Tiva v Manedetea [2023] SBCA 17; SICOA-CAC 19 of 2019 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Tiva v Manedetea
Citation:
Decision date:	13 October 2023
Nature of Jurisdiction	Appeal from The Judgment of the High Court Of Solomon Islands (Kouhota J)
Court File Number(s):	19 of 2019
Parties:	James Tiva and Paul Porora Bosawai, Derick Manu v Emma Mane Billy Belakake
Hearing date(s):	2 October 2023
Place of delivery:
Judge(s):	Hansen P Gavara-Nanu JA Lawry JA
Representation:	D Nimepo for the Appellant L Ramo for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 174 (3), S 195 (3), S 200 (2) (b)
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Appeal is allowed
Pages:	1-5

JUDGMENT OF THE COURT

1. This appeal concerns the Perpetual Estate Parcel Number 192-003-13 [‘the land’]. It comprises approximately 110 hectares and is located on the Guadalcanal Plains. On 9 January 1975 it was transferred to five persons being joint owners holding the land as trustees for the Luvu land holding group of the Thimbo tribe. Each of the five represented different land owning groups within the Thimbo tribe.
2. The five joint owners made a declaration in October 1974 pursuant to section 174(3) of the Land and Titles Ordinance which is now section 195(3) of the Land and Titles Act. That declaration created a statutory trust for the persons beneficially interested in the land.
3. The Appellants and Respondents are all part of the Luvu land holding group of the Thimbo tribe.
4. Proceedings were commenced in the High Court in 2015 following the deaths of two of the trustees, John Mangavea and Michael Samanea. The land owners they represented had agreed that the Appellants should replace the deceased trustees. The First Respondents, who represent other land holding groups in the Thimbo tribe, did not consent to the appointments.
5. When the case came before the High Court, counsel was not armed with the 1974 declaration. In the absence of such a document the Judge concluded that the joint owners did not hold the land on trust. In accordance with section 200(2) (b) of the Land and Titles Act he concluded that on the death of a joint owner the interest vested in the surviving owner or owners. On the Judge’s reasoning the land would finally vest solely in the remaining joint owner which would deprive the land owning groups within the Thimbo tribe of their interest in the land.
6. Counsel for the Respondents accepts that following the production of the 1974 declaration which proves the land to have been held on statutory trust, the decision of the High Court must now be set aside. She points out that paragraph 4 of the 1974 declaration provided that the persons beneficially interested in the land hold their interest subject to and in accordance with the current customary usage of the Thimbo lineage group of Tasimboko District of Guadalcanal. She then submitted that the question of who should replace the deceased trustees is not one for this Court but that decision needs to be made by the Luvu land holding group of the Thimbo tribe. The Appellant on the other hand has drawn the attention to the Court to the evidence that was before the Judge in the High Court concerning the decision about who should replace John Mangavea and Michael Samanea. He also drew the Courts attention to the evidence that the five joint owners represented different land holding subgroups within the Luvu landholding holding group of the Thimbo line.
7. The unchallenged evidence before the High Court was that the beneficial owners represented by John Mangavea have agreed that the Appellant Derick Manu is to replace John Mangavea as a joint owner of the land, holding the land as a trustee for their group. Also unchallenged in the High Court was the evidence that the beneficial owners represented by Michael Samanea have agreed that the Appellant James Tiva is to replace Michael Samanea as a joint owner of the land holding the land as trustee for his land holding group.
8. As those beneficially interested in the land have already made the decision about the replacements for John Mangavea and Michael Samanea this Court directs that Derick Manu and James Tiva are each to be registered as joint owners of the perpetual estate parcel number 192-003-113.
9. Memorio Singele Tila is another of the joint owners holding the land on trust. He has also died and we were informed from the bar that the First Respondent, Gaoka Kibo, also a joint owner and trustee, has died since the filing of the appeal. The land holding groups they each represented will need to determine who is to replace each of them.
10. At the heart of the dispute is the income that is paid to the trustees by Guadalcanal Plains Palm Oil Limited, the company that leases the land and pays royalties for palm oil extracted from trees on the land. The Appellants in their unchallenged evidence have deposed that they have made efforts to receive payments to be shared among the land owners they represent. However they say that their requests to the surviving trustees, who have received the payments, have refused their requests.
11. Those who have received such payments are under a duty to account to the beneficial owners for those payments. The appeal is allowed and the First and Second Respondents are to pay the costs of the First and Second Appellants both in this Court and in the High Court. If those costs are not agreed then they are to be taxed.

Orders

1. The appeal is allowed.
2. The title for the Perpetual Estate Parcel Number 192-003-13 is to be rectified by replacing the name of the deceased joint owner John Mangavea with the name Derick Manu and the name of the deceased joint owner Michael Samanea with the name James Tiva.
3. The First and Second Respondents are to provide records to the First and Second Appellants of all payments received from Guadalcanal Plains Palm Oil Limited in respect of the land, such records to be from the date of the deaths of John Mangavea and Michael Samanea and are to be provided within 30 days of the date of this judgment.
4. The First and Second Respondents are to provide records to the First and Second Appellants of the distribution of all payments received from Guadalcanal Plains Palm Oil Limited in respect of the land, such records to be from the date of the deaths of John Mangavea and Michael Samanea and are to be provided within 30 days of this judgment.
5. The First and Second Respondents are to pay the costs of the First and Second Appellants both in this Court and in the High Court. If those costs are not agreed then they are to be taxed.

Hansen (P)
Gavara-Nanu (JA)
Lawry (JA)