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Mona v Attorney General [2024] SBHC 151; HCSI-CC 342 of 2016 (18 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 342 of 2016

BETWEEN

CHRIS MONA
Appellant

AND:

ATTORNEY GENERAL
(Representing the Acquisition Officer)
First Respondent

AND:

SAMO MASIABU
Second Respondent

Date of Hearing: 17 October 2024
Date of Ex Tempore Decision: 17 October 2024
Date of Published Decision: 18 October 2024

Mr Steven Weago for the Appellant
Mr Nickson Ofanakwai for the First Respondents
Mr Lionel Lauta for the Second Respondent

RULING ON APPEAL

Bird PJ:

1. This proceeding concerns an appeal from the decision of the Malaita Magistrate Court made on 3^rd May 2016. Mr Chris Mona (Appellant) was the aggrieved party of the decision by the Acquisition Officer dated 26 September 2014 to acquire Aibou customary land, Malaita Province. He filed an appeal to the Malaita Magistrate Court against the decision of the Acquisition Officer. His appeal was dismissed by that court. He had consequently filed this appeal to this court.
2. The Attorney General represents the Acquisition Officer. Mr Samo Masiabu and his Aibou tribe was the person that the Acquisition Officer has determined to be the rightful owners of Aibou customary land, the land where the Bemobile Tower is situated.

Grounds of appeal

3. The Appellant has advanced five grounds of appeal in his Notice of Appeal filed on 2 August 2016. During the hearing of the appeal, it became obvious to me that the grounds advanced in appeal grounds 2 and 3 is the heart of this appeal. On page 20 of the Appeal Book, the Acquisition Officer determined in paragraph 9 (1) that Mr Masiabu and others who are descendants of Lelemae of Aibou Tribe are the primary right holders of Aibou customary land whilst Funilofo tribe has the secondary rights to the said land. She went further and determined in sub-paragraph (1) that “Mr Samo Masiabu, Esau Masiabu, John Faite and Joe Mamanefele who are descendants of Lelemae of Aibou Tribe are the rightful owners of the land and have the right to lease and receive the rent of the land where the Bemobile Tower is situated”.
4. Having heard submissions from the Appellant and the Attorney General, I enquired of counsel Mr Ofanakwai on the statement of the Acquisition Officer in paragraph 9 (1) of her decision. I further enquired of counsel whether or not the Acquisition Officer’s powers also included determination of customary land ownership. He informed me that her powers are limited. Her powers clearly does not include decision over ownership of customary land. He conceded to the Appellant’s argument in respect of grounds 2 and 3. The Acquisition Officer had acted beyond her jurisdiction under section 64 of the LTA.
5. I have also enquired of Counsel Mr Lauta in relation to Mr Masiabu’s position. He informed the court that it is also conceded that the Acquisition Officer had acted beyond her powers to decide on ownership of the disputed land. With the concessions of the Attorney General and Mr Lauta, I will now discuss those grounds of appeal.

Discussion

6. I have had the opportunity to peruse section 64 (b) of the Land and Titles Act (cap 133) and noted what the Acquisition Officer is mandated to perform. Pursuant to that provision and during a public hearing, she is required to hear the claims as she did. Importantly, she “shall hear the claims and determine the identity of the persons who have the right to sell or lease the land and receive the purchase money or rent”.
7. The above section provides for her succinct duty as an Acquisition Officer. It clearly does not include the right to determine land ownership.
8. In its decision of 1 August 2014, the Malaita Local Court has reverted the ownership issue over the same land between the same parties to a new panel of chiefs to be agreed upon by the parties. That decision has yet to be complied with by the parties. In short, the ownership over the subject land is still a live issue between the parties.
9. Pursuant to section 254 of the LTA, the Local Courts has exclusive jurisdiction to hear and determine land issues under sections 12, 13 and 14 of the Local Courts Act (cap 20). The Local Court in that regard had complied with the provisions of the Local Courts Act. Any aggrieved person can further exercise their right of appeal under section 256 of the LTA.
10. In respect of a decision of an Acquisition Officer on land ownership, how could an aggrieved party exercise their right of appeal? What the Acquisition Officer had done in this case, can cause much uncertainty to the litigants. She had determined that Mr Masiabu and his tribe are the primary owners of the subject land and Mr Mona and his tribe are the secondary owners. That decision cannot be allowed to stand. It infringes the rights of litigants.
11. The decision that is appealed against in this proceeding is the decision of the Malaita Magistrate Court of 3 May 2016 dismissing his appeal to it. I have perused and noted the decision from pages 258 to 263 of the Appeal Book. It is obvious from their decision that the Magistrate Court has never turned its mind to the heart of the Appellant’s appeal before them. They have infact conceded with the Acquisition Officer decision that Mr Masiabu and his tribe owns the subject land.
12. In sitting as the primary appeal court under section 66 (1) of the LTA, they are entitled to review the Acquisition Officer’s decision. They nonetheless have no power to also conclude that the ownership of the subject land is vested on Mr Masiabu and his tribe. That issue is outside of their jurisdiction. They do not have that jurisdiction to confirm ownership issues of customary land. They merely need to decide whether or not the decision is erroneous in law.
13. Having viewed the decision of the Acquisition Officer, it could have been obvious to them that an error of law was committed by the Acquisition Officer. She has made a decision as to ownership between the parties. That issue was completely overlooked by them. They relied on and acted upon the erroneous submission of the Attorney General during the hearing of the appeal before them. They condoned the erroneous decision of the Acquisition Officer. They have failed to properly perform their duty in not dealing with the error that was committed by the Acquisition Officer. If they have diligently performed their duty as the primary appeal court, this proceeding would not have ended up in this court.
14. In light of my above discussion, I am able to say that the Acquisition Officer has acted beyond her powers under section 64 of the LTA to decide on ownership of the disputed land. It is obvious in paragraph 9 of her decision that she has determined the ownership of the disputed land between the disputing parties. She ought not to have done that.
15. The Malaita Magistrate Court was also in error when they dismissed the Appellant’s appeal on 3 May 2016. On the face of the record, they have a duty to deal with the error of law committed by the Acquisition Officer as discussed above. They failed to do that and they have also fell into error. They have acted beyond their jurisdiction to condone and confirm the decision of ownership of the subject land.
16. I hereby allow appeal grounds 2 and 3 of the Notice of Appeal filed on 2 August 2016.

In allowing appeal grounds 2 and 3, I need not discuss appeal grounds 1, 4 and 5 of the Notice of Appeal. The Appellant’s appeal is allowed. I hereby make the following orders:

1. Appeal of the Appellant is hereby allowed.
2. The decision of the Malaita Magistrate Court dated 3 May 2016 is hereby quashed.
3. I further order that the “Acquisition Report - Aibou Customary Land, East Kwaio, Malaita Province” authored by Ms Alice Willy and dated 26 September 2014 is null and void and is of no effect.
4. An order that no registration shall be effected over the subject land.
5. The issue of ownership over Aibou customary land must be done in accordance with the Local Court decision of 1 August 2014.
6. An order that any monies payable for the lease for the use of Aibou customary land to be paid into a joint solicitors trust account in the names of the solicitors for the parties.
7. Cost is against the Attorney General and Mr Masiabu.

THE COURT
Justice Maelyn Bird
Puisne Judge