Ramoau v Fatakalua [2009] SBHC 46; HCSI-CC 255 of 2007 (15 June 2009)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 255 of 2007

JEMUEL RAMOAU

V

FATAKALUA, MAERARUA, STANLEY AFUTANA, SEBILON NGUGU AND
ANDREW GWAITALAFA AND ATTORNEY –GENERAL
(FOR COMMISSIONER OF LANDS AND REGISTRAR- GENERAL)

Izuako, PJ.

Date of Hearing; 27th and 28th October 2009
Date of Ruling: 15th June 2009

Ms. Maelyn Bird for the Claimant
Allan Hou for the 1st Defendants
Robert Firigeni for 2nd Defendant

JUDGMENT

Izuako, PJ: The claimant Jemuel Ramoau has brought this action on behalf of the members of his tribe. He seeks a rectification of the land register on the grounds of mistake. It is the claimant’s case that his tribe the Mandari tribe of East Kwa’are Malaita Province are the real and primary owners of Ote’e land which is customary land. A portion of Ote’e land was carved out and registered as parcel number 152-006-1 in the perpetual estates register in 1977 with the five persons named as the 1st set of defendants as owners. Four of the five named as 1st set of defendants are members of other tribes.

The 1st set of defendants except James Maera’ua have defended this action together with one Andrew Gwaitalafa as their representative. Their case is that there was no mistake in the registration of parcel number 152-006-1 also known as Gwarimodu land. They rely on the successful results of acquisition proceedings in respect of the parcel of land in dispute which were not challenged by the claimants and which determined that the Gwarimodu land belonged to them in consequence of which the said land was registered in the perpetual estates register in their names.

The claimant called two witnesses, the claimant himself and James Maera’ua who is named among the 1st set of defendants. Their story is that the whole of Ote’e land belongs to their tribe the Mandari tribe. The 1st set of defendants except Maera’ua had approached one Nakisi, the leader of the Mandari tribe and requested for a parcel of land known as Gwarimodu within Ote’e land for a certain company named Alliance Training Association of Solomon Islands (ATASI) to set up a sawmilling project. Nakisi agreed and asked Maera’ua to represent him in the negotiations. The 1st set of defendants who were not of Mandari tribe then deviated from their agreement with Nakisi and had themselves and Maeraua registered in 1977 as the owners of Gwarimodu land which they then leased to ATASI and collected rents for themselves to the exclusion of the true owners of the land, the Mandari. In 1980 the claimants went to Court over the ownership of Ote’e land of which Gwarimodu or parcel number 152-006-1 was only a part. The Local Court gave Judgment in favour of the claimants as against the defendants. This decision of the Local Court was upheld by the Customary Land Appeal Court (CLAC) and in September 1981 by the High Court.

Based on these judgments, the claimants case is that the registration of Gwarimodu land under the perpetual estate register with the 1st set of defendants as owners is a mistake and he seeks a ratification of the said mistake as provided for in section 229 of the Land and Titles Act.

The 1st set of defendants except James Maera’ua were represented by one Andrew Gwaitalafa. Their defence is that they became registered owners of Gwarimodu land or parcel number 152-006-1 following a successful acquisition proceeding conducted in 1976 without any objections by the claimants or any of his ancestors having any interest in the land. Before the acquisition proceedings were embarked upon, the 1st set of defendants except Maeraua were represented in a suit between one Alaisae and one Falisi. The suit was over the ownership of the land in dispute, that is, Gwarimodu land and was won by Falisi’s who represented the 1st defendants’ tribe.

The High Court of the Western Pacific in Native land case No.9 of 1969 had upheld the victory of Falisi’s tribe. The 1st set of defendants contends that all the procedural requirement under the Land and Titles Act pertaining to land acquisition and registration had been complied with and done with the full knowledge of the claimant and his father and members of their tribe. It is their case that the claimants in spite of the 1981 Court decision in their favour cannot challenge the registration in 1st defendants names of parcel number 152-006-1 and that there was no mistake therein requiring ratification.

Submission of Counsels

The learned counsel for the claimants has submitted that the acquisition proceedings which led to the registration of land in dispute as the property of the 1st group of defendants was based on the decision of the High Court in Native land case No 9 of 1969 between Fatakalu and Alaisae.

She submitted further that the claimants, Mandari tribe started legal proceeding against Fatakalua the 1st named in the 1st group of defendants in the Malaita Local Court as to the ownership of Ote’e land and won. This was affirmed on appeal at the Malaita Customary Land Appeal Court (CLAC) and subsequently upheld by the High Court.

Mr. Allan Hou Esq. for the 1st group of defendants submitted that no objections were raised at the time of the acquisition proceedings and that the said acquisition proceedings were based on a High Court decision between Alaise and Falisi. In that case, Falisi represented Fatakalua over ownership of Ote’e land.

Learned Counsel continued that ATASI and other companies operated on the land in dispute from 1977 till 1990 and that the claimants did not object to the representative capacity of the 1st set of defendants. He also refered to section 110 of the Lands and Title Act and submitted that under its provisions the registered ownership of the 1st set of defendants cannot be disturbed.

For this part R. Firigeni Esq Crown Counsel representing the Attorney General for the Commissioner of Lands and the Registrar-General submitted that a successful acquisition proceeding was carried out in respect of the land in dispute and that it was not appealed against. He submitted further that a completed acquisition proceedings effectively ousts the jurisdiction of the Court. It follows, counsel continued that the claimant is asserting an interest which is not well-known in law since he did not have a decision of chiefs in his favour and did not take part in the acquisition proceedings.

It was also the submission of learned counsel that the equitable doctrine of laches and acquiescence be invoked to stop the claimants who according to him had delayed significantly before approaching the courts. He cited the case of Lu’ufaifooa –v- Malaita Customary Land Appeal Case (MCLAC) CC No. 61 of 1986 in support of the application of the equitable doctrine of laches.

Review by the Court

Status of ATASI and the validity of the Acquisition exercise of 1976

In the case of Ugra –v- Bugoro (2007) SBHC 39, Palmer CJ had stated,

"the process whereby land may be acquired from customary land owners by Government for public purposes or uses is governed by the provisions of the Land and Titles Act (CAP 133), in particular Part V, Division 1 of the said Act".

The question that arises here is: "In view of the provisions of Part V, Division 1 of the Lands and Titles Act, is ATASI an agency of the National Government? Was the land purportedly acquired for the use of ATASI for public purpose or for private enterprise?

It is clear from the provision of the Lands and Titles Act that if a sale or lease of customary land is not for public purposes, then the Commissioner of Lands has no business appointing an acquisition officer for the purpose of purchasing or leasing the customary land in question.

Counsel for both claimants and defendants are agreed that ATASI was at all materials times a private enterprise. ATASI is a private enterprise which was engaged in the business of importing, exporting, timber milling and general merchandising. This is also stated in paragraph 4 of the sworn statement of Andrew Gwaitalafa the only one of the five defendants challenging this suit as follows:

"The land herein was acquired by the Acquisition officer Solomon Manata as the agent of the then Commissioner of Lands to take a lease over the land for the operation of Alliance Training Association Solomon Islands (ATASI) which included importing, exporting, timber milling and general merchandising".

Any purported acquisition proceedings of the land in dispute therefore for the purpose of ATASI operation is invalid in so far as the Commissioner of Lands initiated it and appointed an acquisition officer. The Commissioner had clearly embarked on the acquisition proceedings in contravention of the provision of Part V, Division I SS60 and 61 of the Lands and Titles Act (CAP 133).

Section 69 (1) (b) of the same law deals with the possession and vesting of the land whose acquisition proceedings has been successfully completed. It provides that an agreement shall be implemented in the case of a lease of the land by the Commissioner:

1. Making an order vesting the perpetual estate in the land in the persons named in the agreement as lessors.

2. Requiring the persons so named to execute a lease in favour of the commissioner in accordance with the terms of the agreement.

3. Paying to such person any premium or rent payable in accordance with the terms of the agreement.

4. Taking possession of the land.

Exhibit AG 9 annexed to Andrew Gwaitalafa’s sworn statement includes a letter written by one D.R. Houkari, land officer for the Provincial Secretary of Malaita Province, dated 22 November 1983 and addressed to the Registrar of Titles. That letter in its first paragraph states that the land is currently leased to ATASI by Andrew Gwaitalafa and four others.

I observe here that the lease was not in favour of the Commissioner of Lands for public purpose but for the operation of a private enterprise. To that extent, the Commissioner of Lands had no authority to act as he did in instituting acquisition proceedings for the acquisition of Gwarimodu land. The said acquisition proceedings therefore cannot be relied upon as the basis for any claims to the Gwarimodu land in dispute.

RES JUDICATA?

Did the decision of the High Court in the Native Land Case No.69 of 1969 mean that the matter of the ownership of Ote’e was res judicata?

Allan Hou Esq, learned counsel for the 1st set of defendants had submitted that the acquisition proceeding which determined his clients to be the owners of Ote’e land was based on the said decision of 1969. It was a case of ownership of Ote’e land between Alaisae and Fatakalua one of the 1st set of defendants.

In 1981 the High affirmed the decision of the Malaita Customary Land Appeal Court that Ote’e land belonged to Maelibina’s tribe the Mandari. The 1981 case was between Fatakalua of the 1st set of defendants’ Samanda tribe and one Maelibina of the Mandari tribe which is the claimant’s tribe.

The legal doctrine of res judicata is meant to bar or stop continuing litigation of the same case between the same parties where a judgment has been given. Where a final judgment has been given in a law suit, subsequent judges who are confronted with the suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effects of the first judgment. For a defendant res judicata may serve as a defence. In the Nigerian case of Agbasi v Obi, the Supreme Court held that to sustain a plea of res judicata the parties or their privies must be the same in the previous and present cases. The issues or subject matter must be the same in both cases and the previous judgment must have been given by a court of competent jurisdiction where the previous decision has finally decided the issues between the parties.

In the present case, the decisions of the Courts as to the ownership of Ote’e land in 1969 and 1981 were not founded on the law suits between the same parties. Even though the court had in 1969 granted ownership to Fatakalua’s Samanda tribe, the claimant’s Mandari tribe represented by Maelibina were perfectly entitled to challenge the claim of ownership by Fatakalua because they were not parties in the earlier case. The plea of res judicata did not avail the present 1st set of defendants.

Section 110 of Lands and Title Act (CAP 133)

Is section 110 of the Lands and Title Act cited and urged upon the court by Allan Hou Esq. of counsel for 1st set of defendants applicable or relevant in this case?

The section states as follows:

"The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever".

My answer is that section 110 is not relevant to this case. The section refers to the rights of an owner of a registered interest and I find that such a registered owner must be validly determined to be the owner. Where a de facto owner is shown to have been wrongly registered, section 110 cannot avail him to ward off the consequences of wrongful or mistaken ownership.

Laches

Does the doctrine of laches and acquiescence avail the defendants?

Robert Firigeni Esq. for the 2nd set of defendants had urged that the doctrine of laches by involved to defend the case of the claimants because they has not sought to claim whatever rights they had over Ote’e land in time.

Laches is an equitable defence and the person invoking it asserts that the opposing party has "slept on his rights" and that due to this delay that party is no longer entitled to have such rights enforced. Usually an essential element is that the party invoking the doctrine of laches has changed its position as a result of the delay so much so that any attempt to enforce the right of its opponent would do great harm.

In this case, the land in dispute was registered in 1977 with the 1st set of defendants as owners. By September 1981 the claimants had gone through the local court, the Customary Land Appeal Court and the High Court with all these Courts affirming the claimant’s ownership of Ote’e land and by implication of the land in dispute. Evidently they commenced their action in 1980 only three years later. I find that the claimants had not slept on their rights. In the case of Liufaifao’oa v Malaita Customary land Appeal Court (1989 SBHC 12), Ward CJ held that the applicant’s claim was not defeated by the fact that he approached the Court for enforcement or the said claim about one year latter. The doctrine of laches cannot avail the claimants here.

In view of the foregoing review of this case, I find as follows:

(1) The acquisition proceedings instituted by the Commissioner of Lands and carried out by one Solomon Manata in respect of the Gwarimodu land between 1976 and 1977 was done contrary to the provisions of the Lands and Title Act. The said acquisition proceedings is hereby declared null and void and of no effect whatsoever.

(2) A defence of res judicata is of no relevance here and cannot avail the defendants.

(3) A defence of laches is similarly not available to the defendants.

(4) The registration of the Gwarimodu land or parcel no. 152–006-1 in the names of the first set of defendants namely Fatakalua, Maerua’a, Stanley Afutana, Sebilon Ngugu and Andrew Gwaitalafa was done on grounds of mistake, the said defendants not being the true owners of Gwarimodu land.

ORDERS

Based on these findings, I hereby order:

That the Commissioner of Lands and Registrar of Titles do hereby rectify the perpetual estates register by removing the names of Fatakalua, Maeru’a, Stanley Afutana, Sebilon Ngugu and Andrew Gwaitalafa who were previously registered as owners of parcel number 152-006-1. The said names shall be replaced by the names of others from the claimant’s Mandari tribe chosen by the tribe.

That the 1st set of defendants shall pay the costs of this action to be determined by negotiations between the parties’ counsels.

Date this 17th Day of June 2009

Honourable Nkemdilin A. Izuako
Puisne Judge- High Court of Solomon Islands