IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 04 of 2015

BETWEEN: 	ACQUISITION OFFICER 			- 	Appellant 

AND: 	HEINZ KOGA, PAUL GESI, 			-	First Respondents
	JACKSON HAELI AND LENCE RINA 
	(As Representatives of the 
	Garavu Tribe, Big Line)		

AND:	CHARLES TANI, CONSTANT GERRY		-	Second Respondents
	AND MARX LUA (Representing 
	the Members of the Manukiki, 
	Small Line)	

AND:	BENJAMIN SUILUA, EZEKIEL KEIRUKA	-	Third Respondents
	AND MAX KOLUBALONA (Representing 
	the Coastal Landowners covering 
	the Haliatu/Malageti Communities)

Date of Hearing:     1st September 2017.   
Date of Judgment:  15th September 2017.  

Mr. A. Rose for the Appellant.
Mr. D. Marahare and A. Kesaka for First, Second and Third Respondents.

KENIAPISIA; PJ: 
JUDGMENT

Introduction

1.	This appeal was brought pursuant to Section 66 (2) of the Lands and Titles Act (Cap 133), as amended - (“the LTA”).   High Court has jurisdiction to hear this appeal under Section 66 (3) and (4) of the LTA.   Notice of Appeal was filed on 9th of January 2015.   Appellant is appealing against the decision of the learned Principal Magistrate, published and dated 30/10/2014.   This appeal was lodged on time.

2.	Japheth Limopu (“JL”) was appointed as agent of Guadalcanal Provincial Secretary for purpose of acquiring Koloula land (“KL”), on South Guadalcanal, for what is understood to be a private investment initiative, by Mr. Tsuki and his group, on 8/11/2011.

3.	Formalities completed, following JL’s appointment, the actual acquisition hearing took place at Martin Tsuki’s residence at Henderson, Central Guadalcanal, on 21/12/2011.   On the same day, the Acquisition Officer (“AO”), Mr JL made his determination, whereby he determined that Martin Tsuki’s group of trustees (Mathew Moli, Moffat Hobi, Nester Rade and Manuel Polito) were the rightful persons to sell or receive purchase money over Koleula/Koloula, Customary Land; on South Guadalcanal.

Appeal against AO determination in the Magistrate Court

4.	The Respondents herein appealed against the determination of the AO to the Magistrates Court; in LAA Case No 36 of 2012 (Koga and others -v- AO and others).   Learned Principal Magistrate; Mr. Seuika quashed the determination of the AO in its entirety.   Order 1 of the quashing decision reads:- 

“Declares that the determination of the Land Acquisition Officer on Koloula Land dated 22/12/2011, is void ab initio, on the basis that it did not comply with Part V of the Lands and Titles Act”.

Appeal against decision of the Magistrates Court to High Court

5.	The AO been aggrieved by the decision of the learned Magistrate filed this appeal to this Court, in January 2015.

6.	Court will not focus on the appeal points, in the sequence, they are raised in the Notice of Appeal, in the Appeal Book.   Court will ask and dwell on the important question: “Whether the AO’s determination and conduct of the acquisition over KL, comply with the requirements of Part V - Division 1 of the LTA?”   This is the most important of all questions to ask in acquisitions made to customary land under Part V - Division 1 of the LTA; according to SMM Solomon Limited Court of Appeal decision.   After exploring the answers to this question, I will then connect my findings and conclusions to the appellant’s four appeal points.

Customary Lands can be purchased or leased by the “Commissioner of Lands” or the “Provincial Assembly”

7.	The first point to make about acquisitions, under Part V – Division 1 of the LTA, is customary land can be purchased or leased, either by the “Commissioner of Lands” or the “Provincial Assembly”; as the case may be, in accordance with Division 1.   In this acquisition, it was “supposed to be” the Guadalcanal Provincial Assembly, that initiated or was involved in the acquisition, evidenced by the Provincial Secretary, making the appointment for JL to be his agent in the acquisition over KL.   However; I have not found evidence that Guadalcanal Provincial Assembly had “wished” for this acquisition to be instigated.   Part V – Division 1 of the LTA require that the “Provincial Assembly” must have a “wish” to purchase or take a lease of customary land.   It is not too difficult to tell a Provincial Assembly “wishing” to do something.   Such a “wish” would normally have come from a “decision” of the Provincial Assembly; in this case, Guadalcanal Provincial Assembly.  Decision (s) of Guadalcanal Provincial Assembly, would normally be recorded; by the Speaker of Guadalcanal Provincial Assembly.   Unfortunately, I have not cited a “decision” of Guadalcanal Provincial Assembly in evidence, expressing its wish or desire or aspiration to acquire KL.   In Manele; Justice Palmer as he was then, succinctly summarized the meaning of the word “wish” by a Provincial Assembly as follows:-

“The word “wish” is defined as have or express desire or aspirations for; want or want (person) to do; request...The word wish is a very subjective word, it personalise a decision making process to a particular person, in this particular case either by the Commissioner of Lands or the Provincial Assembly” (italics my emphasis).  

8.	According to Manele, it would have been proper, if a decision of Guadalcanal Provincial Assembly had formed the foundation for the Provincial Secretary’s appointment of JL as AO and the whole of KL acquisition.   Had this been the case, the private investment proposal by Mr. Tsuki and group would have complied with the requirements of Part V – Division 1 of the LTA – Section 61 (2) of the LTA.   Mr. Tsuki and group can come up with a private investment proposal.   If the proposal required acquisition of customary land, acquisition can be pursued through the Guadalcanal Provincial Assembly (“GPA”).   GPA’s endorsement (wish or decision) is the first procedural and substantive lawful step to kick start the process.   The GPA can discuss and make a decision on KL acquisition.   Should the GPA decide to support KL acquisition; the Guadalcanal Provincial Secretary (“GPS”) will become the implementer.   The GPS would then appoint as his agent an AO, in this case, JL.   The GPS would acquire Perpetual Estate (PE) in KL and can subsequently transfer the PE to Mr. Tsuki and his group for private investment purposes or lease it to an investor. 

Acquisition of Customary Lands to be made in the “Public Eye”

9.	Sitting in the GPA would be a provincial political representative of the area in which KL is situated.   The requirement for customary land to be acquired through the “public eye” is indeed cumbersome in Part V – Division 1 of the LTA.   It must start in the GPA, then followed by a number of actions which must be conducted in the public eye: (i) boundary demarcation and agreement with purported land owners, (ii) notices on arrangements for a public hearing to hear claims and (iii) holding of public hearings.   If the decision to acquire KL was made in the Guadalcanal Provincial Executive (GPE) only; as this acquisition seem to be portraying (in the absence of a decision by GPA); then certainly it violated Section 61 (2) of the LTA and Parliament’s clear intent to conduct this kind of acquisition in the public eye.   A letter of support from Guadalcanal Provincial Premier is in evidence.   However, it was written in 2014, three years, well after acquisition had lapsed.   There is a marked difference between GPA and GPE.   Premier is the head of GPE.   GPE exercise executive functions, under the Provincial Government Act (Cap 118).   GPA is the political platform for the people’s voice, in Guadalcanal Province.    GPA is more powerful politically, because it can remove the Premier through a vote of no confidence.   Court found that the requirement for GPA’s involvement (wish) in this kind of acquisition was fundamentally absent right from the start.   The acquisition is therefore flawed in law, right from the very beginning.

10.	Like the learned Magistrate, this Court too is satisfied that the acquisition proceeding is void ab initio – void right from the beginning.  And so I can stop here and quash the decision in its entirety or upheld the decision of the learned Magistrate.   I need not go into all the other three appeal points in this appeal.   This finding relates to Appellant’s Appeal Point Number 4.   Appeal Point Number 4 appeared to be the most critical appeal point, on which all other appeal points hang for their survival or death warrant.   The appeal being dismissed on this appeal point means, the other appeal points are also dismissed, because the acquisition is void ab initio.

Conclusion and Orders

11.	Before conclusion and the orders; I need to make clear that I would have found in favour of the liberal approach to interpretation of acquisitions to customary lands under Part V – Division 1 of the LTA, had I found evidence that GPA had decided to acquire KL, even though the plan to acquire KL had originally come from Mr. Tsuki and group, what the learned Magistrate described as “private investment goals by Mr. Tsuki and group”.  What the liberal approach would mean is that the investment can be private initiative, but must be pursued with the endorsement of GPA to meet the requirement of the law (repeat and reaffirm paragraph 8 above).   I agree with what Justice Palmer and Justice Faukona said; that even private investments do have public effects and we cannot tie the hands of the GPA to insist that the acquisition must be for a public purpose, for the phrase “public purpose” is not even mentioned in Division 1.   My respectful view is that, even private investments do have public ripple effects such as increased money supply, infrastructure development, employment creation and payment of taxes to the government etc.   Justice Palmer continued in Manele:

“It would be wrong in my view therefore to say that Governments or Provincial Assemblies cannot acquire land for purposes other than public purposes.   It would be imposing a restriction on the powers of Governments and Provincial Assemblies to say that they cannot acquire land on behalf of others as well” (italics my emphasis).

12.	In all that I say; the orders of the Court are:

          12.1. Acquisition of KL is void ab initio for noncompliance with Part V - Division 1 of    
           of the LTA.

12.2. Appeal is dismissed with costs on standard basis.  

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE