The firstndant, the
Commissioner of Lands, who at the time was Mr. Eliam Tanirono, acting, fir, first
took the position
that the approval of j allocation to the plaintiffs
conveyed in a letter dated 16.4.1997 from his office was not authorised.
His
approval of allocation to Habu Enterprises Limited, he said, was not because
of threat. In his affidavit and testimonies,
he stated that: When he
approved allocation to Habu Enterprises, he was not aware of the earlier
allocation to the -
plaintiffs. When he was taken by Mr. Fera and Lobo to
the office of Jackson Vaikota, the Surveyor General, Mr. Fera and Lobo
were
talking in "heated tone", in the end they asked him to leave the office,
they would deal with Mr. Vaikota.
He heard the utterance about removing Mr
Vaikota’s glasses. He signed the grant in favour of Mr. Rex Fera because he
“regarded Mr Rex Fera and Habu Enterprises Limited as one entity”.
Surprisingly though, in defence filed at Court on 12.8.1998,
the Acting
Commissioner had admitted among other things, paragraph 12 (a) of the
statement of claim. That paragraph stated
that registration of land parcel
No. 191-014-154, "was obtained by fraud or mistake and should be cancelled”.
That
is what Mr. Tanirono admitted in written defence, but turned to say the
opposite in testimony in Court.
The Position Taken b y the
Registrar of Titles
The second defendant, the
istrar of Titles, did not take stand for or against the plae plaintiffs’ case
for rectification
of the register, by cancelling the registration of Mr.
Fera. He merely deposed to the events leading to the registration of
Mr.
Fera’s interest in land parcel Nos. 191-014-154 and the land not in issue,
No.191-014-155, the two extensions including
government houses, and as to
the caveat subsequently lodged by the plaintiffs.
Mr. Jackson Vaikota, the
Surveyor General, ained consistency, he said he was threatened to
authoauthorise survey of parcel
191-041-154 and the two extensions to another
parcel reaching government houses. In the end he led prayer to restore
spirits. Surveying is necessary, Mr. Vaikota said, because registration of
interest cannot take place before survey has confirmed,
among other things,
that the land is not already allocated to someone else. I see one other
important reason for surveying,
it identifies in details the boundaries and
area of the land to be registered.
The Case Against the
Commisr of Lands
As far as the case rest on the
facts as known by the Commissioner of Lands, the first defendant, judgment
for ratification
under s.209 ( now s.229) would be granted. Firstly, it will
be on his own admission that registration of grant of Parcel No.191-014-154
to Mr. Rex Fera was the result of fraud or mistake should be cancelled.
Secondly, I would, from the affidavits and testimonies
in the case, find
that there have been mistakes of facts: The Commissioner admitted that he
granted approval to Mr. Fera’s
application on 5.9.1997 when he was not aware
that approval for allocation of the same land had already been made to the
plaintiffs. Although he had said that the allocation to the plaintiffs was
not authorised by him, he answered in Court
that if he had seen the
application of the plaintiffs at the time they made it, he would have
approved it if the land
had not already been allocated to someone else. He
also admitted that it was known practice that in his office, other officers
sent out allocation letters without having been specifically authorised by
the Commissioner. In fact even the allocation
to Mr. Fera was signed by an
officer, Mr. James W. Naghe, not by the Acting Commissioner himself. Thirdly
the Commissioner
minuted in his approval that he learnt that the application
had the approval of the Hon. Prime Minister; his minute about the
land,
parcel No. 191-014-154 stated:
“TO: Surveyor General
ass=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
The above request may
proceed.
I am informed tplicant
has the support of the Hon. PM and that furthfurther progress of the application
will be discussed
with the Hon Min of Land by the applicant.
Date: 8.9.97
Signed CL (Ag)
C/L/CPP”
In Cour. Tanirono, seemed
to say that what he minuted was a lie told to him by Mr. Fera. If . If so, that
amounted to
him acting on misinformation which was then a mistake of fact,
and therefore ground for rectification under s:209. (now s:229).
I would not
go so far as to say it was fraud as Mr. Radclyffe submitted, the point of
fraud was not canvassed sufficiently
in Court. Fourthly I find as a fact
that the Acting Commissioner, Mr. Tanirono, was threatened by Mr. Fera and
Mr. Lobo.
There is overwhelming evidence for that finding of fact. He said
that Mr. Fera went to his house many times about the allocation.
The
evidence also shows that Mr Tanirono was in fact ordered to go with Fera and
Lobo to the office of Mr. Vaikota, a
junior of Mr. Tanirono. He complied. At
that time the relevant office files were carried around by the two men. Then
Mr Tanirono was told to leave Mr. Vaikota’s office and again he complied. Mr
Tanirono has been less than frank about it in
court, but however careful he
was about it, yet by the carefully chosen words themselves, he gave me the
impression that
he approved Mr. Fera’s application when he felt threats. I
would grant rectification not because the threat amounted to fraud,
as Mr.
Radclyffe in his submission would like the Court to say, but because, in my
view, approving application under
threat was not approval at all, and grant
that followed was also not grant. The free mind to approve and sign grant or
not to, was not there. The registration based on approval obtained by threat
or blackmail was registration the result of
mistaken fact that there had
been grant. The register would be rectified under s.209 (now s.229), so as
to cancel the
registration.
The Case Against Mr. Fera
Under s.209(2) (now s2)),
rectification of register on the grounds of mistake and fraud cannot be done
e
to affect
someone who has acquired the interest in the land registered by
payment for it and when he is in possession. In this case,
Mr. Fera has paid
valuable considerations - premium and fees for the land, and on the facts in
the case, I consider him
to be in possession of the land.
<
Mr. Fera’s defence to the
plaintiffs’ case that the registration of parcel no. 191-014-154 in his name
be cancelled, is
that he, Mr. Fera trading as Habu Enterprises, applied in
the normal way, got approval of allocation in the normal way, asked
for
survey in the normal way except that he complained about delay in
authorising surveying. In particular, Mr. Fera
wanted it accepted that he
did not threaten violence against Mr. Tanirono so as to approve allocation,
nor against Mr.
Vaikota so as to authorise surveying of the land parcels allocated to him,
Mr. Fera. He did not deny the statement that
he falsely used the name of the
Hon Prime Minister; he simply replied in affidavit that it was irrelevant.
Mr. Fera brought
into issue, facts about four other parcels of land to
explain that the discussion he had in Mr. Vaikota’s office, the discussion
which the plaintiffs described as threats, was not about land parcel No.
191-014-154, the subject of this case, and parcel
No. 191-014-155, the two
extensions to 191-014-147 by up to 55 metres, reaching up to houses
belonging to government.
The discussion was, Mr. Fera said, mainly about
lands at Jackson Ridge, Baranaba and Tuvaruhu, especially about the land at
Jackson Ridge about which authorising surveying had delayed far too long.
Mr. may have believed that
he was not threatening Mr. Tanirono and Mr. Vaikota, but from from the evidence
as a whole,
my view is that they felt threatened. What else can be
understood from the written report of Mr. Vaikota, dated 8.10.1997 to
the
Permanent Secretary? It was a good thing that the situation calmed down and
Mr. Fera and Mr Lobo allowed Mr. Vaikota
to say prayer. That, however, did
not remove the consequence of the threat. Most importantly, Mr. Fera’s
application
letter dated 29.3.1997 gives the clear impression that when he
applied for allocation of parcel 191-014-154, he had been aware
that Mr.
Lilimae and Mr. Irokalani had applied for the same land and they had got
approval signed by an officer who was
not the Commissioner himself. If not
so, why did he state in the letter that under the Land and Titles Act, only
the Commissioner could make grant of Crown land? I set out the letter here:
“HABERPRISE LTD
C/-O P O BOX 551
HONIARA
<
Date 29th March
1997
THE COMMISSIONER OF LANDS
MINISTRY OF LANDS AND
HOUSING
P O BOX G28
HONIARA
Dear Commissionpan>
I hereby humbly honoured to
submit to you my applicator the above per captioned.oned.
I fully understand that
r the Land and Titles Act Section 133A Sub-section (2) only only the
Commissioner of Lands shall give his consent to grant of a lease of any
Crown
land to any applicant who may wish to develop that particular land. As
I am a Solomon Islander, I very much interested on the
area marked Green on
the attached map to this application.
Your endorsement of my
application would be very moth highly appreciated.
Yours faithfully
lass=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(signed)
Secretary for Habu
Enterprise Ltd”
It is my finding of fhat
Mr. Fera caused and was therefore aware of the mistaken facts upon which the
Commissioner
approved allocation of land parcel No. 191-014-154 to him, Mr.
Fera, and signed the grant, that was subsequently registered.
The
registration of the grant was therefore based on mistakes that Mr. Fera
caused and was aware of.
class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Court Detation
1">
The Court grants the
declaration, but alters it to state that: The registration of Mr. Rex Fera
as the owner of fixed
term estate for 50 years in land parcel No.
101-014-154 was based on mistake. The plaintiffs asked that the relief of
rectification of register be granted. By authority of s.209(1) (now
s.229(1)), the Court can direct cancellation of registration
in favour of a
person who caused or knew about the mistake or fraud. I am satisfied that
cancellation can be ordered
to affect Mr. Fera. The Court orders that the
registration in the Fixed Term Register, of the 50 years fixed term estate
in parcel No. 191-014-154 on 21-11.1997, in favour of Mr. Rex Fera, be
cancelled. Payments made by Mr. Fera in respect
of his application, grant
and registration of parcel 191-014-154, are to be refunded to him.
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr. Radclyffe had originally
asked the Court to order registration of Mr. Lilimae and Mr. Irokalani as
the owners of the
fixed term estate in land parcel No.191-014-154 and the
land adjoining to the south. In the course of the trial, Mr. Radclyffe
realised that s.209 (now s.229) does not authorised the Court to order
registration in place of a cancelled one. The
power of the Court goes only
so far as ordering that a registration be cancelled because it was made as
the result of
mistake or fraud. That is in conformity with the general
principle of Administrative Law, that Court cannot take over administrative
duty of government officials or of the Executive Arm of Government, although
the Court may order them to act when the
law requires them to act or may
nullify their action when the law does not authorise them. In this case
Court would be
improperly taking over the duties to allocate land, make
grant of it and have it registered. Those are the responsibilities
and
duties of the Commissioner of Lands and Registrar of Titles. I can only
state as a matter of clarification that land
parcel No. 191-014-154 will now
be regarded as unregistered as the result of this judgment. The Commissioner
may proceed
to consider applications for its allocation in the normal way,
of course, when now fully aware of the application of the plaintiffs
and the
subsequent application of Mr. Fera.
Larcel 191-014-155, the
Extensions Including Houses Belonging to Government>
There is need to clarify one point. In the proceeding there, has been alot of evidencedence to suggest
irregularities in granting
the two extensions, now consolidated into parcel
No. 191-014-155 to include existing houses belonging to government. The
extensions were to enlarge parcel No.191014-147, apparently acquired by Mr.
Fera from Mr. Billy Gizo. The evidence suggests
that the irregularities in
allocating, granting and registering the extensions, are similar to those
regarding parcel
191-014-154, the subject of this case. For instance, the
Commissioner of Lands has testified that the Commissioner would not
normally
allocate land that is not vacant. The Surveyor General also testified that
they needed to survey the land to
ensure that the land was not already
allocated to someone else or occupied. The Commissioner's Minutes about
allocation
of the extensions are:
“PLO (U)
Please do cheat he has FTE
Title over Lot 1336 PN 191-014-147 and and approve in principle subject to new
directives issued by me on 1.7.97, i.e. to be screened by Committee in para
4 in internal memo at folio 2.
(signed)
PS/CL (Ag)
14.7.97
(1) PLO (u)
Since the above is only
requesting an eion for easement purpose itse it should be approved and given
to him. He is a Solomon
Islander struggling for his business.
(signed) Minister 14.7.97
class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
(2) PLO (u)
class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
As per Minister's minute 1,
extension sought approved. Liaise with CPP for Inspection report.
(Signed)”
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The part to be done by the
Committee red to in the first minute was subsequently skipped becausecause
of the minute from
the Minister. Survey of the extensions, by the authority
of the Surveyor General, Mr. Vaikota, was also the subject of threat.
Questions might have arisen also as to whether the allocation of the
extensions was new allocation of vacant land or
whether it was actually sale
of government asset. Sale of government asset is perhaps regulated by some
procedure which
has not been followed.
Despite the observations I have
made about evidence of irregularities in the allocation, grant and
registration of the
extensions of up to 55m reaching some houses belonging
to government, I have decided that the Court should not make any order
about
them because the plaintiffs in this case did not come to Court about the
extensions, their case is about parcel
191-014-154 only. The extensions and
other lands were introduced into the case by one of the defendants, Mr. Fera
to
explain his meeting with Vaikota. Court cannot decide a matter unless the
matter has been brought to it as a case. No court
order about land parcel
191-014-147 and its extensions consolidated in parcel 191-014-155, is made.
Other Observations
Lastly I think it is necessary
to make two observations:-
lass="Mso="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
1. &nbbsp; &nsp; It is noe ill
al
fo for a Prime Minister, Minister or an official in government department to
support an application for allocation of land based on declared government
policr exa thera well knownknown gove governmenrnment
policy, often cited in
Court, to return perpetual estate in land acquired by government, to the
original customary owners
of the land. There is nothing contrary to the Land
and Titles Act in the policy. There could be other public policies that can
be grounds for government officials supporting applications for
allocation
of land, or for government departments applying for allocation of land. It
is only application or support
of application based on fraud or mistake that
s.209 (now s.229) of the Land and Titles Act treats as illegal.
2. &nbssp;&nnbsp;&nsp; Fsp; From the eviden
this case and others I have dealt with before, procedure for applying for,
allocating and registering land needs to be spelt out cle From we
see ande and hear hear in Court, different officers in Land
Land Office know the steps in
the procedure in different sequences with the result that many of their
official actions
end up in Court as Court cases. There also seems to be no
law or policies that spell out considerations that the Commissioner
should
take or not take into account when considering application for allocation of
land. The different Commissioners
who have been to Court when I presided
seem to think they have open authority and they seem to differ about what
they
consider as criteria. It might also explain why Commissioners of Land
do not last long in office. The incidents of this case
occurred in the time
in office of two Commissioners, by the time of trial at Court, a third
Commissioner was in office.
Costs of this case are awarded
to laintiffs against the First defendant, the Commissioner of r of Lands and
the Third
defendant Mr. Rex Fera, excluding of course, costs relevant to the
claim about the land adjoining parcel 191-014-80 to the
south, the claim
which the plaintiffs abandoned. Costs are not ordered against the second
defendant, the Registrar of
Titles, because he did not try to resist the
claim of the plaintiffs and he was not responsible for the mistakes made.
Delivered this Monday the 17th
day of May 1999
At the High Court
Honiara
Sam Lungole-Awich
Judge
/p>
During this case parties said
that they hadiderable difficulties in locating some of the land files
es
now exhibits
in Court. Some files would not be traced at all. Some of those
had photocopies made of them in anticipation of them getting
lost. It is
therefore necessary for me to make court order that the Registrar of the
High Court return the files as follows:-
To the Commissioner of Laspan>
