Sipisoa v Acquisition Officer [1998] SBHC 96; HCSI-LAC 8 of 1996 (15 June 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No. 8 of 1996

JACK SIPISOA

-v-

ACQUISITION OFFICER & OTHERS

High Court of Solomon Islands
(Kabui J.)
Land Appeal Case No.8 of 1996

Hearing: 5th June, 1998
Judgment: 15th June, 1998

Andrew Radclyffe for the Appellant
Andrew Non for the 2nd and 3rd Respondents
Acquisition Officer is not present

JUDGMENT

KABUI J.: This is an appeal by Jack Sipisoa against the decision of the Principal Magistrate Court sitting at Auki on 9th August, 1996. The grounds of appeal are as follows -

1. The Principal Magistrate erred in law in holding that Malaita Province wished to acquire Namonako Land.

2. The Third Respondents, if they are the owners of the land, should apply for first registration under the Land & Titles Act rather than using the acquisition procedure under Part V of the Act.

3. The Principal Magistrate erred in law in holding that he has no power or jurisdiction to determine the meaning of the word “boss” in the context of these proceedings.

4. In paragraph 2 of the decree the Principal Magistrate states “As to the meaning of the phrase ‘‘the boss” the Local Court should be given the opportunity to interpret it first”. If that ruling is correct in law then the issue should have been dealt with by the Local Court before the acquisition officer and the Magistrate made their decisions.

The background facts are these. By letter dated 22nd May, 1995 the then acting Provincial Secretary for Malaita, Jack Watealaha, appointed one Penrose Palmer, a private land consultant, as Acquisition Officer for an area of land near Ambu called NAMONA’AKO LAND near the township of Auki. The land had previously been purchased by Messrs. Fa’amauri and Etefanoa. The land was sold to them by Messrs. Tafea and Idukelema. At the time of purchase, the land was customary land. The request for the acquisition of the land was contained in a letter dated 4th May, 1995 signed by one Idukelema, addressed to the then acting Provincial Secretary, the said Jack Watealaha. The purpose of the said acquisition was to enable private housing development to take place on that land and to serve as security for mortgage purposes. In a finding by the Chiefs on 31st May, 1995, the Appellant was described as the “boss”. This mean others would have to seek his permission for any new projects. The finding confirmed that although Messrs. Tafea, Idukelema and the Appellant were of the same line, the Appellant was the descendant of the male line. So much for the facts. The acquisition procedure was then set into motion by the Acquisition Officer under the provisions of Part V - Division 1 of the Land & Titles Act (“the Act”) (Cap.93). The actual public hearing was conducted over a number of days beginning on 16th June, 1995 and ending on 29th June, 1995. At the conclusion of the public hearing, the Acquisition Officer ruled that there was nothing wrong with the sale of NAMONA’AKO LAND by the Vendors to the Purchasers. It was against this determination that the Appellant appealed to the Magistrate Court in Auki in December, 1995. An additional ground of appeal was filed later on 21st March, 1996. The grounds of appeal were argued by Counsel for each of the parties in the Magistrate Court in Auki on 31st July, 1996. The appeal was dismissed by the Magistrate Court on 9th August, 1996.

The first ground of appeal turns upon the meaning of section 60(1A) of the Act. That subsection states:-

“(1A) Where a Provincial Assembly wishes to purchase or to take a lease of any customary land under section 59, the Clerk may appoint an Acquisition Officer to act as his agent for the purposes of the acquisition”.

Section 59 states:-

“Notwithstanding any current customary usage prohibiting or restricting such transaction, customary land may be sold or leased to the Commissioner or any Provincial Assembly in accordance with the provisions of this Division”.

Sections 59 and 60(1A) of the Act must be read together in order to understand their correct meaning. Section 59 allows both the Commissioner of Lands (in the case of the Central Government) and the Provincial Assembly (in the case of a Provincial Government) to acquire land from customary landowners by way of outright sale or by way of lease. Whichever is the case, the procedure for conversion of customary land interest into registered interest is set out in sections 59 to 69 of the Act. The whole of these sections should be read together in order for one to understand the intent of Parliament in sections 59 and 60(1A) of the Act. Mr. Radclyffe for the Appellant argues that the whole acquisition procedure in this case was done under the wrong sections of the Act. He says that it was clear from the start that the purpose of the acquisition was to enhance private housing development and other related matters. This, he says, was a wrong interpretation of section 60(1A) of the Act especially in view of section 68(l) (d) of the Act. In other words, the end result of this acquisition procedure does not fit into section 68(l) (d) above. Section 68(l) (d) of the Act states:-

“(1) An Agreement shall for the purposes of sections 66 and 67, be implemented -

(d) in the case of a lease of the land by a Provincial Assembly where a clerk has appointed an Acquisition Officer, by the Commissioner

(i) making an Order vesting the perpetual estate in the land in the persons named in the agreement as lessors,

(ii) requiring the persons so named to execute a lease in favour of the Provincial Assembly in accordance with the terms of the agreement;

(iii) paying to such persons after receiving the same from the Provincial Assembly any premium or initial payment of rent payable in accordance with the terms of the agreement; and

(iv) allowing the Provincial Assembly to take possession of the land”.

Clearly, the Commissioner of Lands would not be able to make any vesting order in favour of the Purchasers of NAMONA’AKO LAND as lessors and then requiring them to execute a lease in favour of the Provincial Assembly. Nor is the Provincial Assembly able to pay premium or rent and finally to take possession of NAMONA’AKO LAND. There is no evidence to suggest that NAMONA’AKO LAND was being required by the Provincial Assembly for its purpose within the meaning of sections 59 and 60(1A) of the Act. There is no legal basis upon which the Commissioner of Lands can perform his legal obligations under section 68(1) (d) of the Act in this case. Section 59 empowers the Provincial Assembly to buy or lease customary land. Section 60(1A) permits the exercise of the power in section 59 only where the Provincial Assembly wishes to buy or lease customary land for its purpose. The first step being the appointment of an acquisition officer as the agent of the Clerk to the Provincial Assembly. Section 60(1A) has a restrictive and specific meaning. It is not the intention of Parliament that Provincial Assemblies may acquire customary land at large at the request of any member of the public. The procedure for converting customary land interest into registered interest is provided for under Part IV of the Act. It is called land settlement scheme. This is the scheme that is open to the public at large although it has been rarely used in recent years. Mr. Radclyffe suggests that section 10 of the Act should have been used in cases of first registration. I do not agree. Sections 12 and 13 of the Act seem to suggest that section 10 applies to interests in land acquired after 1st February, 1963. It is to do with unregistered documentary titles in the country. (See Teteha & Others -v- Registrar of Titles & Others [1980/81] S.I.L.R. 209). Mr. Nori for the 2nd and 3rd Respondents argues that section 60(1A) of the Act must be interpreted liberally and not restrictively. There is nothing, he says, in section 60(1A) to suggest that the Provincial Assembly must acquire customary land only for its own purpose. This section, he says, is wide enough to include developmental purposes in the Province. He says a vesting order under section 68 of the Act is irrelevant so long as the purpose for acquisition is well within the development policies of the Province. What I think Mr. Nori is saying in a nutshell is that in this case perpetual estate interest can be vested in the Purchasers of NAMONA’AKO LAND and then they would lease the land back to the Provincial Assembly who will in turn sublease it to private individuals. In the abstract this would sound technically correct. In my view, this cannot be the case. This is an abuse of the acquisition procedure under Part V - Division 1 of the Act. In fact, in this case, it was Alwyn Idukelema one of the Vendors of NAMONA’AKO LAND who requested acquisition under Part V - Division 1 of the Act tacitly with the support of the Purchasers. The said acting Provincial Secretary simply complied with that said request. It was putting the cart before the horse. The acquisition procedure was simply busted with the endorsement of the said acting Provincial Secretary. In my view, the intent in section 60(1A) of the Act is very clear. The operative words are “Where a Provincial Assembly wishes to purchase or to take a lease of any customary land under section 59”. The “wish” to purchase or take a lease of any customary land must first be established at the decision making level within the administrative machinery of the provincial government preceded of course by reasons for that “wish”. There is no evidence of that in this case. In fact, the opposite is the case. The result of this “wish” in practical terms is set out in section 68(1) (d) of the Act above. It is a case of self-serving for the needs of the Provincial Assembly. It is not a service to the public at large. In adopting this line of interpretation, I am mindful of Daly, C .J’s discussion in the case of The Minister for Western Provincial Affairs - v- The Western Province [1983} S.I.L.R. 141 of the rules of interpretation of statutes and the approaches taken by the Courts in the application of those rules. At pages 148-149, His Lordship said -

“I return to the point from which I started out. That is, that the only proper approach to any problem of construction is first to read the words used in their context. If the words have a natural and ordinary meaning then the words should be given that meaning. If that is to be called a “literal approach” I do not consider it to be outdated; the function of a court in any case of interpretation is to decide the meaning of words. The intent and purpose of the legislature is expressed in those words. What other “approach” can there be but “literal”? There may be scope where the words do not have a natural and ordinary meaning or where the words are ambiguous or where the natural and ordinary meaning reveals that something has been omitted (pace Lord Diplock) for a court to apply one or other of what have been called “rules of construction”. But the starting point is always the words themselves and these “rules of construction” are merely common sense and judicial experience (if there is any distinction) applied to the task of giving a meaning to words where the draftsman has, in the view of a court, failed adequately to convey a natural and ordinary meaning that is consistent with the context in which the words are used.

For a court to wander in a twilight world of purposes and intentions whilst disregarding or avoiding the clear meaning of the words used is to introduce an element or capriciousness in the application of statute laws which I, for my part, would be most loath to introduce into Solomon Islands. Even the thought of taking such a journey in the esteemed company of such eminent jurists as Lord Diplock and Lord Denning does not tempt me to abandon what I consider to be the pursuit of consistency”

There being no evidence of the Malaita Provincial Assembly wishing to acquire NAMONA’AKO LAND within the meaning of section 60(1A) of the Act, the acquisition procedure conducted in this case is therefore invalid, null and void.

However, in the interest of clarity in this judgment, a few words ought to be said about why and how the expression “Provincial Assembly” and the word “Clerk” continue to remain in the Act. The use of the expression “Provincial Assembly” and the word “Clerk” in Part V - Division 1 of the Act is misleading in view of previous legislations culminating in the enactment of the Provincial Government Act, 1997. The use of the expression “Provincial Assembly” and the word “Clerk” in the Act was a result of section 13 of the Solomon Islands Independence Order 1978 providing for a transitional period of local government under the Local Government Act (Cap.14) until the introduction of a fully-fledged provincial government system of governing for the country. The provincial system of government was introduced in 1981, 3 years after Independence. The use of the expression “Provincial Assembly” and the word “Clerk” up until then was correct for the Provincial Assembly under the Local Government Act above was a body corporate which could sue and be sued in Court. Today, that expression and the word “Clerk” have each lost their respective meaning. The Provincial Assembly now under the Provincial Government Act, 1997 is a law-making body for each Province. It is no longer a body corporate as in the case under the Local Government Act. The bodies corporate in the Provinces now are the Premiers under section 27 of the Provincial Government Act, 1997. The word “Clerk” is retained under section 22(2) of the said Provincial Government Act but the functions of that office are now but different. The functions of the Clerk under the Local Government Act are now being performed by the Provincial Secretaries in the Provinces. In this judgment, the use of the expression “Provincial Assembly” and the word “Clerk” must now be understood in this context.

Lastly, Mr. Radclyffe argues that if the Court finds that the whole acquisition procedure was a nullity then that would be the end of the matter. There would be no need for the Court to consider and rule upon grounds 2 to 4 of the appeal as they are merely supplementary to ground 1. As I have already said above, the acquisition procedure in this case is invalid, null and void. That being the case, appeal grounds 2 to 4 are automatically decided by the ruling of this Court on appeal ground 1 above. This appeal is therefore allowed.

Appellant is entitled to his costs.

F. O. KABUI
JUDGE