HIGH COURT OF SOLOMON
ISLANDS
Civil Case No. 273 of 1997
JOHN HENRY HOWDEN BEVERLEY
v
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REGISTF TITLES
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High Court of Solomon Islands
Before: LUNGOLE-AWICH, J
Civil Case No 273 of 1997
Hearing: 30 April 1998
Judgment: 7 April 1999
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J Sullivan for the applicant
B Titiulu for the respondent
ENT
(LUNGOLE-AWICH, J):
Mr. John Henry Howden Beverley executed a power of attorney in which he
appointed named members of Sol-law firm to be
his agents. Sol-Law is a firm
of barristers and solicitors at law. Mr. Beverley, the donor of the power of
attorney,
appointed the members of Sol-Law, donees, to act jointly or
severally. The power granted was to do anything generally in relation
to any
land and interests in land, that the donor could, himself do, through his
attorney. The land and interests in
land were described as:
"All estates and interests
in any land registered or to be registered in the name of the Grantor under
the Land and Titles Act (Cap 93)."
Mr. Beverley applied to the
Registrar of Titles to have ower of attorney registered, he presented
his applicaplication
on 7.3.1997. The Registrar demanded that the land parcel
numbers, (the identities of the land) be stated in the power of attorney
for
it to qualify for registration. His reason was that Form 20 made under
s.186, now s.207 of the Lands and Titles Act,
Chapter 93 of Laws of Solomon
Islands, includes specific description of the land. The second reason that
the Registrar
gave for declining to register the power was that s.186 (2) of
the Act authorises the registration of only powers of attorney
that donate
power to dispose of interests in land, not any other power(s) such as power
to acquire interests in land
that Mr. Beverley included in his power of
attorney.
Respondent's Submission
Learned counsel Mr. B. Titiulu,
who represented the Attorneeral, acting for the Registegistrar, adopted the
interpretations
given by the Registrar. He was much more interested in
getting clarification from the court as to what s.186 means, so that
the
issue is resolved once and for all. Mr. Titiulu made available to court most
useful definitions of the words to dispose
of or disposition in law. To
dispose of means to part with, alienate or sell.....
Applicant's Submission
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Learned counsel Mr. J.
Sullivan, for thlicant, submitted that s.186 (2) must be read so as to
be inclusive rather
than exclusive of the many powers that a donor may
donate in a power of attorney. He said that all those powers may be
registered under the section. The power to dispose of interest in land is to
be regarded as only one of the many powers that
may be donated and
registered. He submitted that the wording of Form 20, made under the section
supports his submission.
He asked the Court to note that refusing to
register for example power to acquire land would be undesirable to people in
commerce.
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Courts Inteation of S. 186
(2)
For the proper appreciation of
both the submissions, of the plaintiff and of the defe, I quote here
s.186 .186 (2) and
Form 20 made under s.186 (3). s.186 (2) states:
(2) Upon the applon of the
donor or the donee of a power of attorney wney which contains any power to
dispose of any interest
in land, such power of attorney shall be entered in
the register of powers of attorney and the original, or with the consent
of
the Registrar, a copy thereof certified by the Registrar, shall be filed in
the file of powers of attorney.
<
Form 20es:
FORM 20
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SOLOMON ISLANDS
THE LAND AND TITLES ACT (Cap.
133)
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Power of Attorney
(Section 207)
I*/The*
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(full name and occupation or
other description of individual or name of corporation)
<
of (address)
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HEREBY APPOINT(S)<
(full name and occupation or
other description of individual or name of corporation)
of (address)
to be my*/its* attorney and
generally in relation to my*/its* interest in the land desc described in the
Schedule hereto to
do anything and everything that I*/the* myself*/itself*
could do and for me*/it* and in my*/its* name to execute all such
instruments and do all such acts, matters and things as may be necessary or
expedient for the carrying out of the powers
hereby given.
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(NOTE. --- If the power is to
be limited to particular acts only, delete everything after the word
"attorney"
above and set out below what powers are to be conferred).
DATED at this day of 19�.
SIGNED by the Donor}
In the presence of: }
Signature if Witness:
Name of witness:
Address:
I certify that the above �named
appeared before me at on
this day of 19 , and I have
satisfied myself as to his */their* identity [he */they* being
identified to me by* (insert name and address of person identifying, if
applicable)
and >and that
he */they*
freely and voluntarily signed
and appeared fully to understand this instrument.
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Seal or stamp of office
(Signature and descriptioperson
(if any) completing
verification certificates
An Authorised Officer.
*Delete the it/i>
alternatives which are inapplicable.
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�In the case of a corporation,
substitute usual form of words recording the due affixing of its seal.
I do not accept the submission
of Mr. Sullivan that the wording of 20 allows for inclusion of n of
unidentified, non specific
land and of powers other than the power to
dispose, so s.186(2) is to be interpreted, in conformity with the wording of
Form 20. The reason for my rejecting the submission is a technical one. Form
20 is made by the authority of s.186(3); it
is therefore a delegated or
statutory instrument, its meaning cannot govern the meaning of any provision
in the Act itself,
rather the Form and what it means must be governed by the
provisions of the Act. It may well be that the meanings attributed
to
s.186(2) and to Form 20 are consistent, that does not mean that the meaning
of the wording of Form 20 can be used
to justify what s.186(2) means. The
form is subsidiary to s.186(2). Moreover, one may warn oneself that both the
meanings
attributed to s.186 and of the wording of Form 20 could be wrong.
The wording of s.186(2) is, in
my view, ambiguous if the section is read on its own. The opposing
submissions of both
counsel would seem plausible if the subsection is read
in isolation of the provisions in the other subsections of s.186 and
of the
whole Act.
I think that the interpretation
to be given to s.186(2) must come from the wording of the suhe subsection
itself. If
the wording leaves the subsection open to more than one meaning,
as I think it does here, the other subsections of s.186 should
be examined,
and if no clarification is found, the other sections, 180 to 187, in the
same part XVI of the Act should be examined, and thereafter, if need be, the
whole Act.
My view is that the words, " a
power of attorney which contains any power to dispose of any interest in
land, ........"
tend to the interpretation that, should the powers in a
power of attorney include parting with interest in land in any way,
the
power ought to be registered; the words stop short of excluding registration
of other powers. I also consider that
the provision in subsection (1) lends
support to the meaning that powers of attorney that donate powers other than
power
to dispose may be registered. The subsection instructs the Registrar
to, "maintain a register of powers of attorney.........;
it does not
restrict the register to maintain register of only powers of attorney that
dispose of interests. Moreover,
other sections of the Act such as ss. 180,
181 and 106 do emphasize the need to have in official record disposition of
interests. S.186(2) seems to exhibit the same special emphasis in protecting
owners of interests against unauthorised disposition
of interests in land.
The interpretation that this Court gives to s.186(2) is that while s.186(2)
does require that a
power of attorney that donates power to dispose of any
interests be registered, the subsection does not prohibit the power
of
attorney from including in it other powers such as power to acquire
interests; it does not exclude the registration
of powers of attorney which
donate powers to deal with land other than by disposing of land.
Description of the Land in the
Power of Attorney
The second reason given by the
strar for refusing to register Mr. Beverley's power of atto attorney is
stated in the letter
of the Registrar dated 5.5.1997, to Sol-Law. The
relevant portion states:
"This is a reply to your
letter of 7/3/97.
I do not entirely agreed (sic) with your view because Solomon Islands have
no Power of Attorney Act. The provision
of Power of Attorney in Section 186
of the Land and Titles Act is therefore there for a purpose and that is to
dispose registered interest in land. And to described (sic) that registered
interest in land, its legal name must be given and the legal name is its
parcel number."
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With due res I think the
Registrar erred in saying that the parcel number of the land, the subjecubject of
power of attorney
in s.186, must be stated. It is not stated so in
subsection of s.186. A description of a category or categories of land is
good enough, in my view, because when the time comes for donees to
act; that will be the time for them to identify the land most
specifically and accurately, usually by parcel numbers or other numbers. The
point had been raised by the Registrar before in the case of The
Estate of Sunny Wunsan Tong (Deceased), HCCC 32 of 1991.
Chief Justice Ward ordered the Registrar to register the power of attorney
notwithstanding, thereby in
effect holding that here need not be, "specific
reference to the land." The decision of this court is that the description
of the land about which Mr. Beverley donated power of attorney, which
description he set out in the "schedule"
to the power of attorney executed
on 4.3.1997, sufficiently complies with Form 20 and indeed with the
requirement of
s.186(2). The Registrar erred in not accepting the
description of the land.
Seal
I of the letters of the
Registrar, he questioned the use of a seal by Mr. Beverley on
his
power of attorney. The query is baseless: Mr. Titiulu must have seen no
substance in it; he did not include it in
his submission.
Mas
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Mr. Beverley asked the Court to
grant order of mandamus compelling the Registrar to register Mr. Beverley's
power of attorney.
It might be argued that this is a case against the Crown,
(the state) therefore mandamus is not available against the Crown,
because
the effect of granting the order of mandamus would be to authorise the
relief of specific performance, a relief
which by reason of s.18 of the
Crown Proceedings Act, Chapter 7 of the Laws of Solomon Islands, is not
available against the Crown.
Mandamus is an order requiring
an act to be carried out. In the pa was a prerogative of the Cthe Crown and
so the Crown
could not exercise it against itself. Mandamus is now an order
of the Court, albeit a discretionary one - see Order 61 of the
High Court
(Civil Procedure) Rules, 1964. Its effect can indeed amount to injunction
order or to specific performance
order, neither is available against the
Crown by reason of s.18 of the Crown Proceedings Act. It is, however, now
settled law that mandamus can issue against an officer of the Crown where
the obligation is that
of the officer and not something that only the Crown
itself may do. It may be made against an Officer of the Crown who is obliged
by statute, to do some ministerial act; or against a subordinate tribunal to
carry out its adjudication, but not to adjudicate
to a particular result. In
this jurisdiction, Sunny Wunsan Tong's Case is an example in point.
Ward CJ ordered the Registrar of Titles to register a power of attorney.
Other examples are the
cases of Mark Maesimae -v- Trade Dispute Panel,
HCCC No 281 of 1997 and George Kuper -v- Trade Dispute Panel,
HCCC No.257 of 1997. In the two cases this Court ordered the Chairperson of
the Trade Dispute Panel to decide the trade
disputes heard before her. Note
that the orders were not for her to decide to particular results. In England
some of
the cases that illustrate the power to order mandamus against
servants of the Crown are: R v IRC, Re Nathan [1884] UKLawRpKQB 10; 12 Q.B.D. 461, and
Metropolitan Police Commissioner, Ex Parte Blackburn [1968] 1 All E R
763. In the Metropolitan Police Commissioner's case it was decided
that mandamus would issue requiring the Commissioner to enforce a Gaming
Act, but for the fact that
the Commissioner timeously offered to enforce the
Act. An order of mandamus is available when a person is charged with duty
to
carry out public duty and he has failed upon demand by a person whose
interest is affected. There must be a legal right to the duty to be carried
out, the duty must have been demanded unsuccessfully and there is no
specific or effective or convenient remedy available
for the failure to
carry out the duty.
In this case s.186(2) imposes
on the Registrar the duty to register powers of attorney such as the one
presented by Mr.
Beverley. The Registrar has refused to register the power
and there has been at least two demands from Mr. Beverley's solicitors
on
the Registrar to act. The failure cannot be redressed by payment of money
and I am unable to see any effective remedy
other than an order of mandamus.
There are no facts upon which I may decline to exercise discretion to order
mandamus.
I grant the application of Mr. Beverley and order mandamus
requiring the Registrar of Titles to register the power of attorney
executed
by Mr. John Henry Bowden Beverley, dated the 4th day of March 1997, as
required by s. 186(2), now 207 of the
Lands and Titles Act.
The Proceeding and Costs
This case was commence
29.10.1997 by writ of summons, a surprising proceeding in this sort of case
whe where interpretation
of statute is the only issue and the facts founding the
case are not in dispute. Leave to commence proceeding for the order
of
mandamus was granted on 31.10.1997 by Palmer J under rule 2 Order 61 of-the
High Court (Civil Procedure) Rules. Proceedings for orders of mandamus,
prohibition or certiorari can only be commenced
by leave. After obtaining
leave, solicitors for Mr. Beverley filed a notice of motion application on
27.11.1997. From
there on they actually abandoned their writ of summons; all
the steps they took showed that they changed proceedings. They
did not
obtain leave of court or even direction. That step in the conduct of the
proceedings was irregular in any view.
Mr. Titiulu for the Attorney General
was generous about the irregularity he did not take point about it. He may
have
been anxious to proceed speedily to obtaining the interpretation of s.
186(2) from the court to guide the Registrar once and
for all. No prejudice
was occasioned to the respondent, except that he had to unnecessarily attend
to the writ of summons
and related papers. The Court condones the
irregularity, the proceedings may be regarded as application proceedings.
Costs occasioned in the proceedings before the notice of motion application
was filed is excluded from the costs awarded to
the applicant, save that
costs of the ex parte application under r2 O 61 is included. Mr. Sullivan
did not submit on
the application that costs be on indemnity basis. I see no
reason for such costs. I order costs in favour of the applicant
on party and
party basis.
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I am inclined to make
observation here that far too many cases are being brought to court against
the Registrar of Titles
and the Commissioner of Lands. In most of the cases
they even do not appear in court. I understand that they usually do not
even
let the Attorney General know about the legal contentions taken to Court,
the Attorney General learns about the
cases from litigants after they will
have filed the cases in Court. Attorney General is the Chief Legal Officer
of the
Government. His legal advice should be sought to avoid unnecessary
court cases. Sometimes costs and embarrassment may be avoided
if early
advice of the Attorney General is obtained.
Delivered this Wednesday the 7
day of April 1999
Sam Lungole-Awich
Judge
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