HIGH COURT OF SOLOMON ISLANDS
ter">
Civil Case No. 343 of 1995
JOHN PALMER
(As Representative e Hobrae Tribe)
v
JOHNSON VUNAGI AND OTHERS
<
High Court of Solomon Islands
efore: Lungole-Awich, J
J
Civil Case No. 343 of 1995
Hearing: 25 March 19>
Judgment: 6 January 1998
Counsel: A Radclyffe for the
plaintiff
T Kamathe defendants
JUDGMENT
(LUNGOLE-AWICH,
J): The Case and Cause:
The plaintiff, Mr. John Pal representing Hobrae tribe on Ysabel Island, took
out originating summons in which he asked
the court to order rectification
of entry made by the Registrar of Titles in the register of perpetual
estates in respect
of land parcel No. 106-002-1 (LP 327). His application
was made under s.209 of the Lands and Titles Act, Cap. 93. The section
reads:
209. (1) Subject bsection (2), the High Cour Court may order rectification
of the land register by directing that any
registration be cancelled or
amended where it is so empowered by this Act, or where it is satisfied that
any registration
has been obtained, made or omitted by fraud or mistake.
p class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(2) The land register shall not be rectifictified 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.
Thson given by the plaintiff was that there has been, �mistakistake or
fraud� in the facts upon which the Commissioner
of Lands made grant of the
estate registered. The entry complained about was that showing the owners of
the estate in
the land to be Johnson Vunagi, Hilda Pago Vahia and Kathleen
Fraide, the first defendants. The plaintiff filed one founding
affidavit in
support of his case, his own affidavit sworn on 7.11.1995.
In the affidavit of the plaintiff no attempt was made to aver the animus
s
furandi - the facts alleged to disclose fraud upon which the
Commissioner was said to have acted. No attempt was made later on, in
the
case, to pursue the allegation of fraud. Learned counsel Mr. Radclyffe, for
the plaintiff, did not make submission
to the court to consider fraud. I
have not come across any suggestion of fraud in the whole case. The
application for
rectification based on fraud is dismissed. That leaves the
question of mistake to be considered.
The Registrar of Titles, cited as the second defendant and the Cthe Commissioner
of Lands, cited as the third defendant
were not present during the trial.
There is no indication that they were served with the originating summons
although
subpoena issued for the production of the office file of the
Commissioner.
The plaintiffs case was that there was government policy
to return to its original owners in custom, customary lands which had
been
acquired and alienated by government if government reacquired the land. Land
parcel No. 106-002-1, commonly known
as Dadale, was acquired by government,
alienated and government reacquired it. The government, through the
Commissioner
of Lands, gave Dadale to Johnson Vunagi, Hilda Pago Vahia and
Kathleen Fraide who have been registered as owners. The plaintiff
says it
was a mistake because the three were not the original customary owners,
rather he, Palmer, representing his Hobrae
tribe was the original customary
owner. Palmer�s account of the transactions was that: One Kusolo of Pasamogo
tribe bought
the land from Hobrae tribe, then sold it to one Epi of Sinagi
tribe who then sold it to government. The government alienated
it to a
farmer. The land reverted to government. It should have been returned by
government to Hobrae tribe who, Palmer
says, was the original customary
owner, but the government instead gave it to the first three defendants who
were members
of Taraoa tribe. Mr. Palmer did not explain why the government
should pass over Mr. Epi, the vendor to government, and return
the land
directly to Hobrae tribe. One would have expected that issue would have been
taken as to whether Mr. Epi, by
Mr. Palmer�s account, had not acquired
customary ownership by purchase before Mr. Epi sold the land to government.
That
issue was not taken, parties regarded it as not material to their
respective cases even though there was evidence that Mr.
Epi did not belong
to Hobrae tribe.
It was common ground that government alienated land parcel No. 106-0026-002-1 and
later reacquired it and had it returned
to the first three defendants on the
basis that they represent Taraoa tribe. Parties admitted the letter of the
Commissioner
of Lands, dated 15.2.1995, stating the reason for returning the
land to Taraoa tribe. The letter reads:
Ministry of Lands Housing
P O Box GBox G38
Honiara
Solomon Islands
Taraoa Tribe
C/-
JohnsonVunagi
P O Box 858
Honiara
Our Ref: LR 327
PN:106-002-1
Date: 15/2/95
RE: TRANSFER OF PERPETUAL ESTATE TITLE LR-327
<
I
am pleased to inform you that the Cthe Commissioner of Lands has agreed that the
Perpetual Title in parcel number 106-002-1/LR
327 be granted to Taraoa
tribe. The decision by the Commissioner of Lands based on various points
obtained from discussions,
letters and court cases in 1948 and 1977 by Local
Court in regard to the Dadale land.
To effect this transfer an amount of $5,000.00 with a th a Registration fee of
$50.00 are payable to the Commissioner
of Lands.
lass="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Your prompt (sic) in paying the above amount ount will hurry registration for
this transfer.
Thank you.
Yours faithfully
Edmond Liukali
for: Commissioner of
Lands
Ministry of Lands
The plaintiff however, says
that the decision of the Commissioner was based on what the Commissioner
believed was the
decision of the Local Court in a case in 1977, between
Ezekiel Zavani of Taraoa tribe and Ben Bao of the plaintiff's tribe.
He says
there was no such case or if it was there then the decision was not in
favour of the Taraoa tribe, declaring
Taraoa tribe to be the customary
owners of Dadale land. He attacked exhibit No.C, annexure, a photocopy of
the judgment,
as unreliable. He contended that the original ought to have
been produced.
I
have to say that it is not correct in law that courts can enforce policy of
the executive unless the policy has been
promulgated into law by
legislation. In this case the issue does not arise because parties are
agreed that the facts
that the Commissioner had to consider when returning
customary land are those facts which prove customary ownership before
the
land had been acquired by government. The case of Derek Dai -v- John Palm
Teaitala and others, Civil Case No. 200 of 1995, cited by Mr. Radclyffe
seems to have been dealt with along that line rather than on the basis
that
there was a point of law that government policy generally could be a basis
of claim. In fact Palmer J, in that case
stated that it was correct in law
that courts should not interfere with government policy.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In this carties are agreed that the original customary owners were thre the
right persons to be registered on the register.
The plaintiff says the
Commissioner made a mistake in registering the first three defendants
because they were not the
original owners in custom, of land parcel
No.106-002-1. It is for the plaintiff to prove the mistake. Several facts
may
be relevant in the proof. If there have been cases between these parties
in the Local Court, the court which has exclusive
original jurisdiction over
ownership of customary land, the judgments of the Local Court would be the
most important
probative facts unless the judgments were changed on appeal
to the Customary Land Appeal Court. It is emphasised that the issue
in this
court, the High Court, is not who the owners of the customary land were
before the land was alienated by government.
The issue is whether there were
items of evidence of ownership inconsistent with the conclusion made by the
Commissioner
that the first defendants were the original owners. If so then
the Commissioner would have made mistake in regarding the first
defendants
as the original owners of Dadale. The next step would then be to show that
the first defendants knew about
the mistake at the time or caused or
contributed to it.
Proofs
The plaintiff�s of was simply his deposition that Hobrae tribe was the
original customary owner of Dadale land covering
parcel No. 106-002-1, and
further, that there has not been a case in 1977 between Ezekiel Zavani of
Taraoa tribe and
Ben Bao of Hobrae tribe, and that if there was such a case
then the decision was not that the Taraoa tribe of the first three
defendants owned Dadale. He did not state the basis of the original
ownership by Hobrae tribe. He stated what the decision
of the 1977 case was
not, but did not state what it was. The plaintiff did not call anybody such
as clerks of court or
other court staffs to positively state that there has
been no such case in 1977 or what the decision was. The defendants on
the
other hand filed affidavits from among others, two presiding officials in
the Local Court that time. In their affidavits,
the officials positively
stated that there was a case between Zavani and Ben Bao in 1977, and that
they, the witnesses,
presided in the case. Further that Zavani of Taraoa
tribe won the case, it was decided that the land area belonged to Taraoa
tribe, but that Ben Bao could use the land. One of the officials, William
Leslie Mike, was cross-examined in court. The
cross-examination did not
reveal any lie or obvious mistaken facts in his deposition. The other
official, Stephen Zaku,
was certified too ill to testify. He was in hospital
at the time this court heard the case. Counsel for the plaintiff was made
aware of that well in time. Learned counsel, Mr. Kama, for the defendants
kept the court and counsel for the plaintiff
informed about the condition of
the witness during court hearing and during adjournments. There was
contradiction as
to which of the two officials was president during the 1977
case. Having heard the explanation of Mr. Mike, I was satisfied
that the
difference was a matter of forgetfulness on the part of one of the deponents
due to the long time past, some
20 years ago. Both in fact were presidents
during different periods.
Determination
It must be mentioned that it is not for the defendants in this case to prove
ove
their defence to the allegation that
there has been a mistake in who the
original customary owners of Dadale were, and that the defendants knew or
caused
or contributed to the mistake, before the plaintiff has proved its
allegation at all. It is for the plaintiff to first establish,
by evidence,
its allegation of mistake, knowledge and contribution. What has happened in
the case was that the plaintiff
simply stated his allegation in his
affidavit and then the defendants set about disproving the allegation by
evidence
or by far more superior items of evidence. They did so by naming
persons who the tribe regarded as trustees for the land over
several
periods, stating instances when ownership by Taraoa tribe was acknowledged
by other people including people from
the plaintiffs tribe and by citing two
court cases between people of the plaintiffs tribe and the defendants�tribe
over
the land. One case was in 1948, the other in 1977. One of the acts of
acknowledgement of Taraoa�s ownership was said to have
been payment for
trees cut from the land and the other was by a company seeking permission
from Taraoa to use the land.
All that tended to negative the possibility of
mistake in who the Commissioner regarded as owners and the possibility that
the defendants knew about mistake or caused or contributed to it. The
plaintiff chose to ignore the evidence about the
acts of acknowledgement and
about the 1948 case, he attacked only the 1977 case.
At the end of this case the plaintiff asked the cou refer the question
o of customary ownership of the land to the
Local Court. That was not one of
the reliefs sought originally in the originating summons. I wondered whether
he meant
to ask the court to stand down this case until the Local Court will
have made determination. That application came too late
and only at
submission stage. The defendants would not be expected to respond to it
without notice or even without amendment.
In any case it was for the
plaintiff to have established the foundation of his claim before coming to
the High Court.
The conon that I have
reached is that the plaintiff has not proved his case that there has bhas been a
mistake in the
facts about customary ownership of land parcel No. 106-002-1
also known as Dadale, when the Commissioner made its decision
to give the
land to Taraoa tribe on Ysabel. I have earlier decided that there has been
no evidence of fraud. In all the
plaintiff has not established a case for
rectification of entries in the register of perpetual estates, relating to
land
parcel No. 106-002-1. His claim is dismissed. He will pay costs to the
first defendants. The second defendant and the third
defendant did not take
part in the proceedings, they are not entitled to any costs.
Dated this 6th
January 1998
Sam Lungole-Awich
JUDGE
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