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Zulumu v Panisi [2010] SBHC 78; HCSI-CC 314 of 2005 (9 November 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Claim No. 314 of 2009

BETWEEN

JOSES ZULUMU & OBED ALEMAENA
(Representing their family)
First Claimant

And

JOSES LOTE
Representing the family of John Sike)
Second Claimant

And

CLEMENT ETA
(Representing the family of Susan Leni)
Third Claimant

And

ERNEST RUFUS PANISI
First Defendant

And

PATTERSON TEPA
Second Defendant

And

NELSON KILE
Third Defendant

And

EASTERN DEVELOPMENT ENTERPRISES Ltd
Fourth Defendant

Mr Apaniai for the Claimants
Mr Lepe for the First, Second, Third and Fourth Defendants

Date of Hearing: 5th November 2010
Date of Judgment: 9th November 2010

Ruling

1. This is an application by the defendants. It was filed on 13th September this year. It asked for two basic forms of relief; first, the reinstatement of the case, and secondly summary judgment for the defendants and consequential orders. The reason for the first part of the application was because the case had been struck out by the Registrar for lack of prosecution. On the face of it, nothing had happened for 2 years. However, there had been an order made by Brown J on 12th October 2007 adjourning the proceedings pending a Chiefs' hearing. The Chiefs had given their decision but no one had thought to advise the court of progress in the matter. Had they done so the Registrar would have known not to strike the matter out. Be that as it may, I dealt with that part of the application at a directions appointment on 7th October 2010. I set aside the Registrar's order. The proceedings were re-instated.

2. I heard the second part of the application on 5th November. It was disappointing to discover at the hearing of the application, a month after directions had been given, the defendants had not complied with the directions made. On 7th October I ordered any sworn statements to be filed and served by 22nd October. The defendants lodged a sworn statement on 3rd November. I ordered submissions to be filed by 29th October. The defendants lodged theirs on 1st November. I refused leave for the late filing of the sworn statement and submissions. The practical effect of the refusal to grant leave was to exclude those documents from consideration.

3. This case should really be relatively straight forward. It involves a piece of registered land bearing parcel number 071-004-4. The land was transferred by deed dated 20th August 1975 and registered on 4th February 1977. In accordance with section 174(3) of the "old" Lands and Titles Act [then Cap 93] and because it was to be registered in joint names, a statutory declaration was lodged. It seems to be dated sometime in January 1977. The provision in the present Lands and Titles Act [Cap 133] is section 195(3). The title was registered in the names of John Sike, Peasant Farmer of Baolo, Ernest Rufus Panisi, peasant farmer of Kia, Jossece Zulumu, Peasant Farmer of Kia, Patterson Tepa, School Teacher of Kia and Susen Leni, Widow of Kia. All this is evident from the exhibits to sworn statement of the Third Defendant, Nelson Kile, filed as long ago as 25th August 2005[1].

3. There is no evidence we are dealing with the ownership of customary land. 071-004-4 is Registered Land, we are concerned in this case with land registered in the Perpetual Estate register [2]. Section 2 of the Lands and Titles Act would seem to exclude 071-004-4 from being customary land. Nor do I have any evidence that this is land registered as customary land. However, my brother judge, Brown J, decided to refer the matter to the Chiefs. There are no written reasons for his decision so it is not clear to me why that was done. I surmise it was done because the Third Defendant was saying that the Plaintiffs (now Claimants of course), "Were not of his tribe". To my mind, for the greater part of the Claim filed on 29th June 2005, that is an irrelevance.

4. The question of who can be registered as a (trustee) owner of the land is of no consequence. Anyone can be a trustee. It does not matter, legally, who the trustees are. The important point is the land is undoubtedly held on trust. The crucial question is the nature of the cestui que trust set out in the statutory declaration referred to above at paragraph 2. It does not matter who is registered as an owner of the land, whoever is registered as owner holds the land on trust. The copy of the declaration exhibited as "NK 3" [3] is of poor quality but it is plain to see the beneficiaries of the trust property are set out in paragraph 4. I am not sure (because of the quality of the copy) if the next wording is another paragraph or an extension of paragraph 4. Most of the questions asked of and answered by the Chiefs therefore do not have a direct bearing on the claim as it is set out. They do not answer the legal questions and they probably cannot do so as some of the concepts in trust law and equity do not neatly fit into customary law or vice versa. Nonetheless the Chiefs have provided valuable detail about customary usage in the Kia area and that information may be of great value in dealing with some aspects of the claim.

5. As regards the claim relating to the grant of profit and secondary agreement, of some importance, but ignored it seems to date, are the provisions set out in section 195(3) of the Lands and Titles Act. The grant of profit is an interest in land. Was its disposition (it was registered so there must have been a "disposition" caught by s.195(3)) evidenced by a statutory declaration about consultation and agreement? If not then should it have been registered?

6. Are the beneficiaries, or their successors, as set out in the declaration still alive? There is no provision in the declaration made in January 1977 that the beneficial shares are to be held in anything other than equal shares. The beneficial interests are to be held (if I read the declaration correctly), "in accordance with the current customary usage". Does that mean the shares are not equal? I accept that there may be some reason in custom why the beneficial shares cannot be passed on to children or other kin at death, but until the beneficiaries as at January/February 1977 are identified these questions are somewhat superfluous.

7. It is not necessary to make any findings of fact or law on those matters at this stage. However, they are issues which need to be answered and they are very real and serious questions to be tried by the court eventually. These are issues which must be tried. What that in turn means is that I must dismiss that part of the application by the defendants relating to summary judgement, release of the funds and costs. It is premature to consider summary judgement at this stage in the proceeding. The costs of the application shall be paid by the defendants to the claimants, such costs to be taxed if not agreed.

8. I direct that there be a Trial Preparation Conference on a date to be fixed by the Registrar. I suggest that on reading this ruling the parties consult with the Registrar and a date can be incorporated into any order.

9. Before I leave this ruling there is something puzzling me. On file there is a sworn statement by Clement Eta filed 13th September 2010. There is a Clement Eta as Third Claimant. Are these one and the same person? If they are, and whilst I accept there is no property in a witness, was Mr Apaniai consulted?

10. Finally, I have just, in another case, received notice that Mr Apaniai is ill. Rather than delay the delivery of this ruling I will arrange for it to be sent to the parties legal representatives . However, if the parties do want the ruling read in public I will, on Mr Apaniai's recovery, be happy to fix a short hearing and do so.

Chetwynd J

^[1] See exhibits NK1, NK2 and NK3
^[2] See paragraph 2 of the sworn statement of Nelson Kile filed 25^th August 2005
^[3] Ibid