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.
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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.
/p>
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.
<
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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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.
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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.
<
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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