Sifoni v Ilabae [2015] SBCA 19; SICOA-CRAC 32 of 2014 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Apaniai PJ)
COURT FILE NUMBER:	Civil Appeal Case No. 32 of 2014 (On Appeal from High Civil Case No. 196 of 2010)
DATE OF HEARING:	05 October 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	Douglas Sifoni - V - Derol Ilabae, Beverley Talo & Randal Anipeoni
ADVOCATES: Appellant: Respondent:	DNS & Partners Global Lawyers
KEY WORDS:	RECTIFICATION: MISTAKE: CONSTRUCTIVE TRUST
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 8

JUDGMENT OF THE COURT

1. Following a trial of the matter in the High Court it was ordered, in a judgment dated 29 September 2014, that the Registrar of Titles rectify the Land Register by removing the Appellant as owner of PN 192-004-525, 192-004-527 and 192-004-528, replacing him with the Respondents as owners of those parcels of land. In addition the Appellant was ordered to account to the Respondents for the proceeds of sale of ten other land parcels, to refrain from future harassment of the Respondents in connection with the occupation of the first three land parcels and from obstructing access to and from those properties.
   
2. The Appellant had become the registered owner of each of these thirteen land parcels following the death of his father who had previously held title to these parcels, although in the time of the father the subdivision resulting in these thirteen parcel numbers had not yet then taken place.
   
3. On the death of his father the Appellant caused the Public Trustee to effect a transfer to him of the previous Land Parcel held by his father at the time of his father's death. That was done in the absence of any will or other testamentary disposition and without there being taken out Letters of Administration of the deceased's estate.
   
4. The original parcel, PN 192-004-66 was bought in 1993 from Levers Solomons Limited (LSL) for $30,000. It became registered in the name of the Appellant through transmission and transfer documents signed by the then Registrar of Titles and Public Trustee.
   
5. In 2009 the Appellant subdivided PN 192-004-006 into thirteen plots, hence the PN numbers above. Ten of those thirteen plots have been sold by the Appellant. There is an issue between the parties as to the total selling price received by the Appellant. He says $550,000 and the Respondents allege $1,200.000.
   
6. At the heart of the issue between the parties is whether, when the original purchase took place, it was a purchase by the whole community, known as the Lonely Hill Community in common or whether the land was purchased by and for the sole benefit of the father of the present Appellant, the late Sipae Sifoni.
   
7. This was a question identified by the learned trial judge as being necessary to determine early in his judgment. He identified that, and four other questions in his judgment and with regard to each question set out the consequence flowing from those necessary decisions. He identified the issue surrounding the original purpose, indicating that if he found that the land had not been purchased by and on behalf of the whole community, the claim would fail. He then identified an issue over limitation, and what the consequence of an adverse finding there would be, whether the registration effected to replace the deceased Sifoni was through mistake or fraud, whether the Appellant, if there was mistake or fraud had knowledge of it, or caused it or substantially contributed to it.
   
8. The grounds of appeal appear, in the notice of appeal, to be numerous. For completeness they are set out here.
   
   1. The learned judged in holding that:
      
      • (a) The transfer to late Sipae Sifoni was made on 22 October 1996.
      • (b) time starts to run on 6 August 2002 when the title was first registered the name of the Appellant rather than when title was first registered in the name of the Appellant rather than when title was first registered in late Sipae Sifoni;
        

When in fact:

1. The Respondents Claim effectively seeks a declaration of trust against late Sipae Sifoni;
   
2. The claim seeks rectification or declaration that title formerly held by late Sipae Sifoni was registered by mistake or fraud;
   
3. The transfer to late Sipae Sifoni was in effect made on 22 October 1993 (and not 22 October 1996); and
   
4. In 1994 Beverly Talo the second named Respondent first lodged a caveat in August 1994 claiming on behalf of Lonely Hill beneficial ownership as contributor but failed to prosecute their case until 2010.
   

Erred in laws and fact in holding that time starts to run on the date when the Appellant was first register as owner, i.e on 6 August 2002 whereas time started to run in October 1993 and /or August 1994.

2. The learned judge erred in law in failing to consider that fact that if late Sipae Sifoni held the land in trust then clearly time would have expired against late Sifoni of his estate in either November 1999 or September 2000 (if the time limitation is 6 years) or November 2005 or September 2006 (if the time limitation is 12 years). The Respondents did not commence proceedings until 2010.
   
3. The learned judge erred in law and fact in holding that late Sipae Sifoni held the land in trust when on the evidence of Miriam Noda ( for the Respondent) and Jennifer Manata (for the Appellant) clearly shows that late Sipae Sifoni clearly intended to hold the land as sole owner.
   
4. The learned judge erred in law and fact in holding that the Appellant contributed to the mistake when he was in fact only acted upon the statutory declaration sworn by his late father Sipae Sifoni.
   
5. The learned judge erred in law and fact in ordering that the name of the Appellant be replaced in place of the Respondents when he was in fact contributing 70 percent of the payment of the land and the person who his father declared to be there heir to the land.
   
6. The learned judge erred in law in holding against the Public Trustee when the Public Trustee was never a party in the first place and when no pleadings were made against the Public Trustee.
   
7. In effect the learned judge exercised his discretion wrongly in ordering rectification and replacing the Appellant on the basis that the Public Trustee was mistaken in the absence of a grant of letters of administration when in effect his order for replacing the Appellant as registered proprietors again by passes the very ground that now found there to be mistake, i.e. lack of grant of letters of administration.
   
8. The learned judge erred in holding that the Registrar of Titles committed a mistake when in fact Registrar was only obliged to enter the Appellant's name in the register whereas the mistake, if any, belongs to the Public Trustee who not a party to the proceeding.
   
9. The learned judge erred in law and fact in failing to give consideration in the learned Solicitor General's written submission on behalf of the Attorney General.
   
9. A closer examination shows that the appeal questions the finding as to when time began to run, whether there could be a trust resulting in the absence of a written trust document, whether the learned trial judge was mistaken in replacing the Appellant in the Land Register, making a finding against the Public Trustee when she was not a party, and whether the trial judge failed to take into account the submissions of the Attorney General who was representing the Registrar of Titles.
   
10. Even the prayer for relief in the Notice of Appeal is set out in complicated terms. It asks that the appeal be allowed, then prays that even if the appeal is not allowed (which would normally result in the appeal being dismissed) then various orders should be made in lieu including the Appellant being declared as a person entitled to be included as one of the Registered Proprietors and as having a beneficial entitlement based on his major contribution to the original purchase.
    
11. It is a fact not in issue that the Appellant or his father was a major contributor to the initial purchase. It appears to be accepted that the relative contributions were 70/30 that is to say 70% of the purchase price came from the Appellant's side and 30% came from the Respondent's side.
    
12. There was no evidence before the trial judge of the relative sizes or values of the ten plots sold compared with the three remaining plots but it is safe, we feel given the final orders made, to conclude that the judge felt that on the evidence before him the Appellant had had at least his full share of the property as compared with his parties' initial contribution and that the remaining three plots could properly be held in the name of the Respondents alone.
    
13. There is no appeal questioning whether the learned trial judge addressed the correct questions, which questions he set out in paragraphs 8 to 12 of his judgment. We will therefore consider how he addressed those questions and the conclusions then made.
    
14. On the question of a trust the learned judge set out what he found to be the relevant facts. He found that each of sixteen families who came to settle in an area occupied by the late Sipae Sifoni, who was a senior employee of LSL, agreed during a meeting in 1993 to contribute to a total purchase price of $30,000. There was evidence before the court to support that finding. He described the resultant trust as a constructive trust. In the circumstances of this case nothing turns on the use of the term constructive.
    
15. We find nothing in the grounds of appeal which suggests that finding to be in error. There clearly was an intention on the part of the group to purchase for the benefit of the whole community and not simply for the benefit of one of them. It is clear from that part of the judgment that the initial transfer to Sipae Sifoni was in 1993 (see paragraph 23 of the judgment). There is no evidence that the late Sipae Sifoni dealt with the land other than as a representative of the trust. He did not, for example, dispose or attempt to dispose of any part of it as if it were his own.
    
16. The second question addressed is that of the Limitation Act [Cap 18]. Actions for the recovery of land must be commenced within 12 years of a cause of action accruing. The judge found that this cause of action accrued when the title was registered in the name of the Appellant in 2002. His finding on that dictated that the action was not statute barred. The Appellant submits that the action accrued in 1993 when the land was first registered in the name of Sipae Sifoni on the original purchase.
    
17. We take the view that the finding of accrual in 2002 errs on the side of generosity to the Appellant. The cause of action, in our view, arose when the Appellant demonstrated that he did not feel obliged by any terms of a trust, that is to say when he began to deal with the land as his own to deal with as he pleased. Until that time there is no reason for the Respondents to conclude that the Appellant was holding for any other reason that the original trust. If the cause of action is regarded as the mistake in the registration process then it clearly took place at the time of registration in the name of the Appellant. There is no suggestion that the mistake, which mistake is said to be a component part of the transfer from father to son, took place at any time other than during the 2002 transfer process.
    
18. There is therefore no merit in that ground of appeal.
    
19. In discussing the next question, that is to say whether registration in his name was by mistake or fraud, the learned judge discounts fraud at an early stage. He does, however conclude that a mistake has been made. The basis of that finding is the transfer of the land to the Appellant through an instrument initiated by the Public Trustee following the death of Sipae Sifoni in favour of his surviving son, the Appellant. The Appellant was, according to the trial judge's findings intimately involved in that transaction, he having approached the Public Trustee and having signed the very same transfer documents.
    
20. The Public Trustee could not initiate the transfer of registration without the benefit of Letters of Administration. That is a question of law. There is no issue on the question of facts as to whether the Letters of Administration had not been taken out. They had not been taken out. As the judge points out in his judgment the mistake does not have to be on the part of the Registrar of Lands but can be a mistake of another in the process of registration. There is no merit, we feel, in the ground of appeal that the Public Trustee was not a party to this proceeding. It is a question of law that the Attorney General, appearing as a party to the proceedings for the Registrar of Titles can answer if he so chooses, including the ability if he felt the same desirable to ask the Court to join the Public Trustee as a party if he determined that there was a point to that. It is easy to see why no such application was made given the clear requirement that was not fulfilled when the Public Trustee initiated this transfer of registration in the absence of lawful authority.
    
21. Significantly the judge found that the Appellant knew that the land was held in trust because he knew the community had contributed towards the purchase price but decided not to tell the Public Trustee or her staff of that fact.
    
22. We also note that when the Registrar decided to act upon the request of the Public Trustee, the Registrar failed to ascertain whether the requisite proof on entitlement to act was produced by the Public Trustee under section 209 (2) of the Land and Titles Act [Cap 133]. We would have no difficulty in finding that failing to ensure that the application was in the prescribed form and accompanied by proof of authority to act, the Registrar himself was in error, that is to say a further mistake was made. The Public Trustee was mistaken in dealing with the land in the absence of taking out Letters of Administration and the Registrar of Lands was mistaken in acting on the application without first ensuring that section 209 (2) had been complied with.
    
23. That ground of appeal therefore fails.
    
24. The final ground of the notice of appeal raises the question as to whether the learned trial judge took into account the submissions made by the Attorney General on behalf of the Registrar of Lands. Conveniently those submissions are included in the appeal record. We have had the opportunity to read those submissions. Given their content it is understandable that the learned judge made no reference to them. Most of those submissions concerned an allegation of fraud. The judge found that there was no fraud and so did not need to deal with those submissions. In the absence of fraud the submissions refer to an application being made to rescind the grant of Letters of Administration if another person believes that the Letters have been granted to the wrong person. Given that the trial judge found, and there is no dispute, that no Letters of Administration were ever taken out or even sought, there seems little merit in making a submission about rescinding something not granted. We see no reason for the learned trial judge to address that submission when, on his findings and on admitted facts, the situation did not arise.
    
25. We have dealt with each ground of appeal raised on the appeal. In our view, there is no ground with merit and the appeal must fail. It is an interesting question raised, although not part of the appeal brought by the Appellant as to what final order should have been made in the circumstances before the learned judge. He clearly took a straightforward, practical view, for which no criticism is made.
    
26. When the community took the initial step to purchase as a community and puts its trust in the father of the Appellant to do right by them, their trust was not misplaced. The father held the land and no attempt was made to take the benefit of the land ownership away from the community. It was a decision that the community was entitled to make, that they wanted the father, the connection between them and the landowners from whom they were to purchase, to hold the land for them.
    
27. If the same trust had been maintained by the Appellant as demonstrated by his (wise) father, there would have been no need for this action to have been commenced. Provided he accounted to the others for any land dealing, in first discussing and then agreeing any disposition, all could have continued without resort to the High Court. Things changed when the Appellant took matters into his own hands and started subdividing and selling plots without the consent of the rest of the community. It is implicit even in the notice of appeal that the Appellant was nothing more than a major contributor to the purchase (see appeal ground 5). One wonders then why he continues to deny that he hold the balance on trust for the other contributors – happily that is not for this Court to decide. Given that the trust that once existed between the deceased father and the community now dissipated as between the community and his heir, it is not surprising that the judge took the view that to maintain the trust by leaving the Appellant as the registered owner and expecting him to now honour the terms of the trust would not provide optimal resolution. Taking that into account and, primarily, because we can find no fault in his findings of fact or conclusions on matters raised by the appeal, we make no order other than to dismiss the appeal and order that the costs of the appeal be paid by the Appellant to the Respondents, such costs to be agreed or assessed.
    

.......................................................................................
Justice Goldsbrough
President of the Court of Appeal

.......................................................................................
Justice Ward JA
Member of the Court of Appeal

.........................................................................................
Justice Lunabek JA
Member of the Court of Appeal