Hiva v Mindu [2009] SBCA 22; Civil Appeal 13.2008 (23 July 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	Appeal from Judgment of the High Court of Solomon Islands (Goldsbrough, J.)
COURT FILE NUMBER	Civil Appeal Case No. 13 of 2008 (On Appeal from High Court Civil Case Nos. 316 & 457 of 2007)
DATE OF HEARING	15 July 2009
DATE OF JUDGMENT:	23 July 2009
THE COURT:	Palmer CJ, VP McPherson, JA. Williams, JA.
PARTIES:	RODNEY HIVA & OTHERS
	Appellants
	V
	IVIN MINDU & OTHERS
	Respondents
ADVOCATES:
Appellant:	J Iroga for the appellants
Respondent:	A Nori for the 1st, 3rd, 5th and 6th respondents
	P Watts for the 4th respondent
	P Tegavota for the 7th respondent
	S Woods & D Damilea for the 8th, 9th and 10th respondents
KEY WORDS:	Acquisition of lease of land – whether statutory prerequisites fulfilled – Part V of Land and Titles Act (cap 133) – Acquisition of profit to take trees – whether "lease" of land with Part V of the Act Acquisition outside statutory power. Torrens system rectification of register – mistake or fraud – Acquisition outside statutory power – Rectification of register under s229 (1) of Land and Titles Act, cap133.
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Dismissed
PAGES:	1 - 6

JUDGMENT OF THE COURT

The history of this matter goes back a long way in time. The narrative begins before Independence, in the days of the British Solomon Islands Protectorate. It starts with a Public Notice dated 25 May 1973 published by the Acquisition Officer on behalf of the Commissioner of Lands to acquire some customary land on New Georgia in the Western Province. The Notice purported to be issued under Part V of the Land and Titles Ordinance (cap. 93). That legislation has since become the Land and Titles Act (cap. s.133); but it is the same legislation subject to some recasting of section numbers. Because of this it is convenient to refer throughout to provisions and numbering of the Act rather than the Ordinance.

The Public Notice records that on 25 May 1973 the Acquisition Officer had made an Agreement about the parcel of land to be acquired, which is identified in an accompanying survey map. The parcel is called Choe land because it belongs (or belonged) to the Choe people under customary law. It is one of several different parcels in New Georgia. Those parcels include the Guva land, which is no part of this appeal. The Agreement is said to have been made with the five individuals named at the head of the Public Notice, whom it is convenient to describe as the trustees. They are the appellants in this appeal, although three of the five of them are said to have died since 1973. It is prudent not to inquire too closely as to how deceased persons can validly participate in an appeal. The claim of the appellants to represent the other customary owners of the land, who are the 1st to 6th respondents on appeal, is vigorously contested by those owners. The Commissioner of Lands, the Commissioner of Forests, and the Registrar of Titles are other parties to this appeal.

Having identified the subject parcel land and the Agreement about it, the Notice of 25 May 1973 proceeds to announce that the Agreement is "for the following things to happen...". They are for:

(a) the land to be registered as belonging to "the above people" (the five trustees);
(b) after registration, "these people" would give the Government permission to send a company to cut down the trees on the land;
(c) the Government would pay "these people" an annual sum of money for 15 years for the right to cut down the trees.

It is clear that in the Notice the "above people" and "these people" are the five trustees who are named at the head of the Notice. The Notice then goes on to advise on methods and procedures for objecting to the Agreement, or for saying that the trustees do not own the land, in which event the Acquisition Officer would constitute a court to determine the customary ownership of the land. These are the procedures specified in Division 1 of Part V and especially in ss.62 to 69 of the Act for initiating and disposing of those appeals.

Over the 30 and more years since the Public Notice was published in 1973, there have been various proceedings and appeals by the trustees or those claiming to have succeeded to their rights. Some of those proceedings or their outcomes seem to have been misunderstood by some of the parties to this appeal. For example, there was a decision of the Magistrates Court at Seghe on 3 December 1973, which has been viewed by some of the parties as having determined a claim to ownership of the Choe land. But that is a misconception of the nature of the application that was the subject of that appeal. It was an application by a Mr Davies Ngatulu to be included with the other five persons named in the Notice as an additional trustee. The application was refused. The reason for that decision was that it was not concerned at all with the Choe land included in the Agreement, but only with Guva land in which Mr. Davies Ngatulu admittedly had an interest. He was not a customary owner of Choe land that is the subject of the present appeal.

There is no general provision in the Act allowing for the conversion of customary land into registered title. Part V of the Act is entitled "PURCHASE OR LEASE OF CUSTOMARY LAND...". That Part prescribes a procedure by which purchase or lease of customary land can take place. Section 59 provides that customary land may be sold or leased to the Commissioner of Lands in accordance with the provisions of Division V. Section 60 (1) provides that whenever the Commissioner of Lands "wishes to purchase or take a lease of any customary land" under s.59, he is to appoint an Acquisition Officer to act as his agent in the process. By s62 (b), that Officer is to make a written agreement for purchase or lease of the land required, doing so with the persons purporting to be the owners of the customary land or who are authorised to represent them. When various other requirements of Part V have been fulfilled, the Commissioner "may" (not must) under s67 "implement" the agreement.

In the case of a lease of land, implementation is by s.69 (1) (b) to be effected by the Commissioner:-

"(i) making an order vesting the perpetual estate the land in the persons named as lessors in the agreement;

(i) requiring them to execute a lease in favour of the Commissioner "in accordance with the terms of the agreement";

(ii) paying the rent or premium in accordance with the agreement; and

(iii) taking possession of the land."

If the Agreement is not implemented, s69 (3) provides for the institution by the Commissioner, or by the lessors, of proceedings for specific performance. A period of one year is allowed for this to be done, calculating that period from the dates or times mentioned in s69 (3).

Apart from what appears in the Public Notice of 25 May 1973, there is no evidence of the making of any lease or even an agreement for lease. In this regard it is evident that the prerequisites laid down by s69 (1) (b) closely resemble those for a valid lease at common law. None of those mentioned in the paragraphs numbered (i) to (iv) above has ever been fulfilled in this case. In that regard, it may also be noted that "lease" is defined in s2 of the Act to mean the grant of a right to exclusive possession of land "but does not include an agreement for lease." In the present instance, no lease was ever executed; the duration of any lease was not agreed or fixed; neither was the amount of the rent or premium to be paid. There was therefore not even an agreement for lease here. Possession was not taken by the Commissioner, with the result that, without it, nothing more than an interesse termini could have been acquired at common law. It is difficult to imagine that any court would now grant specific performance of any agreement for lease, having regard to the lapse of time that has taken place since 1973; see Fitzgerald –v- Masters [1956] HCA 53; (1956) 95 C.L.R 420, 428, 434-435. In any event, no such proceedings have ever been instituted by either party. There is therefore good reason to suppose that, as in Fitzgerald –v- Masters, the parties have long since tacitly abandoned any agreement for lease that may have been made. Plainly, the statutory requirements prescribed in s69(1) (b) have never been complied with or completed.

In his reasons for decision that is sought to be set aside on appeal, his Lordship remarked, that, if the acquisition were now to be completed, it would be necessary that it should have fulfilled the prescribed purposes and resulted in a lease vesting the land in the Commissioner of Lands. The learned judge went on to say:

"Neither the purpose expressed in the acquisition process, nor the intended outcomes were within the framework of the acquisition process."

Later, his Lordship added that the process was flawed ab initio, in that it was for a purpose outside the acquisition process. Mr Woods, who appeared on appeal for the 8th, 9th and 10th respondents, supported this reasoning. He submitted that the process adopted here was ultra vires as being beyond the power of acquisition envisaged or authorised by the Act or by ss.8 and 59 of the Constitution. What the Agreement in the Public Notice of 26 May 1973 contemplated was: (b) the grant of a permission to cut down trees on the land, in return for (c) payment of an annual sum of money. A right to go on the land of another to take a substance from it, whether soil or its products, is "a profit" as defined in s2(1) of the Act. It would also amount to a profit à prendre at common law. See 14 Halsbury, 4th ed., paras 240 – 242, at pp 115-118.

A profit at common law or under the Act is an intangible right in land of another that is limited in its scope. It is not a lease or a perpetual estate within the meaning or ambit of Part V of the Act. Part V provides for what is to happen where the Commissioner "wishes" to purchase or take a lease of customary land: see s61 (1) and s62 (b). It does not extend to the acquisition of a mere right in the nature of a profit as defined in the Act or at common law. Attempting to use the Part V procedure to acquire, or as a means to acquiring, such a right is beyond the terms of the statute and therefore invalid. It may well be correct to say that in fact there never was, within the meaning of s61 (1), a "wish" on the part of the Commissioner to purchase or take a lease of the subject land. However, "wish" is an ordinary English word, and it is not necessary or desirable here to encumber it with undue refinements of meaning. The fact is that the acquisition process that was undertaken here was not directed to purchasing or leasing the subject land, but to acquiring only a "profit" in respect of it. As such, it was and is outside the scope of Part V of the Act and is invalid.

On 10 August 2007, the appellants or their successors nevertheless succeeded in being registered in the Perpetual Estate Register as owners of the subject land following a vesting order under s69 (i) (b) (i) of the Act. The process in which this was achieved after all these years since 1973 does not require detailed elucidation. Suffice to say that the 8th, 9th and 10th respondents had originally supported the view that registration was justified because they acted in reliance on advice dated 25 June 2007 from the Acting Attorney-General of that time. The other respondents (the customary landowners) were never consulted about the registration in 2008. Different advice dated 26 February 2008 has since been provided by another Attorney-General that is accepted by the 8th, 9th, 10th and all other respondents to this appeal. The earlier advice is no longer supported by the respondents.

It is for that reason that the respondents sought and succeeded before Goldsbrough A-P in obtaining an order under s229 of the Act rectifying the entry in the register of the appellants Perpetual Estate in the subject land. It is this order against which the trustees have appealed.

Section 229(1) of the Act confers on the High Court power to order rectification of the register:

"... Where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake."

There are Australian authorities noted in volume 38 of the Australian Digest (2nd ed), at 127 to 134, confirming that in s132 of the Victoria Transfer of Land Act the word "error" includes an error of law and extends to "anything improperly done, or omitted to be done." See ex p Patterson (1873) 4 AJR 26 and ex p Bond [1880] VicLawRp 234; (1880) 6 VLR (L) 458 (per Stawell CJ). Furthermore in Caldwell –v- Rural Bank (1951) 53 SR (NSW) the Full Court ordered rectification in the case of a transfer that was void as being ultra vires the statutory authority of the transferor. These decisions show that provisions comparable in their form to s229 (1) of the Act are not, as submitted by the appellants, to be read as being limited to errors or mistakes occasioned by someone other than the Commissioner of Lands or the Registrar of Titles. Although the power to order rectification of the register is not one that should be widely construed, there is no doubt that it is exercisable in the circumstances disclosed here. The qualification or exception imposed by s229 (2) has no application because any interest in the land acquired by the appellants was not acquired by them for valuable consideration.

In our view, the learned Judge was correct in his decision. The appeal should be dismissed with costs.

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Palmer, CJ
Vice President

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Mcpherson JA
Member

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Williams JA
Member