary land was
amended and so no longer applicable.
It would be wrong therefore to use that original
definition when it had been
superseded by the amended
definition.
But even if the original definition was to be applied,
it would have included questions of control and
possession
in any event. The word "occupation"
as correctly pointed out by Mr Sullivan does connote
elements of
physical control and possession of land (see
also Osborn' Concise Law Dictionary, Sixth Edition). It
does not merely
mean that one has to be physically
present or living on the said land. As long as the
elements of control and possession
can be established
such that a stranger can be excluded, that would suffice
(see Wheat v. E. Lacon & Co. Ltd [1966] A.C., per
judgment of Lord Denning at page 578). This is a question
of fact and therefore bound to raise
evidence of custom
ownership and rights which would have to be determined by
the Acquisition Officer and the Magistrates
Court.
To seek to submit therefore that it would have been
virtually impossible in any event for any person to show
actual
use for purposes of occupation, is presumptuous at
this stage and cannot be accepted. The status of the
foreshore
as at 30th December 1964, remained undetermined
to the present. Now that it had been raised, the relevant
applicable
legislation at this point of time must be
applied. And this clearly is the provisions of the LTA
Cap. 56 as amended.
It was not correct accordingly for the learned
Attorney-General to assert that the said foreshore vested
in the
Board and subsequently the Commissioner, in the
absence of any determination of customary evidence of
ownership
and rights over the said foreshore.
The applicable time period as to when vesting should
have occurred by is 1st January, 1969. If it can be shown
that
the Market Area was customary land or part of
customary land prior to that date, then no vesting
obviously could
have taken place. To answer that
question, the Magistrates' Court will have to determine
which of the Appellant
Tribes have demonstrated rights of
ownership, use or occupation over the said land in
accordance with current native
usage (see definition of
native customary as amended).
There is no point therefore in sending the matter all
the way back to the Acquisition Officer. The matter can
be
fully dealt with by the Magistrates Court The crucial
guiding factor which the learned Magistrate must bear in
mind when dealing with the appeals of the claimants is
the issue whether the said land (that is, land which at
one stage had been covered by the sea and foreshore), was
customary land; that is lawfully owned, used or occupied
by any of the claimants in accordance with current native
usage prior to 1st January, 1969. If he finds evidence of
ownership, usage and occupation in accordance with
current native usage, then he is obliged to make a
finding to that effect.
I should point out that section 65(1) of the LTA gives
the Magistrate's Court very wide powers. It can hear
customary
evidence, and may where he considers it just
and proper, have witnesses who gave evidence in the
acquisition proceedings
re-called to testify.
I am satisfied the learned Magistrate committed an
error of law sufficient to enable this Court to intervene
and
have the orders below set aside.
A great number of materials, local court judgments and
other documentary evidence (including the decision of the
Adjudication Officer in Application No. 11/1/73 in
respect of Lots 90 and 91) have been referred to by
learned
Counsels. In my respectful view, it is not
necessary for this court to consider them. The right time
and place
to raise them is before the Magistrate's Court.
I am satisfied in the circumstances, grounds (1), (2)
and (3) of the Combined Fera Group's ground of appeal
should
be upheld.
As to ground (4) of the appeal, in view of the ruling
of this court on grounds (1) - (3), I fail to see how
section
10(4) would be inconsistent with section 8 of the
Constitution.
As to the ground of appeal of the Aisisiki Tribe, I
will deal briefly with it in view of the fact that the
submissions
raised were slightly different from the
Combined Fera Group's submissions although the end sought
was the same.
The gist of Mr Sullivan's submissions is that if the
said area of land had been reclaimed prior to 1st
February,
1963, then it was clearly land above the mean
high water mark, and therefore no longer the sea. The
vesting provisions
of section 47(1) which came into force
on 1st February, 1963 accordingly could not have applied,
because we no
longer have land which (though reclaimed)
lies between the points of mean high water and mean low
water. Mr Sullivan
seeks to submit that the act of
reclamation had so altered the state of the land to the
point it was now capable
of sustaining customary rights
and interests, provided it had been done prior to 1st
February, 1963. The date of
reclamation therefore is
crucial to his submissions. If it was done after 1st
February, 1963, then it could not
be customary land. The
learned Magistrate however failed to address that issue
before coming to his conclusions
and thereby committed an
error of law.
Mr Sullivan relied on a Privy Council decision, the Attorney-General
of Southern Nigeria v. John Holt and Company
(Liver-Pool), Limited and Others [1915] A. C. 599, in
support of his proposition that where reclamation had
taken place as opposed to natural accretion, that it was
capable of sustaining rights and interests of persons
using the land. In the above case, it was held that
whilst the Crown held ownership rights over the reclaimed
land by virtue of its ownership over the foreshore, the
Respondents continued to have the rights of riparian
owners over the foreshore, and that there was to be
presumed in the respondents' favour an irrevocable
licence from the Crown to erect buildings and to store
goods
and to use generally for the purposes of their
businesses.
In the same token, Mr Sullivan sought to argue that
customary rights and interests could have arisen over the
said
reclaimed land which would have rendered the said
land out of reach of the vesting provisions if it had
been reclaimed
prior to 1st February, 1963.
Whilst this submission is an attractive one, it failed
to address with respect the status of the foreshore prior
to any reclamations before the 1st of February, 1963. Who
owned the foreshore prior to 1st February 1963 and prior
to any reclamations? If it was the Protectorate (the
Crown) by virtue of common law principles, then according
to the ratio relied on by learned Counsel in the Attorney-General
of Southern Nigeria (supra), the Crown would remain
the owner whilst the customary user of the said reclaimed
land may merely have acquired
some form of licence or
rights to use the said land. Ownership however would
remain with the Crown. And so whatever
customary rights
may have been acquired prior to 1st February, 1963 over
the reclaimed land would still have been
subject to the
rights of ownership of the Crown on common law
principles. And on the commencement of the repealed
Ordinance, the foreshore would have become public land
pursuant to section 47.
So irrespective of whether the land had been reclaimed
prior to 1st February, 1963, if the foreshore vested in
the
Crown by virtue of common law principles, then
it would not have made any difference. The Crown would
still be the owner of the said foreshore.
The submission put forward by Mr Sullivan accordingly
in my respectful view has a major flaw to it and must be
dismissed.
The orders of this Court however must favour all the
Appellants in any event in view of the way this court has
ruled.
ORDE>ORDERS OF THE COURT:
1. Uphold appeals of Combined Fera Group, Aimarako
Tribe and Billy Mac and Others on grounds (1-3) of the
Appeal.
2. Dismiss appeal of Aisisiki Tribe.
3. Set aside orders of Magistrates' Court.
