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Commissioner of Lands v Basoe [1998] SBHC 137; HCSI-CC 121 of 1997 (7 December 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 121 of 1997

COMMISSIONER OF LANDS, SOLOMON ISLANDS SEAFARM LIMITED

-v-

SAMUEL BASOE, STEPHEN MATAGU, JOHN LESAPA, JOSEPH NORO, JIMMY AULA

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 121 of 1997

Hearing: 14 September 1998
Judgment: 7 December 1998

P. Afeau for the first Plaintiff
A. Radclyffe for the second Plaintiff
R.H. Teutao for Defendants

MURIA CJ: The first plaintiff in this case is the Commissioner of Lands. He has brought these proceedings claiming, inter alia, an order for the removal of the defendants their relatives servants or agents from the land and restraining them from re- entering the same and further to restrain them from in anyway interfering with his operations. The second plaintiff had been joined as second plaintiff who is a company incorporated in Solomon Islands and is desirous of developing the land in question as a prawn farm.

Facts not in dispute

The brief background to this case can be ascertained from the following facts which are not in dispute. The Commissioner of Land is the owner of the perpetual estate on behalf of the Government in parcel No. 192-008-101 which is also described as Lot 304 of LR536, Tetere, Guadalcanal. The total area of the land is approximately 201.65 hectares.

On 18 April 1997 the Fixed Term Estate in the said parcel of land was granted to the second plaintiff for a period of 50 years from 1 December 1996 Pursuant to that grant the second plaintiff commenced developing the land as prawn farm.

The defendants, excluding Stephen Matagu (second defendant) have been I residing on the said land. They objected to the second plaintiff’s right over the land. This resulted in an agreement reached between the second plaintiff and the defendants on 30 March 1998. The effect of that agreement was that the second plaintiff would not carry out any work on the land until 3 April 1998 and if by that date there had been no decision from the Court to prevent it from proceeding with its operation, then it would continue with its work on the prawn farm development and that the defendants would not interfere.

The Issues

There can be no question about who owns the perpetual estate in Parcel No. 192-008-101. The Commissioner of Lands holds that title on behalf of the Government. The defendants claim by their defence and counter-claim that Parcel No. 192-008-101 is situated within a larger track of land which stretches along the coastline from Tetere Beach to Metapona River owned by them as customary land. In the alternative the defendants claim that if the said larger divested itself of ownership under the principles of estoppel which includes proprietory estoppel, estoppel by acquiescence, estoppel by encouragement, estoppel by expenditure, promissory estoppel and or equitable estoppel.

The first issue arises for consideration is, therefore, whether Parcel No. 192-008-101 is situated within the track of land stretching from Tetere Beach to Metapona River. Secondly, if it is, then whether the defendants are residing inside parcel No. 192-008-101. Thirdly, as Parcel No. 191-008-101 is perpetually owned by the Government as registered land, has the Government divested itself of ownership of the said land under the principles of estoppel. Fourthly, whether rectification of the register ought to be ordered in this case.

The Argument by the Plaintiffs.

The case for the first plaintiff is that he is the registered holder of the perpetual title to the land on behalf of the Government and cannot be defeated except as provided by the provisions of the Land and Titles Act. The general defensibility provision is section 100 which provides:

100. the rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Ordinance, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -

(a) to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by this Ordinance; and

(b) to such liabilities, rights and interests as affect the same and are declared by section 104 (which relates to overriding interests) not to require noting in the register:

Provided that no other in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.

The thrust of the learned Attorney General’s submission, as I understand it, is that unless the defendants can show that the perpetual title held by the Commissioner of lands is tainted in some way, his title cannot be defeated. It must be noted that although not mentioned in section 100, it must be accepted that in land registration system defeasibility provision usually lay some emphasis on the fact that registration obtained by fraud is not protected. Hence if the Commissioner of Lands obtained the perpetual title to the land by fraud, his title will be defeated. The onus is on him who alleges the fraud. No allegation of fraud had been raised against the plaintiffs in this case. No evidence of fraud had been adduced either.

With regard to the claim by the defendants that the land register be rectified, so as to cancel the perpetual title held by the Commissioner of Lands and fixed term title held by the 2nd plaintiff and to vest the perpetual title to the land in the defendants, the plaintiffs argued that there is no evidence to show that the registrations were obtained by fraud or mistake as provided in section 209 of the Act in order to justify an order for rectification. Section 209 provides:

209. (1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Ordinance, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

There is a clear mention of fraud under this section. While seeking rectification of the register, the defendants have not pleaded fraud or mistake as their ground for seeking such an order. They simply claim rectification on the basis that Parcel No. 192- 008-101 is within a larger track of land that stretches from Tetere Beach to Metapona River as customary land. Alternatively, if the said larger tract of land is registered land, then the Government had divested itself of ownership of the said land on the basis of the various estoppel principles. In either case, the land register should be rectified to enable the defendants to hold the perpetual estate over the land in question. These claims, says the learned Attorney General, do not and would not justify any rectification of the register in favour of the defendants.

The Defendants’ case

The defendants have not given any submission, written or orally, on their claims despite the Court’s direction that Counsel should do so. Mr. Teutao has not given any submission to the Court as directed. This failure by Counsel is a serious disregard of the Court’s direction and one that is not in the best interest of his clients.

Be that as it may, the defendant’s case is simply that they are the rightful owner of the larger track of land earlier referred to and hence they are entitled to the ownership of Parcel No. 192-008-101 which is inside the said larger track of land.

Decision

There is certainly a large track of land stretching from Tetere Beach to Metapona River. Whether that whole stretch of land is Government land or customary land is not an issue that I need to decide on in this case. It is worth noting, however, that the Commissioner of Lands being registered as the perpetual title holder, had granted fixed term estate to other persons over Parcels of land within the area referred to. I shall leave it at that.

What we are concerned with here is the ownership of Parcel No. 192-008-101. On the evidence before the Court, it is crystal clear that the perpetual title to Parcel No. 192-008-101 vests in the Commissioner of Lands, the first plaintiff. Being the registered holder of the perpetual estate to that land, the first plaintiff granted a fixed term estate to the second plaintiff on 18 April 1997 for 50 years. The evidence before the Court concretely confirmed those titles.

The evidence of Mr. Basoe shows that he is living inside parcel No. 192-008-1 01. He says, however, that he had been living there for a long time and had planted coconuts and cocoa on the land. He said that he understood the land to be his people’s land. He denied being asked by the Commissioner of Lands to leave the land. He claimed that the then Commissioner of Lands, Mr. Riogano, recognized that he was the owner of the land within that area. Unfortunately if that were so, then it made no sense for the same Commissioner of lands to demand his removal from that land. Although he denied receiving the letters advising him to leave the land, I am satisfied that the notices to vacate the land had been sent to the defendants, including Mr. Basoe who received the said notices but simply ignored them.

For the most part, the first defendant’s evidence agreed to the fact that he is residing in and carrying out development in parcel No. 192-008-101. The title to that land is conclusively vested in Commissioner of lands as the perpetual title holder and Solomon Islands Seafarm Limited as the fixed term title holder. I therefore do not see how he and the other defendants can convincingly say that they hold rights over the said piece of land.

The evidence of Stephen Matagu, the second defendant, does not add any strength to the defendant’s case. His evidence speaks of some involvement with the old colonial administration including a meeting with one Commissioner of Lands then by the name of Mr. Tender, over meetings concerning the land in the areas. He spoke of a map purportedly given by the then Commissioner of Lands and a line dawn on that map by Mr. Tender as the dividing boundary between the customary land and alienated land. I have observed the map tendered by Mr. Matagu and I must say that I have grave doubt as to its usefulness.

I do not accept that map firstly as it is not certified to be issued out of the Lands Department. Secondly, the line shown by Mr. Matagu on the map does not appear to be of an official marking on the map.

While Mr. Basoe denied knowledge of being told by the Commissioner of lands to leave the land, Mr. Matagu confirmed that he knew of the Commissioner of Land’s notices to the people to leave the area where Mr. Basoe is residing. There is nothing in Mr. Matagu’s evidence which can be said to support the suggestion that the register ought to be rectified so that the defendants could be registered as the owners of the area concerned nor is there anything Mr. Basoe’s evidence to support such suggestion at all

As Mr. Teutato failed to furnish any submission in support of his clients’ case, the issues of estoppel which he raised at the beginning of the hearing had not been addressed. No support for relying on those issues had been offered to the Court by way of oral or written submissions. There is no evidence to support them either. The Court has no option but to reject those assertions as unsubstantiated.

On the evidence before the Court, the position of Parcel No. 192.008-101 is clear. It is a land perpetually held by the Commissioner of Lands, the first plaintiff, on behalf of the Government. The fixed term estate owner, the second plaintiff, derived its title through the first plaintiff. The land register confirms these to be so.

That being the case, there will be judgment for the plaintiffs. The defendants’ Counter-Claim is dismissed.

The order of the Court will be:

1. The first plaintiff (Commissioner of Lands) on behalf of the Government, is the owner of the perpetual estate and the second plaintiff (Solomon Islands Seafarm Limited) is the owner of the fixed term estate in Parcel No. 192-008-001.

2. The defendants their relatives, friends wantoks vacate the said land within 30 days from the date of judgment.

3. The defendants their relatives, friends wantoks or agents be restrained from re-entering the said land.

4. The defendants be restrained from in any way interfering with the plaintiffs’ rights over the land and that they be further restrained from interfering with the second plaintiff’s operation on the said land.

5. The counter-claim by the defendants is dismissed.

6. Costs to the plaintiffs.

(Sir John Muria)
CHIEF JUSTICE