Ugra v Bugoro [2007] SBHC 39; HCSI-CC 005 of 2006 (19 February 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 5 of 2006

James Ugra
(Representing Vihuvunagi Tribe)

v

Alfred Bugoro and Clement Rojumana (Representing Posamogo Tribe);
and Lionel Longa and Roger Collins Manehage (Representing Tavia Tribe);
and Maringe House of Chiefs; and Attorney-General (Representing Commissioner of Lands).

(Palmer CJ.)

Date of Hearing: 29th August 2006
Date of Judgment: 19th February 2007

Preslie Watts for the Plaintiff
D. Tigulu for the First Defendant
J. Hauirae for the Second Defendants
No appearance for the Attorney-General

Palmer CJ.: The Plaintiff (James Ugra) of the Vihuvunaghi tribe claims ownership in custom over the Sausamu, Olahi, Korikoso Varigita, Korasaba lands and the Tuturia, Letasi, Seu and Momorotu lands (hereinafter referred to as "the Buala lands"). He avers that his claims of ownership are supported by the sale of a parcel of land within the area as evidenced by a title deed executed between Titus Selo and the Resident Commissioner on 1st February 1934 for the sale of a parcel of land at Sana Cascade.

The disputes arose as a result of attempts by the Commissioner of Lands in 1994 to acquire a portion of the lands for purposes of the proposed Buala Hydro Project.

The process whereby land may be acquired from customary land owners by Government for public purposes or uses is governed by the provisions of the Land and Titles Act (cap. 133), in particular Part V, Division 1 of the said Act.

A total of three acquisition hearings, 1994, 1997 and 2002 had been conducted to acquire a portion of the Buala lands but without success.

The Issue

The main issue in this case is whether or not James Ugra ("Ugra") representing the Vihuvunaghi tribe had established their claims of ownership in law over the Buala lands to the exclusion of the other parties?

Submissions of Ugra

The claim of Ugra is based on a decision of the Hovikoilo House of Chiefs dated 11th October 1998 in a land dispute case between him and Benson Vasula over the Tuturia, Letasi, Seu and Momorotu lands, from the highland to the coast. It appears the dispute may have arisen over the construction of a CRC Church building by Benson Vasula and his family. The decision of the Chiefs went in favour of Ugra. He relies on a sale by Titus Selo of a portion of the Buala lands to the colonial Government in 1934 as supportive of his rights of ownership over the said lands. He claims that his rights in custom can be traced through his mother Gwen Tikiti, who is the daughter of Titus Selo and Clara Kathethona.

Land Acquisition Proceedings

Land acquisition proceedings are different from proceedings where a land dispute is reported to the Chiefs for determination under the Local Courts Act (cap. 19). The procedure is set out in Division 1 of Part V of the Land and Titles Act (cap. 133). Where the national Government or Provincial Government wishes to purchase or take a lease of any customary land the Commissioner or Provincial Secretary may appoint an Acquisition Officer to act as his agent for the purposes of the acquisition.

In this instance, the purpose for which land was required was for the establishment of a hydro electric project. The process requires the publication of notice of a public hearing to enable the Acquisition Officer determine inter alia who are the rightful owners of the land. There is provision for an appeal to a Magistrate’s Court within three months by any person aggrieved by the decision of the Acquisition Officer. There is further provision for appeal to the High Court on point of law or failure to comply with any procedural requirements of the Act within three months of the High Court decision.

The acquisition process unfortunately has never been completed despite three attempts having been made. The last order made by the Magistrates Court for all parties to apply to the Council of Chiefs for a de novo hearing as to ownership of the Buala Mini Hydro Lands further added to the confusion as the issue before the Court was the question regarding "identity of the persons who have the right to sell or lease the land and receive the purchase money or rent"[1]. It wasn’t a matter for the Chiefs to determine under the Local Courts Act. The law places responsibility for acquisition of customary land directly in the hands of the Acquisition Officer and the Magistrate’s Court. By directing that the matter go before the Chiefs for a de novo hearing, the order confused the process in which acquisition proceedings were conducted. There are two separate processes. It is not clear what was the intention behind the order but in so doing, the acquisition proceeding was not completed.

Land disputes

The procedure for dealing with land disputes is set out separately in the Local Courts Act (cap. 19). Section 12(1) requires that no land dispute may be heard by a local court unless it is satisfied that-

"(a) the parties to the dispute had referred the dispute to the chiefs;

(b) all traditional means of solving the dispute have been exhausted; and

(c) no decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute."

Section 254 of the Land and Titles Act (cap. 133) confers exclusive jurisdiction to the Local Courts to deal with customary land disputes. Appeals lie to the Customary Land Appeal Court under section 256(1) of the Land and Titles Act. A further right of appeal lies to the High Court but only on grounds of law or failure to comply with any procedural requirement of any written law.

The case of James Ugra v. Benson Vasula

This was a land dispute case between Ugra and Benson Vasula ("Vasula") heard by the West Maringe Chiefs on 5th October 1998 in Buala Village. The lands disputed were described as Tuturia, Letasi, Seu and Momorotu from the highland to the coast. It appears a dispute arose when Vasula attempted to build a CRC Church building on a hill which was disputed. The Chiefs found in favour of Ugra and ordered the church building to stop.

Is the Chief’s decision in James Ugra v. Benson Vasula binding on others?

The decision in this case is a land dispute case between two parties, Ugra and Vasula. It binds no one except the two of them and their immediate relatives. Decisions in land disputes are usually referred to as decisions inter partes; they are not decisions in rem (as against the rest of the world). It is wrong therefore for Ugra to seek to rely on this decision as binding anyone else other than Vasula and his family.

The decision of the Panel of Chiefs dated 30th June 2005.

The Panel of Chiefs which convened to hear the land disputes between nine groups of claimants was comprised as a result of the order by the Magistrates Court to refer the matter to the Chiefs to be dealt with as a land dispute. I note the order was a consent one and so do not know if it was intended by the parties for the matter to be transferred to be resolved by way of the land dispute process under the Local Courts Act rather than the acquisition procedures or whether it was a misunderstanding.

The effect of the order nonetheless was to have the proceedings converted into a land dispute under the Local Courts Act. The problem with such an order is that even after completion of the dispute, an acquisition officer will still have to be re-appointed at a later date to have the land formally acquired under the relevant provisions of the Land and Titles Act. Of-course it may mean that the acquisition process would progress more smoothly, but it is still a process that has to be complied with where land is required to be acquired.

At this point of time, the land dispute remains a live issue and Ugra and his group cannot claim that they have a final decision in their favour over the Buala lands. Appeals I understand have been lodged with the Local Court and so the process is still to be finalised. Until a final decision is obtained under this process or a fourth acquisition proceeding is commenced, Ugra cannot say he has any final decision in law in his favour.

Decision of the Court:

1. Grant order to have the Writ of Summons and Statement of Claim struck off as raising no reasonable cause of action;
   
2. The Plaintiff to pay the costs of the Defendants.
   

The Court.

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^[1] Section 64(b) of the Land and Titles Act [cap. 133]