Taylor v Soe [2012] SBHC 32; HCSI-CC 422 of 2011 (27 April 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 422 of 2011

BETWEEN

GEORGE TAYLOR
Claimant

And

JOACHIM SOE AND MIKAELE MEIBO
(As Registered Trustees)
First Defendants

And

JAMES LENI and MODESTO BUIN
(Proposed Administrators)
Second Defendants

And

THE ATTORNEY GENERAL (Representing
The Commissioner of Lands)
Third Defendant

Ms Bird for the Claimant
Mr Stewart for the First and Second Defendants
No attendance on behalf of the Third Defendant

Date of Hearing: 11th April 2012
Date of Judgment: 27th April 2012

Ruling

1. This is an application by the First and Second Defendants to have the proceedings struck out as disclosing no reasonable cause of action and/or being frivolous or vexatious and/or an abuse of the processes of the court and/or being time barred under the Limitation Act.

2. The case involves land on the Shortland Islands. In 1971 an area of land was registered in the names of the First Defendants. The land was registered as parcel number 019-001-9 and they became the registered owners of the perpetual estate. There is no dispute that before registration the land was customary land. Upon registration of the perpetual estate in their names the First Defendants granted a four year lease to the Government. There is no information available to show if the lease was renewed. The certified copy of the Lease Register [1] would suggest otherwise. The perpetual estate still subsists, or so it is said. No one has thought to produce a certified copy of the Register of the perpetual estate. The First Defendants have died without making wills. The Second Defendants are said to be the proposed Administrators of the estates of the First Defendants. The Claimant represents the family group of John Sopina and Josephine Kaeka which group is a part of the Silakanegana tribe. He says the whole land acquisition process was flawed because the land was not acquired for a public purpose and it should be de-registered. Alternatively he says because the registered owners are both dead the land is "bona vacantia" and should revert to customary land.

3. There are a number of problems with the case put forward by the Claimant. First, the claim that the land acquisition was flawed because the land was not required for public purposes. Under Part V of the Lands and Titles Act [Cap.133] ("the Act") there are two ways customary land can be registered. As set out in Division 2 of Part V, when the Minister decides that land is required for a public purpose he can make a declaration to that effect and the declaration sets in train a process for compulsory acquisition.

71.—(1) Whenever it appears to the Minister that any land is required for any public purpose, he may make a declaration to that effect and require the same to be published in such manner as he shall think fit.

(2) The declaration shall specify (either by reference to a plan or otherwise) the boundaries and extent of the land so required, and the general nature of the public purpose for which it is required.

(3) As soon as may be after the declaration has been made, the Commissioner shall cause to be posted, in prominent positions on or near the boundaries of the land specified in the declaration, notices in the prescribed form stating the fact that the declaration has been made and drawing attention to its effect and to the right to claim compensation conferred by section 79 and to the liberties and restrictions conferred and imposed by section 78.

Under Division 1 of Part V, if either the Commissioner (of Lands) or a Provincial Assembly wishes to purchase or lease customary land the provisions of sections 61 through to 70 of the Act apply. Sections 60 and 61 show how the process is commenced:-

60. Notwithstanding any current customary usage prohibiting or restricting such transaction, customary land may be sold or leased to the Commissioner or any Provincial Assembly in accordance with the provisions of this Division.

61.—(1) Whenever the Commissioner wishes to purchase or to take a lease of any customary land under section 60, he shall in writing appoint an Acquisition Officer to act as his agent for the purposes of the acquisition.

(2) Where a Provincial Assembly wishes to purchase or to take a lease of any customary land under section 60, the Provincial Secretary may appoint an Acquisition Officer to act as his agent for the purposes of the acquisition.

Unlike the provisions of Division 2, there is no requirement the land is required or needed for public purposes. However, the purchase or lease must be by the Commissioner or the Provincial Assembly. It cannot be directly by a third party. That much is obvious from section 69 of the Act. There is no dispute in this case and in any event the evidence is clear, the lease was acquired by the Commissioner. It did not matter then, it does not matter now that Commissioner wanted the land for purposes that did not fit the description "public purposes". This was not a compulsory purchase. The claim in that regard must fail. The acquisition process is not challenged on any other basis.

4. The perpetual estate was registered in the names of the First Defendants. As they have died there is a substantial question as to whether they should be named as defendants. There is no need to answer that question because what is not in dispute is that they were joint owners and held the legal title only and the beneficial interests in the land were and are held [2], "by the members of the SilaKanegana land holding group". In simple terms the late Joachim Soe and Mikaele Meibo Tanutanu were trustees. The practical effect of their status is set out in the Act:-

214.—(1) For the purposes of this Act, a registered interest held upon the statutory trusts shall be held upon trust to sell the same with power to postpone such sale as the trustees think fit and to stand possessed of the net proceeds of sale, after payment of costs, and of the net rents and profits until sale, after payment of all outgoings, upon such trusts, and subject to such powers and provisions, as may be requisite for giving effect to the rights of the persons beneficially interested in the interest.

(2) An estate or lease held upon the statutory trusts may, subject to the provisions of section 140, be divided by the trustees amongst the beneficiaries under the trust, and on any such division the trustees may provide for the payment either in cash or by way of a charge of equality money.

(3) Any beneficiary under the trust who objects to the exercise or proposed exercise of the powers granted by subsection (2) may, either before such exercise or within six months thereafter, apply to the High Court, which may make such order as it thinks just and may under section 229 order rectification of the land register.

(4) The trusts and powers set out in this section shall be deemed to be incorporated in any instrument which operates expressly to vest any registered interest in land in any person upon the statutory trusts or whereby any person expressly declares that he holds upon the statutory trusts any registered interest in land already vested in him.

The Act also sets out what should happen on the death of a trustee:-

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.

There is a difficulty in this case because both registered owners are dead. However, what should have happened is that on the first death (no one was really sure whether it was Mr Soe or Mr Meibo who died first) the survivor became solely entitled:-

216. On the proof of the death of any person registered as joint owner of any interest, the Registrar shall register the survivor or survivors as owner or owners of the interest and he or they shall thereupon become the transferee or transferees of such interest and the registered owner or owners thereof.

However, that does not mean the survivor would have been entitled to do what he liked with the land. He would still have held it as trustee and would still have to have complied with the wishes of the beneficiaries. That is still true today. Whomever ends up as registered owner will hold the land subject to the wishes of the beneficiaries and they, as we know from what is set out earlier in this paragraph, are the members of the SilaKanegana land holding group.

5. It is also important to note the provisions of section 215(2) set out above. Someone who succeeds as trustee on the death of an existing or original trustee will be registered as owner and the registration will relate back to and take effect from the date of death of the trustee. There is no question of bona vacantia.

6. If there were any doubt about the provisions under the Act they are completely removed by the provisions of another piece of legislation, the Grants of Probate and Administration (Order of Priority) Regulations:-

3. (1) Where the deceased died wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following order of priority—

(a) the surviving spouse;

(b) the children of the deceased or the issues of any such child who died during the lifetime of the deceased;

(c) the father or mother of the deceased;

(d) brothers or sisters of the whole blood or the issue of any such brother or sister who died during the lifetime of the deceased.

(2) If no person in any of the classes mentioned in paragraph (1) has survived the deceased then the following, if they have a beneficial interest in the estate, shall be entitled to a grant in the following order of priority—

(a) brothers and sisters of the half blood or the issue of any such deceased brother or sister who died during the lifetime of the deceased;

(b) grandparents;

(c) uncles and aunts of the whole blood or the issue of any such deceased uncle or aunt who died during the lifetime of the deceased.

(3) In default of any person having a beneficial interest in the estate, the Public Trustee shall be entitled to a grant if he claims bona vacantia on behalf of the Crown.

It is only if there is no one left with a beneficial interest that the Public Trustee can take a grant and claim bona vacantia. Is that the case here or put another way, has the whole of the Silakanegana land holding group died out? On the Claimants own evidence he represents a family group who say they are members of the Silakanegana land holding group so the very least that can be said from his evidence is that, no the whole group has not died out and there are survivors with a beneficial interest in the land. Of course there is also evidence from the Second Defendants they are closely related to the First Defendants. The issue of bona vacantia simply does not arise.

7. Even though it does seem as if the whole basis of the claim is misconceived the proceedings should not necessarily be struck out if, by amendment, the pleadings can be made to bring some arguable issue before the court. It is difficult to see what amendment can preserve the Claimant's case. He simply wants the land to revert back to customary land. No reason is given but one cannot help but notice that during the original acquisition proceedings there was a claim against the land by John Sopina and Leo Mateka. This, presumably, is the same John Sopina whose family the Claimant represents. The claim was not accepted by the Acquisition Officer and he found instead that the First Defendants had the right to lease the land and receive the rent.

8. Nor is the "defence" without problems. The suggestion is the Second Defendants have been appointed "by the Tribe" to become administrators. It is not as simple as that. The original registered owners have died without making a will. Exactly who died first must be ascertained. Then by reference to the Regulations set out in paragraph 6 above it can be discovered who can apply for Letters of Administration. It is said that Mr Leni is the son of Joachim Soe. Clearly he is one of those persons entitled to take a grant provided the late Mr Soe was not survived by a widow who is still alive. Mr Buin is said to be the grandson of Mr Meibo. If he was born during the late Mr Meibo's lifetime then, provided there is no surviving spouse or surviving children then he too would be entitled to a grant in respect of the late Mr Meibo's estate. The answer to the question of which one should apply to the High Court to be appointed Administrator and subsequently to the Registrar of Titles to be noted as the registered owner can only be answered by ascertaining who of Mr Soe and Mr Meibo died last in time. Only one, after taking into account the provisos set out above, need be or should be appointed as Administrator. The Administrator should provide evidence of the deaths of the registered owners to the Registrar of Titles who will then note the Administrator as the registered owner. Of course the Administrator will be in no better position than either of the original owners and will be a trustee holding the legal title for the benefit of the Sila-Kanegana land holding group. He must do what the majority of the beneficiaries tell him to do. It would be prudent for the beneficiaries to decide on additional trustees and an application lodged to register those trustees as owners. The Administrator would have to join in the application. If that is the wish of the majority of the beneficiaries he has no choice. The new trustees must make a declaration in public they hold the land as trustees for the benefit of the Sila-Kanegana land holding group and the declaration must be sent to the Registrar of Titles.

9. None of the matters referred to in paragraph 8 above are touched upon in the claim in any way. They are no part of the relief sought by the Claimant. All he wants is for the land to revert back to customary land. For the reasons set out above the basis on which the claim is made is fundamentally flawed and there are no amendments that would cure the defects so that there were triable issues for the court to consider. In the circumstances there appears no alternative but to strike out the claim as disclosing no reasonable cause of action.

Order

1. The Claim is struck out as disclosing no reasonable cause of action.
2. The Claimant shall pay the costs of the Defendants such costs to be agreed and in default of agreement to be assessed on a standard basis by the Registrar of the High Court

Chetwynd J

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^[1] See exhibit PB3 annexed to the sworn statement of Pellion Buare filed 25^th November 2011
^[2] See exhibit PB4 annexed to the sworn statement of Pellion Buare