Evo v Rizu [2014] SBHC 160; HCSI-CC 191 of 2014 (3 November 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 191 of 2014

IN THE ESTATE OF ISAAC KOVA (ADMINSTRATOR), LATE, VOVOHE VILLAGE, KOLOMBANGARA, WESTERN PROVINCE, BEING LOLOBO LAND PARCEL NUMBER PE 098-004-1.

AND:

WILSON EVO
Applicant
Representing his tribe being the beneficiaries
of Lolobo Land Parcel Number (PE) 098-004-1

AND:

On Objection/Cross Application of James Rizu
Defendant/Respondent
Representing Lolobo tribe as the rightful
owners and beneficiaries of the Parcel Number
(PE) 098-004-1

Date of Hearing: 7th October 2014
Date of Judgment: 3rd November 2014

Mr. Kwana for the Claimant/Applicant
Mr Suri for the Cross Applicant/Objector

RULING

Maina, J:

Introduction

This is an application under Section 16 of the Wills, Probate and Administration Act (Cap.33) ("the Act") and filed on 25th June 2014. The Applicant/Claimant Wilson Evo seeks for the Letters of Administration in respect of the Estate of Late Isaac Kova and Cross Applicant James Rizu filed on 24th July 2014.

Brief Background

Late Isaac Kova ("the Deceased") was appointed under Wills, Probate and Administration Act as administrator of Perpetual Estate Parcel no 098-004-1. The Deceased was to administer for the beneficiaries however, he died intestate on date 29th March 2014. The applicant from Kolombangara tribe claims to be the rightful beneficiaries of the land and applies to the court for the letter of administration as he treats the grant of letter in 2008 as part of estate of Isaac Kova.

The grant of letter of administration to the Applicant has an objection by Mr. James representing the Lolobo Tribe, Rizu, in the form of an Amended cross application and filed on 24th July 2014. The cross applicant seeks the Court to grant the letter of administration to him as he (cross applicant) being the authorised person appointed by the beneficiaries by the Lolobo tribe as rightful owners and beneficiaries on the Lolobo land.

Applicant submission

Briefly in 2008, late Isaac Kova invoked the provision of Wills, Probate and Administration Act and he was granted the letter of administration of perpetual estate owners in parcel no 098-004-1 jointly own by deceased late Mulebei and Ruben Saeve. He did not execute the letter of administration however died in March 2014.

There is no copy of the order provided by the applicant for the grant of administration however, the Perpetual Estate Register Exhibited "WE 1" shows that late Isaac Kova is registered as Personal Representative and administrator of the Estate of the deceased. Applicant Wilson Evo now comes to Court and seek for the grant of the letter of administration.

Cross Application/Objection Submission

Counsel Suri for the cross applicant with his submission provided a Declaration which provides the legal basis which relates to the original declaration of the joint owners for the purposes of lease and registration of the perpetual estate in parcel no 098-004-1 and the beneficiaries. Annexure "R 1" annexed to the sworn statement of James Rizu filed on 6th October 2014 is the declaration by the joint owners of parcel no 098-004-1 the late Mulebei and Ruben Saeve. It clearly shows that they held the perpetual estate interest on behalf of the butubutu Lolobo land-holding group. According to Counsel Suri the word "butubutu" means tribe.
Issues

In the dealing with the application by Wilson Evo and cross application by James Rizu, it is important to note at the stage there are issues that relates to law as the Lands and Titles Act (Cap 133) and Wills, Probate and Administration Act (Cap 33) both provides for the methods or manners for the devolution of certain perpetual estates on intestacy.

The issues are:

1. Whether the Perpetual Estate Parcel no 098-004-1 and upon the grant of the letter of administration for granted the late Isaac Kova form part of his estate or intestacy residuary estate? and
   
2. Whether the Deceased late Mulebei and Ruben Saeve whom late Isaac Kova was granted the letter of administration of Perpetual Estate Parcel no 098-004-1 form part of their estate or intestacy residuary estate? and or
   
3. Whether the application by Wilson Evo and the cross application by James Rizu for the grant of letter of administration the deceased is proper or is accordance with the law?
   

Issue 1

The application by applicant Wilson Evo is for the Court to grant the letter of administration of the estate of late Isaac Kova and in particular named the Perpetual Estate Parcel no 098-004-1. According to the Register Exhibited "WE 1" late Isaac Kova is registered as Personal Representative and administrator of the Estate of the deceased granted upon his application to the court.

As such the question is whether the Perpetual Estate Parcel no 098-004-1 through the grant of the letter of administration to late Isaac Kova then forms part of his estate or intestacy residuary estate?
It is also noted or what is clear from the declaration is that the joint owners declared that the persons beneficially interested hold their interest in accordance with current customary usages of lolobo (the area within which this usage prevails)

The Law

Section 16 of the Wills, Probate and Administration Act is for a person to be granted either as an executor of will or letter of administration of estate of the deceased an application must be made and the court must grant the order of execution or administration. It is a discretionary function of the court to grant thus subject to be revoked or amended if the circumstance or situation has changed. And it is for the execution of will and in the case of whoever is granted the letter of administration is for the "estate" and or "Residuary estate" of the deceased.

Wills, Probate and Administration Act in section 3 (1) provides interprets of estate as

"estate" in relation to the property of a deceased person, includes any goods, chattels, moneys, valuable security, choses in action or other property of what manner or kind whatsoever; and in relation to land belonging to the estate of a deceased person, has the meaning assigned to the expression "estate" in section 2 of the Land and Titles Act and includes any freehold or leasehold interest in land within the meaning of section 9 of the Land and Titles Act Cap. 133"

And further

"Residuary estate" in relation to an intestate means –

(a) the residue of the net money arising from the sale and conversion of the movable and immovable estate, after the payment of costs but does not include any perpetual estate owned by a deceased Solomon Islander which is situated within the customary land boundary of his tribe, clan or line in his province of origin"

The definitions under the Act do not include any perpetual estate owned by a deceased Solomon Islander and this appears be the situation of the Perpetual Estate Parcel no 098-004-1.

This Perpetual Estate Parcel no 098-004-1 is not personal properties late Isaac Kova who was granted the letter of administration but held by the late Mulebi and Robert Saeve for the interest of beneficiaries. The fact that Isaac Kova had died the letter of administration does give or bestow upon him the right on perpetual estate to be neither his estate nor residuary estate. It would not be for distribution under the process or devolution under Part III of the Wills, Probate and Administration Act.

Now that he had died the granted of letter of administration is subjected to be revoked. It is not an "estate" and or "residuary estate" and therefore the letter of administration to late Isaac Kova is accordingly revoked.

Issue 2

By the original declaration of the late Mulebei and Ruben Saeve as joint owners signed at Munda on 19th September 1971 for the purposes of lease and registration of the perpetual estate in parcel no 098-004-1 they were holding the perpetual estate interest on behalf of butubutu Lolobo land holding group (the beneficiaries). As such, it does not form part of their estate or intestacy residuary estate.

The declaration of the joint owners is that the persons beneficially interested hold their interest in accordance with current customary usages of lolobo (the area within which this usage prevails)

It is also clear in the declaration is the perpetual estate in parcel no 098-004-1 is not their personal estate as the joint owners and held for the interest of butubutu lolobo land holding group. As such, it does not form part of their estate or intestacy residuary estate of late Mulebei and Ruben Saeve.

And therefore I declare the perpetual estate in parcel no 098-004-1 is the estate or intestacy residuary estate of late Mulebei and Ruben Saeve.

Issue 3

The application by Wilson Evo and the cross application by James Rizu are lodged under Part III of the Wills, Probate and Administration Act for the grant of letter of administration the deceased.

The perpetual estate was registered in the names of the Mulebei and Ruben Saeve as joint owners and both had died. They held the legal title only and the beneficial interests in the land are held by the members of the butubutu Lolobo land holding group.

The Law

To the effect of the beneficial interests, late the Mulebei and Ruben Saeve were trustees and the useful or significance of their status is set out in the Land and Titles Act.

In section 214(1) it provide that a registered interest held upon the statutory trusts be held upon trust to sell the same with power to postpone such sale as the trustees and costs related requirements and importantly for the giving away effect the rights of the persons beneficially interested in the interest.

Further the Act in section 215 sets out what should happen on the death of a trustee however, for the situation in this case both registered owners have died. Otherwise, whoever the first death, the survivor became solely entitled.

This creates a problem or doubt under the Land and Titles Act but this doubt has been are removed or resolved by section 105 of the Wills, Probate and Administration Act.

The joint owners declared at Munda on 19th September 1971 that the persons beneficially interested hold their interest in accordance with current customary usages of butubutu Lolobo, and the area within which this usage prevails is on Kolombangara Islands, Western Province).

The process of the devolution of such perpetual estate owned by a deceased Solomon Islander as in section 105 (as amended in 8 of 1990, s. 7) of the Wills, Probate and Administration Act:

"S.105. Where a Solomon Islander dies intestate and any estates on perpetual estate owned by him does not form part of the intestacy residuary estate, the devolution of such perpetual estate shall be in accordance with the current customary usage as certified by the local court having jurisdiction in the area where the land is situated"

Simply what it means here is that the devolution of such perpetual estate to be in accordance with the current customary usage as certified by the local court having jurisdiction in the area where the land is situated.

And the bottom line or starting point in perusal or purpose of devolution of this perpetual estate in accordance with the current customary usage is declaration signed at Munda on 19th September 1971 by late Mulebei and Ruben Saeve joint owners. Both applicants are at liberty to go before the local court and seek certification of their claims.

It is the invocation of the provision of the Act by those concerned and or successors chosen according to the customary usage and certified by the appropriate local court, thus for this matter the appropriate court is Ghorena Local Court. That certification will assist in the devolution of such perpetual estate to the successors of the estate.

The applications by Wilson Evo and cross application by James Rizu under Part III of the Wills, Probate and Administration Act for the grant of letter of administration are refused.

Order:

1. The perpetual estate in parcel no 098-004-1 is not an "estate" and or "Residuary estate" of late Isaac Kova.
   
2. The letter of administration granted to late Isaac Kova is revoked.
   
3. The perpetual estate in parcel no 098-004-1 is not an "estate" and or "residuary estate" of late Mulebei and Ruben Saeve joint owners.
4. Both the application by Wilson Evo and Cross-Application by James Rizu are refused.
   
5. The devolution of perpetual estate in parcel no 098-004-1 is subjected to section 105 of the Wills, Probate and Administration Act and accordingly is referred to Ghorena Local Court.
   
6. Cost in the cause
   

THE COURT

.................................................................
Leonard R Maina
Puisne Judge