Tharoghia v Tolia [2009] SBHC 13; HCSI-CC 276 of 2008 (8 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

ALFRED THAROGHIA
(late of Komumavoghi Village, North Guadalcanal
Deceased Intestate)

AND:

THE WILLS, PROBATE AND ADMINISTRATION ACT (Cap 33)

AND:

AN APPLICATION FOR LETTERS OF ADMINISTRATION
by Roselyn Gaokale, James Bikupe, Robert Rava, Robert Tingi and James Luli
Claimants

AND:

DANIEL TOLIA
Defendant

Date of Hearing: 4 May 2009
Date of Decision: 8 May 2009

Mr. Kama for Applicant
Mr. Tinoni for Respondent (Claimants)

DECISION ON APPLICATION TO DISMISS
CLAIM AS AN ABUSE OF PROCESS

Cameron PJ

1 On 13 February 2006 Alfred Tharoghia died without leaving a will. He was the sole surviving trustee of a registered perpetual estate of approximately 184 hectares known as Lot 6 L.R. 53. The land is located at Tathimboko, North Guadalcanal. He was survived by a wife, a son and other siblings.

2 By a claim dated and filed in this Court on 25 November 2008, the claimants applied for an order that letters of administration of the estate be granted to them.

3 One of the surviving brothers of the estate, Daniel Tolia, applies to have the claim that administration of the estate be granted to the claimants dismissed, on the grounds that it is misconceived and an abuse of the process of the Court.

4 It is apparent from the sworn statements and the perpetual estate register that the land was transfered into the joint names of Thomas Vithao and Alfred Tharoghia (father and son respectively and both now deceased) on 18 June 1985. As the time of the transfer, both those owners completed a statutory declaration (dated 23 April 1985) to the effect that they held the land as trustees for the Thogo Bonogo Landholding Group.

5 Then following the death of Thomas Vithao, the land was registered on 3 August 1994 in the sole name of the survivor, Alfred Tharoghia.

6 It is clear from the materials filed that for some time the claimants, and in particular James Bikupe, have laid claim to the land as their own. They claim to belong to the same Thogo Bonogo clan and state that they (and in particular James Bikupe as their representative) should be on the title as trustees. On the other hand, Alfred Tharoghia’s claim was that they were from the Buru clan. In a judgment of 6 September 1998 the Ghaobata Council of Chiefs ruled in favour of James Bikupe in the face of opposition from Alfred Tharoghia, stating:

"James Bikupe was represent his own TRIBE, has fully satisfied the Council of Chiefs that any future land acquisition (sic), on Lot 6 of LR 653, one named JAMES BIKUPE should be added"

7 Alfred Tharoghia sought to quash this judgment in the High Court (CC 187 of 2004), but by a decision of 15 November 2004 the Chief Justice refused to do so or to interfere with the decision in any way.

8 Following that High Court decision, Alfred Tharoghia through his lawyers on 2 March 2005 referred the Council of Chief’s judgment to the Guadalcanal Local Court pursuant to section 12(2) of the Local Courts Act (Cap. 19). That challenge to the Council of Chiefs judgment is awaiting a hearing in the Local Court.

9 By originating summons dated 24 March 2004, one of the present claimants, Roselyn Ghaokale, sought from the High Court a declaration that

Alfred Tharoghia was not the sole beneficiary of the land in question. This action has not been prosecuted but remains outstanding.

10 Following the death of Alfred Tharoghia on 13 February 2006, his surviving family through their lawyers by letter dated 9 August 2006 referred the question of who should be the successors in title of the perpetual estate to the Guadalcanal Local Court. Attached to that letter was a "Statement Pursuant to Section 105 of the Wills, Probate and Administration (Cap. 33)" which in paragraph 8 states:

"The Court is to certify in accordance with customary usage of Tasimboko, North Guadalcanal, the devolution of the estate by determining the following issues in accordance with customary usage of the area –

(a) Who are present members of the Bonogo clan of the Thogo tribe?

(b) If there are present members of the clan, the Court shall certify that the estate be devolved to them.

(c) If there is no surviving members of the Bonogo clan left, then who is entitled to the estate?

(d) Any person who is determined to be entitled to the estate, the Court shall certify that the estate be devolved to him.

11 The referral under section 105 remains extant, in the sense that the Local Court has yet to convene to hear the matter.

12 Then, as stated, on 25 November 2008 the claimants applied for the grant of letters of administration in their favour. It is clear from the sworn statements that the reason for doing so was because the land was tribal land and the claimants had been chosen as trustees of the land for the tribe at a meeting on 21 October 2007. In other words, the grant of letters of administration in their favour would enable them to action what was decided at that meeting and to register the land in their joint names as trustees.

13 The respondents argue that the application for letters of administration should be dismissed because there should be a referral under section 105 to the Local Court to decide who should now be registered as owner of the perpetual estate in the land.

14 Section 105 of the Wills, Probate and Administration Act (Cap. 33) provides:

"Where a Solomon Islander dies intestate and any perpetual estate owned by him does not form part of the residuary estate, the devolution of such perpetual estate shall be in accordance with the current customary usage as certified by the local court having jurisdiction in the area where the land is situated."

15 When one examines the relevant extract from the perpetual estate register, and the statutory declaration of 23 April 2005, there can be no doubt that Thomas Vithao and Alfred Tharoghia held the land as joint owners as statutory trustees on behalf of the Thogo Bonogo Landholding Group. The declaration expressly states this in clause 1. When Alfred Tharoghia was registered as the surviving joint owner on 3 August 1994 (with a notation ‘Registration of Death of Joint owners’), this was pursuant to section 200(2)(b) of the Land and Titles Act (Cap. 133), providing that ‘on the death of a joint owner the interest shall vest in the surviving owner or owners’. In other words, there was no change on the register to the status of the surviving owner – he simply took by survivorship with the statutory declaration of 22 April 1985 continuing to apply.

16 As such, on Alfred Tharoghia’s death on 13 February 2006, the land would not have formed part of his residuary estate, as it had been held by him as trustee. This fact was accepted by his counsel when urging the Court that section 105 of the Wills, Probate and Administration Act (Cap. 33) applied, which provision only applies where an interest in a perpetual estate is not owned personally at the time of death.

17 Counsel for the claimants submitted that there is no need for the matter to go back to the local court, as the decision of the Counsel of Chiefs dated 6 September 1998, as confirmed by the Chief Justice on 15 November 2004 (CC 187 of 2004), finally determines the issue as to ownership.

18 This submission overlooks the fact that section 105 of the Wills, Probate and Administration Act provides "the devolution of such perpetual estate shall be in accordance with the customary usage as certified by the local court having jurisdiction in the area...". This is a mandatory provision requiring the local court to determine to whom the perpetual estate is to devolve. A certificate from the court to this effect is necessary before any successors in title can be entered on the register.

19 It also overlooks the fact that the Council of Chiefs’ decision dated 6 September 1998 has been challenged by the family of the late Alfred Tharoghia, and referred to the local court, as they are entitled to do.

20 Furthermore, even had if not been challenged the decision of the Council of Chiefs dated 6 September 1998 may not have fully determined the matter because it appears to simply require that James Bikupe be added to the register (and does not, for example, deal with the position of the other claimants who wish to have their names included in the title).

21 Accordingly, I find the requirements of section 105 of the Act are mandatory, and regulate the procedure to be followed in this case.

22 It follows that the attempt by the claimants to circumvent those provisions by applying under the Wills, Probate and Administration Act to have letters of administration granted to them is misconceived. I consider the proceeding to be an abuse of the process of the Court, and dismiss it in its entirety.

23 The applicant Daniel Tolia is entitled to costs against the claimants, which I fix at $5,000, plus any filing fees that are certified by the Registrar.

BY THE COURT