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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Land Appeal Case No. 1 of 1996
ter">ZEPHANIAH KINISITA
-v-
ORKLEY RAMOLELE AND AUGUSTINE MAEMARINE
<
="3">Before : Muria CJ
Hearing: 13 September 1996 at Auki - Ruling: 30 September 1996
MURIA CJ.:
This is an appeal by Zephaniah Kinisita against the decision of the learned Principal Magistrate (Malaita) concerning the acquisition of Dau and Morumoru Aba'a Land. There is also a letter of appeal submitted by Mr. Orkley Ramolelea in this matter. However, this Court cannot accept Mr. Ramolele's letter as an appeal since there is no evidence to show that he had complied with the necessary requirements for lodging an appeal. On the other hand Kinisita had paid the appeal fee and the necessary deposit of security for costs required to be done when lodging an appeal. I shall deal with this matter as an appeal only by Zephaniah Kinisita. I shall, however, treat Ramolelea's letter as material in support of his case as a respondent in this appeal.
There are two grounds of appeal raised by the appellant, Mr. Kinisita. These are:
1. The learned Principal Magistrate was wrong in law in holding that because the Respondents have or claimed to have secondary rights over the land, they therefore rank equally with the Appellant and have the right to sell or lease the land.
2. The function of an Acquisition Officer under section 63 of the Land & Titles Act is to determine the identity of the persons LAC No. I of 96 Pg. 2 who have the right to sell or lease the land and receive the purchase money or rent. The learned Principal Magistrate was wrong in law in describing people as trustees and referring to "a Board of Trustees."
Put it simply, the appellant says that he is the only person who has the right to sell or grant lease and receive purchase money or rent over the land upon which the proposed Gwaidingale Junior Secondary School is to be built. According to the appellant, the first and second respondents are only secondary right holders in the said land and therefore should not rank equally with him as persons entitled to grant the lease over the land upon which the school is be built.
It is first necessary to look at the decision or determination of the Acquisition Officer who was appointed pursuant to section 60 of the Land and Titles Act (Cap. 93) for the purpose of acquiring the land upon which the Malaita Provincial Government intends to built the proposed Gwaidingale Junior Secondary School. Having held public hearings and considering objections and other representations made before him, the Acquisition Officer determined pursuant to his powers under section 63(b) of the Act that:
"Mr. Zephaniah Kinisita of Anonakinaki Mr. Henry Tom Of Gwale Village.
These two(2) stands as representative of their two tribes and sub/tribes. It is up to them to choose two(2) other persons from both tribes if they wish to have four(4) trustees for this part of DAU Land.
The trustees to this land hold the beneficial interest on behalf of their tribes on equal share basis"
Against that decision, Mr. Orkley Ramolelea, Martin Anifasipetele and Augustine Maimarine appealed to the Magistrate's Court at Auki. The learned Principal Magistrate who heard the appeals allowed the appeals by Mr. Ramolelea and Maimarine but dismissed the appeal by Anifasipetele. The learned Principal Magistrate then determined that the persons to be appointed trustees who shall have beneficial interest on equal share basis with those of their respective tribes are the appellant, the first and second respondents. It is against that decision that the appellant now comes to this Court and the grounds on which he does so are those that I have already set out earlier.
There are important features of this case which are not in dispute. Firstly, the various land cases referred to in the CLAC judgement, namely, Native Land Appeal Case No.7 of 1969. (HC), CLAC 3/81, MD/CLAC85/86, MD/CLAC 6/87 and others, referred to Dau Land as separate from Morumoru - Aba'a Land or at least attempts had been made in those cases to. separate the land concerned. Secondly, the appellant has primary right (for want of a better term) while the first respondent has secondary right (again for want of a better term) in Dau Land. The second respondent also has secondary right of gardening and cultivation in the said land, in particular, in the area bordering the sea-coast. Thirdly, while the different land cases made mentions of the different areas of land under dispute, such as Dau, Morumoru and Abarafi, it is obvious that the cases show that there is one main land under dispute in all those cases. Indeed the description of the boundaries in the cases (Native Land Appeal No. 7 of 1969, CLAC 3/81 and MD/CLAC/6/89) undoubtedly covers the same area of land. Attempts by first respondent to separate the land into Dau and Morumoru - Aba'a Lands was made in CLAC3/81 and CLAC3/82 (HIC) but was unsuccessful. Fourthly, even if the land is to be called mainly Dau Land or Dau-Morumoru-Aba'a Land, it has now been conclusively decided that the appellant has primary rights in the said land and the first and second respondents have secondary rights in the same land. Fifthly, the proposed Gwaidingale Junior Secondary School is to be located on the land in question. For that purpose the land has to be acquired a process, no doubt, affects both the interest of the primary landowner as well as that of the secondary right holders.
I return to the grounds of appeal which I have already set out earlier in this judgement. Arising out of the two grounds of appeal is the question of whether or not the learned Principal Magistrate was right in including the first and second respondents as trustees in equal shares with the appellant over Dau Land.
It had already been decided conclusively by the Courts that appellant and this tribe are the primary owners of Dau Land and the respondents only have secondary rights in the land. That being the case, the appellant's primary rights in the land must rank first while those secondary rights of the respondents would obviously rank second. The two rights cannot be said to be equal. The decision whether to sell or lease the land must also therefore vest in the primary rights holders.
While accepting that in any major disposition in customary land, the primary right holders are basically the 'front liners', the secondary right holders whose rights are said to be secondary cannot be ignored. One fundamental reason for that proposition is that in the Solomon Islands context nobody is landless, whether that be in terms of ownership or just usufructuary right which is closely associated with the right of occupation. In customary land tenure system the rights of use and of occupation, although may be regarded as secondary rights, must be accorded with their proper scope of consideration based on the rules applicable to customary land. It would be wrong to assume that the concepts of primary and secondary rights under other land tenure systems, for example, Torrens System, can equally be applied to customary land tenure system. In the context of Solomon Islands, secondary rights in customary land may well have evolved and have been enjoyed from time immemorial. In many respects such rights can properly be regarded as continuing, such as a right to occupation on the land and cultivation.
In the present case the appellant and his tribe have been adjudged to be the primary owners of Dau Land on which Gwaidingale Junior Secondary School is to be built. The decision on whether or not to lease the land is therefore vested in the appellant and his tribe. The decision to do so have now been taken. In doing so, however, the primary right holders cannot ignore the secondary rights possessed by the respondents in the land since the proposed lease would undoubtedly also affect their secondary rights to occupation or residence as well as those of gardening or cultivation which are continuing activities on the land.
Whilst it is true that the rights of the primary owners and secondary owners are not equal, it must nevertheless be accepted that secondary rights in land are worth protection and that must be reflected in any disposition of the land by the primary owner for the reasons which I have already addressed. Much more so, however, is the fact that in many of these cases, very often the people involved come from the same family group except that one may have originated from the male ancestor while the other from female ancestor. But despite such distinction those people have lived together on the same land, each enjoying his right in the land, be it termed as primary right or secondary right.
I agree that it would not be correct to hold that the first and second respondents' secondary rights entitled them to be appointed trustees on equal share basis with the appellant. However in my judgement it would still be open to the Acquisition Officer or the Court to have them included as trustees, although not on equal share basis. What interest or how much interest should the secondary right holders be entitled to under the proposed lease arrangement is a matter that can be decided having regard to proper representation made to the Acquisition Officer or to the Magistrate Court or by agreement if the parties are able to reach one.
It is on this limited basis that I allow the first ground of appeal and remit to the learned Principal Magistrate to determine what or how much interest in the proposed lease agreement to be accorded to the respondents in view of their secondary interest in the said land.
As to the second ground of appeal, I feel no valid criticism can be made against the learned Principal Magistrate for describing the people named as trustees. The Acquisition Officer himself referred to the representatives of the tribes as trustees. The Acquisition Officer knows that after acquiring the land for the use of the Province to build the school, on lease basis, the process of registration will have to be followed which may well involve representatives of or trustees for the tribes concerned, hence the use of the term "trustees" or "Board of Trustees". The point does not merit further consideration. The second ground of appeal fails.
p>="3">Order: Appeal allowed in part.
Costs: In the circumstances each party to bear his own costs.
ter">GJB Muria
CHIEF JUSTspan>
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