Billy v Daokalia [1995] SBCA 5; CA-CAC 001 of 1995 (27 October 1995)

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NATURE OF JURISDICTION	Appeal from order of the High Court of Solomon Islands (Muria CJ) ordering rectification of the Register of Perpetual Estate and Leases in the Registry of Lands and Titles.
COURT FILE NO.	Civil Appeal Case No 1 of 1995
DATE OF HEARING:	30 August 1995
DATE OF JUDGMENT:	27 October 1995
THE COURT:	KIRBY P., SAVAGE JA, PALMER JA
PARTIES:	WALTER BILLY V PAUL DAOKALIA AND OTHERS
ADVOCATES: Appellant (Billy): Respondent (Daokalia & Others):	B. Titiulu T. Kama
KEY WORDS:	REAL ESTATE - rectification of register - mistake - alleged misinterpretation by Registrar of earlier decision of HC Court by Registrar - held: Decision strictly inter partes - no evidence of mistake - later decision warranted entry in register - no basis for rectification - appeal allowed. JUDGMENTS & ORDERS - dispute over land - whether earlier decision inter partes or in rem - held: Binds only parties to litigation. WORDS & PHRASES - "mistake".
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Allowed
PAGES:	32

REAL PROPERTY - Register of Perpetual Estate and Leases - rectification of Register - demonstration that registration was done by mistake - whether registration mistaken or open to Commissioner of Lands - meaning and operation of Land Regulation (Cap 49), Land and Titles Ordinance (Cap 56) and Land and Titles Act (Cap 93) - effect of earlier decision in 1959 case in High Commissioner’s Court - whether that decision misunderstood or misapplied in decision in 1961 case in High Commissioner’s Court - differing parties to 1959 and 1961 cases - whether decisions confined to parties to them - whether determination by Commissioner of Lands was contrary to 1959 decision and void - whether party claiming registration was sole registered owner on behalf of his tribe of perpetual estate in disputed land - held: (by the Court): (Setting aside the order of the primary judge which had upheld the contention of mistake and ordered correction of the register): (1) The decision in the 1959 case had operation strictly inter partes and did not bind the appellant, who was not, nor were his privities, party to the litigation. Talasasa v Paia and Anor [1980-1981] SILR 93 (HC); Lilo v Panda and Lilo v Ghotokera [1980-1981] SILR 155 (HC) applied; (2) It was inherent in the 1961 decision that the Court found that the appellant’s ancestors had first come to settle the land in dispute and rejected the argument of the earlier settlement by other claimants; (3) Such a finding was open to the Court in the 1961 case and was properly taken into account by the Commissioner of Lands in considering the claim of the appellant to be lessor of the land in question; (4) Such finding was not challenged within the time available for challenge and should be taken to bind the respondents on notice of it; (5) By s 52(20) the Land and Titles Ordinance, then applicable, the land was deemed to be vested in the lessors, including the appellant; (6) Upon repeal of the Land and Titles Ordinance, of the Land and Titles Act (Cap 93) s 239(3) deemed the registration of the appellant’s interests in the Perpetual Estate Register and Lease Register to have been effected under that Act; (7) Such registration ought not to have been disturbed and no mistake had been shown attributable to the knowledge of the appellant at the time of the original registration; (8) Accordingly, the order for the rectification of the Register should be set aside and the original registration restored and confirmed in favour of the appellant.

JUDGMENTS & ORDERS - in rem - inter partes - proceedings as to disputed ownership of land held under native title - successive proceedings in High Commissioner’s Court in 1959 and 1961 cases - different parties to successive proceedings - apparent inconsistency between findings in proceedings as to ownership of land - whether earlier finding binds later hearing between different parties - whether decision in rem or binding only upon the parties to the litigation - held: (by the Court): The earlier litigation being between different parties bound only those parties and the judgment was confined to one inter partes. Talasasa v Paia and Anor [1980-1981] SILR 93 (HC) applied.

This appeal raises the crucial question of whether the learned Chief Justice committed an error of law in granting the order sought in paragraph (1) of the Notice of Motion, which sought inter alia that there be:

“Rectification of the Register of Perpetual Estate and Leases in the Registry of Lands and Titles in respect of Parcel No. 151-008-1 by cancelling the name of the Second Defendant from the register on the ground that the inclusion and the registration of the name has been done by mistake.”

“There shall be an order as sought in paragraph (1) of the Notice of Motion that the Land Register be rectified so that Second Defendant’s name appearing in the register of the perpetual estate and leases in the Land Registry in respect of Parcel No. 151-008-1 be cancelled.”

The Second Defendant, referred to by his Lordship, was the Appellant in this case, Walter Bili (known in the title to the proceedings as Walter Billy).

There is also another issue raised, which related to a procedural matter in which the Appellant submitted that the learned Chief Justice had committed an error of law in concluding that the Appellant had failed to file any defence within the time limits prescribed. This issue can be shortly disposed off first.

The original writ of summons was filed way back on 18 May 1989, with a statement of claim endorsed in the writ, which simply stated that the claim was for rectification of the land register in the Perpetual Estate Parcel No. 151-008-1, by cancelling the name of the Second Defendant (Walter Bili), on the ground that the Second Defendant’s name had been obtained by mistake. This writ was indorsed as being served on the 25th of May, 1989.

A memorandum of appearance was subsequently entered by the Second Defendant on the 30th of August, 1989.

On the 23rd of November, 1989, a Notice of Motion for Judgment was filed on behalf of the Plaintiff on the ground that the Second Defendant had failed to file a defence.

On the 12th of December, 1989, there appears to be a hearing, attended by the Plaintiff’s Solicitor, Mr Tegavota, but not of the Defendants. The court gave an extension in that hearing of a further 14 days within which to file a defence, and replies if any, 14 days after.

Nothing much seems to have occurred in the interim period, until on the 23rd of November, 1990, there was a notice of change of solicitor, filed, in which Mr Kama replaced Mr Tegavota.

Again nothing much appears to have taken place until the 5th of March 1993 (some three years later) when a summons seeking inter alia, leave to amend the Writ of Summons and Statement of Claim was filed.

A further amended summons was filed on the 1st April 1993, seeking an additional order for joinder of (the Joint Owner of the Perpetual Estate in parcel 151-008-1), Lobongwane, as a Plaintiff in the action.

On the 8th of April 1993, the court granted the orders sought in the summons and amended summons, and directed that the amended Writ of Summons and Statement of Claim to be filed within 14 days and service of the Writ and Statement of Claim to be effected 14 days thereafter.

The amended Writ and Statement of Claim was filed on the 16th of April, 1993, but not served until the 1st of July 1993, due to the difficulty in locating the Second Defendant it seems.

There was then a further amendment of that Writ by Order dated the 8th of October, 1993, in which the Plaintiffs were replaced by the Administrator of the Estate of Lobongwane (deceased).

There was a memorandum of appearance filed on the 3rd of November, 1993 and a defence filed on the 10th November, 1993. These however were clearly out of time.

The Plaintiff therefore was entitled to file a fresh Notice of Motion for judgment for failure to file a defence within the prescribed time limits. Whether such a notice was filed or not is not clear.

On the 1st of July 1994, however, the court proceeded to deal with the case on a trial of the issues. In his synopsis of arguments, Mr Kama conceded this point. What seems to be the position therefore, is that although the Plaintiff’s could have applied for judgment on a technical point, it consented to a trial of the case before the learned Chief Justice on the merits. Any default as to time must be taken to have been waived. This appeal point therefore did not raise any matter of significance and should be dismissed.

It is important to bear in mind that the claim of the Plaintiff in the High Court (Respondent in this Court), was made pursuant to section 209 of the Land & Titles Act (Cap. 93) for rectification of the land register.

“S.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 Act, 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.”

Under subsection 209(1) the Plaintiff’s claim for rectification is based on the ground of mistake. Subsection 209(2) however imposes a restriction to rectification, in the case where an owner is in possession, and had acquired the interest for valuable consideration, unless that owner had knowledge of the mistake in consequence of which the rectification is sought.

There are two essential grounds therefore set out in the above subsections which the Plaintiff must necessarily establish to the satisfaction of the Court. These are, (i) the fact of a mistake and, (ii) the fact of knowledge of that mistake by the owner.

In its Statement of Claim, at paragraph (11), the Plaintiff bases its allegation of mistake on the finding of a single arbitrator, when he held on the 22nd of August, 1961 that Walter Bili (the Second Defendant) was the landowner of SUIFAU LAND (see pages 158 & 159 of the Records for copies of the Arbitration decision).

In turn, they allege that that finding of the single Arbitrator was based on an erroneous interpretation of the judgment of the High Commissioner’s Court in civil case 3/61 between, Walter Bili, Wanikau and Kwaifiia (plaintiffs) against Arumae, Funilifue and Fauele (the 1961 case). The culmination of those mistakes resulted in the erroneous cancellation of the Lease of the 17th November, 1960 (which lease had been entered into as a result of the 1959 case), and the execution of a new Lease dated the 26th of May, 1962. That new Lease replaced the 1960 Lease and was made between the Commissioner of Lands and Walter Bili. The plaintiffs allege that this was a continuation of the above mistake until it was sealed in the inclusion and registration of Walter Bili as one of the joint owners in the said land. The plaintiffs say that Walter Bili’s name should never have been included and that it was a mistake.

As to the second element of knowledge, at paragraph 13 of the Statement of Claim, they allege that the plaintiffs knew about the existence of the mistake after the Customary Land Appeal Case decision on 15th March, 1985 (some 15 years after registration had been effected). More will be said about this point later.

The relief sought by the plaintiff as set out in the Statement of Claim is as follows:

“a) Rectification of the Register of Perpetual Estate and Leases in the Registry of Lands and Titles in respect of Parcel No. 151-008-1 by cancelling the name of the Second defendant from the register on the ground that the inclusion and the registration of the name has been done by mistake.

The declarations sought in paragraphs (b), (c) and (d), in particular paragraph (b), are quite crucial to the rectification question sought in paragraph (a). In fact, the rectification issue is closely bound up with the declaration sought in paragraph (b) above. To be more precise, as we perceive the plaintiff’s claim, the declaration sought in paragraph (b) is determinative of the question of whether a mistake had been committed or not. More will be said about the civil case no. 7/59, (the 1959 case), between Misitana and Arumae, and the 1961 case, but for now it is sufficient to point out, that in order for the allegation of a mistake to hold out, the status and effect of the 1959 case needed to be ruled upon by the court. This is because as far as the plaintiff’s claim is concerned, the 1959 judgment was the final decision on the question of ownership over SUIFAU LAND, and as such it was binding on the Second Defendant, despite the fact of a later case between Walter Bili and Arumae; (the 1961 case). Accordingly, they say that the sole owner was the plaintiff, (Lobongwane), who was the successor of Arumae and representative of their line, and therefore only his name should have been registered in the Perpetual Estate and Lease Registers in Parcel 151-008-1.

In the High Court, the learned Chief Justice held that there had been a mistake committed in the inclusion and registration of Walter Bili as one of the Joint Owners of the Perpetual Estate and Lease in parcel 151-008-1.

It is important to identify the various cases and leases referred to in the judgment of the primary judge.

The history of litigation over the land identified initially as LR. 495 and then later as LR. 580, called ‘SUIFAU LAND’, goes back to a case heard by the High Commissioner’s Court in 1959, numbered CC.7/59 (herein-after referred to as the ‘1959 case’), (see page 136 of the Record of Proceedings for a copy of that judgment).

The parties in that case were Arumae and Misitana, each representing their respective lines, or landholding groups. In that case, the court was required to decide, “the precise and particular ownership” of the above land, whose boundaries had been clearly delineated and agreed upon by the parties. The judgment of the court went in favour of Arumae, and his relative Funilifue as the sole owners of the said land.

Subsequent to that court case, a lease dated 17th November, 1960, was drawn up purportedly, under the then Solomons Land Regulation (Cap. 49). Which section of that Regulation was relied on was not specified. This ambiguity was quite significant because that gave rise to a further hearing, this time between a new landholding group, represented by Walter Bili, Wanikau and Kwaifiia as the plaintiffs, against the same defendant in the 1959 case, Arumae, Fauele and Funilifue on behalf of their line. This was civil case no. 3/61 (herein-after referred to as the 1961 case), (see page 93 of the Record of Proceedings for a copy of that judgment).

It is interesting to note that the original claim of the plaintiffs in that case, was that they were the sole owners by native customary law of the land in dispute and that the defendants had no interest in it. Unfortunately or fortunately, the claim was amended to a claim for a declaration in the following manner:

The significance of that amendment may not have been appreciated at the time it was made, but regrettably, it has been in our view the major contributing factor, if not, the sole cause of the confusion that had since arisen as between the parties. Bearing in mind that the subsequent lease, or the intended lease of the said native land was going to be made pursuant to the provisions of the Land Regulation (Cap. 49), it is pertinent to note that under that Regulation, the Resident Commissioner was required to satisfy himself after due inquiry, as regarding the title of the owners. He can then enter into a Lease with the owners after obtaining their consent.

The role or the part played by the 1959 case and the 1961 case can therefore be better understood in the light of the requirements of the Land Regulation (Cap. 49), that it was a step in the right direction towards ascertaining the title of the native land owners, before entering into a lease with them. To that extent, it may be argued that the amendments caused to the original claim of the plaintiffs in the 1961 case, did not do justice to the pertinent questions of ownership which the Court should have directly addressed. More will be said on this later.

Subsequent to the judgment in the 1961 case, the Acting Commissioner of Lands cancelled the Lease of the 17th November, 1960 under the Land Regulation (Cap. 49), (see page 161 of the Records). That cancellation was dated 28 March 1962. The defendant Arumae also executed a certificate consenting to the cancellation of that lease (see page 162 of the Records of Proceedings).

A new lease was then executed under the Land Regulation (Cap.49), dated 26 May 1962, between the Commissioner of Lands and Walter Bili (see page 164 of the Records).

The reasoning of the learned primary judge went as follows. The 1959 case clearly established the defendant, Arumae and his relative, Funilifue, as the sole owner of Suifau Land. The 1961 case on the other hand, did not make any finding of ownership as between the parties to that case. It was merely a statement of opinion as to the rights of the parties. He held therefore that the 1961 case did not disturb Arumae’s right of ownership over Suifau Land, which had been conferred by the 1959 case.

Accordingly, he held that the cancellation of the Lease between Arumae and Funilifue, and the Government, by the Acting Commissioner of Lands on 28 March 1962, on the ground that the 1961 case had adjudged that Arumae and Funilifue did not have the proper right under Native Customary Law to demise the land, as being erroneous.

“With respect, I find the then Acting Commissioner of Lands reason for the cancellation of the 1960 Lease devoid of merit. It was clearly contrary to the decision of the Court in the 1961 case.” (see para.4 of p.4 of the judgment).

His Lordship then went on to find that the mistake was compounded when a new lease was executed on the 26th of May, 1962, and the “Lessor”, Walter Bili, was described as “owner by way of Native Custom and principle Land Chief”. There was no such finding in the 1961 case.

“Again with respect, there is no way in the decision of the Court in the 1961 case that says that Walter Bili was the owner of the land in question by way of Native Custom nor is there any mention that Walter Bili was the principal “Land Chief” over the area concerned. In fact the Court clearly found on the evidence that it was unable to find an instance in which the plaintiff Bili has in fact exercised any authority as “Land Chief” over the land in dispute. Clearly the drafter of the lease had misconstrued the decision of the Court in the 1961 case”. (see last para. of p.4 and top of p.5 of judgment).

The primary judge further found that the 1962 Lease (26 May 1962), was replaced by another lease entered into on the 4th of April, 1967.

“To add to the complication that had already occurred through the misconception of the decision in the 1961 case, the 1962 Lease was replaced by a lease entered into on 4 April 1967. This time the lease was between Walter Bili and Lobongwane as “Lessors” and Commissioner of Lands as “Lessee”. Walter Bili and Lobongwane had been registered as joint owners of the land. Why Walter Bili and Lobongwane had been registered as joint owners of Suifau or Su’ufou land, LR.580, Parcel No. 151-008-1. I do not know. But it is clear, though, that the registration of Walter Bili and Lobongwane as joint owners of the land in question is one that cannot find support for it either under CC.7/59 or CC.3/61. Again this is a clear evidence of the mistake which had been committed by the then Commissioner of Lands arising out of his erroneous interpretation of the Court’s decision in CC.3/61”. (see second para. p.5 of judgment).

The reference by the primary judge to a lease of the 4th April, 1967 unfortunately is erroneous. The lease referred to we think is the Lease dated the 3rd December, 1969 (see page 168 of the Records of Proceedings, and page 172 for the date). What may have confused the primary judge was the reference at Clause 1 to the Recital to that Lease (page 168 of the Records), which referred to an “Agreement for Lease made on the 4th of April 1967”. That is quite separate and distinct from the Lease of the 3rd December, 1969, which lease at page 170 of the Records of Proceedings, (Clause 5 of that Lease) stated expressly that it shall have the effect of cancelling the lease of the 26th May, 1962. So when his Lordship referred to a lease of the 4th April 1967 as replacing the 1962 Lease, that was not correct.

It was pertinent to the hearing before the primary judge and this Appeal Court to take particular note of the relevant legislation in which the registration of the Perpetual Estate and the Lease were done. In the Perpetual Estate Register, (this is at p.196 of the Appeal Records) at page 1, Entry Number 1, in the column headed “Observations (Nature of Instrument, Consideration, etc.)”, the following is recorded: “First Registration under s.52 of Cap. 56”.

Also in the Lease Register, (p.199 of the Records) page I, Entry Number 2, under the same column as above, the same reference is made to section 52 of Cap. 56; which was the Land and Titles Ordinance then in force at that time. See also clause 2 of the recitals of the Lease dated 3rd December, 1969, (this is at p.168 of the Records), there is a reference to the same provision of the Land and Titles Ordinance; section 52. What is clear from the above information is that, the registration of Walter Bili and Lobongwane had been effected pursuant to section 52 of the Land and Titles Ordinance (Cap. 56). And so bearing in mind that this rectification action had been instituted under the current Land and Titles Act (Cap. 93), the relevant legislation to be scrutinised are the Land and Titles Ordinance (Cap. 56) and the current Land and Titles Act (Cap. 93). The relevant provisions in turn under the Land and Titles Ordinance (Cap. 56) are sections 51 and 52. The reason is obvious. The initial steps taken to effect registration of Walter Bili and Lobongwane as joint owners had been instituted under the former Land and Titles Ordinance (Cap. 56) under section 52. Registration however could not be completed under the former legislation because on the 1st of January 1969, the current Land and Titles Act came into force. By virtue of the Transitional Provisions, however, in particular section 239(3), the proceedings for lease under section 52 of the former Land and Titles Ordinance (Cap. 56), were permitted to be continued under the current Act.

“Any proceedings ....for purchase or lease under section 52, .... of the repealed Ordinance, and subsisting immediately before the commencement date, shall be continued until termination under the said ... section 52 ... (which provisions shall for this purpose be deemed to continue in full force and effect) and the registration of any interest resulting therefrom shall be deemed to have been effected under this Ordinance.”

Section 51 of the Land & Titles Ordinance (Cap. 56), as amended by the Land & Titles (Amendment) Ordinance, 1963, makes provision for native customary land to be sold or leased to the Commissioner of Lands.

“Notwithstanding any current native usage prohibiting or restricting such transaction, native customary land may be sold or leased by the owner or owners thereof (according to current native usage) to the Commissioner of Lands.”

Section 52 (as amended by the Land & Titles (Amendment) Ordinance 1963, is a very long and elaborate section, containing some twenty-six or so subsections. In essence, it sets out the procedure for purchase or lease of native customary land by the Commissioner of Lands; in this case it is references to lease that is relevant. Any new lease therefore which the Commissioner of Lands wished to enter into, after the 1st of February 1963 (date on which Part IV of the Land & Titles Ordinance (Cap. 56) came into force), was governed by the provisions of the Land and Titles Ordinance (Cap. 56), in particular sections 51 and 52.

The Land Regulation (Cap. 49) under which the lease of 26 May 1962 was purportedly made was repealed by the Land and Titles Ordinance (Cap. 56) (see the Third Schedule to that Ordinance), on its commencement on the 1st of February, 1963. By virtue of the Transitional Provisions, section 144 and the Second Schedule to that Ordinance, the Commissioner of Lands could have applied for registration, as the owner of that leasehold interest, under paragraph 2 to the Second Schedule. Now what is clear is that he did not do that. Instead he sought to effect registration under the provisions of the new Land and Titles Ordinance (Cap. 56), under Part IV of that Ordinance. We are therefore required to scrutinise the provisions of that Ordinance carefully.

“Whenever the Commissioner of Lands wishes to purchase or to take a lease of any native customary land pursuant to section 51, he shall enter into a written agreement for such purchase or lease with the vendors or lessors or with some person or persons acting, in accordance with current native usage, on behalf of the vendors or lessors.”

Subsection 52(26) of the Land & Titles Ordinance (Cap. 56), defines the term “the lessee” as meaning the “Commissioner of Lands”, and, “the vendors” and “the lessors” as meaning “the persons purporting to be the owners of, and to sell or lease, the land”.
(emphasis added)

Now, a crucial question, which is pertinent to this appeal is how such a written agreement for purchase or lease is entered into? This is not spelled out in the Ordinance. It may be that the Commissioner of Lands may have had some previous dealings with the tribes or land-owning group over a particular piece of land, and so was able to identify who the purported owners may be. It may be that a particular land-owning group may have approached the Commissioner of Lands earlier, and convinced him that they were the owners. It may be that the Commissioner of Lands may have conducted some preliminary enquiries and come to some sort of understanding or conclusion, that a certain group, or groups of people, were the land-owners. Having so satisfied himself it seems, he would then enter into a written Agreement for purchase or lease with those persons.

In the particular circumstances of this case, a crucial question to consider (which question was not raised before the primary judge), was as to how the Commissioner of Lands purported to enter into an “Agreement for Lease” of the 4th April, 1967, under section 52(1) of the Land and Titles Ordinance (Cap. 56), with the “Lessors”, Walter Bili and Lobongwane. To a certain extent, it was similar to the puzzling question asked by the learned primary judge at page 5 of his judgment, where he asked:

“Why Walter Bili and Lobongwane had been registered as joint owners of Suifau or Su’ufou land, LR. 580, Parcel No. 151-008-1. I do not know.”

At least we know how Walter Bili and Lobongwane had been registered as joint owners; through the provisions of section 52 of the Land and Titles Ordinance (Cap. 56). The puzzling question as to the reason why, their names had been included for registration however would be considered next.

No evidence has been directly adduced (obviously because the above question was not addressed and raised) in the High Court, as to what considerations, evidences, judgments or orders of any court, statutory declarations or any other relevant document, that the Commissioner of Lands took cognisance of, before entering into that written Agreement (under section 52). However, it is fairly obvious that there had been prior dealings over the same piece of land, as evidenced by the various leases that had been executed, (lease of the 17 November, 1960, and lease of the 26th May, 1962), and two court judgments; the 1959 case and the 1961 case. The Commissioner of Lands therefore would have had the benefit of those judgments, leases and other relevant documents, to assist him first, in identifying the ‘purported owners’, before entering into such an agreement with them; in this case it was with the “lessors”; Walter Bili and Lobongwane.

What is important to bear in mind is that this is a statutory function set up under section 52 of the Land and Titles Ordinance. Secondly, the focus of the parties and the Courts as to the question of mistake must necessarily be confined to the exercise of those functions of the Commissioner of Lands, for the reason that the inclusion and registration of Walter Bili as one of the “lessors”, had been specifically made by the Commissioner of Lands, in the exercise of the said functions. In this regard we will consider next the various documents before the Commissioner of Lands and their significance.

The crucial documents which the Commissioner of Lands would have been obliged to have regard to obviously, were the 1959 and 1961 judgments. To what extent he should take cognisance of those judgments and give effect to, in the exercise of his functions, is the next important question to ponder. Is he for instance, bound by the judgment in the 1959 case? From what had been earlier said in this judgment, about the way the primary judge had ruled, his decision was something to the effect that the 1959 case bound the parties, in particular Walter Bili, despite the existence of the 1961 case and therefore, it follows that it would be binding as well on the Commissioner of Lands, as to the question of ownership of Suifau Land; that the sole owner was Arumae (on behalf of his line), and that therefore the only name that should have been registered as the “Lessor” should have been “Lobongwane”, the true successor of Arumae and representative of his line.

This crucial point was indirectly raised in ground 5(b) of the Notice of Appeal. It is important therefore to address this point carefully. We will now turn to consider the two judgments in some detail.

“to decide the precise and particular ownership of a piece of land the boundaries of which have been marked and agreed with both parties and which in the course of argument has generally been referred to as “Suifau land”.”

The parties to that case were two individuals, Misitana (plaintiff) and Arumae (defendant), each on behalf of his line. The judgment of the court went in favour of the defendant, Arumae and his relative Funilifue, as the sole owners.

Is the judgment in the 1959 case a judgment in rem and therefore binding on the world at large, or a judgment inter partes?

The way the claim had been worded in that case would give the impression that whatever judgement was given was a judgment in rem, because it was addressing the status of Suifau Land as to its ownership. However, before such a conclusion is hastily reached, a number of objective points can be noted.

First, is the fact that a second and separate case was heard in 1961 over the same piece of land involving a separate party; Walter Bili, Wanikua and Kwaifiia. By order dated 7th June, 1961 (see p.107 of the Records), the court ruled that Walter Bili, Wanikua and Kwaifiia were entitled to take legal proceedings against Arumae and his line.

If one looks at the 1961 case, it will be noticed that the original claim was as to the question of ownership as between those parties. Now if the 1959 case had been seen or regarded by the court then as a judgment in rem, then surely it would not have given leave or allowed a further hearing over the same land on such questions of ownership. The judgment of the 1959 case would have been binding on Walter Bili, Wanikua and Kwaifiia, and therefore they would have been estopped from initiating any further proceedings on the question of ownership over the said land.

Secondly, and this is closely related to the first point, were the reasons given for permitting a fresh or new case to be heard in 1961. These were that:

(i) The proceedings in the 1961 case are not between the same parties to the 1959 case or their privies.

It appears to have been conceded, that Walter Bili is not related to the Plaintiff, Misitana, who was the loser in the 1959 case. This has been clearly brought out and can be noted in both judgments. In the 1959 case, Misitana traced his ancestry to Fuleigau. In the 1961 case, Walter Bili traced his ancestry or line to Laubako. There is no evidence in the 1961 case to show that Laubako and Fuleigau may have had in turn a common ancestry or were closely related to each other. There was no evidence to show too that Walter Bili was a privy to Misitana’s claim in the 1959 case. What is also important to note is that the claim of Walter Bili is separate and distinct to the claim of Misitana. Although the question considered in the 1961 case was related to questions of ownership over Suifau Land, it was a separate claim by a separate land-owner.

When those two objective facts are considered in their context, they point more in favour of an interpretation of the 1959 judgment, as a “judgment inter partes”.

Then we have the approach of the courts in this jurisdiction to such judgments. The High Court, in the cases of Talasasa -v- Paia and Another (1980/81) SILR 93; and Lilo -v- Panda, and Lilo -v- Ghotokera (1980/81) SILR 155, took the view that such judgments were “judgments inter partes” on the grounds that in the Solomon Islands context, native customary land cases usually involved the specific interests of a line or land-holding group, in a particular piece of land, as opposed to the interests of another line. This approach appears not to have changed.

This court is content to rule that for the reasons given above, the 1959 case should be seen as a “judgment inter partes”.

The hearing of the 1961 case was conducted before a court of competent, but equal jurisdiction, to the court which heard the 1959 case. Each judgment was of equal legal status. The issue which has caused some confusion, is as to which judgment should prevail; and with specific reference to the functions of the Commissioner of Lands, under s.52, which of those judgments should he follow or accept, or both.

The decision of the primary judge on this point was that the judgment of the 1959 case prevailed over and above the 1961 case, on the basis that the question of ownership conferred on the defendant, Arumae, in that case had never been displaced by the judgment in the 1961 case.

With respect that was erroneous, for the following reasons. First, as earlier pointed out, the judgment in the 1959 case was a “judgment inter partes”. Its binding authority therefore must be limited to Misitana and his line. The court at that time took the view that it did not bind Walter Bili, Wanikua and Kwaifiia, on the grounds that they were not parties with nor privies to Misitana in the 1959 case. Also that the issues were not the same. The 1961 case therefore was a new, separate and distinct case to the 1959 case. The only link was that the dispute was over the same piece of land and against the same defendant in the 1959 case. The plaintiff however, was different and the basis of his claim of ownership, or as amended, his rights over that land, were different and distinct to Misitana’s. The judgment of the 1961 case therefore should not be linked to the judgment in the 1959.

Secondly, the questions or the claim (as amended) which the court eventually accepted to consider were not worded in exactly the same terms as the claim in the 1959 case. There was no obvious reason given, as to why the court did not adopt the description of the claim in the judgment of the 1959 case and to deal with the 1961 case on the same basis. The real bone of contention remained the same; that of sole ownership as against Arumae over that land and vice versa. That original claim regrettably was watered down to the declarations sought in the judgment, (see p.93 of the Records, at paragraph 3).

It is this Court’s view that the 1961 case was heard and judgment given in its own right, and that judgment should stand on its own terms for what it states.

Thirdly, the 1961 judgment needed to be scrutinised carefully and understood properly before any conclusion should be reached as to its true import and effect.

As earlier pointed out, the original claim of the plaintiffs was that they were the sole owners by native customary law of the land in dispute whilst the defendant had no interest in it.

“The plaintiffs originally alleged that they were the sole owners by native customary law of the land in dispute and that the defendant Arumae has no interest in it.” (see p.93, paragraph 3 of the Records).

That claim fortunately, or unfortunately, was amended for declarations as follows:

“i. The plaintiff WALTER BILI is during his lifetime, by the native customary law applicable, the land chief or authority of the land situated at Suifau on the Island of Malaita (which land is defined in the statement of claim in the original proceedings and which is shown on the sketch plan, Exhibit A in these proceedings, which plan has been agreed on by the parties), and

Although those were the claims of the plaintiffs, as summarised by the court in its judgment, there was also a mention at the bottom of page 1 of the judgment, (see page 93, bottom paragraph - clear copy available in court file at top of page 2 of that judgment), of a counter-claim formulated by the defendants and put forward to the court for its consideration.

“The defence put forward consisted of a denial of Bili’s claim and the formation of a counter claim that the defendant Fauele was the ‘land chief or authority’ by reason of his descent (also through the eldest son on the male line) from an ancestor KEROMEA and that it was Keromea and not Laubako who was the original “holder” (to use a neutral word) of SUIFAU. The defendants also averred that they and others claiming through them were the only ones who had interests in the land.”

The status of this counter-claim was not expounded upon, and not clarified, as to whether a declaration too would need to be made in respect of them, depending on how the court would rule on the plaintiff’s claims. It would seem though, that having formally raised it in its judgment, the court was obliged to address it where required.

The court then examined the state of the evidence before it, and made the following findings. As to the first declaration sought by the plaintiff, the court found that there was insufficient evidence to justify granting it. However, the court did make a finding on the evidence before it, “that Bili’s ancestors first came to settle the land in dispute”, and rejected the assertion that Faule’s (Arumae’s line) did so.

We feel it is important to point out here, that although the three declarations sought had been declined, and that one might think that that was the end of the matter, we are firmly of the view, that the reasons given and whatever findings on evidence have been made, in support of those reasons, are strictly part of the ratio decidendi of that judgment and therefore would be binding on the parties to that case, as comprising part and parcel, of the reasoning of the court, which led to its refusal to grant the declarations sought.

Secondly, by reason of the counter-claim put forward, it was all the more necessary to consider the reasons of the court, and that these should be viewed too as forming part of the ratio in that judgment.

At page 2 of the judgment, paragraphs (6) and (7) (see p.94 of the Records), the court found that Arumae and his family had had gardens on the land since they were pagans. The court also found on the evidence before it, that other people not of the plaintiff’s family or line, had exercised interests through long use on the land without reference to Walter Bili.

The court then said at page 3, last paragraph of its judgment (see p.95 of the Records),:

“However, notwithstanding such a finding, I am not prepared to make the declaration sought. I do not consider that such a declaration could be made with justice in the circumstances of this case. The plaintiffs have failed to show on the balance of the evidence that they alone have interests in the land or that Arumae has none. Nor, in my judgment, does my conclusion that Bili’s ancestors were the original ancestors justify the declaration sought. I exercise my discretion and refrain from making it. Although, on the evidence, I will not make the declaration sought it may be of advantage if I add that on the evidence it is clear that the plaintiffs in this action have some rights in the land which the law may recognize and that the defendants should not, in seeking to exercise the rights they may have ignore the plaintiffs right.”

Having refused the declarations sought by the plaintiffs, the court went on to explain why this was so. Three reasons were given as contained in the passage quoted.

(i) The court found on the balance of the evidence, that the plaintiffs had failed to show that they alone had interests in the land, or that Arumae had none.

(ii) The court found on the evidence that the plaintiffs in that action had some rights in the land which the law may recognize and which the defendants should not ignore.

(iii) Indirectly, the court was also saying that the defendants had rights in the land as well.

The significance of these findings are all the more important when weighed against the back drop of the counter-claim of the defendants. These were:

(i) that the defendant Fauele was the ‘land chief or authority’ by reason of his descent from Keromea;

(iii) that the defendants were the only ones who had interests in the said land.

When the judgment of the court is considered carefully, it will be observed that the court found against the defendants as to the first part of their counter-claim. At paragraph 3 of page 2 of the judgment (see p.94 of the Records), the court stated:

“On the evidence before me in this case I find as a matter of fact that by the native customary law applicable to the land (and that in my carefully considered view is the appropriate test here) the land chief or authority has certain powers and authority in respect of the land in question. In so holding I accept the evidence of Bofata (P.W.4.) on the point. I also accept the evidence of that witness that certain members of the line having interests in that land can exercise the rights conferred on them by the customary law without any need to seek the land chiefs permission but that strangers should seek that authority.”

Having clarified that the land chief or authority exercised certain powers and authority in respect of the land in question, the court went on to consider at the last paragraph of the same page, evidence relating to a number of persons and their line who had been working in the land prior to 1947.

“The plaintiff Wanikau spoke of the people Bofata’a, Fale, and others whose line he did not know working in the land prior to 1947 and neither the plaintiffs and defendants showed that they did so with permission.”

“At this point it is germane to record that I disbelieved Fauele when he asserted that he had given such permission. I find that the people in question, doubtless in days when today’s pressure for land was absent, did use and enjoy the land without objection, on Wanikau’s evidence”.

A logical conclusion that can be reached on this is that, the court indirectly was saying that it did not accept Fauele’s counter-claim as the ‘land chief or authority’. Or putting it another way, if the court had accepted that Fauele was a “land chief or authority” then there would have been acceptable evidence before the court to support this claim. The only evidence it seems placed before the court by Fauele, unfortunately, was not believed by the court.

As to the second part of the counter-claim, the court clearly ruled against that as well. See page 3 of the judgment (p.95 of the Records) at the first paragraph, the court made the following observations:

“I turn now to consider the evidence of Fauele as to the genealogy of his line and of the claim that his ancestors and not those of Bili were the original settlers on the land in question. I did not regard Fauele as a witness whose evidence could be accepted without reservation. I go no further. The evidence of his genealogy, like Bili’s was based solely on his own recounting of what he said his father had told him and it may well be a good account of the principal son of each generation. I do not, however, regard it as proving that his and not Bili’s ancestors were the original settlers on SUIFAU.”

“On the balance of the evidence I find myself unable to find otherwise than that Bili’s ancestors first came to settle the land in dispute, and reject the assertion that Fauele’s did so”.

As to the third part of the counter-claim the court did not make any finding that the defendants were the only ones who had interests in the said land. All that the court said in the last sentence of its judgment was:

“....that the defendants should not, in seeking to exercise the rights they may have, ignore the plaintiffs rights”.

There is no mention in the judgment that the defendants had exclusive rights or interests over the said land. If there were, then the Court would have said so, because it was specifically raised in the counter-claim. The Court was content however, to merely state that “the defendants should not in seeking to exercise the rights they may have ignore the plaintiff’s rights”. The Court was silent as to the extent and priority of the defendant’s rights or interests as raised in its counter-claim.

To suggest therefore that the 1961 case can be ignored or brushed aside as of little significance is with respect, incorrect. To go on and say that the 1959 judgment prevailed over and above the 1961 judgment and bound Walter Bili, Wanikau and Kwaifiia as to the question of ownership over Suifau Land is clearly erroneous. The declaration sought therefore that the judgment of the 1959 case was the final decision on the ownership of Suifau Land and that it bound the Second Defendant should have been dismissed.

The next crucial question that should be considered then is whether the Commissioner of Lands was bound by the 1959 case over and above the 1961 case? The answer to a certain extent is a foregone conclusion. If the 1959 judgment had bound the plaintiff in the 1961 case, that is Walter Bili, Wanikau and Kwaifiia, then the Commissioner of Lands, in the exercise of his functions would have been obliged to give effect to that decision. As pointed out earlier in this judgment, however, that judgment was effective and binding, as between Arumae and his line, as against Misitana and his line. However, when it came to the question of ownership, or interests, or rights, over the said land as between Walter Bili, Wanikau and Kwaifiia of the one part, and Arumae, Faule and Funilifue of the other part, then the Commissioner of Lands was obliged to take into account the judgment of the 1961 case. Did he do that? We are of the view that he correctly considered the terms of the judgment of the 1961 case before coming to a decision as to who the “lessors” should be. His identification of Walter Bili and Lobongwane as the “lessors” in our view correctly reflected the findings of the Court in the 1961 case.

Has there been an error committed by the Commissioner of Lands in the exercise of his function under section 52 of the Land and Titles Ordinance (Cap. 56)?

We feel this is the more correct question to consider when addressing the issue of whether a mistake had been committed or not. We note that directly, this question had not been considered. Indirectly however, it had been considered as canvassed in this judgment.

Bearing in mind the conclusions reached by this court, we do not find evidence of any error having been committed by the Commissioner of Lands, in the exercise of his function under section 52 of the Land and Titles Ordinance (Cap. 56), when he entered into a written Agreement of the 4th April, 1967 with Walter Bili and Lobongwane as the “Lessors”. We do not find evidence of any error of law committed in the signing of that Agreement. We are of the view that the decision of the Commissioner of Lands to enter into an agreement with Walter Bili and Lobongwane on behalf of their lines, was consistent with the judgments of the 1959 and 1961 case. But, even if there had been any mistake committed by that Commissioner of Lands (which we do not find evidence of), we are of the view that ample opportunity would have been given to any person, including the representative of Arumae’s line, Lobongwane, to address, challenge or have that mistake corrected in the period stipulated for such purposes under the Land and Titles Ordinance (Cap. 56). Subsection 52(6) of the Land and Titles Ordinance, makes provision for any person claiming that the said land, or any part of it was not owned by the lessors (in this case it would apply to Walter Bili and his line), to lodge a claim to the District Commissioner or Commissioner of Lands, and if disputed by the Commissioner of Lands, may appeal to an adjudication Officer under subsection 52(9). (More will be said about this subsection later). The time period allowed for this was three months. No evidence has been adduced that any such claims were lodged by Lobongwane on behalf of his line, to protect their so-called exclusive interests, rights, or sole ownership over the said land.

The answer is yes. See clause (1) in the Recital to the Lease dated 3 December, 1969 (page 168 of the Record of Proceedings). That clause referred to an “Agreement for Lease made on the 4th day of April 1967”.

Unfortunately, no copies of that “Agreement for Lease” appear to have been filed in evidence by either party, though it is presumed that such a copy should be available in the Office of the Registrar of Titles, relating to the Original Title Deeds documents in Parcel 151-008-1. However, that omission is not fatal because the recital does tell us that the “Lessors” who agreed to grant the lease were the same “Lessors” in that lease agreement of the 3rd December, 1969, and described as Walter Bili and Lobongwane. Further Clause 2 of the recital to the lease expressly stated that the Lessee (Commissioner of Lands) had complied with the statutory requirements of Section 52. There is therefore a very strong presumption that such an agreement was executed, unless there is evidence to the contrary, and with respect we find there is none. Also the principle in omnia presumuntur rite esse acta would apply here.

(a) Subsection (2) to (8) of Section 52 are relevant and so will be quoted in full.

“(2) The agreement shall specify, as accurately as the circumstances of the case may permit, the situation, area, and general boundaries of the land.

(3) As soon as may be after the agreement has been made, the purchaser or lessee shall-

(a) cause the boundaries of the land to be surveyed and marked out so far as may be necessary to bring them to the notice of the public;

(b) cause notices of the agreement, in the prescribed form, to be posted in prominent positions on or near the boundaries of the land;

(c) take such other steps as may in the opinion of the purchaser or lessee be necessary or expedient to bring the agreement to the notice of all persons who may wish to claim that the land, or any part of it, is not owned by the vendors or lessors.

(4) In the case of a purchase or the taking of a lease by the Board, it shall, after it has performed the duties imposed on it by subsection (3), by resolution fix a date (not being a date earlier than the date of such resolution) on which the performance of those duties shall be deemed to have been completed.

(5) In the case of a purchase or the taking of a lease by the Commissioner of Lands, he shall, after he has performed the duties imposed on him by subsection (3), by order fix a date (not being a date earlier than the date of such order) on which the performance of those duties shall be deemed to have been completed.

(6) As soon as may be after the order referred to in subsection (5) has been made, the purchaser or lessee shall cause notices thereof, in the prescribed form, to be posted in prominent positions on or near the boundaries of the land.

(7) It shall be the duty of the purchaser or lessee to assist any such person as is referred to in paragraph (c) of subsection (3), being a person whose claim is disputed by the purchaser or lessee, to institute an appeal in the manner provided by subsection (9); but a failure by the purchaser or lessee to perform this duty shall not give rise to any cause of action.

(8) An order made in pursuance or purported pursuance of subsection (5), shall not be questioned, in any proceedings whatsoever, on the ground that on the date when the order was made, or on any later date, the performance by the purchaser or lessee of the duties imposed by subsection (3) had not in fact been completed.”

The above subsections set out in clear and plain terms the statutory requirements which the Commissioner of Lands must follow. It is important therefore that he complies with them. No evidence has been filed or adduced pertaining to the question whether those requirements have been complied with, but one would presume that any relevant documents would be kept in the Original Title deeds in parcel 151-008-1, in the Office of the Registrar of Titles, and can be discovered if a search is done. The apparent lack of evidence in our view is not fatal, because in Clause 2, of the recital to the Lease, of the 3rd December, 1969, there is a clear statement of compliance with those statutory requirements.

“2. The Lessee has complied with the statutory requirements of Section 52 of the Land and Titles Ordinance relating to the said Agreement for Lease and has not been served with any notice within the statutory period prescribed for appeal by any person claiming that the land or any part of it is not owned by the Lessors.”

No evidence has been adduced to the contrary, and accordingly it is our view that Clause 2 above, together with the omnia presumuntur rite esse acta rule, sufficient to show that the statutory requirements imposed by those subsections had been complied with.

(b) (i) Subsections 52(9) and (10) are crucial appeal provisions enabling a hearing to be conducted before an adjudication officer.

(9) “Any person who claims that the land, or any part of it, is not owned by the vendors or lessors may, if his claim is disputed by the purchaser or lessee, appeal to an Adjudication Officer.

(10) An appeal shall be instituted by serving on the purchaser or lessee or on the District Commissioner (who shall forthwith forward the same to the purchaser or lessee) a notice in the prescribed form within three calendar months from the date specified in the order referred to in subsection (5), as the case may be.”

Again Clause 2, to the recital of the lease dated 3 December, 1969, is pertinent. The latter part of Clause 2 makes it plain that the Commissioner of Lands, “... has not been served with any notice within the statutory period prescribed for appeal by any person claiming that the land or any part of it is not owned by the Lessors”. Without more, the above statement is sufficient evidence in our view that no claim whatsoever had been lodged by any person under subsection 52(9).

This would explain why there appears to be no evidence of any hearing being conducted by an Adjudication Officer. If Lobongwane and members of his line were of the view and did not agree with the inclusion of Walter Bili as one of the “Lessors”; that is, one of the persons purporting to be the owners to lease the said land, (in other words, that Suifau Land or any part of it is not owned by Walter Bili and his line,) then why did they not lodge a claim to the District Commissioner or the Commissioner of Lands, as provided for in section 52(10) above, within the stipulated period of three months? They could not argue that they had no notice of that Agreement? They were a co-signatory to that Agreement.

Further, on the 3rd day of December, 1969, the day the Lease was also executed, Lobongwane together with Walter Bili executed a statutory declaration in which they both acknowledged at paragraph 1. that:

“all the beneficial interests in the said parcel of land are owned by the members of the LAUBAKWA and FIUOMEA land-holding group.” (A certified copy of that statutory declaration is available in the court file).

If Lobongwane was of the view that Walter Bili and his line did not own the said land or any part of it, then why did he execute a statutory declaration which acknowledged and recognised Walter Bili and his line as one of the owners of the said land? With due respect, to the claim of the Plaintiff in the High Court, the time to challenge the actions of the Commissioner of Lands was in the stipulated period of 3 months in 1967; not now.

(c) Subsection 52(17) is a further appeal provision “to the Court” (the High Commissioner’s Court), and includes subsections 52(18) to subsection 52(22) - not relevant.

“Any part of the land in respect of which no appeal has been instituted shall for all purposes whatsoever be deemed to be owned by the vendors or lessors immediately upon the expiration of the time limited by subsection (10) for instituting an appeal.”

As evidenced by Clause 2 of the recital to the lease of 3 December, 1969, no appeal had been instituted, after the stipulated time period and accordingly by virtue of subsection (20), ownership of Suifau Land was deemed to be vested in the Lessors, Walter Bili and Lobongwane, on behalf of their lines.

“(23) Within three months after the land or any part thereof has become deemed to be owned by the vendors or lessors, the agreement if not previously rescinded under the provision of subsection (25), may be implemented -

(b) in the case of a lease of the land, by the lessee paying to the lessors any premium or rent payable on the making of the lease and by both parties executing the lease in the terms of the agreement;

and if the agreement be not so implemented, the vendors, in the case of a purchase, and the lessors or the lessee, in the case of a lease, may, within one month from the date of expiration of the said three months and if the agreement has not been rescinded institute proceedings for and obtain from the Court a decree for the specific performance thereof in the manner aforesaid.”

Having been deemed to be the owners of Suifau Land by virtue of subsection (20), subsection (23) in turn makes provision for the implementation of the Agreement of the 4th August 1967. This appears to be the last stage in the functions to be performed by the Commissioner of Lands, before registration can be obtained.

(i) that the lessee (Commissioner of Lands) pay to the lessors any premium or rent payable on the making of the lease;

As regarding the first requirement, there is clear evidence of compliance at Clause 1 of that lease dated 3 December, 1969.

“The rent reserved is one hundred and twenty-two dollars Australian ($A122.00) per year payable in advance on the 1st day of January each year, and the lessors hereby acknowledge receipt of the first payment thereof.

As to the second requirement, there is also evidence of compliance as stated in Clause 2 of the recital to that same lease of 3 December, 1969, and also including the application of the omnia presumuntur rite esse acta rule.

Before moving on to the final stage of proceedings under subsection (24)(b), it is appropriate to make reference here to subsection (25). It reads:

“The purchaser or lessee may, with the consent of the High Commissioner, rescind an Agreement at any time before proceedings for specific performance thereof have been instituted, if it appears to the purchaser or lessee that any part of the land is not owned by the vendors or lessors and that it would be inexpedient to purchase or to take a lease of the remainder of the land”. (emphasis added)

This is quite an important subsection, because down to the last stage of the proceedings, before implementation of the Agreement, the Commissioner of Lands could rescind the agreement, if it appears to him that any part of the land is not owned by the lessors. This subsection in our opinion acts as a safety valve. The significant point to note about this in relation to this case is that, had any claims or objections been lodged even after the expiry of the three months time limit prescribed under subsection (6) and (9), the Commissioner of Lands would still have been obliged to consider them. But even up to that stage, no claim or objection was ever raised by Lobongwane. It is rather late to do so now.

“In the case of a lease, the Registrar shall, on receipt from the Commissioner of Lands of the lease referred to in subsection (23)(b) and upon preparation of the registry map, register the lessor as the owner of a perpetual estate in land and the Commissioner of Lands as the owner of the Lease.”

There is no dispute that both Lobongwane and Walter Bili were registered as joint owners of the perpetual estate in parcel 151-008-1. It can be safely presumed therefore, unless there is evidence to the contrary, (and there is none), that the registry map marked the completion of a long and elaborate process through which the Commissioner of Lands had to go through before final registration of the lessors could be effected.

Both the Perpetual Estate Register and Lease Register of Parcel Number 151-008-1 were opened on 21 May, 1970, and on that same day registration was completed under section 52 of the Land & Titles Ordinance (Cap. 56), of Walter Bili and Lobongwane as joint owners of the Perpetual Estate and Lease in Parcel 151-008-1.

As already pointed out earlier, the Land and Titles Ordinance (Cap. 56) was repealed under the current Land and Titles Act (Cap. 93) when it came into force on the 1st of January 1969. By virtue of the transitional provisions, in section 239(3) of the Land and Titles Act (Cap. 93), the registration of the above interest in the perpetual estate register and lease register were deemed to have been effected under the Land & Titles Act (Cap. 93).

The primary judge was led to his conclusion by the failure on the part of the parties and their Counsels, to conduct a thorough search and inspection of all the relevant documents retained in the custody of the Registrar of Titles, and a superficial understanding of the relevant legislation and lack of in-depth research being done. The primary judge was thus mis-led by the pleadings in the Statement of Claim, and by the way the parties have conducted their case.

To summarise, the following errors have been identified in the judgment of the learned primary judge as warranting this appellate court’s intervention:-

(i) The learned primary judge erred in holding that the finding of ownership in the 1959 case over Suifau Land as between Arumae, on behalf of his line, and Misitana on behalf of his line, was binding on Walter Bili and his line. The 1959 case was binding on Misitana and his line but not on Walter Bili and his line. The original question of ownership, but as amended, of interests and or rights, over Suifau Land as between Walter Bili and Arumae, must necessarily be confined to the findings of the Court in the 1961 case, which Court specifically sought to address and describe their interests and or rights, over the said land. It must necessarily be borne in mind that the real reason why the original question of ownership was amended was due to what the court said was ambiguity in the meaning of the word “owner” in the context of a claim in respect of land under native customary law, not because there had been a prior judgment in the 1959 case on the question of ownership over Suifau Land and that therefore it bound Walter Bili and his line in the 1961 case. This distinction is quite important to grasp, because it sets the framework of the 1961 case. So that even though the word “owner” is not used, the way the declarations had been worded sought to bring out a similar intended result in the claim of the plaintiff, and the counter-claim of the defendant. It was therefore an error inherent within the judgment of the learned primary judge to make out that the judgment of the 1959 case bound the parties in the 1961 case. The judgment of the 1961 case stands on its own terms as the judgment of a competent court with equal jurisdiction, and must be understood within its proper context. Also, it is pertinent to point out that the more accurate question is whether the 1959 judgment and 1961 judgments bound the Commissioner of Lands in the exercise of his statutory function, to give effect to them, and to what extent.

(ii) Although it is accepted that the lease of the 26th May, 1962 may not have correctly reflected the judgment of the 1961 case, it is not correct to say that there was a continuation of the same mistake on to the subsequent lease, of the 3rd December, 1969. We point out here as we have done in the judgment that there is no such thing as a lease of the 4th April, 1967. References to such a document by the parties in the High Court and by the primary judge are incorrect.

The Lease of the 3rd December, 1969, was not a continuation of the 26th May, 1962 Lease. If it was, then the Lessor should have remained as Walter Bili. That Lease of the 3rd December, 1969 (the 1969 Lease), was clearly different to the Lease of the 26th May, 1962 (the 1962 Lease), in that the Lessors were identified as Walter Bili and Lobongwane on behalf of their respective lines. Further, that Lease had been drawn up pursuant to the provisions of the Land and Titles Ordinance (Cap. 56), whereas the 1962 Lease had been drawn up pursuant to the provisions of the Land Regulation (Cap. 49); which section in particular is relied on however, is not clear. The procedure set out under the Land and Titles Ordinance (Cap. 56) was more elaborate and detailed.

There is no evidence to say that the Commissioner of Lands did not correctly perform his functions as set out under the Land and Titles Ordinance (Cap. 56). For the reasons already stated in this judgment, he was not bound by the 1959 judgment, to give effect to it in preference or priority, over the judgment in the 1961 case. The least he was required to do was to consider both judgments in their proper context and according to law, and to give due effect in that regard. There is no evidence to show that he had committed any error in entering into such an Agreement to lease (of the 4th April, 1967), with the “Lessors”, Walter Bili and Lobongwane. But even if there had been any error, the doctrine of waiver would appear to be a formidable defence. The Plaintiff (Lobongwane) failed to exercise his rights provided for under subsection 52(6) and (9) of the Land and Titles Ordinance (Cap. 56) within the stipulated time period. This is further strengthened by the subsequent execution of the Lease dated 3rd December, 1969 (some two years after the Agreement for Lease had been entered into in 1967), by Walter Bili and Lobongwane. See also the statutory declaration by Walter Bili and Lobongwane, dated the 3rd December, 1969, in which Lobongwane also acknowledged inter alia, that:

“1. all the beneficial interests in the said parcel of land are owned by members of the LAUBAKWA and FIUOMEA land-holding group.

Also note the operations of subsection (25), which can be relied on by the Commissioner of Lands to rescind the Agreement even before the implementation stage of the Agreement is reached, but which show that even at that stage, no objections or claims were raised by Lobongwane.

(iii) Subsection 52(1) as read with subsection (26) required only that the Commissioner of Lands deal with, relevantly, “lessors” and lessors mean “the persons purporting to be the owners”. All that is required therefore of him under those subsections would be to ensure that the persons he was intending to enter into a written agreement for lease with, do fall within the crucial requirement of “persons purporting to be the owners”.

Does Walter Bili fall within that category? The word “purport” as defined within the context used in subsection (26), meant:

“To convey, imply, or profess outwardly; to have the appearance of being, intending, claiming” (see Black’s Law Dictionary, Sixth Edition).

In the Oxford Advanced Learner’s Dictionary, it is defined as: “be meant to seem (to be); claim or pretend.”

Looked at objectively, the evidence available to the Commissioner of Lands was more than sufficient in our view, to warrant the course which the Commissioner of Lands took in registering the interest of the Appellant. On the other hand, if Lobongwane had been of the contrary view, then he had the opportunity to challenge that under subsections (3)(c), (5) and (9) of Section 52. He did not do that and must be held to have waived his right.

The above requirement was over looked by the parties in their submissions and thereby mis-led the learned primary judge into not taking into account a relevant consideration, if not, the crucial relevant factor, and thereby committed an error of law.

(iv) At the last paragraph of page 5 and top of page 6 of the judgment, the primary judge made the following findings as to subsection 209(2) of the current Land and Titles Act (Cap. 93).

“I pass onto deal briefly with subsection 209 of the Act. That provision does not allow rectification of the Land register so as to affect the title of an owner in possession “unless such owner had knowledge of the .... mistake in consequence of which the rectification is sought, or caused such .... mistake or substantially contributed to it by his act, neglect or default”. I have seen the evidence produced at the hearing of this matter, particularly Exhibit “AD12” to the affidavit of Andrew Daomaoma which clearly shows that the second defendant had been advised that the 1961 case did not confer on him the right of ownership over the land. The Government Agent, Malaita, Mr. E.C. Brooks confirmed in his memorandum of 7 July 1976 that he explained to the second defendant that the Court in the 1961 case did not give judgment in his favour. In 1984, the CLAC Malaita in CLAC No. 9/84 followed the decision of the Court in CC7/59. In 1986 the Provincial Legal adviser to Malaita Province gave similar opinion in writing a copy of which was sent to the second defendant. Although these advice and explanations were given to the second defendant after the registration of the perpetual title in his and Lobongwane’s names, they clearly show that some other person was entitled to the ownership of the land in question before the registration. The second defendant’s actions in standing firm on his claim of ownership over the land despite the advice, explanations and Court decisions have continued to allow the erroneous registration of his title to the land to continue to remain on the land register with full force. In my opinion, to allow such error as that occurred in this case by a public official to enjoy the full force of the law is an injustice to be perfected.”

First, the true intent and purport of subsection 209(2) must be understood. Subsection 209(2) is a protective clause. It is consistent with the doctrine of indefeasibility as expressly contained in section 100 of the Land and Titles Act (Cap. 93), and therefore is protective of the title of a particular type of owner. That title is protected if,

(ii) acquired the interest for valuable consideration. The key however which can unlock that protective clause is threefold:

(ii) caused such omission, fraud or mistake; or substantially contributed to it by his act, neglect or default;

The primary judge held that Walter Bili had knowledge of the mistake and referred to document Exhibit “AD12” in support (see pages 201 & 202 of the Records). That document however is dated the 22nd of June, 1976, some six years after registration had been effected. Other documents referred to by the primary judge as evidencing knowledge were all dated after the 22nd of June 1976. The only piece of evidence pleaded by the Plaintiffs in their Statement of Claim referred to a Customary Land Appeal Case decision of the 15th March, 1985, (see para. 13 of the Statement of Claim).

A crucial question which must be clarified relates to the time period when such owner had knowledge of the mistake. Is it inclusive of knowledge after registration, that is, when possession had been obtained and the interest acquired for valuable consideration, or, must it necessarily be restricted to the time period prior to and at the time possession was obtained and interest acquired for valuable consideration? To give it the former meaning in our view would make the protective arm of that subsection meaningless. Secondly, it must be read in conjunction with subsection (1). That subsection, (1), states inter alia, that the registration may be cancelled or amended where the court is satisfied that “any registration has been obtained, made or omitted by fraud or mistake”.

The claims of fraud or mistake therefore must necessarily be linked to the time when registration was obtained, made or omitted. The knowledge referred to in subsection (2) accordingly, must also be confined to that time period when registration was obtained or made. If the registered owner had obtained possession and acquired the interest for valuable consideration without knowledge of the omission, fraud or mistake, then he is entitled to rely on the protection of subsection 209(2) of the Land and Titles Act.

The primary judge did not consider as an issue, the question whether Walter Bili was an owner in possession and had acquired the interest for valuable consideration. We quite agree and only wish to point out that although Walter Bili’s interest was not acquired for valuable consideration, it was acquired on first registration and as read with the provisions of section 100, he would also be entitled to rely on such protection, provided that the element of knowledge of the mistake cannot be proved to the satisfaction of the court.

In the circumstances of this case therefore, the cut-off point would be the date of registration on the 21st of May, 1970.

Is there any evidence of knowledge of the so-called mistake, prior to 21st May, 1970 on Walter Bili’s part? If there was any traces of a mistake, then that would have been limited to the erroneous interpretations of the 1961 case, by the Commissioner of Lands in the execution of the 1962 Lease (dated 26/5/62), between Walter Bili as Lessor and the Commissioner of Lands as Lessee; and in describing Walter Bili as the “owner by way of Native Custom and principal Land Chief”. However, in the subsequent proceedings initiated under the then new Land and Titles Ordinance (Cap. 56), for execution of the new Lease (1969 Lease), that mistake appears to have been addressed and dealt with when it was cancelled by the 1969 Lease. Walter Bili and Lobongwane were then found to be the Lessors and eventually registered as joint owners of the Perpetual Estate and Lease Registers. There is no evidence to suggest that Walter Bili was told, advised or informed, that he had no interests whatsoever, in particular that he was not the owner or joint owner, over Suifau Land. Rather, the evidence points more to the contrary, that Walter Bili believed that he had rights over the said land. There is no evidence which showed that he was told that the 1959 judgment was binding on him in spite of the findings of the court in the 1961 case. There is no evidence which suggests that he was told about this by the Commissioner of Lands or by Lobongwane when the 1969 Lease was being processed under the provisions of section 52 of the Land and Titles Ordinance (Cap. 56).

The primary judge therefore committed an error when he held that Walter Bili had knowledge of the “mistake”, but which evidence he relied on in support only related to his knowledge after registration; after he had obtained possession and acquired interests over the said land.

Ground 2: This ground should be dismissed to the extent that the learned primary judge correctly pointed out that there was no express finding of right of ownership in favour of the Second Defendant. However, as canvassed in this judgment, that did not automatically imply that the 1961 judgment should be ignored or written off. This Court has sought to make clear what the true import of that judgment was to avoid any unnecessary confusions and uncertainties that may have arisen as to its effect, and also to clarify the significance that should be attached to it.

Ground 4: To a certain extent this ground should be upheld for the reason that whilst it may be correct to say that no express finding of “right of ownership” was made in the 1961 judgment, that Court did expressly find that the plaintiffs in that case had “some rights in the land which the law may recognize”, and which the defendants should not ignore. Whilst it may be correct to say that those rights have not been defined, it does not necessarily imply that those rights can be ignored as insignificant, or be brushed aside by the judgment of the 1959 case. This is all the more important when the counter-claim raised by the defendant is placed in perspective as already covered in this judgment and understood within its context. It does not necessarily follow, and has clearly been erroneous, to then conclude that because the declarations sought had been denied, that that disposed of the plaintiff’s claim in its entirety and must somehow be made subservient to the 1959 judgment; which was a totally separate and distinct case between two separate parties. The 1961 judgment must be treated with the respect it deserves as the sole authority on the question of interests and rights in and over Suifau Land as between Walter Bili and his line, and Arumae and his line.

Ground 5: This should be allowed. This point has been covered at length in this judgment and is included in the first reason given under “Errors Warranting Appellate Court Intervention”.

Grounds 6, 7, 8 and 9: These grounds have been considered in one way or another throughout this judgment and we feel that it would not take the matter any further by considering them in detail.

Finally, the cases referred to by learned counsel for the Respondents (Craddock Brothers v. Hunt (1923) 2 Ch. 136; USA v. Motor Trucks Ltd. (1924) A.C. 196; Joscelyne v. Nissen and Another [1970] 1 All ER 1213;) on rectification of mistakes under the common law have been considered but found to be of little relevance in the particular circumstances of this case where the powers of rectification are circumscribed by statute law.

Having satisfied ourselves of the errors committed by the learned primary judge as pointed out in this judgment, and that they warrant the intervention of this Court, it is accordingly ordered that:

Court of Appeal of Solomon Islands

Billy v Daokalia [1995] SBCA 5; CA-CAC 001 of 1995 (27 October 1995)