Loboi v Laugana [2010] SBHC 38; HCSI-CC 212 of 2008 (30 July 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 212 of 2008

BETWEEN:

ANDREW LOBOI
(Representing his family) Claimant

And:

SAVINO LAUGANA
First Defendant

And:

THOMAS BOTU
Second Defendant

And:

REX SAIKA
Third Defendant

And:

MOSES ENI OFASISILI
Fourth Defendant

And:

ATTORNEY GENERAL
(For the Commissioner of Lands) Fifth Defendant

And:

ATTORNEY GENERAL
(For Registrar of Titles) Sixth Defendant

Mr Marahare for the Claimant
Mr Etomea for the Third Defendant
Attorney General (not appearing at trial)

Date of Hearing: 14th July 2010
Date of Judgment: 30th July 2010

JUDGMENT

1. This is a case involving land the Claimant says he purchased from the First and Second Defendants. The Third Defendant says he and his wife (who it is said, is the grand daughter of the first two defendants) also acquired land from the First and Second Defendants. [I should mention at this stage that the Third Defendant is named as Rex Saika, Rex Soika, and Rex Soaika. I have taken all these various names to refer to the Third Defendant.] The Fourth Defendant is the nephew of the First Defendant and is only involved on the periphery of the case. The involvement of the Fifth and Sixth Defendants is self-explanatory. They are involved in the "administrative" side of the land transfer, the surveying and formal registration etc of title.
   
2. Much of what happened is agreed as between the Claimant and the First, Second, Third and Fourth Defendants[1]. As a result the first question that this court is concerned with is what land was sold by the First and Second Defendants to the Claimant. Secondly the court will have to decide whether the land registered in the names of the Third Defendant and his wife is within that area of land. Following on from that, issues may then arise as to whether the court can order specific performance and whether the court can order rectification of the land register pursuant to section 229 of the Lands & Titles Act [2].
   
3. Unfortunately, since filing a defence the First, Second and Fourth Defendants have taken no active part in these proceedings. Whether that is the fault of their lawyers or whether they simply couldn't be bothered is not clear. They, and in particular the first two Defendants, would have been able to give evidence which would have assisted the court in reaching decisions.
   
4. It is also unfortunate that the file belonging to the Commissioner of Lands relating to the Claimants survey and purchase has apparently been lost. I am sure that too would have been a valuable source of information as to what happened over the past 23 years.
   
5. There is no dispute that the First and Second Defendants sold some land to the Claimant. Despite it being agreed there was a sale the Claimant does not have any registered interest in the land. Negotiations for the sale started in early 1987. There is very good evidence from the Claimant to show that a purchase was concluded in late 1987. The First, Second, and Fourth Defendants admit there was a sale of land to the Claimants. The First, Second and Fourth Defendants also admit that ceremonies in Custom took place. Apart from the obvious acceptance by the First and Second Defendants that some land was sold, all the necessary elements appear to be in place for the court to be able to reach the conclusion that a sale took place. What the parties do not agree is the extent of the land sold to the Claimant.
   
6. However, there was a supervening event which renders all that went on in the late 1980's as largely irrelevant. I have not been addressed as to why it occurred or how it occurred. None of the parties to this case appear to have considered it in any way, not even the Fifth and Sixth Defendants who may be best placed to explain it. Even though it was not raised in argument it is so fundamental that I feel I must deal with it.
   
7. Exhibit AL5 (also shown at page 158 of the Court Book) reveals what happened and when it took place. On 15th March 1993 the Government appropriated parcel number 181-080-1 (formerly Lot 4 of LR 951 Tasahe Land) being 142.3 hectares of land. That much is clear from the certified copy of the entry in the Perpetual Estate Register. There does not appear to me to be any other explanation for entry No.1 in the Register. What it does not explain is the whys and the wherefores. As I said earlier the appropriation by the Government has not been raised by the parties. No one has referred to or offered any explanation about the entry in the Register, probably because they have not realised the significance of it.
   
8. The "Observations" in the Register against Entry No. 1 blandly say it is as a result of First Registration under Part V of the Lands and Titles Act. There is nothing to indicate whether the registration was as a result of a purchase or lease under Division 1 of Part V or a compulsory acquisition under Division 2. There is no evidence at all as to why the land was registered in the name of the Commissioner of Land on behalf of the Government
   
9. It is my view that the appropriation effectively wipes the slate clean so far as ownership is concerned. That is the effect of 2 sections in the Land and Titles Act. Section 69 (1) (a) (iv) (where there is a sale under Division 1) and Section 75 (where there has been a compulsory purchase under Division 2). It is not possible to say on the evidence before the court or what is recorded in the Register what section actually does apply. It does not matter in reality because the effect of both sections is to free the land of any previous interests. The registered "owner" of the land as at 15th March 1993 was the Commissioner of Lands on behalf of the Government. Without any evidence to the contrary, and I note that the Register is devoid of any note or explanation, the Commissioner of Lands was on that date the Registered owner of the land, all 142.3 hectares, free of any previous interests.
   
10. That finding is not necessarily fatal to the claims set out in this case. The certified copy also reveals that shortly after the title was registered in the name of the Commissioner of Lands, there was a transfer to the First and Second Defendants. As at 14th July 1993 the registered owners were Savino Laugana and Thomas Botu.
    
11. The day after that registration an agreement was signed. Evidence of that is found from the "Land Purchase Agreement" exhibit AL6 [3] which is also at page 159 of the Court Book. To my mind it is of some significance the agreement was entered into the day after the title (of a larger area of land) was registered in the names of the first two defendants. The agreement shows the parties had been identified, the land had been identified (clauses 1 and 6) and the price had been agreed (clause 3). It also confirms that some at least of the purchase price had been paid. In evidence the Claimant said the map referred to at clause 6 was that exhibited as AL3 (shown at page 156).
    
12. What is the affect of the agreement? Section 117 of the Lands and Titles Act says:-
    

(1) No registered interest in land shall be capable of being created or disposed of except in accordance with this Act and every attempt to create or dispose of such interest otherwise than in accordance with this Act shall be ineffectual to create, extinguish, transfer, vary or affect any such interest.

(2) Nothing in this section shall be construed as preventing any unregistered instrument from operating as a contract, but no action may be brought upon any contract for the disposition of any interest unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and is signed by the party to be charged or by some other person thereunto by him lawfully authorised:

Provided that such an action shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract—

(i) has in part performance of the contract taken possession of the property or any part thereof; or

(ii) being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.

(3) Every instrument when registered shall have the same effect for all purposes of and incidental to this Act as if it had been made under seal; but nothing in this subsection shall be construed to prevent a party to such an instrument affixing his seal thereto, or giving to the instrument any additional form of solemnity not inconsistent with the provisions of this Act.

13. The section makes it quite clear that the agreement referred to at paragraph 11 above does not operate to create a registered interest in land in itself. Such an interest can only be created, "in accordance with this Act". The Act requires certain procedures to be carried out. For a transfer of a registered interest those procedures are set out in Part XIII of the Lands and Titles Act, from section 172 to section 175. There is no evidence to confirm or otherwise that all those procedures were completed. The Land Purchase Agreement is then an unregistered instrument.
    
14. Section 117 also makes it quite clear that no action can be taken on an unregistered instrument unless the conditions in subsection 2 are satisfied. The Defendants did not raise the issue but for the avoidance of doubt I do not think there can be any uncertainty as to whether the agreement (AL6) satisfies all the conditions in subsection 2. There is no doubt the 1993 agreement is in writing. In addition it is not denied the Claimant is in possession of the land and has been for 23 years. To put the matter beyond doubt there is also the Statutory Declaration which seems to be dated 5th June 1998[4]. That confirms a sale of 13.58 hectares to the Claimant had taken place and the purchase price had been paid.
    
15. There maybe little point in differentiating between an unregistered completed sale and a mere contract for sale as envisaged in section 117. The former may simply be seen as more conclusive evidence of subsection 2 being satisfied. No registered interest can be created except in accordance with the Act, that much is clear from section 117. It is also clear Section 117 preserves the right for someone to make effective what is otherwise ineffectual for the purposes of registering an interest. Elsewhere in the Act it is acknowledged that a sale can take place without all the formalities required by the Act for the registration of an interest being completed [5]. That is the case here. All the evidence shows, on the balance of probabilities, that a sale of 13.58 hectares of land out of 190-080-1 was completed. I bear in mind what the Second Defendant says in his defence but I also take note of what he accepts. He is the representative of those persons with secondary rights over the original customary land. The First Defendant is accepted as representing those owning the land. I also note that both the First and Second Defendants have very convenient lapses of memory when it suits. Both deny documents have been signed by them when clearly they have. The First Defendant denies obtaining more money and signing yet another agreement in 2007 despite photographic evidence of the event. Looking at the very strong evidence of the Claimant and bearing in mind the First, Second and Fourth Defendants did not appear to contest it, I find that a sale of 13.58 hectares took place between the First and Second Defendants and the Claimant.
    
16. As I hope is clear from the above that does not mean the Claimant has a registered interest in the land. It does mean he has the right to seek an order of the court requiring the First and Second Defendants to do all that is necessary to ensure the Claimant is able to register his interest.
    
17. There is also no doubt that the Third Defendant and his wife Mary are the registered owners of a parcel of land.[6] That parcel of land was acquired from the First and Second Defendants. The Register says there was no consideration involved in the acquisition of the land. I also note from the Third Defendants sworn statement that he says there was payment in custom. His sworn statement was introduced as evidence.
    
18. The Claimant says the land now occupied by the Third Defendant is within the area of land purchased by him from the First and Second Defendants. In his evidence he says the land he purchased is shown in exhibits AL1 and AL2 [7]. The land the Third Defendant says he owns with his wife is shown at exhibit RS1 [8]. Although it was not specifically stated by the Third Defendant, I understood his evidence to suggest it was the area "squared off" just to the north of the boundary points marked BKPT3 and BKPT4 and just to the north of that area shown as Lot 33 of LR 951 on that exhibit. His evidence is he and his wife "purchased" the land in 2007. Exhibit RS11 shows the Third Defendant and his wife were registered as owners on 19th March 2008.
    
19. The Claimants evidence is the land occupied by the Third Defendant is in the area indicated by a black square drawn on exhibit AL2 (or page 153) mentioned above. That black square shows, according to the Claimant, where the Third Defendants house is. What is slightly confusing is the maps exhibited as AL1 and AL2 are orientated south north rather than north south. There is also no scale to those maps.
    
20. The Third Defendant's map (RS1) is orientated north south and has a scale which is clearly larger than that of the maps introduced by the Claimant. However, there are some common features which can be discerned from both sets of maps. The dashed lines marked by the Claimant as "gravel road" on his maps corresponds with dashed lines on the Third Defendant's map. Whilst they are not marked as a road on the latter's map there seems to be no doubt those lines are meant to indicate a road, the same gravel road as indicated by the Claimant. The Claimant has marked a "pipeline". On the original exhibit (AL1) it is a dashed/solid purple line. At page 152 it appears as a solid black line. On RS1 there is a double line with various points marked on it such as PL10X,PL10, PL11X and PL11. I am in no doubt the double line shows the route of the pipeline referred to by the Claimant.
    
21. In answer to my questions the Claimant said that the northern limit of the Third Claimants marked area was 150 metres into his land. There is an indication on RS1 that the northern boundary is indeed 150 metres from the gravel road. The distance actually marked on RS1 says 154 metres.
    
22. The Claimants evidence was that he had established garden areas, plantation areas and buildings on the land. None of the defendants have disputed the assertion by the Claimant that he and his family have been in actual occupation of the land since 1987, some 23 years. The Third Defendant acknowledges that the Claimant has houses, gardens and plantations although he was vague as to where they were. The Claimant has marked them on exhibit AL2 (page 153). The Third Defendant said he was aware that there were some properties on the land belonging to the Claimant but that a lot of the land was simply "bare land". He said the Claimants property was, "to the north" of his property.
    
23. I prefer the Claimants evidence. I am sure, on the balance of probabilities, the land sold to the Claimant extends over an area of 13.58 hectares stretching northwards from the gravel road in the south to a boundary which is the line from between the DBSI land corner peg running westward to the Telekom boundary. The only difficulty I have is determining the exact boundaries. Clearly the boundaries do not follow the straight lines as shown in the exhibits (AL1, AL2 and AL3). They are only an indication of the where the actual boundary is. What I can be certain of is the land claimed by the Third Defendant, or at the very least the majority of that land, is probably within the area sold to the Claimant.
    
24. The relief sought by the Claimant includes a claim for an order for specific performance. Given my findings so far I am of the view that he is entitled to such an order. He is entitled to an order that the First and Second Defendants do all that is necessary to enable the land he purchased to be registered in his name. That must be correct because of the operation of Section 117 of the Act referred to earlier. Given the words of Subsection 1, if the First and Second Defendants agree they have sold land to the Claimant they must also agree they should do everything to ensure that the Claimant has a registered interest in the land. That they would do so is implicit in any agreement to sell or transfer registered land.
    
25. If I make such an order, and following my finding of fact in paragraph 23 above about the Third Defendants land, it follows that an order to rectify the land register in respect of the Third Defendants title would need to be made. It is necessary to consider whether I can make that subsequent order.
    
26. The Lands and Titles Act in Solomon Islands is based on the Torrens System which originated in New Zealand in 1860. Examples of similar acts can be found all over the world. They are intended to simplify dealings in land. Daly CJ in the Trading Company (Solomon Islands) Ltd case [9] explains at length the effect of the legislation. He was dealing with an earlier version of the Act but his comments apply to the present Act just as well. The Court of Appeal has also considered some of the implications of the Torrens System of land registration[10]. The important concept to grasp is that the Act protects those acquiring registered title. Sections 109 and 110 set out what is acquired by a registered owner. A registered owner cannot be deprived of those rights and interests except as provided for by the Act.
    
27. Section 229 (1) of the Act allows the High Court to order rectification of the land register "by directing that any registration be cancelled or amended...... where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake". The courts power to do so is not unlimited. It is subject to subsection (2) which prohibits rectification of the title of an owner "who is in possession" and who acquired his interest "for valuable consideration".
    
28. There is no dispute the Third Defendant is in possession. The registration of title was effected on 19th March 2008 [11]. The Third defendant was clearly in possession at the time the action was commenced on 1st July 2008. The certified copy of the register also shows that the registration was as a result of a transfer with nil consideration. However, the unchallenged evidence from the Third Defendant was that there was a custom ceremony. I accept what the Third Defendant says in his sworn statement about the custom ceremony[12] and what he describes as being given to the sellers could amount to valuable consideration. That is not the end to a consideration of subsection 117 (2) though. It goes on to say that notwithstanding possession and valuable consideration passing, rectification can still be ordered if the Third Defendant had knowledge of, "the omission, fraud or mistake" on which the application for rectification is based.
    
29. I am satisfied the Third Defendant was aware the land which was eventually registered in his and his wife's names was said by the Claimant to be owned by him. The evidence on behalf of the first four defendants is that Moses Eni Ofasisili facilitated the acquisition by the Third Defendant and his wife. Ofasisili himself says he "recommended the first and second defendants" sell the land to the Third Defendant. Ofasisili (the Fourth Defendant) is the author of the letter exhibited as AL14 and seen at page 178. It is clear that the Fourth Defendant was aware the Claimant said the land was his. His objection was that the Claimant had not paid enough for it in the first place. It is inconceivable that he did not pass on that information to the Third Defendant. I am also sure that the Third Defendants wife was aware of the whole sorry history of the sale to the Claimant. She had lived next to the land with her family. She is not some distant relative of the original custom owners and I am quite sure she knew of some if not all the negotiations and discussions that had gone on. It is equally inconceivable that she did not discuss this with her husband. I am sure the registration of the Third Defendant and his wife as owners of the land was done in the full knowledge that the Claimant had already bought and paid for the land and it was a done to keep it out his hands by preventing him from registering his title. It was not done with a view to pursuing a legitimate competing claim, it was done dishonestly. It is, to my mind, significant that the process of registration only started after the further negotiations in April 2007 detailed by the Claimant in his evidence. The letter from the Fourth Defendant also pre-dates the Registration.
    
30. I am of the opinion that rectification can be ordered against the Third Defendant. Unfortunately it does not necessarily follow the registration in the names of the Third Defendant and his wife can be cancelled. As Mr Etomea said in his submissions, the wife is not a party to these proceedings. I may well be able to order rectification so far as the Third Defendant is concerned but that will not assist the Claimant if the wife is left as registered owner. The Claimant and those representing him have been aware that the Third Defendant and his wife were jointly registered as owners since at least 26th August 2009, the date of Mr Loboi's sworn statement shown at pages 114 to 120 of the Court Book. An application to join the wife as a Defendant could have been made at any time since then.
    
31. Whilst I have said (see paragraph 24 ) that the Claimant is entitled to an order for specific performance, given my comments above it may not be in respect of all the land that he purchased from the First and Second Defendants. However, I am of the view I can make an order for specific performance in respect of some of the land and make an order for damages in respect of the land that is registered in the names of the Third Defendant and his wife Mary. In other words, the Claimant could be compensated for the loss of that portion of land by the payment of damages by the First and Second Defendants. If I proceed down that route I will, of course, need to hear argument as to quantum.
    
32. However before I perfect any order it will be necessary to accurately identify the land which the first two defendants will have to transfer to the Claimant. It is vital that the Claimant accurately plots the boundaries of the 13.58 hectares sold to him. Whilst I accept that the maps provided by the Claimant show the area of land involved they are not accurate enough to support an order for specific performance or to sustain an application for registration under the Lands and Titles Act. I therefore order the Claimant to arrange for a survey sufficient to identify the land sold to him. The map or maps resulting from the survey should also be sufficient to satisfy Registrar of Titles and the Commissioner of Lands for the purposes of registering the Claimants interest in due course. As I understand the process, as the order for specific performance will result in a sub-division the Fifth Defendant will need to be involved in the survey. I do not think I need make an order to that effect but if I do I will be happy to make one. One thing I would suggest to the Commissioner of Lands is that he very carefully considers the question of whether any fees would be payable for the survey. As it does not seem to be disputed that files have gone missing from the offices of the Fifth Defendant the issue of what fees expended by the Claimant to date and what benefit there has been as a result of that expenditure may be considered by the court in deciding whether the Fifth Defendant is liable for any damages. I would also be prepared to make an order that any survey be completed within a set time, I have in mind a period of 28 days, as it is essential this case is concluded quickly.
    
33. I make an order that the First, Second, Third and Fourth Defendants, their servants' agents, relatives and anyone on their behalf be restrained from interfering in any legitimate survey exercise. I further order that a penal notice be attached to such restraining order and I make it very clear that any interference in the survey will result in arrest and any person arrested will be brought before the court and dealt with for contempt.
    
34. There may be other orders that the parties require in order to deal with the formalities following this ruling and I will hear further argument if necessary.
    

Chetwynd J

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^[1] See the Defence filed on 16^th October 2008
^[2] Lands and Titles Act [Cap 133]
^[3] Sworn Statement of Andrew Loboi filed 11^th July 2008
^[4] See exhibit AL7 and page 160 of the Court Book.
^[5] See S175 of the Lands and Titles Act [Cap 133]
^[6] See Exhibit RS11 to the sworn statement of Rex Soaika
^[7] See the sworn statement of Andrew Loboi filed 1^st July 2008 and at pages 152 and 153 of the Court Book.
^[8] See sworn statement of Rex Soaika filed 25^th May 2010.
^[9] Trading Company (Solomons) Ltd v. PKR Pacific Sales Ltd [1980-1981] SILR 172
^[10] Walter Billy v. Paul Daokalia and Others CAC 1 of 1995 (at page 29)
^[11] See the certified copy of the register exhibited as RS11.
^[12] See paragraph 3 of the sworn statement