4. ... The one month's notice period having now expired, the Commissioner hereby resumes part of the land comprised in the estate.
5. I Tione Bugotu, Acting Commissioner of Lands, hereby re-enters and takes possession of the fixed-term estate comprised in the land.
rights of compulsory acquisition, resumption, entry, search... conferred by this Act or any other written law;
In other words there must be a conscious act to exclude the right otherwise it applies. The Claimant cannot show, on the balance of
probabilities, the default position did not apply to whatever kind of grant there may have been.
...the section makes it clear the rig resumption is an overridinriding interest and need not be noted on the register. Just looking
at the register, or the certified copy, may not be enough. If there is a right of resumption it is an overriding interest and would
not, necessarily, appear on the register.
67. This involves error as to the proper interpretation of the provision. It ignores the qualifying words of the provision. That is,
that the right of resumption must be "conferred by this Act or any other written law". In other words, it is not any right of resumption
– however created or conferred – that need not be recorded to override registered title. It is only a right of resumption
conferred by the LTA or any other Act, subsidiary legislation or imperial enactment for which the registered interest is relevantly
subject. And the trial Judge expressly found that s 114(c) did not i provide sude such a right (see reasons 13; and paragraph 16
above).
[30] We will deal first with the submission that the inferences drawn by the trial Judge were not available to him; secondly with
the Part VII argument; and finally with the Part X argument.
e>Inferences
[31] Inferences may be distinguished from conjecture or speculation. The fact finder cannot draw an inference unless there are objective
facts from which to draw such inferences. If there are not positive proved facts from which such an inference can be made, it is
merely speculation or conjecture (Caswell v Powell Duffryn Associated Collieries Ltd).[3] In the legal sense, an inference is the deduction from the evidence, i.e. proved evidence, and if reasonable may have the validity
of legal proof (Jones v Great Western Railway Company).[4]
[32] In this case the Judge appears to have concluded that there was a grant instrument; that it was in Form 2 of the Land and Titles
(General) Regulations; and the right of resumption in Form 2 had not been deleted.
[33] It is necessary to turn to the evidence before the trial Judge. At paragraph 5 of the statement of John Whiteside it is stated:
The Commissioner of Lands (COL) and the Registrar General (RG) registered the FTE in PN192-018-63 without a grant and without reserving any power to the COL to resume the land or any part of it. [our emphasis]
[34] The Commissioner, in response, states:
5. I admit paragraph 5 of the said sworn statement in so far as it alleges that the Second Defendant registered the fixed-term estate
without a grant instrument, but otherwise do not admit the contents therein... [our emphasis]
[35] It is an agreed fact between the parties that the registration was without grant and the case proceeded on that basis.
[36] The Judge also made findings as follow:
- (i) "There is no evidence one way or another about the existence of any grant."
- (ii) "The present Commissioner seems to accept the Second Defendant registered the FTE "without a grant instrument"."
- (iii) "We are left not knowing how the registration came about."
- (iv) "There is simply no contemporaneous evidence available."[5]
- (v) "Just as there is no evidence to conclusively show there was or was not a written grant instrument there is no conclusive evidence
to indicate whether that part of clause 3 was negotiated out of the grant in 1977. There is certainly no contemporaneous evidence."[6]
[37] In (iii), above, the Judge found that the present Commissioner "seemed to accept the second defendant registered the FTE without
a grant instrument". What the present Commissioner accepted was that it was registered without a grant. In other words, there was
no grant. It is not a matter of the Commissioner seeming to accept, as it is his positive statement agreeing with the appellant that
there was no grant. The final part of the judgment cited above seems to be dependent upon a finding that a Form 2 had been executed
by the parties. There is simply no evidential basis for this.
[38] The agreed basis upon which the trial was conducted in front of the learned Judge was that there was no grant. "That admission
of fact, dispensing as it does with evidence, ought to be accepted without any question."[7]
[39] The 9th edition of Cross on Evidence explains that admissions made by agreement between parties, or made by counsel to the Court,
are binding, since civil litigants are free to choose the issues which they wish to raise before the Court. There is an obvious reason
for this in that if it were otherwise, parties would need to adduce evidence of all matters concerning their claim, even when admitted
by their opponent.
[40] The first respondent has not suggested at any stage the existence of a grant document with a right of resumption. If such existed,
it was in the power of the respondents to produce it, but further it was their statutory duty to retain any such documents, and none
has been revealed on the evidence.
[41] Section 205 imposes a statutory duty on the Registrar to retain grants or other relevant documents. Two requests were made by
LSL for a copy of the grant. None was supplied.
[42] We reject the respondents' argument that because the LTA in a unique way creates interests in land in the Solomon Islands the
well established authorities cited above do not apply. Firstly, there is nothing unique about the way interests in land are created
by the LTA in the Solomon Islands. Secondly, the well established evidential principles above apply to all cases in the Solomon Islands
where evidence is adduced.
[43] We repeat, the case proceeded on the basis agreed between the parties that the Commissioner and Registrar General registered
the FTE without a grant. Against those agreed facts, it was not open to the learned trial Judge to infer that there must have been
a grant; that it was in Form 2; and that paragraph 3 thereof, reserving a right of resumption, had not been deleted. In this case
the inferences drawn by the learned trial Judge were not based on proved facts. They are merely speculation or conjecture
Part VII
[44] We consider Part VII to be a self-contained code dealing with the situation when perpetual estates registered in the name of
persons not Solomon Islanders would automatically convert to a FTE, coincidental with the independence of the Solomon Islands. The
overarching provision is s 100, the re Part VII bVII being ancillary t
[45] Section 100 reads:
Conversions of estates held by persons other than Solomon Islandp> 100.– (1) With effect from the 31st Decembecember 1977, any perpetual estates registegistered in the name of, or on behalf of,
any person who is not a Solomon Islander shall automatically convert to a fixed-term estate of 75 years at an annual rent after the
first seven years (which shall be a rent-free period) calculated as a percentage of the unimproved capital value of such estate at
a rate not exceeding 8 per-centum.
(2) When a freehold interest is registered under the provisions of this Act and that interest is shown to be owned by a person who
is not a Solomon Islander then the provisions of subsection (l) shall apply to convert such interest to a fixed-term estate in like
manner as that applicable to a perpetual estate.
(3) "Unimproved capital value" referred to in subsection (1) shall have the same meaning as "unimproved value" as defined by regulation
2 of the Local Government (Rating of Land) Regulations.
[46] It is to be noted from the section that the conversion to a FTE is mandatory and automatic. It is for a period of 75 years,
and the rent is set by the section. Nothing further is required to effect the conversion. We also note that the perpetual estate
created under the provision is held by the Commissioner on behalf of the Government of the Solomon Islands pursuant to s 102. In
other wohe previousvious perpetual estate was transferred, or vested in, the Commissioner on behalf of the Government of the Solomon
Islands and the previous owner of the perpetual estate received in n a FTE for 75 years. The tThe two estates are created, not by
grant, but by operation of law.
[47] Further, in this case by reference to the register itself, the FTE was noted as being registered by operation of Part VII of
the Lands and Title Act. Nothing further is required for the creation of the FTE. Section 104 referring to a grant was clearly a procedural envisaged ss
leading to registration by way of grant, but we know that did not occur.
[48] T48] The respondents' defence pleads at paragraph 4 that, pursuant to ss 103 and 104 of the Act, certain obligations were vested
on the appellant to comply with before a grant instrument was issued to it and the appellant's submission that it does not hold a
grant instrument imports that those obligations were not complied with. It is sufficient to say that no submissions were received
by the respondent on appeal on this point. That is not surprising. Both ss 103 and 104 are predicated upon a step being taken by
the Commissioner and there is simply no evidence that triggering step, under either section, were taken by the Commissioner. In any
event, the FTE has been registered and 35 years later is too late to raise these particular issues.
Part X
[49] The Judge dismissed the respondents' contention that s 114 created a rof resumptiomption and s 110(b) mean the claimant's nt's
interest is subject to such a right. He did not accept the argument the two sections create a right if one did not otherwise exist.
He said, at [13]:
All they mean is if there is such a right which "affects the same" it is effective even if no mention of it appears on the register.
[50] At [14], he continued:
Nor do I accept the Claimant's contention that a right of resumption cannot be implied. Taken together, Section 109 set out earlier,
section 110 and section 114 clearly indicate such a right can be implied. Is there an implied right of resumption in respect of the
Claimant's title? From earlier discussions, it is apparent there must be a grant or disposition of the fixed-term estate to the Claimant
from the Commissioner. Section 134 requires every "transfer or grant" to be "in the prescribed form". The prescribed form is Form
2 to be found in the Lands and Titles (General) Regulations . Even if the grant is a deemed grant or one which, by operation of law,
(i.e. section 100) occurred automatically it would still have to be a grant in the prescribed form. The right of resumption is clearly
set out at clause 3 of Form 2. It can be deleted "if inapplicable". In other words, it is possible the right can be excluded, presumably
either by agreement or at the Commissioner's discretion. Just as there is no evidence to conclusively show there was or was not a
written grant instrument there is no conclusive evidence to indicate whether that part of clause 3 was negotiated out of the grant
in 1977. There is certainly no contemporaneous evidence. Because that part of clause 3 is noted as to be deleted if inapplicable
the default position must be a grant is subject to a right of resumption. In other words there must be a conscious act to exclude
the right otherwise it applies. The Claimant cannot show, on the balance of probabilities, the default position did not apply to
whatever kind of grant there may have been.
[51] We do not accept the respondents' contention that Part VII of the Act not create eate estates or grant estates. Section 100
"shall automatically" convert a perpetual estate into a fixed-term estate.pplies in the limited circumstances where the perpetual
estate was owned by a person not a ot a Solomon Islander. It is that section that creates the FTE. It is quite different from the
Commissioner's independent powers and rights under s 132.
[5e respondepondents' argument is predicated on a belief that grants can only be made pursuant to s 132. We do not accept thaere
are a number of points already made that s 100 is a mandatory autc conc conversionrsion to a FTE, and nothing further is req by the
Commissioner or the Registrar. Section 100 applies to perpetual estates registered ered in the name of given persons. This macontrasted
with s 132,;132, whicows the CommiCommissioner to grant a FTE estate in any public land. (In other words where the Commissioner held
the perpetual estate). Section 100 provides a fixed term of 75 years, while s 13for a period up to 99 yea9 years. Section 100 grants
free rental for 7 years and then caps the rental to eight per cent of the unimproved capital value, while us 132 there is no such
limitation. It can be seen that that Part VII and Part X are dealing withletely dily different scenarios.
[53] We consider the respondents attempt to draw a distinction between "Land Ownership" and "Estates" to be incor Refe to the definitions
of "estate" "interest" and "ond "owner"wner" in s 2 make this clear. As Mr Shearer asked rhetorically "ownership of what?" As s 100
makes clt is ownership ship of an FTE (an estate) for 75 years.
[54] The power of the Minister to make regulations is contained in s 260 of the LTA. The LTA Reiulations are made pursuant to that
section. Regulation 3 concerns the making of forms and, importantly, 3(3) states:
(3) The forms from time to time prescribed by the Commner of Lands shall, subjectbject to the provisions of the Act and these Regulations,
be used for the purposes of the Act or of these Regulations specified in the forms or in relation to the forms in the relevant notice. [our emphasis]
[55] The notice published by the Commissioner states:
The Commissioner of Lands hereby prescribes the forms set out in the Schedule hereto for the particular purposes of the Act specified on each form, and hereby gives notice that the said forms will be required to be used with effect from the first day of January,
1969. [our emphasis]
The form itself needs to specify the purpose of the Act for which it is to be used.
[56] For something to be "specified", it needs to be "in explicit terms" (Jolly v District Council of Yorktown);[8] it must be "unambiguously clear" (Bond Corporation Holdings Limited v Sulan);[9] and the words "specify" and "context" could not transform it from signifying "a requirement of clarity and precision"; and that "unambiguous
precision" and "unambiguous clarity" are required (Gantry Acquisition Corp v Parker & Parsley Petroleum Australia Pty Ltd).[10]
[57] The heading of Form 2 reads:
FORM 2
SOLOMON ISLANDS
THE LAND AND TITLES ACT
(Cap. 133)
Grant of a Fixed-term Estate by Commissioner of Lands
(Section 132)
[58] It follows that Form 2 is to be used for the grant of an FTE pursuant to s 132. But as we have already found, the grant in this
case is not pursuant to s 132. It was tomatic conversnversion in the limited circumstances of Part VIIs 100.
[59> [59] We have set out above the contrasting terms of the two sectiwhich show they are for entirely different situations and pand
purpose. Parts of Form 2 also show it was intended to apply to s 132 g, andconversions underunderunder s 10em 2 refers to rent beingbeing
paid "calculated in accordance with s 135 of the Land atles Act", yet rent for the conversion is set under s 100. Item 4 refers tt
beingbeingbeing "revisable in accordance with the provisif the said Act". We are satisfied this is a reference to s 135(3), anclearly
not not not applicable to conversions under s.
[60] It follows lows that Form 2 does not apply to an FTE under s 100, there was no requir font for a Form 2 to be prd, and there
was no reason ason for the trial Judge to speculate that one was provided, as he did.
[61] That is sufficient spose of the appeal. However, it is appropriate that we deae deal with the appellant's argument that any
right of resumption that may be contained in Form 2 is not, in the Part VII circumstances of this case, protected by s 114(c) of the LTA.
[62] In the appellant's submissions, the appellant deals at some length with the fact that the LTA adopts a Torrens system. It is
unsary to rehearse the authorities referred to there at length. It is sufficient to cite from from Korean Enterprise Ltd v Shell Co (Pacific Islands) Ltd:[11]
The dominant feature of the Torrens system is that, once registered, the interest of the owner of an interest in land is held "indefeasibly";
that is, subject only to such other interests as are registered in respect of it, but free from all other interests that are unregistered.
In the case of the Land and Titles Act, these principles are given effect notably in the provisions of ss 109 and 110 of the Act.
[63] The register is everything (Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd).[12] It is a system of "title by registration"; as opposed to a system of "registration of title": Breskvar v Wall.[13]
[64] Both Parts VIII and IX of the LTA incorporate the above as central attributes. It is unnecessary to rehearse the individual sections here, but it
is clear from a reading of those two parts that they give effect to the indefeasibility principle and the conclusiveness of the Register.
Section 114 falls within Part VIII.
[65] Section 110n 110 provides:
Rights of owner
110. The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for
valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall
be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims
whatsoever, but subject-
(a) to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or
referred to in the land register or implied by this Act; and
(b) to such liabilities, rights and interests as affect the same and are declared by section 114 (which relates to overriding interests)
not to require noting in the register:
Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.
[66] The effect of this is that the rights of the owner of a registered interest:
- are not liable to be defeated, except as provided by the LTA;
- are free from all other interests and claims, subject only to encumbrances etc either shown or referred to in the land register;
- or implied by the LTA;
- or those interests expressly not required to be noted in the register under s 1r>
[67] Sec] Section 110 reinforces that the rights of the registered owner are only subject to those matters noted in the register
or provided for in the LTA itself. Something similar, dealing with FTEs, appears in s 113.
[68] Sect14 r114 relevantly provides:
Overriding interests
114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as
may, for the time being, subsist and affect the same, without their being noted on the register-
...
(c) rights of compulsory acquisition, resumption, entry, search and user conferred by this Act or any other written law;
...
[69] The reference in (c) to "written law" means an Act, any subsidiary legislation, or "an imperial enactment" (s 16(1) Interpretation and General Provisions Act [Cap 85]).
[70] The term "subsist and affect the same" means that the rights must already be in existence, and are to continue, and, under (c),
where they are conferred by the LTA or any other written law. It is not suggested by the respondents that any other written law applies.
[71] At [12] of his reasoning, the trial Judge stated:
It is worth pointing out the mention in section 114(c) of "resumption" is the only mention appearing in the Act. However, the section
makes it clear the right of resumption is an overriding interest and need not be noted on the register. Just looking at the register,
or the certified copy, may not be enough. If there is a right of resumption it is an overriding interest and would not, necessarily,
appear on the register.
[72] We concur in the appellant's submission that the Judge has ignored the qualifying words of the provision. The right of resumption
must be "conferred by this Act or any other written law". It cannot be any right of resumption, it is only that created by the LTA
or any other written law as defined above. The trial Judge himself found that s 114(c) did not itprovide sude such a right, at [13].
He was clearly correct in so finding.
[73] We have already noted above the indefeasibility conferred by registration, and the certainty created by the register. It is
clearly intended so that persons dealing with registered owners do not have to go behind the register. We cite, and agree with, the
following passage from paragraph 68 of the appellant's written submissions:
The register is both conclusive and exhaustive and searches and investigations beyond the register should be unnecessary: Westfield Management Ltd v Perpetual Trustee Co [2007] HCA 45; (2007) 233 CLR 528 at [39]. Title is comprised by the record contained in the register, and it is this which is the source of title rather than a retrospective
approbation of a derivative right: Peldan v Anderson [2006] HCA 48; (2006) 227 CLR 471 at [20] per Gummow ACJ, Kirby, Hayne, Callinan and Crennan JJ. The very purpose of the system is to give effect to the important public policy
"that the land title register should be sufficient of itself to inform those concerned about the nature and extent of any outstanding
interest in relation to the land": Queensland Premier Mines Pty Ltd v French [2007] HCA 53; (2007) 235 CLR 81 at [14] per Kirby J. The "principle way in which the legislation achieved its object has been the elevation of the register above all else",
such that the "register has the first and last word on all relevant titles and interest": Black v Garnock [2007] HCA 31; (2007) 230 CLR 438 at [75] per Callinan J. As made clear in Manepora'a v Aonima [2011] SBHC 79, once a person becomes registered as the owner of an interest under the LTA, he has absolute liberty to deal with that interest according
to the title which attaches to it under the LTA, and an innocent party is not bound to look beyond the register.
[74] The appellant is right to submit that the trial Judge's construction of s 114(c) wouldnge upon the puhe purpose of the legislation
and the purpose of the register. It would be contrary to the precise terms of s 118>
[75] In this case case, it is clear that no documentd be obtained. But the over overall purpose of the register and the legislative
scheme would not be impinged if the right arose underatutory provision in the LThe LTA or some written law. It would be a straightforward
matter to ascertain any such rights that arise in public legislation given the presumption of a knowledge of the law.
[76] We do not accept the trial Judge's construction of s 114(c). On its facseems to s to assume that however a right of resumption
arises, it need not be registered to override the interest of the registered owner. But it is clear that only rights conferred under
the LTA or other written law are protected by the operation of the section.
[77] In this case there is simply no evidence of any reservation of a right of resumption. The grant is made pursuant to s 100, and
not s  It is i is impossible to import the Form 2 need into a s 100 grabsent evidence. As t As the Judge found, s 114 itself
does not e a riga right of resumption, contrary to the respondesubmi below. There is e is no challenge to that finding as it is obviously
correct. The implicatlications drawn by the Judge to reach his usions were not available, ble, as they were not supported by any
objective facts.
[78] For the sake of completeness we note that the register is a complete answer to the oral submissions of the respondents. Even
if we assumed, contrary to the evidence, there was some notional grant it does not aid the respondent. Page 2 of the register makes
the appellant's FTE subject to "The covenants, obligations, liabilities etc. Contained or implied in the Instrument of Grant." But
there is no evidence that any such notional grant reserved a right of resumption. Essentially the respondents were arguing that all
FTEs created pursuant to Part VII, without evidence, mu s be subject to such a reservation. There is no basis in law to reach that conclusion.
[79] It follows that the appeal must be allowed. However, in saying that, that does not leave the respondents without remedy. Part V, Division 2, ss 71-85 of the Act give rights of compulsory acquisition where land is required for public purpose.
[80] We are indebted to the appellant for their extensive written submissions.
[81] We make the following Orders: - There will be a declaration that the first respondent had no power under the LTA to give the appellant notice to resume Parcel No
192-018-63 (or any part thereof).
- There will be a declaration that the first respondent had no power to resume Parcel No 192-018-63 (or any part thereof).
- There will be a declaration that the re-entry notice dated 18 July 2011 is null and void.
- There will be a declaration that the second respondent had no power to cancel the appellant's fixed-term estate in Parcel No 192-018-63.
- There will be a consequential order that the second respondent restore the appellant's title to fixed-term estate in Parcel No 192-018-63
on the register.
- There will be an order that the first and second respondents pay the costs of the appellant in this Court and below. To be assessed
in the absence of agreement.
Williams JA,
Acting President,
Sir Gordon Ward JA
Sir John Hansen JA
[1] Lever Solomons Ltd v Attorney General [2012] SBHC 60.
[2] Anthony Chee Ming Wong v Attorney General and Commissioner of Lands SI-CAC 3 of 2010, page 9.
[3] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170.
[4] Jones v Great Western Railway Company (1930) 47 TLR 39 at 41.
[5] At [10].
[6] At [14].
[7] Urquhart v Butterfield [1887] UKLawRpCh 225; (1887) 37 CHd 357 at 369, 374 and 377.
[8] Jolly v District Council of Yorktown (1968)CLR 347 at 351.<351.
[9] Bond Corporation Holdings Limited v Sulan (1990) 3 WAR 49 at 64.
[10] Gantry Acquisition Corp ver & Parsley Petroleum leum Australia Pty Ltd [1994] FCA 1212; (1994) 51 FCR 554 at 569.
[11] Korean Enterprise Ltd v Shell Co (Pacific Islands) Ltd [2002] SBCA 1.
[12] Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 (PC) at 106.
[13] Breskvar v Wall (1971) 126 CLR 376 at 385.
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