Gedi v Hapo [2010] SBHC 2; HCSI-CC 350 of 2008 (18 February 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 350 of 2008

BETWEEN:

ANDREW GEDI
Claimant

AND:

EVERLYN HAPO, NORIN CHEKANA,
LORETTA PALMER AND HENRY
ZAGA
First Defendants

AND:

ATTORNEY-GENERAL
Second Defendant

AND:

GREEN TREE (SI) LIMITED
Third Defendant

Date of Hearing: 29 October 2009
Date of Decision: 18 February 2010

Mrs. Tongarutu for Claimant
Mr. Titiulu for First Defendants
Mr. J. Muria for Second Defendant
No appearance for Third Defendant

DECISION ON APPLICATION FOR ORDERS

Cameron PJ:

1 Andrew Gedi from the Rogisi tribe, Isabel Province, initiated this action by seeking on behalf of that tribe orders restraining logging of trees on Ghehe land (LR.686 Ghehe, perpetual estate 089-001-2). It was contended that the persons shown as owners on the relevant title to the land were in fact not the rightful owners and therefore had no authority to allow the logging.

2 That logging ceased before the application was heard and some of the proceeds of sale of the logs were paid into a joint trust account. It is still necessary to decide the ownership question, however, as that will be relevant in determining to whom the balance of the monies held in the trust account should be paid, and is relevant to the claim for trespass.

3 It is common ground that both the Rogisi and Hobrae tribes were the customary land owners of Ghehe land. That land was purchased from those land owners by the Commissioner of Lands in 1973. As part of that process, the agreement to transfer identified four persons as the representatives of all persons beneficially interested in the land, namely Wilson Sade, Ben Bao, Ben Fanoa and Henry Zaga. Those four persons were then named as the parties transferring the land, and were the signatories to the sale to the Commissioner of Lands on behalf of the landowners.

4 The agreement to transfer also provided for the contemporaneous resale of the perpetual estate in the land from the Commissioner of Lands to those same four persons. Pursuant to the agreement to transfer, those four persons were then registered on the Perpetual Estate Register and described as "joint owners".

5 Three of those four persons subsequently died, those being Ben Fanao (died 1994), Ben Boa (died 1997) and Wilson Sade (died 1998). No steps were taken to appoint replacements for any after the deceased representatives until 2007, with the effect that the deceaseds’ names remained on the title for many years after their demise.

6 Then in October 2007 Henry Zaga, the only representative on the title who was still living, signed a transfer document transferring the land to himself and three other persons of his choosing (the first defendants). That transfer was registered against the perpetual estate title with no accompanying statutory declaration, with the result that the first defendants are now shown as joint owners of the land. These ‘owners’ then granted timber felling rights to a company Green Tree (SI) Co. Limited, the third defendant. The title shows as an encumbrance a profit registered against it, being a grant by the first defendants to that logging company dated 21 May 2008 for 5 years from 1 June 2008.

7 From the material filed it would appear that at some stage in 2008 the claimant (from the Rogisi tribe) sighted the transfer document executed by Henry Zaga and transferring the land to himself and the other first defendants. It would also appear that all the first defendants are from the Hobrae tribe whereas two of the previous registered owners, the now deceased Wilson Sade and Ben Fanoa, were from the Rogisi tribe. The transfer initiated by Henry Zaga therefore removed from the title any representatives of the Rogisi tribe, leaving only persons from the Hobrae tribe.

8 The claimant submits that the four original representatives who appeared on the title held the land in trust for those beneficially interested and not in their own right, and that Henry Zaga as the last of the four still living had no authority to appoint replacements by acting alone in transferring the land to himself and the replacements nominated by him.

9 Under the original agreement to transfer, the four persons nominated to transfer the land and then accept a transfer back were described as ‘representatives’. The document records in 3(b):

"the members of the said land holding group have appointed the Representatives to negotiate the disposal (in the first instance) of all the right, title and interest of all persons beneficially interested in the land to the Commissioner of Lands; thereafter to accept from the Commissioner of Lands a transfer of the unencumbered perpetual estate in the land as joint owners on the statutory trusts AND on registration of the Representatives as joint owners to grant to the Commissioner of Lands a profit in the form set out in the Schedule to this Agreement ....."

10 It is quite clear from the wording of the agreement that the representatives were to accept a re-transfer of the lands to them on behalf of all persons beneficially interested in that land i.e. the Rogisi and Hobrae tribes.

11 Section 215 of the Land and Titles Act is relevant to ascertain the legal effect of a death of a representative whose name appears on the title. It provides:

"215. (1) Subject to any restriction on his power of disposing of the interest contained in his appointment, the personal representative or the person beneficially entitled on the death of a deceased owner of a registered interest, as the case may be, shall hold the interest subject to any liabilities, rights or interests which are unregistered but are nevertheless enforceable and subject to which the deceased owner held the same, but for the purpose of any disposition he shall be deemed to have been registered as owner thereof with all the rights conferred by this Act on an owner who has acquired an interest for valuable consideration.

(2) The registration of any person as aforesaid shall relate back to and take effect from the date of the death of the deceased owner."

12 Section 215 thus provides that on the death of a registered owner, the person beneficially entitled to that interest holds precisely the interest previously held by the deceased owner.

13 Thus, on the death of each of the original representatives on the title, those beneficially entitled succeeded to the rights previously held by that representative.

14 In the context of this case, section 215 has to be read with section 195 of the Land and Titles Act. Section 195(3) provides that no interest in land is to be registered in the name of more than one Solomon Islander as joint owner unless each of the joint owners provides statutory declarations disclosing the identity and interests of the persons beneficially interested in the land. It also provides that no subsequent disposition of the interest shall be registered without statutory declarations by each of the joint owners that those beneficially interested have been consulted and those in favour of the disposition represent the major portion of the beneficial interests.

15 The significance of section 195(3) in this case is that following the death of a representative, any nominated replacement representative would be entitled to be registered on the title only once the procedure in that sub-section was followed. In other words, each of the surviving representatives who remained on the title would need to provide statutory declarations to the Registrar of Titles as to the acceptability of the nominated replacement to those beneficially interested. This procedure ought to have been adopted in this case following the death of each original representative

16 The first defendants contend that by virtue of section 200(2) of the Land and Titles Act, the interests previously held by the deceased representatives have vested in those surviving, now only Henry Zaga. As such, it is contended that Henry Zaga alone had the right to deal with the land, including the appointment of replacement representatives achieved by transferring the lands to them.

17 I do not consider section 200(2) applies in this case, as on the death of each representative the effect of section 215(1) is that the rights of that representative vest in those beneficially entitled. That precludes such interest being transferred by survivorship.

18 For these reasons I conclude that the first defendant Henry Zaga had no authority to sign a transfer of the land to the four persons now registered against the title. I add that there was no declaration by Henry Zaga accompanying such transfer as required by section 195(3), which is a further and separate reason as to why no registration of the new representatives should have occurred.

19 It follows that the first defendants, who ought not to have been on the register, had no authority to grant any timber rights to the third defendant.

20 I make the following orders:

(1) That the Perpetual Estate Register in respect of LR-686 Ghehe, perpetual estate 089-001-2, be rectified by:

(a) cancelling the registration of the names of Everlyn Hapo, Norin Chekana and Loretta Palmer,

(b) cancelling the profit registered against that title in favour of Green Tree (SI) Co. Limited.

(2) Restraining Henry Zaga from having any further dealings with perpetual estate 089-001-2 until replacement representatives for the late Ben Fanao, Ben Bao and Wilson Sade have been nominated and registered on the title in accordance with the procedure laid down in section 195(3) of the Land and Titles Act.

(3) Granting liberty to any party to apply for further orders, including orders as to the disposition of the balance of funds held in trust.

(4) Adjourning sine die all other claims in the action.

(5) Listing the matter for mention on 18 March 2010.

BY THE COURT

Justice IDR Cameron
Puisne Judge