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Talasasa v Lamupio [2013] SBHC 149; HCSI-CC 390 of 2010 (22 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 390 of 2010.

BETWEEN:

JOHN WESLEY TALASASA and TERRY
TALASASA
[Representing the Kazukuru left hand land primary right owners).
Claimants

AND:

MICAH LAMUPIO, JOHN TUTA ZIO,
KITCHENER VAZU, MAGELLAN LUBARA
PIRIPITA and BILLY VEO.
First Defendants

AND:

BEMOBILE (SI) LIMITED
Second Defendant

AND:

ATTORNEY-GENERAL
(Representing the Western Provincial
Executive)
Third Defendant

AND:

ATTORNEY-GENERAL
(Representing the Lands Acquisition Officer).

Date of Hearing: 21st October, 2013 and 22nd October, 2013.
Date of Judgment: 22nd November, 2013.

Mr D. Tigulu for the Claimants.
Mr J. Kaboke for the First Defendants.
Mr S. Tabo for the Second Defendant.
Mr R. Firigeni for Third and Fourth Defendants.

JUDGMENT ON CLAIM FOR JUDICIAL REVIEW:

Faukona J: An amended claim for judicial review pursuant to Rule 2.2 was filed on 14th September 2011 after leave was granted by the Court on 7th September, 2011.

2. A claim for judicial review is a legal invocation upon the Court to exercise its powers under R. 15.3.3 and 15.3.4 to examine and review an executive or legislative action. In this case, to review the action and determination by the Acquisition Officer made on 21st July, 2010. In the amended claim, the Claimants seek four declaratory orders and a quashing order.

Background facts:

3. The Claimants are those who say they represent the Kazukuru left hand land primary right owners, following the two High Court cases, Lands appeal Case No. 9 of 1971, Zingihite V Biku and Land Appeal Case No. 8 of 1972 Biku V Zingihite and Talasasa.

4. The first Defendants are persons whom the Acquisition Officer determined as trustees; therefore have the rights to lease the Land 50m x 50m as part of Kerapagara land to Bemobile and to receive the rent money. And are party and privy to the above court judgments with Edwin Biku, and all other subsequent land decisions concerning Kazukuru left hand land.

5. The Second Defendant is a company duly incorporated under the laws of Solomon Islands and engages in the telecommunication business.

6. About August 2010, the First Defendants invited the Second Defendant to enter and construct a telecommunication tower and related facilities within kerapagara land.

7. What transpired from the invitation was reduced to writing in a form of memorandum of understanding whereby the Second Defendant was allowed permission to enter and construct the telecommunication tower and related facilities, and in consideration for granting the permission, the First Defendants were to be paid financial benefits.

8. Four letters were written to the Second Defendant in August and September 2010, to cease construction. Despite those letters the Second Defendant continued to construct the tower on Kazukuru left hand land according to the Claimants. The actions by the Second Defendant amounts to trespass. As a result of the First and Second Defendant's actions the Claimants suffered loss and damages to be assessed.

Claimants' locus standi in custom and in law:

9. In a claim for judicial review Rule 15.3.18 (b) says that the Court can only hear the claim if the Claimant is directly affected by the subject matter. The Claimants say yes, they have legal standing. Their reason being that it was clearly recognized when leave was granted to consent their initial action and file the amended claim for judicial review, notwithstanding strong opposition from the Defendants. Whether the application for leave was a contested issue or not, cannot be well verified as a true reflection of a judicial determination on merit of the Claimants legal standing.

10. To determine whether the Claimants are or represent persons who have interest in Kerapagara land as part of Kazukuru left hand land, the Court ought to consider what legal authorities or in custom which recognized the Claimants to represent those persons whose rights were affected and have direct interest in the land.

11. Reminded of the fact that Kazukuru left hand land had progressed through several judicial adjudication in the past. The outline submissions by the first Defendant on this issued is quite helpful. In fact, the basis upon which the Claimants come to Court was premised on two High Court Appeal Cases No. 9 of 1971 and Land Appeal Case No. 8 of 1972.

12. In Appeal Case No. 9 of 1971, the parties were Jacob Zinihite as plaintiff supported by Milton Talasasa on one side and Edwin Biku as Defendant on the other.

13. In the second case No. 8 of 1972, the parties were Biku V Zingihite and Talasasa. It was an injunctive proceeding for trespass and was commenced in the Magistrates Court. The application was granted, hence, prompted Mr Biku to appeal against but was dismissed by the High Court.

14. The two cases concern the same name customary land, kolonoki land. The argument advance by the First Defendant is that kolonoki land is not the same as Kerapagara land and there is no evidence that the Claimants won Kerapagara land.

15. In the case of Ian Talasasa V Paia and Bisili[1], the High court affirmed the decision by the Western Customary Land Appeal Court and dismissed the appeal. This case was in respect of Mamamasi hill. It was the case, which the Court decided the boundary between Kazukuru left hand and kazukuru right hand lands.

16. If Kerepagara land is left of Mamamasi hill then it falls with the kazukuru left hand land, which was the subject of two High Court cases and many more. I have no doubt that Kerapagara land is part of kolonoki land, which subsequently refers to as Kazukuru left hand land.

17. The argument that kolonoki land is a small cultivating area was an answer given by J. Talasasa on Page 203 of CLAC (W) No. 1 of 1984. That was proved to be true when CLAC (W) surveyed the land – see decision on 14th November, 1985. However, it was Biku who described the boundary of Kolonoki land in the High Court to cover the area as 1½ miles West/East beginning at the line of hill behind Munda airstrip and running inland roughly north for 5 hours walk see CLAC (W) P.142 of Court Book Volume 2. That was the land being the subject of two High Court cases. To contend now of what the privy of the First Defendants said in an earlier case is self-contradictory evidence.

18. Another issue raises is the confession by Mr Zingihite that he lied in Court and that the land belong to Mr Biku and wish to give it back. There is material evidence of the purported reconciliation and there are statutory declarations to that effect. This action by Zingihite prompted a response from Milton Talasasa who filed in the Local Court, Case No. 10 of 1974, and sought a Court order prohibiting Zingihite from acting without his approval. The Roviana Local Court ordered the parties to settle their own differences.

19. What transpired by Zingihite could have been done. But what powers, and the effect of such reconciliation do to the High Court decisions which carry the status of law. I do not seem to belief that such reconciliation will change the High Court decisions. To rely on such traditional reconciliation and confession to change the High Court decisions is a misconception of the law and how it operates and affects the lives of the people.

20. After 26th April 1976, the date of reconciliation, Mr Zingihite and Mr Talasasa were joint parties to a number of Court cases concerning left hand kazukuru land. Roviana Local Court Case No. 4/76 both were Defendants. Local Court case No. 7/76 both were Defendants. CLAC Case No. 2/80 both were Appellants. High Court appeal Case No. 7/82 both were Respondents. High Court Appeal Case No. 23/84 J.W. Talasasa (son of Milton Talasasa) and Zingihite were Respondents. Magistrates Civil Case No. 176 of 1984, Ziata river appeal, both were Respondents. High Court appeal case No. 5/85 both were Respondents.

21. Reconciliation process activated and relies on by the First Defendants has no effect at all. Mr Zingihite and Mr Talasasa has been joint parties ever since to defend their customary rights. In the circumstances, can the Claimants be turned a blind eye and branded as having no locus standi, that is an absolute legal prejudice. Having identified the land which is located within left hand kazakuru, and having made an agreement with persons identified as having rights to lease the land, that I must say is an error of fact and law. Less we forget Mr Zingihite or his representative must also have some say and participate in this development. He is a primary owner as well.

Has the Provincial Assemble power to appoint an Acquisition Officer to acquire land for 3rd party Bemobile (SI) Limited:

22. For the purposes of this case, focus is pinned on the powers of the Provincial Assembly, which by authority of S.61 (1) Land and Titles Act assumed, henceforth, appointed the acquisition officer by letter of 16th July, 2010. The Claimants agree that the appointment was invalid because the provincial assembly had never, as a prerequisite, expressed interest to venture into competitive mobile communication.

23. To get down to the crux of the issue, it is pertinent to examine relevant provisions of the Land and Title Act. Appointment of an acquisition officer is an initial implementation process reinforcing what appears to be a wish of the Provincial Assembly. That wish has to be explicitly expressed and not a mere oral nod or a myth.

24. It has now become an accepted definition that the word "wish" is define as, having or express desire or aspiration for; want or want (person) to do; request (see oxford Dictionary, Edited by George Turner). It is a subjective word and it personalises a decision making process to a particular person; in this case the Provincial Assembly.

25. In the case of Sipisoa V Acquisition Officer and Others[2] Kabui J said at page 3.

"The wish to purchase or take a lease of a customary land must first be established at a decision making level within the administrative machinery of the provincial government preceded by reason for the wish. There is no evidence of that in this case. It is a case of self- serving needs of Provincial Assembly. It is not a service to the public at large"

On page 4 and 5 Kabui J concluded by saying,

"There being no evidence of the Malaita Provincial Assembly wishing to acquire namona'ako land within the meaning of Section 60 (1) (a) of the Act, the acquisition procedure conducted in this case was therefore invalid, null and void".

26. The exponent of the quote is a reflective of a restrictive approach. An approach that upholds the literal sense of S.61 (2). The problem in my view is that, the words public purpose is nowhere can be found in Division 1 of Part V of the Act. They are words used in S.71 (1) of Division 2, compulsory acquisition; a division which for time being appear to be at stake and almost redundant and out of context. Secondly, restrictive approach would only be operative in circumstances where individual or family wish to acquire land for personal or family business or development where no one else contemplated to benefit, only themselves. Of course, in any business the whole nation indirectly benefits from the Government tax regime, which aimed at bubbling the consolidation fund.

27. What about in circumstances where a public entity as a denomination wish to acquire land for development that will cater for the well-being and spiritual need of the Church members. With the restrictive approach, will the Churches in this country not able to acquire any land for their purposes.

28. A point to note is that S.60 does not state any qualification or restriction or say for any public purpose only. The only requirement there is sale or lease of customary land in accordance with the provisions of this Division.

29. This restrictive approach was adopted in the case of Ramoau V Fatakalua and others[3] where Her Lordship Izuako J upheld the view that non- compliance with the Lands and Titles Act renders the acquisition process null and void. The same is adopted in Taylor V Soe[4] that there is no requirement that the land is required or needed for public purposes. The commissioner wanted the land for purposes that did not fit the description "public purpose".

30. Another approach perceived as an extremist to the restrictive approach is liberalisation, which premises on the fundamentals of the Lands and Titles Act. Section 4 outlines the duty of Commissioner of Lands in addition to advice by the minister concerning land policies. The Government of the day makes policy and the Commissioner implements it. Subsection (4) recognizes the Commissioner as a Government institution having power to deal with interest in land on behalf of the Government and execution of documents.

31. In returning to the issue, the Clamant is saying unless the Government has an interest in the customary land and that interest is based on the grounds of public purposes, then any acquisition as Second Defendant desires is contrary to the spirit and intention of the Act.

32. In the Case of Manele V Tiva[5], His Lordship Palmer J, as he was, on page 4 and 5 discussed the liberal approach.

"I do not think I can agree to this because it would be over simplifying what government and provincial government concerns and responsibilities are and imposing an unnecessary restrictive approach".

"Government's primary concern is always for the public good, welfare and benefit, but enshrine in the constitution is the responsibility to protect the rights and freedom of individuals and I would add private organisations".

"The Government of this nation belongs to the people, and so whatever natural resources are vested in the government is held for and on behalf of the people of this nation".

"Government concerns are not necessarily restricted to public good, public defence, safety, order, morality or public health. It would be in fact being unwise to do so. Government concern goes right down to the grass roots level, to the individual, to Church organisations and private organisation. This is why Government makes laws and regulations and sets policies to facilitate individual and private enterprise and allow growth and development to take place in the country.

"It would be wrong, in my view, to say that government or Provincial Assemblies cannot acquire land for purposes other than public purposes. It would be imposing a restriction of the powers of governments and Provincial assemblies to say that they cannot acquire land on behalf of others as well".

"It is clear they can acquire land on behalf of themselves. But it does not say that it shall only for public purposes or only where government has an interest".

33. From the two extreme approaches, a line has to be drawn to reflect a responsible Government, a Government of the 21st century, where necessary beyond. The government's prime concern is always for public good, welfare and benefit enshrine in the Constitution, and to protect the rights and freedom of individuals and private organisation as well. A Government that sets policies and strategies to facilitate participation of business enterprising and allow growth and development to take place.

34. No one would deny that the Second Defendant would provide competitive mobile communication services to areas that come under the tentacle shadows of the tower. It's a development by a foreign investor, which provides services that directly benefits public and the people in the communication world. In fact, it assists people keep up with communication pace in the modern world. It is one aspect that improve standard of living of people. Communication is one element of modern science and technology, which vibrantly brings the entire world together into one small point. As a nation, Solomon Islands is a part of the global community which must acknowledge sharing new developments in science and technology and pass on to those who will come after us with more sophistication as science progress into another century.

35. With another communication provider, it is expected to ease life and fashion. Can it be blocked with a legal restrictive barricade and say was not the wish of the Western Provincial Assembly. Appointment of the Acquisition Officer by Provincial Secretary (Western) on 16/7/2010 is a reflection of the wishes of the Provincial Assembly. Appointing an Acquisition Officer is a first step forward in implementing that policy wishes. It also reflects a Provincial Government that cares and wish to engage in partnership with investors improve the life and standard of living of its people.

36. The decision by the Western Provincial Assembly to take a lease for the Second Defendant (Bemobile (SI) Limited) is a policy decision to serve public at large. This Court should not interfere with it. That in no way contravenes any Act or inconsistent with the provisions of the Lands and Titles Act.

37. I noted there will be some legal hiccups in Section 69 (1) (d), particularly in regards to vesting order and possession. What had happened is the lease was executed in favour of the Second Defendant. By paragraph 1, page 7, of Manele case, His Lordship said, "that is a procedural error and can be a ground for rectification by land register by amendment but not by cancellation at this stage"

38. His Lordship further directed on paragraph 2, page 7 and said,

"The lease should have been made in favour of the provincial assembly, can then in turn transfer to the South Seas Evangelical Church. A short cut has been taken in this particular case and one can understand the expediency of it. It would be advisable that the requirements set out should be complied with"

39. His Lordship continues by stating that the same approach should apply with the filing of prescribed acquisition forms, Cl3, 4 and 5. This agreement should be made with the vendors for a lease to the Provincial Assembly on behalf of South Sea Evangelical Church and should not be a direct lease to it. What had been done is on error on the form but cannot have the effect of nullifying the whole entire acquisition process.

40. Having considered the two extreme approaches I accept the liberal approach pronounced in the case of Manele V Tiva as more applicable in this case. I find the Provincial Assembly affirms its wish to serve its people at large by appointing an acquisition officer materialises its policy to assist and this Court should not interfere with it. That is no way contravenes any Act on inconsistent with the provisions of the Land and Titles Act.

41. With due respect to private and individual acquisitions where benefit is limited to themselves and not to a wide community, a line has to be drawn. That has to be done by the Government and the Provincial Assembly. If whatever wishes though beneficiary is limited, but the Government or Provincial assembly thought that will bring about some changes that falls within its policy perimeter, then why not. However, each case must be determined on its own factual situation and based on wishes and policy of the Government or Provincial assembly.

Acquisition process:

42. Conduct of acquisition proceedings is the epitome result and the initial stages of implementing Government wishes and policy derive from section 60 of the Lands and Titles Act. First the appointment of an acquisition officer pursuant to S.61(1) or (2) of the Act, who shall exercise powers equated to that of a Magistrate, except he is not bound by the rules of evidence, subsection (3).

43. One of the important functions of the acquisition officer is conducting a public hearing provided under S.64. To bring to the attention of all person affected he must publish a public notice, (under S.63) in a manner he considers adequate or most effective. Public notice is in the form of public invitation to interested and affected persons to attend to lay claims against the purported agreement and that the vendors or lessors therein are not the landowners and hence have no right to sell or lease the land and receive money or rent- section 63.

44. One of the issues litigated by the Claimants is that the Fourth Defendant was performing his duty in a total disarray manner. I read the sworn statement of Michael Ahkov, the Chief Executive Officer of Second Defendant. The revelation therein particular the exhibits are quite appalling.

45. The Acquisition Officer, Mr Limopu was formally appointed by the Provincial Secretary (Western) per letter dated 16th July, 2010. Sixteen days before formal appointment, on 1st July, 2010, Mr Limopu had already started performing his duties. His records from Pages 74 – 76 Court Book, Volume 2, revealed that he conducted the preliminary hearing at Kekehe village Munda. That was the time the purported agreement was executed, and on the same date displayed public notices. From his report Page 76 paragraph 7 notices were displayed at Kekehe village and no other locations. That is contrary to the evidence by Mr Biku who said notice was displayed at Lambete station, Munda. Again is contrary to the evidence of Billy Veo who said he had sighted a public notice at Noro.

46. There is no serious argument by the Defendants on the performance. Furthermore, upon formal appointment on 16th July, 2010, the Acquisition Officer conducted the public hearing five days after, on 21st July, 2010. In a normal course of expectation that work should commence after appointment. It could mean the notice could have been published five days before public hearing, which contravened S. 63 which advocate that publication of notice must be adequate and in most effective way.

47. Because there was no notice published at Lambete public notice board the Claimants were unable to attend the public hearing, which they could have made a claim. In the circumstance, they were deprived of their rights to lay any claim.

48. The worst state of things occurred when the Acquisition officer started performing his duties sixteen days before formal appointment. Conducting of preliminary hearing on 1st July, 2010, execution of the purported agreement, publishing of notices were all done before the formal appointment? The Act is clear, the Acquisition Officer must first be appointed before performing his duties. It's not a mistake that Division 1 starts with S. 61, all the provisions follow the rest in sequence.

49. I find the Acquisition Officer had flawed the acquisition process and failed to comply with the relevant provisions of the Land and Titles Act. Non- compliance with the Land and Titles Act renders the acquisition process null and void.

Orders:

1. This Court hereby declares that the determination of Land Acquisition Officer on kerabangara land is void ab initio on the basis that it did not comply with Part V of the land and Titles Act.

2. An order to declare the Provincial Secretary, Western, have no power to appoint the Land Acquisition Officer, where the acquisition process was not required for purposes of Western Provincial Assembly refused.

3. An order declaring that the Land Acquisition Officer does not have the authority or jurisdiction to make a determination on land acquisition over kerabangara land refused.

4. In view of order (1) this court hereby order quashing the determination of Lands Acquisition Officer dated 21st July 2010.

5. Costs are paid to the Claimants.

The Court.

^[1] [1980/81] S.I. L. R 93.
^[2] Land Appeal Case No. 8 of 1996.
^[3] HC-CC No. 255 of 2007.
^[4] [1993] SBHC 66; HCSI-CC No. 118 of 1992 (4 December 1993).
^[5] [2012] SBHC 32; HCSI – CC No. 422 of 2011 (27 April 2012).