Liligeto v Commissioner of Lands [1998] SBHC 74; HCSI-CC 166 of 1996 (5 March 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 166 of 1996

WILSON LILIGETO & OTRS

-v-

THE COMMISSIONER OF LANDS & OTRS

High Court of Solomon Islands
(Palmer J.)

Civil Case No. 166 of 1996
Hearing: 26th February, 1998
Judgment: 5th March, 1998

C. Ashley for the Plaintiffs
First and Fourth Defendants not represented
A. Radclyffe for the Second and Third Defendants

PALMER J.: This is an application by originating summons as amended, filed on 11th August, 1997 for orders of rectification pursuant to section 209 of the Land and Titles Act; that the Registrar of Titles (the Fourth Defendant) be ordered to rectify the Perpetual Title Register by removing the title of the Second Defendant and substituting the, names of the Plaintiff and his Makulu Tribe Trustees as the holders of the perpetual title.

The Plaintiffs allege that the First Defendant (“the Commissioner of Lands”) had committed a mistake in granting or transferring the perpetual estate in Parcel No. 079-007-4 (LR 213) to the late George Hilly in 1981 on the following grounds:

(a) that the second Defendant was not the holder of any registered interest in the land; and

(b) the second Defendant was not the descendant of the original Vendor of the land.

The Plaintiffs argument can be summed up as follows:

(1) that it was the policy of the Government of the day that alienated land should be returned to the original landowners;

(2) that the Commissioner of Lands was thereby obliged to identify who were the true descendants of the original landowner(s) and to transfer the perpetual estate to those descendants;

(3) that in the facts of this case, the Plaintiffs were the true descendants of the original landowners and thereby entitled to have the perpetual estate transferred in their favour;

(4) that the Commissioner of Lands thereby committed a mistake when he transferred the perpetual estate in favour of the late George Hilly in that he was not the descendant of the original vendor of the land.

If the Court should accept the submissions of the Plaintiffs then, the issue as to the true descendants of the original owner(s) (which is disputed) may have to be referred to the Local Courts for determination.

The Second and Third Defendants (hereinafter referred to as “the defendants”) argument on the other hand, was that whilst it was conceded that it was a policy of the Government of the day to return alienated land to descendants of original landowners, it was not confined to a mere identification of the original descendants but included persons who had been re-settled on the land, had a legal interest and had substantially developed the land. They have filed affidavit evidence in support of this broad policy statement, to counter the allegations of mistake; that it was not a mistake in any form that the aid perpetual estate had been transferred to late George Hilly by the Commissioner of Lands at the said time.

The issue before this Court therefore must entail determining what was the policy of the Government of the day when the said transfer was effected. Was it confined to the policy that alienated land should be returned to the descendants of the original vendor (as submitted by the Plaintiffs) (meaning that perpetual title should be transferred to the said descendants only), or were there other criteria which the Commissioner of Lands could have regard to? If so, what evidence is there?

The Plaintiffs have filed a number of affidavits, the most crucial being that of the three affidavits sworn by Wilson Liligeto, filed on 23rd July, 1997, 11th August, 1997, and 11th November, 1997.

In his affidavit of 23rd July, 1997, Mr. Liligeto refers to two documents. The first one is a letter dated 6th January, 1981 from the Commissioner of Lands to the Clerk to Western Province. This is exhibit “WL 16” attached to the said affidavit. The letter reads:

[at paragraph (2)] “I am directed to advise you to investigate into Mr. Sorry’s claim since the Commissioner’s memo of 23/2/79 is no longer valid.”

At paragraph (7) of his affidavit, Mr. Liligeto seeks to argue that whilst this letter referred to another land adjacent to LR 213, the approach taken in that letter reflected the attitude of the Commissioner where government land was to be returned to “original owners”; that proper investigation should be made into any claims of any “original owner” prior to disposing it. In the case of LR 213, the Commissioner failed to carry out such an investigation and thereby committed a mistake when he transferred the perpetual estate to late George Hilly.

The second document referred to was a minute dated 10th March, 1981 which contained inter alia, a foot note from the then Minister for Lands, Mr. Waeta Ben Tabusasi. The foot note read:

“As I always try to say that my interpretation of the original owners is someone who comes from the same area. In this case they meet with the idea, since these people are from the Western Province. The C/L may proceed.”

At paragraph (9) of the said affidavit, Mr. Liligeto made the following statement:

“It is therefore can be correctly assumed in the Ministers minute of 10th March 1981 that it was the Government policy to return the land back to the original landowners. However, we truly believe that there is a mistake on the part of the Ministers interpretation in granting the land to Mr. Hili who is not the descendant of the original landowner.”

He goes on to say at paragraph (10) and (11):

“To identify the correct and true Landowners in this particular case is to find out who are the descendants of the Vendor, whom in the original conveyance document, in the first place sold the land to the Government.

11. We verily believe that the manner in which George Hili obtained the title of this particular land was improper, not according to procedures and was done in a way that we the true and correct descendants of Vete did not have the opportunity to lodge our claim prior to the transfer of the Title.”

In his second affidavit filed 11th August, 1997, Mr. Liligeto referred to another document dated 3rd December, 1980 from the Commissioner of Lands to the Clerk to Western Province. This is exhibit “A” attached to the said affidavit. The letter reads:

“I am sorry to trouble you about this matter yet again but please confirm that there has been no objection from any “original Owners” to the transfer of the perpetual estate in LR 213 ... to Mr. George Hilly ....”

The Plaintiffs rely on this document as well as supporting the policy that alienated land should be returned to “original owners”. They argue that the letter asked the Clerk to the Western Provincial Assembly to investigate claims and to identify the original landowners of LR 213. This the Clerk failed to do and thereby perpetrated the mistake in having the said perpetual estate transferred to the wrong person.

In contrast, four crucial affidavits have been filed by the defendants in support of the policy statement of the Government of the day and which they claim showed that the policy of returning alienated land to original owners was not confined merely to the identification of who the descendants of the original owners were, but included other criteria.

The first affidavit is that of Laury Penrose Palmer filed on 11th November, 1997. At the said time, he was the Senior Lands Officer-Rural and deposed that he was aware of the transfer of the perpetual estate to late George Hilly. He states at paragraph (3) of his affidavit as follows:

“One of the criteria in that policy-paper upon which the transfer was made reads as follows:

‘In future, perpetual estate can be transferred to Solomon Islanders who owns fixed-term estate and have developed it’.”

The second affidavit filed is that of the then Commissioner of Lands, Jeffrey Charles Deacon Moore filed on 26th February, 1998. At paragraph (4) of his affidavit he confirms what the policy of the government was at that time:

“During my tenure as Commissioner of Lands the Governments policy of returning alienated land to descendants of original owners was interpreted as:-

(a) declaring undeveloped, unencumbered public land as customary land.

(b) assisting descendants of original owners to form Land Purchase Co-operative Societies to purchase plantations on alienated land from their expatriate owners.

(c) transferring perpetual estates to Solomon Islands holders of fixed-term estates for a nominal sum provided the land was developed and the Province approved.”

Note paragraph (c) is exactly the same as the criteria in the policy which Laury Penrose Palmer had deposed to.

At paragraph (5) of his affidavit, Mr. Moore states:

“Given the policy of the time there was nothing unusual in the transfer of the perpetual estates to George Hilly and the Co-operative Society.”

The third affidavit filed was that of Waeta Ben Tabusasi, filed on 26th February, 1998. Mr. Tabusasi was then the Minister of Lands. He states as follows:

“2. It was the Government’s policy at that time to return alienated land to original landowners where possible and appropriate.

3. In the case of LR 213 and 214 on Ranongga the land was used to resettle people from Kundu and Queru.

4. Perpetual title to LR 213 was transferred to George Hilly after the Commissioner of Lands had satisfied himself that all conditions as to development of the land were complied with and the Western Provincial Assembly had no objection to the transfer.

5. I approved the transfer for the above reasons and also because the London Constitutional Conference resolved that resettlement of Solomon Islanders would involve the resettlers being granted perpetual title. This came about because at the time of the conference Gilbertese settlers were granted freehold title to the land they were given on arrival whereas Solomon Islanders such as the Tikopians on Makira and in the Russells and people from Guadalcanal at Aruligo were only holding fixed-term estates.

6. So far as the late George Hilly was concerned the Government considered him to be a settler on LR 213 and I therefore considered it appropriate that he be granted the perpetual estate.”

The fourth affidavit, that of Josiah Philip Riogano filed on 11th November, 1997, simply confirmed that the Western Provincial Assembly had passed a resolution approving the transfer of the title in LR 213 to George Hilly and that the Province had no objection to the transfer.

When the affidavit evidence and documents filed in support are compared, it becomes increasingly clear that Government Policy was not exclusively confined to the question of merely identifying who the descendants of the original owners were. The three deponents, Laury Penrose Palmer, Jeffrey Charles Deacon Moore and Waeta Ben Tabusasi all referred to a criteria in the Policy statement of the Government of the day which allowed transfer of perpetual estates to persons who were settlers, held a fixed-term estate and developed the land, and where the Provincial Assembly approved. No direct challenge to this criteria had been made by the Plaintiffs.

The documents referred to in the affidavits of Mr. Liligeto with respect do not conclusively show that the policy of the Government was confined to determining the identity of descendants of “original owners” in order to effect transfer of the perpetual estate. Exhibit “WL16” relied on is of no direct relevance to this case. It not only refers to a different land (adjacent to LR 213), but does not in any way show that the Commissioner was asking the Clerk to determine who were the descendants of the “original owners”. If so he would have said so. All he was asking was that Mr. Sorry’s claim should be investigated. That is quite different from asking someone to determine the identity of the “original owners”.

The second document relied on, was the foot note of the then Minister for Lands in exhibit “WL18”. The Plaintiffs argue that this supports the view that it was Government policy to return land back to the “original landowners”. But with respect, that foot note does not conclusively say that. Rather it supports the view that there are other criteria which, the Commissioner may take into account and that in this case, the policy of returning land to “original landowners” does include someone who come from the same area. To get full and complete picture of this foot note, regards must be had to the affidavits of Jeffrey Charles Deacon Moore and Waeta Ben Tabusasi in which they clearly spell out the other criteria to be included in that policy of the Government. This would explain the import of that foot note.

The third document relied on is exhibit “A” attached to the affidavit of Wilson Liligeto filed on 11th August, 1997. The Plaintiffs rely on that document as indicating that the Commissioner was asking the Clerk to Western Province to investigate claims and to identify the descendants of the “original landowners”. He failed to do this and thereby committed a mistake.

With respect, the letter of the 3rd December, 1980 did not ask the Clerk to the Western Province to “identify and investigate” the “original” landowners. What it requested was to “... confirm that there has been no objection from any “original owners” to the transfer of the perpetual estate in LR 213 ... to Mr. George Hilly ....”. There is a difference between “identifying and investigating” on one hand, and confirming if there are any objections or not, on the other hand. If the former were meant, then it would have said so clearly. For instance, the letter could have read “Please identify and certify who are the current descendants of the original landowner(s) and persons entitled to be registered as the holders of the perpetual estates in Lot 213?”. The letter did not ask who were the descendants of the “original owners”. It did however ask if there were objections from “original landowners”, to the transfer of the perpetual estate in LR 213 to Mr. George Hilly. Note the identity of the person to whom the Commissioner intended to transfer the perpetual estate is crystal clear. If the Commissioner had intended to transfer the perpetual estates to the descendants of the original owners, then he could have easily said so. But he did not. So there can be no mistake as to whom the Commissioner had intended to transfer the perpetual estate to. All he wanted to know was whether there were objections from the “original owners” or not. Whether there were or not, we do not know. But even if there were, we do not know whether that would have altered the Commissioner’s decision, bearing in mind the stated policy of the Government which was not confined to the mere identification of descendants of the original owners. It is important to appreciate that the ultimate decision rested with the Commissioner and that an objection and or claim by “original owners”, does not necessarily secure a right or an interest in the said land. It would still have been open to the Commissioner to decide whether an investigation or an enquiry should be conducted or not. And even if it may have turned out that the objectors were the true descendants of the original owner (as claimed by the Plaintiffs) that still does not or would not necessarily secure a right or an interest in the said land. The Commissioner would still have to weigh that with the claim of Mr. George Hilly and decide whether, the perpetual estate as a matter of government policy should be transferred to the descendants of the original owner or Mr. Hilly.

That letter with respect therefore did not show conclusively that the Commissioner considered himself bound to give effect to the identity of the descendants of the “original owners”.

On the balance of probabilities, I am satisfied the policy of the Government was not confined exclusively to the return of alienated land to “original owners” but that there were other criteria within that policy statement which the Commissioner had the discretion to rule on. Laury Penrose Palmer, Jeffrey Charles Deacon Moore, and Waeta Ben Tabusasi, all confirmed the existence of such policy statement which covered George Hilly’s case. The four crucial affidavits earlier referred to, filed on behalf of the Defendants showed very clearly that the transfer of the perpetual estate to George Hilly was intentionally and deliberately done after due consideration of the stated policy of the Government of the day. The affidavit evidence showed clearly that the Commissioner of Lands and the Minister at the said time, both took into account his particular circumstances and approved the transfer of the perpetual estate to him. It is clear on the evidence that they took into account that he was a settler on the said property, that he had a fixed-term estate interest and had developed the land, and that the Western Provincial Assembly approved of it. This fell squarely within the policy of the Government of the said time and accordingly he was entitled to the said transfer. There was simply no mistake involved in the said transfer. I am satisfied none has been shown on the balance of probabilities. The Commissioner and the Minister were not confined to the determination of the question of “original owners”. They had made a decision which I find to have been in accordance with Government Policy of the said time and therefore a matter completely within their discretion to decide on. As stated in the case of Derek Daii v John Palm Teaitala & Otrs, CC 200/95 (unreported) judgment delivered on 22nd December, 1995, the Court will not intrude into that arena.

This brings me to distinguish Derek Daii’s Case (ibid). The issue before the Commissioner of Lands in that case, was as to the identity of the “original customary landowners”. Both parties claimed to be the correct descendants of the original customary landowners. The Court held that the Commissioner made a mistake in finding that the Defendants were the correct descendants and ruled in favour of the Plaintiff based on the affidavit material and exhibits before the Court.

This issue before this Court, does not turn on the identity of the correct descendants of the original landowners but on whether the transfer of the perpetual estate fell within the policy of the government of the day.

One of the arguments sought to be relied on by the Plaintiffs was that they were not aware of the intentions of the Government to transfer the perpetual estate in the said property to late George Hilly, and that had notices been, issued, or an investigation carried out, that they would have objected to the transfer and instead made separate claim for transfer of the said perpetual estate. This they argued deprived them of their rights as the descendants of the original vendor.

With respect, it must be made quite clear that the descendants of the original vendor, whoever that might be (whether it be the Plaintiffs, the Defendants or anyone else for that matter) do not have automatic rights or “first rights” to the perpetual estate of this parcel of land. Rather whatever claims they might have, are dependant on the policy of the Government of the day.

In the facts of this case, unfortunately for the Plaintiffs, but fortunately for the Defendants, the policy of the Government at the said time was not confined to the sole question of who were the descendants of the original landowners. If that had been the sole issue before the Commissioner, then the Plaintiffs would have been able to rely on Derek Daii’s Case. Evidence adduced before this Court and accepted however indicated quite clearly that the said policy included settlers like Mr. Hilly who had a legal interest in the land, had substantially developed it, and the intended transfer approved by the Province. The Commissioner of Lands therefore was not obliged in law as may have been submitted by the Plaintiffs, to determine the question who were the descendants of the original landowner(s). There were other criteria within that policy statement which he was equally entitled to consider and make a decision on. He considered that criteria, found that late George Hilly fell within that criteria and decided in his favour. What more can be done in the absence of any mistake?

As to the submission on requirement of notice sought to be relied on by the Plaintiffs, with respect, that is not a requirement in law. As correctly pointed out by Mr. Moore in oral evidence, it was not required by law that notices should be put out. It was more an administrative requirement, that it would be done. If not done, whether inadvertent or deliberate, is not fatal to the decision of the Commissioner in the circumstances of this case. It may have been unfortunate that the matter was not widely publicised as alluded to in the affidavits of the Plaintiffs, but even if it had been widely publicised, and the claims of any interested persons heard, it must be borne in mind that at the end of the day, it is the Commissioner who would make the crucial decision. Whether he would have ruled in favour of the descendants of the original landowners, we can only surmise. It may have been unfortunate for the Plaintiffs because they have come to this Court with the feeling that whatever claims they might have on the said land had not been heard and despite the fact that such omission may not have amounted to any mistake it has left them with a feeling of being unfairly treated.

The position in law nevertheless remains that it was not a requirement of law that notices be put out on the question of transfer of the perpetual estate. So even if no public notices were put out and no proper investigations conducted on the question of “original owners” claims, that would not affect the decision of the Commissioner. In other words, it does not amount to a mistake that would warrant the intervention of this court.

It should be borne in mind that the land had been severed (completely cut off), from the original landowner(s), for some seventy odd years by due process of law and that at the end of the day, it is for the Commissioner, on behalf of the Government of the day, to say to whom the perpetual estate should be transferred. In the facts of this case, it is clear beyond doubt to whom the Commissioner had decided the perpetual estate should be transferred to. It wasn’t the case of a mistaken identity, mistaken belief, or a mistake in law or fact. The Commissioner had found to his satisfaction, that late George Hilly was entitled to be transferred the perpetual estate based on the policy grounds before him. The Minister of Crown, Honourable Waeta Ben Tabusasi, also gave his approval, after satisfying himself that the policy of the Government for which he was responsible, was being complied with in all respects. What more is needed?

Another matter which was referred to in the affidavit of Wilson Liligeto (see exhibits “WL 10”, “WL 15”, and “WL 17” in affidavit of Wilson Liligeto filed 23rd July, 1997), was that the Commissioner of Lands committed a mistake in simply accepting that the Province had approved the transfer in lieu of investigating the claims or objections of the “original owners”. Whether the Commissioner was right or wrong in accepting the decision of the Western Provincial Assembly, without hearing the objections of any “original owners” is a matter for him alone to decide. According to the policy statement before him, all that was required was that the Province should grant its approval. That was done in this case and as far he was concerned that was sufficient. I find he was entitled to take that course of action and accordingly there can be no mistake as to his decision to transfer the said perpetual estate to Mr. George Hilly.

Another submission sought to be presented by the Plaintiffs was that there was no record to show that the Second Defendant had a fixed-term estate over the said land. With respect, the documents submitted in the affidavit of Wilson Liligeto filed on 23rd July, 1997 actually shows otherwise. First, we have exhibit “WL 5”, which was the letter from the Acting Commissioner of Lands & Surveys, asking if the late George Hilly was interested in converting his lease into a fixed-term estate. Exhibit “WL 6” is the reply of late George Hilly in which he positively indicates his preference. Exhibit “WL 7” is a memorandum from the Registrar of Titles advising the District Commissioner Western, to publicise the application for registration and other instructions. It is pertinent to note that the application is given a number (Application No. 42/1/74) by the Registrar of Titles. This can only mean that the application had been received by the Registrar of Titles and being processed.

Other relevant documents, exhibits “WL 12” and “WL 18” both support the view that the lease hold interest of late George Hilly had been registered as a fixed-term estate. The crucial document however, is exhibit “WL 20”. This is a standard form (RT Form J) from the Office of the Registrar of Titles with the heading “Advice of a Registration of a Dealing or Other Matter Affecting Registered Interests in Land”. It has an application number 168/81. The name of the Applicant is the Commissioner of Lands. Parcel affected is: 079-007-4, which is LR 213. Below this information, are two dealings. The first one relates to the transfer of the perpetual estate. The second one is the crucial information. It reads: “Merge of Fixed-Term Estate”. This can only mean one thing. That the Transferee, late George Hilly was also the holder of the fixed-term estate in the same parcel and that on being transferred the perpetual estate title, his fixed-term estate merged into that perpetual estate title. This simply meant that the fixed-term estate title was swallowed up and thereby extinguished (merged) by a better title, the perpetual estate title. Hence the description of the nature of dealing as “Merge of Fixed-Term Estate”. The submission therefore that late George Hilly was never the holder of a fixed-term estate has no basis.

I am satisfied there is no mistake whatsoever in the registration and transfer of the perpetual estate on policy grounds to the late George Hilly by the Commissioner of Lands that would warrant the intervention of this Court such that any orders for rectification should be made as sought. The Plaintiffs have failed to prove on the balance of probabilities that a mistake exists and accordingly the application for rectification must be denied, with costs.

ORDERS OF THE COURT:

1. DISMISS APPLICATION.

2. COSTS OF THE DEFENDANTS TO BE BORNE BY THE PLAINTIFFS.

THE COURT.