Tavalusu v Sovekimbo [2008] SBHC 68; HCSI-CC 123 of 2007 (10 November 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 123 of 2007

DAVID TAVALUSU, JACK RONGONI & RETLY MOIA]
Claimants

V

JONATHAN SOVEKIMBO, JOSEPH RENLY, BASIL KONA, JOHN MAELI & JOHN TIMI
First Set of Defendants

AND:

REGISTRAR OF TITLES
Second Defendant

IZUAKO, J.

Date of Last Hearing: October 14, 2008
Date of Judgment: November 10, 2008

Claimants’ Counsel: A. Radclyffe Esq
Defendants’ Counsel: D. Marahare Esq

JUDGMENT

Izuako, J.

In this action the claimants David Tavalasu, Jack Rongoni, and Retly Moia have sued on behalf of the members of their community – the Vatukulau who are settlers on Aruligo land in Guadalcanal. They are asking the Court to order a rectification of the perpetual estate register in respect of Parcel No: 190-001-35 on the grounds of mistake and;

That the Claimants be registered as the perpetual estate owners in place of the 1st set of defendant.

In their statement of case, the three claimants state that they represent the members of one of the three groups who were resettled at Aruligo in Guadalcanal while the defendants are another of the said three groups and the registered owners of the perpetual estate in parcel no. 190—001-35 covering an area of about 19.70 hectares situate at Aruligo which registration was done in 1997.

The claimant’s pleadings show that in the year 1977, a severe earthquake hit the Weather coast area of Guadalcanal. The Solomon Islands government agreed to assist the displaced people of the said Weather coast area by resettling them on land in Aruligo which had been acquired by the government. Three groups of people were resettled namely the Vatukulau, the Duidui and the Horabau. The claimants represent one of these the Vatukulau while the 1st set of defendants represents another of the groups of settlers the Duidui.

The then Commissioner of Lands and the representatives of the three groups had reached an agreement that each group would occupy a designated area of land and that title to the portion of land they occupied would be transferred to the representatives of each of the three groups.

The boundaries of the land were later demarcated and the claimants’ group was allocated the area of land that became parcel no. 190-001-35 which said parcel of land the claimants group has been occupying and working on since the resettlement. As a result of a mistake on the part of the Commissioner of Lands and the first set of defendants, parcel no. 190-001-35 was registered in the names of the first set of defendants instead of in the names of the claimants.

The claimants were unaware of this state of affairs until the first set of defendants demanded rents from them.

On their part, the first set of defendants in their statement of case agreed largely with the case as stated by the claimants but denied that the area registered as parcel no: 190-001-35 was ever allocated to the claimants’ community or that there was any mistake on the part of the Commissioner of Lands in registering the said parcel of land in the perpetual estates register in the name of the first set of defendants who represent the Duidui. They also contend that the claimants are not entitled to the orders sought.

In making out their case before the Court, the claimants called three witnesses. The claimants’ second witness was David Tavalasu, named in the suit as the first claimant on record. In his testimony, he recounted the events leading up to the resettlement of the three affected groups on Aruligo land by the Government in 1977. According to the witness, the three groups who were resettled were Vatukulau Community to which he belongs, Duidui Community to which the first set of defendants belong and a third group known as the Horabau Community. He continued that the Aruligo land which Government gave the affected groups was shared equally among the three groups. He said a survey of the land was carried out in 1979 and tendered exhibit 4 which he said is a survey map with the land in dispute edged in yellow. The witness continued that the land in dispute was the area allocated the Vatukulau who at the time of the survey were already on the land and cultivating it. They planted cocoa, coconuts, rice and gardens. They have continued to use the land till date – a period of thirty-one years. In 2006, the defendants representing the Duidui Community asked them to pay rent on the parcel of land allocated to them. It was then that the claimants discovered that the land had been registered in the name of the Duidui by the Commissioner of Lands.

When cross examined by D. Marahare esq, the witness said it was the Ministry of Agriculture and Lands that allocated the land in dispute to his Community for a project. He said he knew about the land not being transferred to them in 1998. He said also that it is true that the resettled communities initially negotiated as one group with Government.

The 3rd witness for the claimants was one Lino Sasa. He told the court that in 1978 he was working as a surveyor. He said he was instructed by the Commissioner of Lands at the time to survey the Aruligo land which was being given to the victims of the Weathercoast earthquake of 1977. He said he knew the 2nd witness for the claimants David Tavalasu and that the said David was present during the survey which he the witness carried out on the parcel of land allocated to the claimant’s community. The witness also said he knew one Jonathan Sovekimbo who is one of the first set of defendants on record but could not recall if Sovekimbo was also present during the survey. The witness said that the land in dispute was allocated to the claimants’ community. He also identified that the area edged in yellow on the survey map exhibit 4 was the area allocated to the claimants and surveyed by him. Witness continued that after the survey, he sometimes visited the claimant’s community and knew that they planted cocoa, coconut and vegetables on the land.

When cross examined by D. Marahare esq, the witness said it was one Leonie who showed him the land to survey. He said he was asked to survey the portion for the claimants as the surveys were done differently for each of the three groups.

In re-examination, the witness said the Commissioner of Lands who instructed him to carry out the survey was Taognao.

The claimants then closed their case.

In making out their defence, the first set of defendants called two witnesses.

One Sedhuel Kelly was the first witness. He said he knew the parties in the case. He said that he had served as a Member of Parliament representing the people of South Guadalcanal at the time of the earthquake of 1977. The parties in this suit were part of his constituency in 1977 when the earthquake that caused their displacement took place. He said that Government found land to resettle the affected communities and money for them to start agricultural projects.

The witness continued that the three affected groups or communities held meetings with the Commissioner of Lands and that each group appointed trustees to represent them. Each of the said three groups were asked to pay about $4,000.00 for a transfer of title to them and they all complied with the request. He said further that none of the groups has a right to dictate to government what they would be given no they could only take what they were given by the Commissioner of Lands.

When cross examined by A. Radclyffe esq, the witness stated that the three groups or communities are Vetakalua, Duidui and Korobau. He said that Government intention was to grant the lands at Aruligo on which they were resettled to the three groups. The witness continued in his answers that it is not correct to say that perpetual estate in the whole Aruligo land was allocated to the Duidui alone. He said that each of the three groups had paid the consideration of $4,000.00 and that it was the duty of the Commissioner of Lands to transfer a perpetual estate according to which portions they were occupying to all the three groups who had been resettled on the land.

The second witness for the defence was one John Maeli who said he is one of the trustees of the Duidui Community. He confirmed what all the other witnesses had said about the resettlement of the three communities following an earthquake in 1977. He said they all went to Aruligo as one big group. All the three groups who were resettled at Aruligo were working on the land when they went on it, each within a specified area allocated to them. He said the land that the Duidui Community was working on included the land, the subject matter of this action. He said land was allocated to each of the three groups for an agricultural project and the Ministry of Agriculture and Livestock sent officers to each of the three resettled communities to help them. The witness continued that the land which is the subject matter of this action was allocated to the Vatukulau, that is, the claimants’ community. The land, he said, is very close to Duidui land. He said the Duidui have properties on the land in dispute such as taro, pineapple potatoes and houses, coconut and bettlenut. He said the Duidui had worked on the land with the claimants’ community until the land was registered in the name of the Duidui, the first defendant community.

When cross examined by A. Radclyffe esq, the witness confirmed that the land edged in yellow on exhibit 4 is the land in dispute. He said it is true that his community was given title to the land in 1997. He said his name and signature appear on the document. The witness said the land in dispute was allocated to the claimants’ community for an agricultural project. He added that his own community also worked on the same land. He continued that the claimant community were planting coconuts on the land and so his own community the Duidui moved out in 1978 or 1979. The witness said it was not a mistake that the Commissioner of Lands had registered the land to the first defendant community which is the witness’ community because the Commissioner has power to register the land to anyone. The witness said the Vatukulau have other lands registered to them but in reply to the next question, he said no land was registered in the name of the Vetukulau and that he did not know why the Commissioner chose to register the land in dispute in the name of his own Community - the Duidui.

The second defendant, the Registrar of titles did not file a defence or call any witnesses but appeared in court as a witness for the claimants when he tendered exhibits 1, 2 and 3 in relation to this case.

In their final submissions Counsels for the claimant and 1st set of defendants disagreed. While it was the submission of claimants’ counsel A. Radclyffe esq that evidence before the court shows that the Government’s intention was that each of the three communities would get title to part of the Aruligo land but somehow all the land were registered in the name of the Duidui as having title in the perpetual estate. He submitted that the claimants’ community having been allocated the land and having dwelt on it since 1978, the registration of the said land in 1997 in the names of the first set of defendants was as a result of a mistake on the part of the Commissioner of Lands. He urged the court to grant the reliefs sought by the claimant under S. 229(1) of the Land and Titles Act as according to him the Claimants had proved their case on a balance of probabilities.

D. Marahare esq for the first set of defendants submitted that the claimants have failed to show that the agricultural allocation made to them became the basis for the transfer of the land by the Commissioner of Lands. He continued that the choice of what land to allocate to the three groups was an administrative matter for the Commissioner of Lands alone to decide. None of the groups, he submitted, had control over the matter and therefore the claimants are not entitled to the reliefs sought.

In reviewing the evidence before the Court, I observe that all the parties are agreed that due to an earthquake in April 1977 which devastated the Weathercoast Communities in Guadalcanal, Government undertook to settle the communities on the Aruligo land in Guadalcanal. It is not disputed that having relocated to the Aruligo land, the three communities namely the Vatukulau, Duidui and Horabua were helped by Government to start agricultural projects on the new settlements. It is not disputed that each of the three communities appointed trustees to represent them and that the Commissioner of Lands at some stage collected the sum of $4,000.00 from each of the communities in order to prepare title deeds in respect of the Aruligo lands allocated to them by Government. It is also agreed that the intention of Government was to grant titles in perpetual estate of areas of the Aruligo land to the Communities who were resettled on them. The 2nd witness for the first set of defendants John Maeli who himself is one of the trustees of the Duidui community stated in his evidence that they, the Duidui had moved out of the land in dispute in 1978 so that the Vatukulau or the claimants’ group could pursue their agricultural project. He did not know why the Commissioner made out title documents to his community the Duidui in respect of a parcel of land occupied by the claimants’ group since 1978.

I am inclined to examine the question raised in the submission of learned counsel for the defence D. Marahare esq that it was the sole choice of the Commissioner of Lands to decide what land to allocate the groups as this was an administrative matter. According to him, the three groups had no control over the matter. I disagree. It is well established that in discharging the functions of a public office or exercising any discretion in an administrative capacity, the public officer is expected to act judiciously, exhibiting cautious discernment and prudence. He is not to be reckless in his actions. For instance, if in a situation such as we have here, the Commissioner of Lands makes a deliberate decision to give title to a parcel of land on which the Vatukulau have been resettled by Government since 1978 to the Duidui who were also resettled on another parcel of land whose title was also given them, then he cannot be said to have acted judiciously. He does not have a choice to do as he pleases in the matter regardless of the public good. Where he has not acted with proper consideration and reasonableness, the courts will be poised to quash such action where it is called upon to do so. But that is hardly the case here. This action is brought on the grounds that a mistake has been made in the grant of title to parcel no 190-001-35 to the Duidui Community rather then the occupants – of over 30 years - the Vatukulau Community. I observe with concern that exhibit 1 which was tendered by the Acting Registrar of Titles Haelo Pelu shows that four parcels of land were transferred to the Duidui or 1st defendants group in perpetual estate; among them, parcel no 190-001-35 the subject matter of this action. In view of evidence before the court, I am satisfied that a mistake has occurred in the grant of perpetual estate titles to the resettled groups. This cannot be allowed. I am satisfied that this action succeeds, the claimants having proved their case on the balance of probabilities. In view of these the following orders are hereby made:

(1) The perpetual estate in parcel no 190-001-35 shall be rectified forthwith on the grounds of mistake.

(2) The Registrar of Titles shall register David Tavalasu and four other trustees of the Vatukulau community as perpetual estate owners on behalf of the said Vatukulau community in respect of parcel no. 190-001-35 in place of the first set of defendants Jonathan Sovekimbo, Joseph Renly, Baroil Kona, John Maeli and John Timi of the Duidui Community.

(3) The first set of defendants shall pay the costs of this action which shall be assessed and agreed between counsels.

Justice Nkemdilim A Izuako
Puisne Judge