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Kasa v Biku [1999] SBHC 53; HC-CC 126 of 1999 (14 May 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 126 of 1999

ALLAN KASA & ELMA KASA

v

REX BIKU &aKU & COMMISSIONER OF LANDS

p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands

(Muria C.J.)
Civil Case No. 126 of 1999

Hearing: 10th May 1999
Judgement: 14th May 199y 1999

D. Hou for the Plaintiffs
F Walelia for the the 1st Defendant
S. Manetoali for the 2nd Defendant

Muria C.J.: The plaintiffs seek a number of orders in this application, the main one being to restrain the first defendant from receiving further payment of money from the second defendant in respect of Ziata Land in the Kazukuru Left Hand Land (KLHL). The Orders sought are set out in the Summons filed on 19th April 1999 and are as follows:

1. An order that any payment of purchase monies, rents orts or access fees be made only to an Interest Bearing Account in the names of the persons duly appointed by the members of Gumi Tribe and further that no payments shall be made until such an account is opened.

2. A declaration that the First Defendant was not validly or properly identified as a duly authorised Representative or trustee solely entitled to lease or sell Kazukuru Left Hand Land on behalf of Gumi Tribe and to solely receive for his own benefit any monies, rents or access fees paid by the Second Defendant in respect of the said land.

3. That the First Defendant be restrained from collecting any further money from the Second Defendant in respect of the said Kazukuru land.

That the First Defendant, ant, his Banker, agent, servant or nominees be ordered to return for deposit in the said Interest Bearing Account any money in their possession being monies or part of the payments previously paid to the First Defendant by the Commissioner of Lands or the Accountant General.

The Court is also asked to make any other Order as the Court deems fit as well as to costs of the application. A number of issues were raised by Counsel in their arguments and I shall deal with them appropriately.

I deal first with the background to this case before proe proceeding further. The plaintiffs and first defendant are all from the same tribe, the Gumi Tribe. The Gumi Tribe’s Geneology Exhibit 2, to the second plaintiff’s affidavit, confirms this. Gumi Tribe is one of the tribes which also has land rights in the Kazukuru Left Hand Land (KLHL).

The Second Acquisition

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Following the Magistrates Court’s decision of 10thup>th June 1987, the Government appointed a new Acquisition Officer by the name of Mason Nesa for the purpose of acquiring the Ziata Land (“the Second Acquisition”). On 25th September 1990 the Acquisition Officer held a public hearing at Munda following which he determined on 17th April 1991 that Gordon Kiko Zinahite, Luxton Zovere, Timothy Niniki, Kiliver Kaepeza and John Roni had the right to lease the Ziata Land and received rent. The first defendant and John Talasasa who were among the claimants, appealed to the Magistrates Court against the Acquisition Officer’s decision. The Magistrates Court, Gizo, heard that appeal and allowed it on 18th December 1991. It further ordered that another Acquisition Officer be appointed to conduct a new acquisition proceedings pursuant to section 63 of the Land and Titles Act. It is also further ordered that the new acquisition hearing be confined to hearing the claims by John Talasasa, Zinihite and Rex Biku, the first defendant.

Third Acquisition

Pursuant to the Magistrates Court’s order of 18th December 1991 a new Acquisition Officer, Mr. Maurice Maike Ferguson was appointed to conduct fresh acquisition proceedings in accordance with the provisions of Part V of the Land and Titles Act. The Claimants at the hearing conducted on 23rd April 1997 were confined to Talasasa, Zinihite and Biku. At that hearing the claimants “reconciled” their differences and agreed to execute the CL2 Form which was the Agreement to Lease Customary Land. Before that Agreement could be signed, however, objection as to who should represent the late Zinihite was taken by Mrs. Nuatali Tongarutu who claimed that she should be recognized as the representative of the late Zinihite. Garden Mike Zinihite the son of the late Zinihite argued however that he should be the right person to represent his father. No compromise was reached and so the Acquisition Officer determined that Garden Mike Zinihete was to represent his father, the late Zinihite.

Following that an agreement to lease the Ziata Land was mads made on 25th April 1997, there having been no further claims received. The parties to that agreement were John Talasasa, Rex Biku and Garden Kiko Zinihite as Lessors and the Acquisition Officer on behalf of the Commission of Lands as lessee. The actual Agreement to Lease Ziata Land was signed on 30th October 1997.

Case for the Plaintiffs

The case for the plaintiffs as put before the Court is that the first defendant was only a spokesman for their Gumi Tribe and as such he has no right to receive the payment of money from the Government. The plaintiffs argued that the first defendant was not authorised by the Gumi Tribe to receive the money paid to the Tribe.

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> It is also part of the claim of the plaintiffs that the first defendefendant had not distributed the money to the other members of his tribe. As such he should be restrained from further receiving any money paid to the Gumi Tribe from the Government. Part of the reasons for that is that the first defendant was said to have received the money and used it for his own pleasure. Consequently the first defendant should be barred from receiving any further payment.

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It is the first defendant’s case that he was one of the three people named in the Acquisition Officer’s determination made on 25th April 1997 as entitled to lease and receive rent for the said Ziata Land. That, says the first defendant, entitles him and those named to receive rent paid for the land. Pursuant to that determination the Agreement to lease the land pursuant to section 61(b) (now s. 64(b)) of the Land and Titles Act was executed on 30th October 1997 between John Wesley Talasasa, Annex Lieu (first defendant himself) and Gordon Kiko Zinihite as Lessors and the Acquisition Officer on behalf of the Government as Lessee. That is the legal authority for the first defendant to receive payments from the Government. So that until the Acquisition Officer’s decision is upset by the Court, the first defendant’s authority to receive rent remains valid and effective.

As far as diution of the money paid by the Government to the lessors is concerned the first defendant says that he had distributed portions of the money received to the members of the Gumi Tribe in accordance with his distribution committee’s decision. Other payments received were not distributed as the committee had decided that those funds be set aside to meet litigation costs in the High Court over the land, negotiations over the use of Kazukurui Left Hand Land and invest for future of the tribe. Whether these were so or not, there is no challenge to the contrary.

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As I understand it, parthe first defendant’s case case is that he was the one actively involved in litigation on behalf of the Tribe over the land and as such he should be the one entitled to receive payments for the use of the land. The plaintiffs do not dispute that but said, however, that he was doing so on behalf of the Tribe, not for himself.

Issues

The issues here are relatively clear and straight forward. The issues are: (1) whether the first defendant was validly identified as the person duly authorised to receive payment of money from the Government on behalf of the Gumi Tribe; (2) whether the first defendant is entitled to receive payment of the rentals from the Government on behalf of his Tribe; and (3) whether he should be restrained from receiving further payments of rentals from the Government.

There are other issues raised in argument, such as the question of delay which Counsel for the first defendant said that the plaintiffs were guilty of and also the question as to whether the first defendant had misused money paid to him for the Tribe. The Court does not have the benefit of tested evidence on the issues raised, since, this is only an application seeking orders which are meant to be interlocutory, although some of the orders include seeking to challenge the first defendant’s status as a duly appointed representative of the Gumi Tribe. The Court will only decide on the issues raised in the present application based on the evidence before it.

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p class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> It must be understood correctly we are not dealing with theh the question of whether the first defendant was validly appointed as the Chief representing his tribe in the Ziata Land negotiation. The question as to whether a person is a duly appointed chief of a tribe to represent his people is a matter involving much more than being chosen or identified to represent a tribe’s interest in a land acquisition litigation. For a person to be appointed a chief involves matters of custom which may include procedures and ceremonies in custom. We are not dealing with such issue here. We are simply concerned with the question of whether the first defendant was properly identified as representing the Gumi Tribe in the Ziata Acquisition proceedings.

The affidavit evidence shows that the first defendant had been taking measures to represent his tribe’s interest in these acquisition proceedings throughout. No objection had been shown that he should not be doing so. In fact all along, the first defendant had the backing of his people in negotiating for their interest in this matter. Consequently at the end of the third Acquisition, he was the person identified as the representative of his tribe and with whom the Acquisition Officer signed the Agreement to Lease the Ziata Land on behalf of his tribe. He is clearly the person properly and lawfully identified as the person representing the Gumi Tribe in the Ziata Land Acquisition process.

Whether the first defendant is entitled toed to receive payments of the rental

Pursuant to section 64(b) of the Land and TiAct (Revised Edition 1995) an Acquisition Officer holds a public hearing and hear claims of claimants over the acquisition of the land concerned. Having done so, he would then determine the identity of the persons who have the right to sell or lease the land and to receive the purchase money or rent. In this case the Acquisition Officer having held a public hearing on 25th April 1997, and having heard the claims of those who presented their claims determined that the first defendant was one of the persons having the right to lease the land and receive rent over Ziata Land. He and two others were identified and they later signed the Agreement to lease the said land on behalf of their landholding groups. The first defendant must surely be the person properly identified to receive the rent over the Ziata Land on behalf of his tribe.

Whether the first defendant should be restrained from further receiving the monies, rent or access fees

In as much as the plaintiffs would wish it to be, there is just no evidence to justify restraining the first defendant here from receiving further payment of money. The suggestion by the plaintiffs is that the first defendant has no right to receive the money and use it for himself. Plainly the first defendant has the right to receive the money on behalf of his tribe and it was on that basis that he had received the previous payments of rent. If the suggestion is that the first defendant had used the money previously paid for his own benefit and that it is a serious issue that the Court should look into, then evidence must be adduced to that effect. In the absence of such evidence, I do not see how this Court can justify preventing the first defendant from continuing to receive payments of monies, rent or access fees over Ziata Land on behalf of his tribe.

Delay and the “little red hen”/b>

On behalf of the first defen Counsel contended that thet the plaintiffs are guilty of delay in this matter. It was suggested that the first defendant alone had all along been “hard-working” in pursuing issues and concerns over Ziata Land on behalf of his tribe. The plaintiffs and other members of the tribe have done nothing at all. They have just waited for the “harvest”. The action of the plaintiffs in this case, says the first defendant, is akin to that in the story of the “little red hen” who did all the work while the others were just waiting to enjoy the results.

Firstly, on the question of delay, I do notpt that the plaintiffs are guilty of delay here. They felt something has gone wrong with the distribution of the money due to the tribe and so they took the necessary action. They could not have done so in April 1997 or even before bringing this action as they had no reason to do so. However as soon as they felt something was happening with the distribution of the money paid, they took the action. No delay can be attributed to the plaintiffs in this case.

Secondl the comparison with the hardworking “little red hen”, I I feel the comparison was a little far fetched. No support could be found in the evidence that the first defendant did all the work without the support of the members of his tribe. The contrary is in fact true. Right from the time of the first acquisition in April 1984 to the last acquisition conducted by Mr. Ferguson in April, 1997, the first defendant had the backing of the members of his tribe or his landholding group. In the first acquisition proceedings on 17th April 1984, other members of the tribe such as John Kevisi and Peter Siga gave evidence in support of the first defendant and his late father, Edwin Biku. In his appeal against the second acquisition determination, there was clear evidence that the first defendant was acknowledging the support of this landholding group. He clearly rebuked any suggestion that his supporters caused the disturbances during the acquisition hearing. Again at the end of the third acquisition the Agreement to lease Ziata Land was executed on 30th October 1997 between the parties acknowledging that the land was “owned by all the members of the landholding group”. That is an acknowledgment that the first defendant was acting on behalf of his tribe, the Gumi Tribe. When all these aspects of the case are put together, it can hardly be justified to suggest that the plaintiffs were lying idle all along and only waiting to reap the “harvest” as in the “little red hen” story.

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Lest it may be doubted, customary land in Solomon Islands is owned nned not by one person but by a landholding tribe or group. A person acts on behalf of the tribe. The present case is no exception. The first defendant is a representative of his tribe. He conducted the case in respect of Ziata Land on behalf of his tribe and when he entered into the Agreement to lease the said land he was doing so, not on his own behalf, but on behalf of his tribe, the Gumi Tribe. He represents his tribe in the receipt of payments of money from the Government. How that money is to be distributed is best resolved by the members of the tribe themselves. The Court can only assist if needed.

need for accountability

As the first defendant is the person duly determined to r to receive the money from the Government, he is accountable to his tribe. This is particularly so as he received and will be receiving money on behalf of his tribe. The order sought to ensure this accountability on the part of the first defendant is a proper one and should be made in terms of paragraph 5 of the Summons.

Order

Having considered all that had been said together with tith the materials put before the Court, the order ought to be.

1. The order sought to have the purchase monies, rents or access fees only paid into Interest Bearing Account is refused. However as any money paid is for the Gumi Tribe, the members thereof ought to resolve as to the manner of disposition of such money. In the event that no amicable resolution is reached, the parties are at liberty to seek direction from the Court if necessary.

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3. The restraining order sought against the first defendant is refused.

4. The order sought in paragraph 4 of the Summons is refused.

5. I order the first defendant shall produce an Account of all the monies so far received by him from the second defendant in respect of Ziata Land.

6. Each party to bear his own cost.

Order accordingly.

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