Daokalia v Registrar of Titles [1994] SBHC 37; HC-CC 110 of 1989 (25 November 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 110 of 1989

PAUL DAOKALIA,
Administrator of the Estate of Lobongwane (Deceased)

-V-

REGISTRAR OF TITLES
WALTER BILL
ATTORNEY- GENERAL
(representing the Commissioner of Lands)

High Court of Solomon Islands
(Muria, CJ.)

Hearing: 1st July and 31st August 1994
Judgment: 25th November 1994

Thomas Kama Solicitor for the Plaintiff
R. H. Teutao for Second Defendant

MURIA CJ: The plaintiff in this case, Paul Daokalia, is the Administrator appointed by the Court to Administer the Estate of Lobongwane (Deceased). In that capacity, the Administrator has taken over this action in place of the Andrew Daumaoma who brought the action on behalf of the Su'ufou Tribe claiming rectification of the Register of Perpetual Estate and Leases held by the Registry of the Land and Titles.

The matter had been instituted by Writ of Summons and following the failure of the Defendants to file any Defences to he action, the plaintiff now applies to the Court on Notice of Motion for Judgement. Among the orders sought is the order for rectification of the Land Register in respect of the registration of the Perpetual Estate and Leases in Parcel No. 151-008-1.

The issue really therefore is one of ownership or title over the land in question, that is, Parcel No. 151-008-1. Each of the parties claims that he is the rightful owner of the land in question. The second defendant says that if there is going to be a rectification then it must be for the purpose of removing Lobogwane's (Deceased's) name from the Register.

It is not in dispute that the Perpetual Estate in Parcel No. 151-008-1 had been registered in the names of the second defendant and Lobogwane (Deceased) as joint owners. That registration was done in 1970.

The history of this matter goes back to 1959 when in CC No. 7/59 the High Commissioner's Court held that the land belonged to Aromae and relative Funilifue. On 7 June 1961 an Order was made by the Assistant High Commissioner on an application by Walter Bili (Second defendant) for the rehearing of the case over the same land. That rehearing was CC No. 3/61 in which the plaintiffs were Walter Bili, Wanikua and Kwaifilia and the defendants were Aromae, Funilifue and Fauele.

It must be noted that the plaintiffs in Civil Case No. 3/61 sought a number of declarations one of which was that Arumae had no rights in the land. The Court, however, refrained from making the declarations sought. In doing so the Court pointed out that the justice of the case would no justify the making of the declarations. The Court went further to point out that although the plaintiffs had been noted to have some rights in the land, they failed to show that they alone had interests in the land or that Arumae has none.

The ratio of that case (Civil Case No. 3/61) is contained in the last paragraph on page 3 of the judgement. This is what the Court had said in that paragraph:

"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 his 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 judgement, does my conclusion that Bili's ancestors where 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 recognise and that the defendants should not, in seeking to exercise the rights they have ignore the plaintiff's rights."

The Court obviously must have had in mind the circumstances leading up to this Civil Case No. 3/61 including the previous proceedings in Civil Case 7/59 in which one of the defendants, Arumae, was adjudged be the owner of the land in question. The plaintiffs in the 1961 case failed to show that Arumae had no interest in the land. It is therefore not surprising that the Court in the 1961 case declined to make the declarations sought by the plaintiffs, one of which was that the defendant Arumae had no right in the land. It was in recognition of the defendant Arumae's rights over the land previously granted to him that the Court in 1961 refrained from making the declaration against him and intimated that in exercising his rights over the land, he should not ignore some rights which the plaintiffs might have had in the land.

The 1961 case clearly did not confer any right of ownership on the present second defendant. That case merely expresses the opinion that the second defendant had some rights which should not be ignored. What those rights are, we do not know. They may be rights of ownership or occupation or simply a right of use. We do not know.

On the other hand the 1961 case did not disturb Arumae's right of ownership over the land which right had been clearly conferred on him by CC No. 7/59.

Nothing has been done to disturb the Court's decision in favour of Arumae in CC No. 7/59 since 1961. It must therefore plainly obvious in law that, unless the contrary is shown, Arumae now represented by the present plaintiff had been adjudged to be and still is the owner of the land in question.

Mr. Teutao's argument that the second defendant had been found by the Court to have been the first to settle in the land and as such they were the primary owners of the land cannot be supported when one considers the ratio of the Court's decision in the 1961 case. While Counsel's argument may be sound in logic, it cannot be legally correct for the reasons stated earlier in this judgement. Also to accept Counsel's argument would be to give the Obiter dicta in the 1961 case the full force of the law and ignoring the ratio decidendi of that case. That cannot be so done.

I now turn to the provision of the law on rectification of the land register by the Court. This can be found in section 209 of the Land and Titles Act (Cap. 93) which provides as follows:

"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 Ordinance, 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 cause such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

There is clearly power to order rectification of the land register where the Court "is satisfied that any registration has been obtained, made or omitted by fraud or mistake." The plaintiff in this case has sought rectification of the land register on the ground of mistake. That mistake submitted by the plaintiff was on the part of the Commissioner of Lands at the material time.

Having perused the documentary evidence placed before the Court, I am satisfied that there is substance in the plaintiff's submission. The mistake was largely due to the unfortunate view placed by the then Commissioner of Lands on the 1961 case which subsequently led to the registration of the title over the land in the manner it was done. It would be useful to see how the mistake came about.

The mistake complained of arose in this way. The Civil Case No. 7/59 was between Misitana and Arumae. That case decided on 29th October 1959 conclusively that the land in question was owned solely by the defendant and relative Funilifue. Subsequent to that decision, a Lease Agreement over the land was entered into on 17 November 1960 between Arumae and Funilifue as "the lessor" and Thomas Harcourt Morris, Commissioner of Lands, on behalf of the Government as "the lessee."

Then came the 1961 case in which the Court had never decided that Walter Bili, the present second defendant, was the owner of the land in question. Yet on 28 March 1962 the then Acting Commissioner of Lands, Mr. Twomey, cancelled the Lease dated 17 November 1960 between Arumae and Funilifue and the Government saying that "the said Arumae and Funilifue....... have by court judgement been adjudged as not having the proper right under Native Customary Law to demise the land ....." Arumae had signed the consent to the Cancellation of the said Lease.

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.

To add to the mistake emanating from the erroneous interpretation of the decision of the Court in the 1961 case, a new Lease was entered into on 26/5/62 between Walter Bili who was described as "owner by way of Native Custom and principle(sic) Land Chief" as the "lessor" and the Commissioner of Lands, as the "lessee". 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.

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 Lobogwane as "lessors" and Commissioner of Lands as "lessee". Walter Bili and Lobogwane had been registered as joint owners of the land. Why Walter Bili and Lobogwane 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 Lobogwane 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.

It was not until 1988, after some years of attempts by the plaintiff in this case to have the ownership issue over the land in question resolved, that the Commissioner of Lands finally realised and accepted the mistake in this case which led to the erroneous registration of the perpetual title over the land in question. Having accepted that the registration arose out of an erroneous interpretation of the Court's decision in the 1961 case, the Commissioner of Lands had been willing to assist in rectifying the land register. I feel the Commissioner of Lands had been forthright and has acted properly in taking steps to rectify his predecessor's mistake.

I pass onto deal briefly with subsection (2) of section 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 judgement 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 Lobogwane'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 to allow an injustice to be perfected.

It is beyond doubt on the evidence that the Arumae and his successors were the persons properly entitled to the right of ownership over the Su'ufou Land immediately before the registration and they have been deprived of that right due to the mistake committed by public officials in authority. That registration had been done and as such it would be manifestly unjust not to rectify the register in this case.

Other matters were raised by Counsel in this case including the issue of res judicata. In the light of what I have already stated in this judgement, I feel the issue of res judicata is irrelevant and I need not consider it. Other criticisms had been made of the proceedings before the Local Court and CLAC in the 1984 cases between Walter Bili and Billy Dolarii against Andrew Daomaoma and Paul Toliole. Those criticisms have no effect on the conclusion reached by this Court in this judgement other than to say that the decision of Local Court and CLAC in 1984 went to confirm the Court's decision in favour of the plaintiff's side in the Civil Case No. 7 of 1959.

Quite clearly, the plaintiff's side have suffered an injustice throughout the period concerned and this Court must rectify that injustice which must be done pursuant to its powers under section 209 of the Land and Titles Act. This I now do so.

ORDER

1. 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.
   
2. As to paragraph (2) in the Notice of Motion, I do not feel it is necessary that I should make the declaration sought under that paragraph and I decline to do so.
   
3. The plaintiff has sought not to rely on paragraph (3) in the Notice of Motion. It is therefore disregarded.
   
4. Paragraph (4) really follows the result of the order made under paragraph (1) and must also be granted.
   

Costs to the plaintiff.

(G.J.B. Muria)
CHIEF JUSTICE