Ramolelea v Samosaia [2016] SBHC 116; HCSI-CC 226, 324 & 428 of 2009 (20 July 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN: ORKLEY RAMOLELEA,

TALAUBURI & ANOR & - Claimants in

POENI NODA cc 226, 234 &

428 of 2009.

AND: ALPHEUS SAMOSAIA &

RENALDO WALESUA - 1^st Respondent

AND: ELIJAH TOLOAU - 2^nd Respondent

AND: ATTORNEY GENERAL - 3^rd Respondent
(Representing the Chief Magistrate &

The Acquisition Officer)

Date of Hearing: Various
Date of Ruling: 20^th July 2016

226/2009 Counsel for the appellant: Mr. Toito’ona, S
324/2009 Counsel for the appellant: Mr. Tagini, M
428/2009 Counsel for the appellant: Mr. Marahare, D and Mr. Kesaka, A

In all appeals;

Counsel for the 1^st respondent: Mr. Rano, W
Counsel for 2^nd respondent: Mr. Hou, D
Counsel for 3^rd & 4^th respondents: Mr. Damilea, D
Appeals from the Magistrate following a determination of an acquisition officer seeking to acquire customary land pursuant to Part V of the Land and Titles Act Cap. 133

Brown J:

These amalgamated appeals are by separate tribal representatives claiming error by the Auki Magistrates Court sitting on appeal from the determination, by an acquisition officer exercising powers pursuant to Part V of the Land and Titles Act, of those persons having the right to sell or lease the Bina/Talifu customary land on Malaita, to the Commissioner of Lands.

By common consent, the appeal grounds shall be dealt with by me for the same questions are involved in each proceeding and the decision in one will affect the others.

The appellants seek my order remitting the matter back to the Magistrates Court for a hearing de novo.

The purpose of the acquisition proceedings stemmed from the National Government’s wish in the latter years of 1990, to develop a sea port and related works at the Bina/ Talifu area.

The grounds of appeal were-;

1. An error of law when the Court held that land acquisition proceedings do not permit the acquisition officer to decide the landowner.
   
2. An error of law when the Court held that the land [ownership] had been conclusively decided and that the Court was bound by the earlier decision in Civil Case no. 4 of 1995.
3. An error of law by the Court holding Renaldo Walesua and Alpheus Samosia as the persons having the primary right [to lease or sell] the land and Elijah Toloau as having the secondary right to the land.
   
4. An error in law when the Court held that the Magistrates Court does not have jurisdiction to hear claims of ownership.
   

The Magistrates Court’s jurisdiction to hear the appeal from the act or determination of an acquisition officer is found in Section –66 [1] of the Land and Titles Act:-

“Any person who is aggrieved by any act or determination of the acquisition officer may within three months from the date of the record or determination appeal to a Magistrates Court and such court shall make such order as it considers just”.

The right of appeal to this court from the Magistrates decision is by S. 66 [2] of the Act.

By Section 62 [b], the acquisition officer shall make a written agreement for the purchase or lease of the land required with the persons who purport to be the owners or with the duly authorised representatives of such owners. Following a public hearing, the acquisition officer, after hearing any other claimants, shall determine the identity of the persons who have the right to sell or lease the land and receive the purchase money or rent. [S. 64 [b]]
The 1^st and 4^th grounds of appeal misconceive the meaning to be given to the Magistrates statement^[1]where he says-:

“Regarding the Appellant’s appeal grounds to have this matter referred to the chief for hearing; this court has no power to refer matters arising from acquisition to the Chief. Similarly this court has no jurisdiction to hear claims of ownership or decide on ownership.”
The statement must be read in the context of the reasons for the Magistrate goes on to say-:

“Clearly those who have lost their case in the previous cases over Bina/ Talifu land have no right to sell or lease the land. As mentioned, In the High Court case between Zephaniah Kinister v Orkley Ramolelea and Augustine Maemarine, Muria CJ stated at page 4;
“The decision whether to sell or lease the land .. therefore vests in the primary right holders.”

And

Although there are many issues to be discussed, with reference to the Appeal grounds of the Appellants, by law this court is bound by Civil Case no. 4 of 1995 decision which Qualify Rinaldo Walesua and Alpheous Samosia to be the rightful persons to lease and sell the land”.

The Magistrate can be seen to base his comments, on the fact of the earlier High Court judgment. He cannot be presumed to be refusing to consider “ownership” rather he expressly relates his comment to the earlier High Court decision which he accepts as binding him. For were he to presume to rehear the issue, he would be seen to deny the authority of the higher court. He is in fact, accepting the doctrine of precedent.

The doctrine is a legal rule of stare decisis which together with the Constitutional hierarchy of courts, does not need me to trace their history or justification. It is a rule to be followed by the courts of this country having been adopted from English law.

The changed circumstances evidenced by the number of appellants claiming to be entitled to an interest in this land may well be seen as claims to an interest in personam but not in rem.

“an action in rem is one in which the judgment of the court determines the title to property and the rights of the parties, not merely as between themselves, but also as against all persons at any time dealing with them or with the property upon which the court had adjudicated.” R. H. Graveson, Conflict of Laws 98 [7^th edit. 1974]

But these changed circumstances cannot distinguish the rule so as to justify its abrogation in this case.

For the number of people living on or married to persons about the land have increased over the years, changes likely to give difficulty in determining a fair apportionment or share of benefits were the proposal to proceed. This consideration is one for the customary representatives to later consider in their absolute discretion according to their custom.

“An action is said to be in personam when its object is to determine the rights and interests of the parties themselves in the subject matter of the action, however the action may arise, and the effect of a judgment in such action is merely to bind the parties to it.” R. H. Graveson, Conflict of Laws 98 [7^th edit. 1974]

But these various proceedings are not such a matter as an action in personam. They are appeals relating to the land itself.
On any reading of the legislation touched on above, determining the acquisition officer’s powers and obligation, it is plain before finding those having the right to sell or lease the land, the Act predicates a finding at the acquisition officers hearing, to determine ownership.^[2]

In John Unufana’adalo v Renaldo Walesua and Alphius Samosia^[3] Chief Justice Muria heard an appeal regarding the subject land from the decision of the Customary Land Appeal Court which had conclusively decided on the 7^th April 1994, that Walesua and Samosia were the primary owners of the land in question, [Bina/Talifu Land] and Toloau had secondary rights in the same land, upholding the decision of the CLAC and following earlier court decisions to the same effect. It does not matter that different named appellants have come now, the findings in rem upheld by Muria CJ lay to rest the issues in the appeals.

I am satisfied that no error has been shown sufficient to warrant upholding any ground of appeal for the Magistrates order cannot on the law be seen as unjust.
By ground of appeal in cc. no. 324 of 2009, it is pleaded that the foreshore is unaffected by the decision in CC no. 44 of 1995. This particular appeal point is not upheld for the customary land under appeal is that determined by the most recent CLAC finding and must be allowed to contain and have as its boundary, the waterfront. Otherwise the customary land has no contiguous boundary to those leaving the seacoast.

I am given to believe that a memorandum of Agreement has been entered into by some of these parties. While I do not have the agreement before me, it seems that a term may be outside the permitted jurisdiction of the Commissioner of Lands were he to transfer the acquired lands into the names of particular “Trustees” or pay moneys to those who were not those found to be the landowners able to contract with the Acquisition Officer. I raise this issue since it may be relevant in future.

Orders.

1. The orders sought in appeals Civil Claims nos. 226 of 2009, 324 of 2009 and 428 of 2009 are refused and the appeals are dismissed
   
2. The appellants shall pay the respondent’s costs in all the proceedings.
   

By the Court

Honiara Attorneys-At-Law for the appellants in cc. no. 226/2009
DNS & Partners for the appellants in cc. no. 428/2009
Global Lawyers for appellants in cc. no. 324/2009
Rano and Company for 1^st respondent in all appeals
Public Solicitors Office for 2^nd respondent in all appeals
Attorney General for 3^rd respondent in all appeals.

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^[1] Amended appeal book filed 17 March 2011 at 9
^[2] Sections 62,63 of the Land and Titles Act Cap 133
^[3] LAC no. 4 of 1995