Churchill v Toitoona [2020] SBMC 14; Civil Case 02 of 2018 (2 June 2020)

IN THE MALAITA MAGISTRATE’S COURT ) OF SOLOMON ISLANDS ATDS AT AUKI )
(Civil Jurisdiction)

Civil Case Number 02 o8

IN THE MATTER OF: GWAILIKI CUSTOMARY LAND ACQUISTION APON APPEAL (TELEKOM TOWER SITE)

BETWEEN: HAGI CHURCHILL

ROSE ANILABATA

APPELLANTS

AND: EDDIE TOITOONA

LAWRENCE LANI

DAVID UNA

CHRIS GWALI

FIRST RESPONDENTS

AND: ATTORNEY GENERAL

(Representing the Acquisition Officer)

SECOND RESPONDENT

AND: SOLOMON TELEKOM COMPANY LIMITED

THIRD RESPONDENT

Date of hearing: May 29^th, 2020
Date of ruling: June 2^nd, 2020

Appellants appeared in person
First Respondents appeared in persons
No appearance from Second Respondent
Mr Nathan Maekume for Third Respondent

RULING ON PRELIMINARY ISSUES

Introduction

[1]. On the 29^th of May 2020, the matter came before the Court for a full-hearing inter-parte on Acquisition Appeal. Before the commencement of the hearing, there were issues apparent before the Court which needs verification and smoothing down, thus, I had called oral submissions from all parties to this two crucial issues. Firstly, whether or not a public hearing was conducted by the Acquisition Officer. Second, whether there had been a determination or record made by the Acquisition Officer. In considering and settling the above preliminary matters which are of course point of law and procedural matters, would in my view serve the interest of justice and potentially put the perspective of law and procedure pertaining to Acquisition process on a proper scale.

[2]. I remind myself that this is a matter which has come before this Court by way of an Acquisition appeal, and after assessment on the relevant issues and submissions filed by the Appellants and all Respondents I feel the need to address this matter before dealing with the Appeal Substantive and matters relating to the land concerned, and those who have the right to sell or lease the land and to receive the purchase money, as is what is contested.

[3]. The above issues are pertinent in establishing the lawfulness and legality of the Public Hearing Avenue. It is by a legitimate public hearing and determination comes the avenue for any aggrieved party or claimant to bring an appeal further to the Magistrate Court within 3 months from the date of the record or determination, as is the law under section 66 (1) of the Land and Titles Act^[1]. Quite frankly, an appeal process or avenue is not available if there is no public hearing or determination, and would tantamount to an error in law and processes, one that is done in contravention to the governing proviso^[2] under the said Act^[3]which should nullify any agreement entered into by the Acquisition Officer and the First Respondent. The consequential effect would also cripple the whole process done by the concerned Acquisition Officer deeming it a nullity, that is if the court finds on the negative.

Agreed Facts

[4]. On the 5^th of September 2013, the named First Respondents entered into a written Memorandum of Understanding and Agreement to Lease with Solomon Telekom Company Limited. It was signed on 5^th September and was strangely witnessed in 2014.

[5]. It is an undeniable fact that the Acquisition Officer, Rev. David Rikihanua Houkari of DRH Enterprise was duly appointed by the Commissioner of Lands, Housing & Survey on the 22^nd of November 2016. The copy of Public Notice – Appointment of Acquisition Officer is before the Court and confirms the same.

[6]. A boundary demarcation was conducted measuring an area about 20 meters by 20 meters on a portion of land known as Gwailiki. It is unclear whether the demarcation has been brought to notice of persons affected. On the 24^th of October 2017 an agreement was signed and duly entered into by the named First Respondents appearing as Trustees with the Acquisition Officer. The copy of signed and witnessed agreement (Form CL.2) is before the Court and confirms the same.

[7]. On the 24^th of October 2017, a Public Notice of the agreement (Form CL.2) and arrangements made for a public hearing to be held by the Acquisition Officer at Dadaisalu village on 1^st November 2017, collectively known as (Form CL.3). It was published and posted at Magistrates Court Office (Auki), Fiu Bridge canteen and Gwailiki roadside canteen. This is to allow Acquisition Officer to decide any claims that the vendors or lessors are not the owners; or that the vendors or lessors do not have the right to lease the land and to receive the rent. The claimants if any were required to attend.

[8]. On the 2^nd of November 2017, there was a further Public Notice (Form CL.5) signed by the Acquisition Officer to state that there were no claimants against the agreement.

[9]. It is on the Acquisition Officers record or notes that he mentioned two meetings which were conducted at the Anglican Church Rest House in Dadaisalu village, West Kwara’ae, Malaita Province. The first meeting was held on 24^th October 2017, the purpose was to sign the acquisition documents. Thus, they were able to sign Form CL.2 (Agreement for Lease), Form CL.3 (Public Notice) and Form CL.4 (Notice to Lessors).

[10]. The Second meeting was held on the 1^st of November 2017. The purpose of meeting was to find out if there was any objection to the trustees. Which the Acquisition Officer noted and recorded that there was no objection to the trustees.

Submissions

Appellant’s submission

[11]. The Appellants strongly submitted that there was never any public hearing conducted by the Acquisition Officer and that they could not further their objections as well. Mrs Anilabata further submitted that there was no record or determination made by the Acquisition Officer. It is with these matters that she seeks a nullity to the whole process made by the Acquisition Officer’s finding.

[12]. According to their written submission filed on the 29^th of March 2019, it hinges on this preliminary matters as well to which it was submitted that the Acquisition Officer record does not show that a Public Hearing was held to comply with the Land and titles Act. She submitted that on page 8, of the Acquisition Officer’s determination or record, the first meeting was held at the Anglican Church Rest House in Dadaisalu village on the 24^th October 2017 and the purpose of that first meeting was for the trustees to sign the acquisition documents.

[13]. The second meeting was held on the 1^st of November 2017 and the purpose of the meeting was to find out if there was any objection to the trustees.

First Respondents Submission

[14]. Mr. Faramoa appeared as spokesperson for the First Respondents. His submission in whole is that the Acquisition Officer has conducted himself properly and has duly complied with the relevant duties under the Land and Titles Act governing the process of land Acquisition. He contended that the Public Notice was pinned up at the Magistrates Court (Auki), Fiu bridge canteen and Gwailiki roadside canteen. He also submitted that there was a Public Hearing conducted in their Community Hall.

[15]. He stated that the Acquisition Officer is a duly appointed person by one of the High Government Offices, hence, conducted his duties accordingly.

Second Respondent’s Submission

[16]. There were no appearances from Attorney General. However, Counsel Kii has provided an explanation to the Court through email and telephone conversation with the Clerk of Court, in stating his commitments with his other matters in the High Court. He instead seeks the Court to rely on his written submission filed on 2^nd of August 2019.

[17]. I have had the opportunity to peruse and consider his submission. Essentially, Counsel Kii submitted that there was a Public Hearing conducted by the Acquisition Officer on the 2^nd of November 2017 at Dadaisalu village. He submitted that this Public hearing was conducted pursuant to section 64 of the Land and Titles Act [Cap. 133] and during that Public hearing, there was no claimant objected to the Agreement to lease signed by the Acquisition Officer and the purported landowners (First Respondents) on the 24^th October 2017. And so, the Acquisition Officer record that facts to that effect in the CL.5 Form.

[18]. Counsel Kii also submitted in his written submission that there were no claimants made any objection to the Agreement to lease signed by the Acquisition Officer and the First Respondent during the Public Hearing held on the 2^nd November 2017. And therefore the Acquisition Officer record that fact in the CL.5 Form pursuant to Section 64 (a) and Section 65 (a) (b) of the Land and Titles Act [Cap. 133].

[19]. He further submitted that the Acquisition Officer need not make any determination when there was no claimant objected the Agreement to lease during the Public Hearing held on 2^nd November 2017. When there are no claimant objecting the Agreement to lease, then the Acquisition Officer must record that fact as required by Section 64(a) and Section 65 (a) (b) of the Land and Titles Act [Cap. 133].

Third Respondents submission

[20]. Counsel Maekume appeared on behalf of the Third Respondent. His submission can be succinctly itemized as follows; Firstly, there was a public hearing being conducted but without any records by the Acquisition Officer of any Claimants therein. He submitted that perhaps, if there were claimants, then the Acquisition Officer would have heard their claims and determine their identity. The record in Form CL.5 appears that there were no claimants being recorded in that regard.

[21]. Finally, he submitted that the Appellant had no right to appeal the determination which was basically without any claimant or objector. He also contended that the Appellants had no standing to bring an appeal for reason that they were not genuine objector or claimant at avenue below or public hearing.

Discussion

The Nature and validity of Public Notice

[22]. There had been no issues raised pertaining to the validity of the Public Notice (Form CL.3) which was posted at the Magistrates Office (Auki), Fiu Bridge Canteen and Gwailiki Roadside Canteen. That notice expressly states the agreement between First Respondents and the Acquisition Officer and the proposed date to be on the 1^st of November 2017 at 10:00AM at Dadaisalu village, for the Acquisition Officer to hold a Public Hearing to decide any claims that the persons named above are not the owners of the land; or that the persons named above do not have the right to lease the land and to receive the rent. This same Public Notice states that the persons named above are required to attend this Public hearing. If there are any persons who wish to make any claim, they must also attend this hearing.

[23]. There had been no evidence or fact to negate or disprove the pinned and published notices at Magistrates Court (Auki), Fiu Bridge canteen and Gwailiki roadside canteen. I do not see a breach to the relevant provision^[4] governing the processes of the Acquisition Officer regarding Public Notice. Its sufficient notice. Section 63 of the Land and Titles Act [Cap. 133] does not restrict or limit place(s) to publish such notices but rather one that the Acquisition Officer considers to be adequate or most effective for the purpose of bringing it to the attention of all persons affected thereby notice. I can only state that those named locations which the public notice was published are locations frequented by public, hence, necessary and adequate as far as the meaning under Section 63 of the said Act is concerned.

Whether there has been a Public Hearing?

[24]. Apart from the Forms CL.5 and CL.6, the copy of Acquisition Officer’s record of public hearing which was made available to the Court is provided on an A4 size paper bearing a number 8 on it, which states the following: -

“...The first meeting was held at the Anglican Church Rest House in Dadaisalu village, in West Kwara’ae, Malaita Province. The Purpose of the meeting was to sign the acquisition documents. We were able to sign CL.2 (Agreement for Lease), CL.3 (Public Notice) and CL.4 (Notice to Lessors). The names of the trustees are as follows; (i) Eddie Toitoóna – Chief of Gwailiki, (ii) Badley Kakoi – Chairman of Tatafurade village (iii) Lawrence Lani – Telekom Engineer of Dadaisalu village (iv) David Una – Secretary of Faidadae village (v) Chris Gwali – Farmer of Tatafurade village. The meeting was held on 24^th October 2017.”

“...The second meeting was held on 1^st November 2017. The sole purpose of the meeting was to find out if there was any objection to the trustees. There was no objection to the trustees.”

“...There was no objection to the trustees so a three (3) months’ notice was put up at the following places; (i) Gwailiki roadside canteen, West Kwara’ae (ii) Fiu bridge canteen, West Kwara’ae (iii) Auki Magistrates Office, Auki Township. The three (3) months’ notice runs from 1^st November 2017 to 2^nd February 2018. The purpose of this notice is for anyone who has an objection to the trustees or the way and manner in which the acquisition officer has not complied with the legal process then he or she can lodge an appeal with the Magistrate office in Auki. This tower had already been surveyed.”

[25]. I have now come close to certainty that most of the due processes and duties of an Acquisition Officer under the Land and Titles Act had been dealt with by the Acquisition Officer concerned. Before levelling down, I am cornered to ask the follow matters; does the word meeting attains the same meaning and connotation as a Public Hearing as required under Section. 64 of the Land and Titles Act? In answering this, I seek to be assisted with the venue that it was held. The meeting on 1^st of November 2017, was conducted in the Anglican Church Rest House in Dadaisalu village. A rest house is an accommodation, if it is to be accepted by its literal meaning, however, the Acquisition Officer’s records does not clearly specify where in that particular rest house. I could not be properly assisted further if it could infer a public venue or such. I relied on its literal meaning^[5] that it is an accommodation or a place for housing. Mr Faramoa gave oral submission in Court that a Public Hearing was held at the village hall, which is obviously a contradiction to the Acquisition Officer’s record.

[26]. This meeting was to find out if there was any objection to the trustees. While I might accept the Acquisition Officer’s use of the word meeting instead of a Public Hearing, the word Public Hearing is a legal requirement under the Land and Titles Act. It was never referred to in the Act as a meeting. I said this because a meeting can infer more than one meaning, including both private and public meeting.

[27]. The physical nature of how it was conducted as described under Acquisition Officer’s records is nothing akin to a public hearing. A rest house is not a public premises but one that is accessible and available to those guest who rented it or probably those who might hire it. It could be used as a meeting place but it is so vague as far as the Acquisition Officer’s record is concerned, embarking further would entertain assumption which I refuse to do. It does not even seem like a public hearing as well, for reason that only these trustees attended to the rest house and meeting so to speak. Obviously, they would expect no claimants or objectors because of the particular nature of meeting. It is not a public hearing.

[28]. The importance of conducting a public hearing is to make sure the right for any claimants or objectors is genuinely afforded to them, this was not the case. It was done in a private premises owned by the Anglican Church. The contradicting submission by Mr Faramoa as spokesperson for the First Respondent and the Acquisition Officer’s records speaks volume of it. I accordingly find that there was no public hearing conducted by the Acquisition Officer in the area in accordance with a notice published.

[29]. In the case of Talasasa v Biku^[6] His Worship, Leonard. R. Maina (As he then was) made it clear when he states the requirement under Sections. 63 and 64 of the Act^[7].

“...An Acquisition Public hearing is quasi-Judicial proceeding. Such, therefore required a record of proceeding and obviously for the full compliance of Sections. 63 and 64 of the Act. Non-compliance may render the process declared invalid.”

[30]. For what has now become apparent, it is needless to proceed further in ascertaining the Acquisition Officer’s determination, as I have formed the view that there was no public hearing done on the 1^st of November 2017.

[31]. Even if this matter had went before full-hearing Acquisition Appeal, it would not change this fact and error, as the essence of it should not be shunned away, the consequences of such error can potentially bedevil the interest of justice. That is to say, the rights and procedures afforded to the people by our laws.

ORDERS

[32]. Upon considering what I have discussed earlier in this ruling I make the following orders:-

1. I find the Acquisition Officer’s action fell-short to satisfy Section 64 of the Land and Titles Act [Cap. 133], henceforth, nullify the Public hearing conducted on the 1^st of November 2017.
   
2. Consequent to order 1 above, the Agreement of 24^th October 2017, and any determination thereof are accordingly set-aside.
   
3. Parties to bear their own costs.
   
4. 14 days’ right of appeal applies.
   
5. Order accordingly.
   

THE COURT

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MR. LEONARD. B. CHITE
Principal Magistrate

Malaita Magistrates Court

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^[1] Cap. 133
^[2] Sections. 64 and 65
^[3] Land and Titles Act [Cap. 133]

^[4] Section 63 of the Land and Titles Act [Cap. 133]
^[5] According to Free Dictionary by Farlex, it defines as ‘a building used for shelter by travellers (especially in areas where there are no hotels)’ https://www.thefreedictionary.com/rest+house
^[6] [2002] SBMC 1
^[7] Ibid 3