Lefu v Feitei [2009] SBHC 14; HCSI-CC 411 of 2008 (8 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

MARGARET LEFU, MORRISE TALIKOKO, BARNABAS HUINODI, (rep. of ERNEST TADA HIUNODI, deceased),
HUBERT BARAGEO (rep. himself and family members),
RICHARCH HIROZA (rep. himself and family members)
and REV. CHARLES ARIMANA (rep. himself and family members)
Claimants

AND:

DOUGLAS FEITEI
First Defendant

AND:

THE ATTORNEY GENERAL (Representing the Registrar General and the Commissioner of Lands)
Second Defendant

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

Mr. Mane for Claimants
Mr. Etomea for First Defendant

DECISION ON APPLICATION TO DISMISS PROCEEDING

Cameron PJ:

1 The first defendant Douglas Feitei applies for an order that the proceeding be dismissed as disclosing no reasonable cause of action.

2 The facts are that on 24 February 1978 Douglas Feitei purchased the fixed term estate of a plot of land in Isabel Province from R. C. Symes Pty. Ltd. That sale was for valuable consideration. The transfer records that Douglas Feitei paid $7000 for the land, which in a sworn statement he explained was not paid in cash but by an exchange of his residential house in Honiara for the land.

3 In 1987 Douglas Feitei was granted a perpetual estate in the land by the Commissioner of Lands.

4 The claimants now challenge the validity of the original purchase of the fixed term estate in the land by Douglas Feitei. Prior to the land’s acquisition by the government, the land had been customary land. It was acquired by the government in 1912 for coconut plantations, and leased for 99 years under a fixed term estate. R. C. Symes Pty Ltd purchased the fixed term estate in 1971, but then sold it to Douglas Feitei in 1978 as described.

5 The claimants are descended from the original owners of the land, prior to its acquisition by the government in 1912. They claim that they wished to purchase the fixed term estate when it became available for sale in around 1977. They claim that R. C. Symes Pty Ltd through a Mr. Wong was willing to sell this fixed term estate of the land to them and provide them with a loan to make the purchase. They say that a sale of the land to them was in line with the government policy or returning land back to the original landowners.

6 The claimants allege that at a time when they had returned to Isabel Province to raise $5000 to secure the loan, R. C. Symes Pty Ltd, behind their backs, sold the land to Douglas Feitei.

7 It is alleged that when they returned to Honiara in 1978 they were told by Douglas Feitei that he had purchased the land in exchange for his residential house, and that they objected to this.

8 The claimants assert Douglas Feitei responded by saying that he had purchased the land "for all of them". They say that thereafter they worked on the land harvesting copra for the benefit of Douglas Feitei, while continuing to believe that he had registered the land "on behalf of them all", and that a perpetual estate would be granted in respect of the land. They claim that they realised things were not right when Douglas Feitei started to assert his rights to ownership in 1999, and that it was not until 2008 that they learnt that the land was registered in the name of Douglas Feitei alone.

9 The claimants seek rectification of the land register to include their names as owners of the land, and alternatively a declaration that Douglas Feitei holds the land in trust for them. They also claim an equitable interest in the land because of their work on the land and because they assert a customary feast was held recognising their rights as owners.

10 In my view the proceeding in so far as it relates to the 1978 purchase by Douglas Feitei is misconceived. Douglas Feitei acquired the fixed term estate to the land in 1978 for valuable consideration, i.e. the exchange of his house. That sale was consented to by the Commissioner of Lands, and it is not alleged the Commissioner was precluded from consenting because of government policy to sell the land back to the original owners. Assuming the facts in the statement of case can be established, undoubtedly the owner had been willing to sell the land to the claimants. However, it is equally clear that at a certain point in time Mr. Wong agreed to sell the fixed term estate to Douglas Feitei, in exchange for his house in Honiara. I note that the claim does not assert that the owner was precluded from selling the land to Douglas Feitei.

11 Furthermore, from the facts asserted by the claimants, it is clear that when they returned to Honiara from Isabel Province they learnt that Douglas Feitei had purchased the land in exchange for his property in Honiara, a fact that the claimants say they objected to once so informed.

12 In other words, on their own admission the claimants had full knowledge of the purchase of the land by Douglas Feitei as long ago as 1978.

13 Under section 229(1) of the Land and Titles Act, this Court has power to rectify the land register if it is satisfied that any registration has been "obtained, made or omitted by fraud or mistake".

14 The facts as asserted by the claimants are not capable of establishing that there was fraud or mistake when Douglas Feitei bought the land in his own name. It is not alleged that Douglas Feitei was prevented by law from purchasing the estate in his own right, and nor is it alleged that R.C. Symes Pty. Ltd was unable to transfer legal title.

15 While the claimants assert that when they objected to the purchase Douglas Feitei told them he had "purchased it for all of them", I do not consider that such a statement of itself can create a trust. It is well established that a declaration of trust in respect of any land or any interest in it must be manifested and proved by some writing signed by someone who is able to declare the trust – see Halsbury’s laws of England, 4th Edition, 2000 Reissue, Vol. 28, para. 544 and s.53(1((b) of the Law of Property Act 1925 (UK). There is no pleading that there was any written declaration of trust.

16 I also note that if that statement was made by Douglas Feitei it was given after the acquisition of the land by him and in circumstances where he had provided the only consideration. It is also noted that it is not asserted that there was any prior arrangement with Douglas Feitei that he would purchase the land on behalf of the claimants. To the contrary, the claimants assert that it was they who had intended to purchase the land.

17 It is also alleged Douglas Feitei subsequent to the purchase led the claimants to believe they had an interest in the land or would obtain an interest in the land, and in this way induced them to work for him without reward. In line with this paragraph 20 of the draft amended claim alleges that "they have equitable interest on the land for their contributions and work done".

18 The draft amended claim alleges that from the time Douglas Feitei purchased the fixed estate, he organised for the claimants and others to continue to cut and cook copra without reward "to pay for the perpetual title". The inference is that the claimants believed that they would be included on the perpetual title. The perpetual title was in fact obtained by Douglas Feitei in his name only in 1987. It is alleged that it was not until 1999 that they realized that something may have been wrong, and in 2008 they firstly discovered the perpetual title was in the name of Douglas Feitei only.

19 I am satisfied that the facts as alleged are capable of supporting a cause of action that a beneficial interest in the perpetual estate of the land was created by virtue of the work contributions of processing copra without reward so as to pay for the perpetual title, together with the alleged representations as to ownership by Douglas Feitei.

20 However, more particular pleadings are required in respect of this cause of action than appear in the draft amended claim, including particulars as to the purchase of the perpetual estate (including price) and the principles of law relied upon to establish an equitable interest.

21 The result is that I dismiss that part of the claim which relates to the purchase of the fixed estate of the land by Douglas Feitei in 1978. He acquired indefeasible title to the land for value at that time.

22 I am not prepared to dismiss the claim alleging that the claimants have subsequently acquired an equitable interest in the perpetual estate of the land acquired by Douglas Feitei in 1987, as I consider a reasonable cause of action is established on the facts.

23 I grant leave to the claimants to file an amended claim along the lines I have indicated (that is, properly particularising the claim including the relief sought and identifying relevant principles of law upon which they rely). Such amended claim is to be filed and served by 15 June 2009. The matter is to be listed for mention on 2 July 2009 at 9.30 am.

24 I order that costs of this application shall be in the cause.

BY THE COURT