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Usa v Resi [1994] SBHC 63; HCSI-LAC 4 of 1994 (20 September 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Appeal Case No.4 of 1994

SIRIAKO USA

-v-

JESMEL RESI for RHODA TRIBE

High Court of Solomon Islands
(Palmer J.)
Land Appeal Case No. 4 of 1994

Hearing: 13th September 1994
Judgement: 20th September 1994

A. Radclyffe for Respondent
Setheul Kelly Spokesman for the Appellants

PALMER J: This is an appeal from the judgment of the Magistrates’ Court pursuant to section 65 (2) of the Land and Titles Act, in which the Court allowed a separate trustee to be appointed for the Roha tribe.

In the proceedings before the Acquisition Officer, Laury Penrose Palmer, which proceedings were conducted for the acquisition of Komarindi Customary Land for the purpose of setting up a Hydro Project, he determined at page 7 of his Report, that the rightful owners of Komarindi Land were the Kakau and Lakuili tribes. Subsequent to this, he identified five persons to act as trustees for the two landowning tribes, namely, Siriako Usa, Francis Orodani, Sethuel Kelly, Mario Chago and Andrew Tura.

At the public hearing held pursuant to section 63 of the Land and Titles Act, the Acquisition Officer heard the claim of the Respondent’s group and made the following findings:

(i) That the Respondent’s group was from the Malango area;

(ii) That the location of the Hydro Project will not affect the land area of the Respondent’s group; apart from the cross-way to be constructed which will go over the Respondent’s land area and that damages will be caused which should accordingly be compensated for.

At page 18 of his Report, the Acquisition Officer denied the claim of the Respondent for a separate trustee and ruled that two of the trustees appointed namely, Mr Orodani and Mr Siriako should be able to represent the Respondent’s group's interest as well.

On appeal to the Magistrates’ Court it was pointed out by Mr Radclyffe that his client Jesmel Kesi does not dispute the ownership of the Komarindi Customary land. What was challenged was the appointment of Francis Orodani and Siriako to act as their trustees for any rights to compensation that may arise from the damages that may be caused in the construction of the access-way to the said Hydro project. The learned Magistrate over-ruled the decision of the Acquisition Officer as to the appointment of Mr Orodani and Mr Siriako as the trustees for the Respondents and held that the Respondents were entitled to have a trustee of their own.

On appeal to this court, the first point raised by Mr Kelly, the spokesman for the Appellant was that “(i) the Magistrates’ Court had erred in law in determining the question of appointment of Trustees of Komarindi without the consent of the landholding group within the meaning of section 61(b) of cap. 93 of the Land and Titles Act, and that the question of appointment of Trustees is purely the right of Customary landowners to decide according to their custom.”

The second ground of appeal raised was that the Magistrates’ Court had erred in determining matters of customary nature involving Customary Land disputes on the question of trustees or leaders of the tribes within the meaning of section 231 of Cap. 93 of the Land and Titles Act read with provisions of the 1985 Local Court Amendment Act.

The third ground alleged was that the Magistrates’ Courts had erred in law in appointing an extra Trustee based on common law and equity principle.

I will deal with these three grounds together as the issues raised are quite similar. Ground 1 with respect is misconceived to a certain extent. Whilst it is not denied that the question of appointment of trustees is a matter for the Customary Landowners to decide upon, and that as to the question of the correct representatives or trustees that should represent the Lakuili and Kakau tribes, that this had been correctly determined by the Acquisition Officer and not challenged by the Respondents, the ruling by the learned Magistrate to have a separate trustee also included with those five trustees, representing the Roha and Charana tribe is not wrong in law.

I think what has been confused is the question of ownership, as opposed to the question trusteeship. The five trustees already appointed, represent the two landowning groups. There is no dispute or challenge to that fact, as clearly stated in the Magistrates’ Court by Mr Radclyffe on behalf of the Respondent. The appointment of a separate trustee for the Roha and Charana tribe will not interfere with the landholding rights of the owners of Komarindi. That separate trustee, as I understand the claim of the Respondent, is solely to represent the interest of the Charana and Roha tribe as to the compensation that will arise from damages caused to their land when the access way is being constructed.

The Acquisition officer recognised that there had been complaints of unfair distribution of moneys due and that it was a fair concern that the Respondents had raised as to that matter. He sought to overcome this by getting the two trustees, Mr Orodani and Siriako to execute a memorandum of understanding or some sort of legal guarantee that the Charana and Roha tribes shall be paid their just dues for damages caused to their land. However, it would seem much simpler to appoint a separate trustee for those two tribes so that any dealings for compensation can be made directly with that trustee, and that it would also avoid any unnecessary wranglings or allegations of unfair payments or distribution of money by the two tribes.

The Magistrates’ Court had not committed any error of law in its actions, and that it clearly had the power to make such orders as it may consider just under section 65(1) of the Land and Titles Act.

This brings me to consider ground 2 of the notice of appeal. With respect, again the Magistrates’ Court did not commit any error of law in what it did. As to the question of whether the Magistrates’ Court under section 65 (1) had the power to determine matters of custom, I had ruled in a previous case, Manedao and Others-v-Roroi & Others L.A.C. 2/93, judgment delivered on the 11th August 1993, that it did. What needs to be understood is that we are dealing with statutory powers of the Court as provided under the Land & Titles Act.

The third ground actually raises no error of law and therefore must be dismissed. Grounds 1 & 2 are also dismissed.

Ground 4 reads: “That the Magistrate Court also erred in law in dealing with matters of customary nature rather than matters set out in Part V of the Land & Titles Act.”

As to this ground again there seems to have been some misunderstanding. The Magistrates’ Court was not interfering, as I understand the claim of the Respondents to be, in the substantive decision of the Acquisition Officer. Its ruling was restricted to the appointment of a trustee to represent the specific interests of the Roha and Charana tribes only, and is not linked to the Lakuili and Kakau tribes interests as landowners of Komarindi land. I am not satisfied therefore that there was any error of law in what the Magistrates’ Court did. As already pointed out under ground (2) of the Notice of Appeal, that the Magistrates’ Court does have jurisdiction to deal with matters of customary nature under section 65(1) of the Land and Titles Act. (see Manedao & others -v- Roroi & others (ibid)).

Ground (5) again is misconceived and must be set aside. The Magistrates’ Court did not seek to overturn the substantive findings of the learned Acquisition Officer, as to deal with the specific question of appointment of a separate trustee for the Charana and Roha tribes.

Ground (6) referred to section 174 of the Land and Titles act. Section 174(1) of the Land and Titles Act simply restricts the registration of an interest in land in the case of more than five persons, to the first five names written in the document for registration. So where there are 6 persons, then only 5 names will be recorded in the land register, but they shall hold the interest as joint owners on the statutory trusts.

The circumstances surrounding the findings of the acquisition Officer in this case however in my view are slightly different and that for purposes of registration under section 174, the concerns raised by the Appellant in my view will not be affected. For purposes of registration of the lease to Government, it is clear in my view that the lessors will be the 5 original trustees as joint owners on the statutory trusts on behalf of the Kakau and Lakuili tribes. The Charana and Roha tribes will not be included on the statutory trusts as beneficiaries, for the simple reason that they are not landowners in respect of Komarindi Land. That does not mean that they have no claim. Their claim is to be treated as a separate matter and any payments of compensation should not be mixed with the payments to the landowners of Komarindi Land. The claim of the Roha and Charana tribes is in respect of the access road that will be constructed to the Hydro Project and accordingly, any payments will be made directly to the trustee of their own choice.

Perhaps the confusion of the Appellant is that by having another trustee appointed that such a trustee will be ranked together with the other five trustees in equal shares and rights as to ownership over Komarindi Land which they deny. That will not be correct.

What is important rather to note is that, that trustee’s appointment is specific to the interests of his group and in no way directly related to questions of ownership over Komarindi Customary Land.

Perhaps what the learned Magistrate should have done when making his findings is to specify that the appointment of a separate trustee for the Roha and Charana tribes will not affect the appointment of the original 5 trustees as representatives of the customary land owning tribes over Komarindi Land.

Having explained fully what I understand the true intent of the submissions of this Respondent in the Magistrates’ Court and the subsequent determination of that court, I am satisfied that all grounds of appeal filed shall be dismissed and that the findings of the Magistrates’ Court as to the separate appointment of a trustee to represent the Roha and Charana tribes to represent their specific interests, upheld.

Costs allowed against the Appellants.

(A.R. Palmer)
JUDGE