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Bako v Attorney General [2013] SBHC 117; HCSI-CC 294 of 2012 (19 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

Between:

JAMES BAKO (SNR)
Claimant/Respondent
(representing Notere's descendants)

And:

ATTORNEY GENERAL
1st Defendant
(representing the Commissioner of Lands)

And:

ATTORNEY GENERAL
2nd Defendant
(representing the Registrar of Titles)

And:

JANET TANOPIRU, MARY BEHU, JESSIE VEHE and LOUISA VEVELEGA TANOPIRU

3rd Defendants/Applicants

And:

LOUISA VEVELEGA TANOPIRU and GENESI OTALIFIUA
4th Defendants/Applicants

And:

KING STAR LIMITED

5th Defendant

And:

ATTORNEY GENERAL
6th Defendant
(representing the Commissioner of Forests)

Martin Hauri'I : For the applicants/3rd, 4th and 5th Defendants.
R. Firigeni : For 1st, 2nd and 6th Defendants
D. Hou : For the Respondent.

Date of hearing : 12th August 2013
Date of Judgment : 19th August 2013

RULING

Apaniai, PJ:

Application.

1. The 3rd, 4th and 5th defendants ("applicants") seek orders that the claim filed herein by the respondent on 3rd September 2012 be struck out on the grounds that the claim discloses no reasonable cause of action; that it is frivolous and vexatious; and that it is an abuse of the court process. They also seek orders that the application for interim injunctions filed by the respondent on 26 September 2012 be struck out and that the respondent pays the applicants' costs on indemnity basis. The 1st, 2nd and 6th Defendants support the application.
   
2. Unfortunately, the application of 26 September 2012 has already been heard and interim injunctions have been made against the applicants on 26th November 2012. As such, an order to dismiss that application is no longer available.
   

Background:

3. The dealings in the land under dispute herein (previously, PE No. 106-001-1 but now 106-003-1) (the "Land") prior to this application are quite confusing.
   
4. To start with, annexure "SW2" to the sworn statement by Stanley Wale (Commissioner of Lands) filed on 9th August 2013 ("Wale's sworn statement") shows that on the 5th April 1968, the Land, described as "Kobakana island", was registered as a perpetual estate as P/N 106-001-1 in the name of the Commissioner of Lands ("Commissioner"). The Land is located in the south coast of Isabel province. The area was said to be 3.74 hectares[1]. The Commissioner remained as registered perpetual title holder until 16th August 1985 when he purportedly transferred the Land to Hedley Vikasi for a consideration of $4.00. Hedley Vikasi was the son of Martin Goriso who was the brother of Walter Notere[2]. The respondent claims to be the son of Walter Notere, a claim which the applicants now deny[3].
   
5. On 16th November 2011, Vikasi purportedly transferred the Land to the applicants as joint owners for a consideration of $7,000.00[4]. Janet Tanopiru, Mary Behu and Jessie Vehe are the daughters of Hedley Vikasi and Louisa Vevelega Tanopiru is the daughter of Janet Tanopiru[5]. The transfer of the Land from Vikasi to the applicants was therefore a transfer between family members.
   
6. Then on the 14th March 2012, the Commissioner purportedly vested the perpetual title to the Land in himself. The area of the Land then changed to 1,049 hectares and the parcel number also changed to 106-003-1. The vesting order cited sections 66 and 68(1)(a)(iv) of the Lands & Titles Act as the provisions which gave the Commissioner the power to vest the title in himself.
   
7. Unfortunately, those provisions belong to the old Land & Titles Act (Cap. 93). The current Land & Titles Act is Cap. 133 and a careful reading of sections 66 and 68 of Cap. 133 confer no powers on the Commissioner to vest land titles in himself. It appears that the Commissioner might have made a mistake in vesting the title to PN. 106-001-1 in himself on the 14th March 2012. However, whether or not a mistake has been made, that is a matter for trial.
   
8. On the 23rd March 2012, the Commissioner purportedly transferred P/N 106-003-1 to the applicants for no consideration.
   

Issues:

9. A number of questions arise in relation to the various dealings relating to this Land. First, why did the Commissioner have to invest himself with the title on 14th March 2012[6] when he had already divested himself of the title by transferring the PE title to Vikasi on 16th August 1985 and when Vikasi had also already transferred the title to the applicants on 16th November 2011. He no longer holds the PE title. Is this a scheme designed to enable the Land to be transferred to the applicants?
   
10. Second, vesting orders are made only when the land is the subject of an acquisition proceeding. Has there been an acquisition proceeding in relation to this Land prior to the making of the vesting order on 14th March 2012?
    
11. Third, when the Land was transferred to the 3rd defendants/applicants (Janet Tanopiru, Mary Bahu, Jessie Vehe and Louisa Vevelega Tanopiru) on 16th November 2011, the transfer consideration was said to be $7,000.00[7] When the Land was transferred to the same defendants/applicants on 23rd March 2012 after the vesting order on 14th March 2012, the transfer consideration is said to be "Nil"[8]. Which is the true position? Was consideration paid or was it not paid? This is a vital piece of evidence when it comes to deciding whether or not the 3rd defendants/applicants were bona fide purchasers for value without notice, which is likely to be an issue in this case.
    
12. Fourth, annexure "SW2" of Wale's sworn statement shows that when the Land was first registered, the registered area was only 3.74 hectares. When the Land was transferred to the applicants on 23rd March 2012, the area was said to be 1,049 hectares. Who carried out the survey of the boundary and when was the survey carried out? How was it that the area of the Land now came to be 1,049 hectares when the initial area on first registration was only 3.47 hectares? Also, the parcel number on first registration was 106-001-1. Now it is parcel number 106-003-1.
    
13. The speed with which the survey and the registrations were done, beginning with the letter by Louisa Tanopiru for amalgamation dated 26th September 2011, the vesting of the Land in the Commissioner on 14th March 2012, the registration of the Land in the name of the applicants on 23rd March 2012, and the registration of the Grant of Profit in favour of the 4th Defendant that same day (23rd March 2012) – all within a time frame of 6 months – may also be the subject of inquiry. Clearly, these are issues, which will have to be agitated at trial.
    
14. I have pointed to these matters to show that there is no way that this claim could be regarded as an abuse of the court process. It is clear that there are serious issues surrounding the transfer of the Land to the applicants and these are issues for trial. The assertion that the claim is an abuse of the court process could succeed only if it is shown that the purpose of the claim is to achieve an improper end[9]. This case is far from that. I reject the assertion that this claim is an abuse of process.
    

Locus Standi.

15. The remaining question is whether the respondent has standing to institute the claim.
    
16. The applicants say that the respondent has no standing to bring this claim. They say that the respondent is not a true son of Walter Notere. They say that Walter Notere is their grandfather or their great grandfather and they know, and have heard, that Notere was not the father of the respondent.
    
17. However, they do not dispute the fact that the respondent was the son of Mr. Notere's wife, Rebecca Fugo. They do not also dispute that the respondent was born to Fugo during wedlock, that is, during the period when Fugo was married to Notere. Notwithstanding that fact, they say that the respondent's father was someone called Mere Tuku from Samasodu. In other words, they say that the respondent was an illegitimate child.
    
18. Claims of illegitimacy are very serious allegations the truth of which cannot be accepted on the basis of flimsy evidence. In the Australian case of In the Estate of L [10] it was said that there is a rebuttable presumption in law that every child born in wedlock is legitimate. To rebut this presumption, the court will require extremely cogent evidence that will prove beyond reasonable doubt that the child is not that of its mother's husband.
    
19. In the New Zealand case of Ah Chuck v Needham[11], the husband and his wife were of Caucasian stock but the wife subsequently gave birth to a child of Mongoloid appearance. At that time, it was proved that the wife had formed a liaison with a Chinese market gardener. The court held that those facts were not sufficient to rebut the presumption that the child was legitimate.
    
20. In Solomon Islands, the repercussions relating to such claims are so serious that I do not think the standard of proof required in such claim should be anything less than the criminal standard. Where a child is born in wedlock, there is a strong prima facie presumption that the child is that of its mother and her husband. To dislodge that presumption, it must be proved beyond reasonable doubt that the child is not that of its mother's husband.
    
21. In the present case, the evidence in support of the applicants' assertion that the respondent is not a true son of Walter Notere is scanty and is not up to the standard required to find in favour of the applicants. There is no sufficient evidence before me to prove beyond reasonable doubt that the respondent is not the son of Walter Notere. It follows that the respondent has standing to bring these proceedings for it is accepted by the applicants that Walter Notere, who is their grandfather, was a member of their tribe, which owns the land part of which is now the subject of these proceedings.
    

Decision.

22. In the premises, this application is dismissed.
    
23. The applicants shall pay the costs of the application to be taxed if not agreed.
    
24. The Attorney General has supported the application and therefore he must also pay the respondent's costs along with the applicants.
    

THE COURT

_________________________
James Apaniai
Puisne Judge

^[1] See annexure “SW2” to the sworn statement by Stanley Wale filed 09/08/2013 (“Wale’s sworn statement”).
^[2] See exhibit “LT1” to the sworn statement by Louisa Vevelega Tanopiru filed 02/10/12 (“Louisa’s sworn statement”).
^[3] See paragraph 5 of Louisa’s sworn statement.
^[4] See exhibit “SW2”, Wale’s sworn statement.
^[5] See exhibit “LT1” to Louisa’s sworn statement.
^[6] See annexure “SW6”, Wale’s sworn statement.
^[7] See “SW2”, Wale sworn statement.
^[8] See “SW7”, Wale sworn statement.
^[9] Goldsmith –v- Sperrings Ltd [1977] 1 WLR 478.
^[10] [1918] ArgusLawRp 109; [1919] VLR 17, at p. 36.
^[11] [1931] NZLR 559.