Poso v Kuvia [2014] SBHC 98; HCSI-CC 424 of 2012 (2 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

PETER POSO (representing Koghamotha subtribe of the Ghaubata Tribe of North Guadalcanal)
Claimant

AND:

BENJAMIN KUVIA, PHILIP SOPAGE, JOHNSON VOGITHIA and JOHN ILEI (Surviving joint-owners & trustees of Parcel No. 192-003-8)
1st Defendant

AND:

ATTORNEY GENERAL (representing the Commissioner of Lands)
2nd Defendant

AND:

ATTORNEY GENERAL (representing the Registrar of Titles)
3rd Defendant

AND:

GUADALCANAL PLAINS PALM OIL LIMITED
4th Defendant.

Mr. A. Hou for the Claimant/Respondent.
Ms. M. Bird for the 1st defendant.
Mrs. R. Soma for the 2nd and 3rd defendants.
Mr. T. Kama for the 4th defendant/Applicant.
Mr. D. Nimepo for Johnson Vogithia (3rd named 1st defendant).

Date of hearing: 12 May 2014.
Date of Judgment: 2 July 2014.

RULING
Apaniai, PJ:

Introduction.

1. This is an application by Guadalcanal Plains Palm Oil Limited, the 4th defendant herein ("Applicant"), for dismissal of the claim on the grounds that the claim is frivolous and vexatious; it discloses no reasonable cause of action; and, is statute barred or, alternatively, that the claim is false and embarrassing.
   
2. The 1st defendant supports the application and says it too has filed a similar application to strike out the claim on the 11 January 2013. The 3rd and 4th defendants also support the application.
   
3. This proceeding relates to a perpetual estate property known as parcel number 192-003-8, Lot 30 of LR 536 ("Lot 30"), which is situated in North Guadalcanal. Lot 30 is currently registered in the names of Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei.
   

Allegations of fraud and mistake.

4. The claimant ("Respondent") alleges that he and his sub-tribe, the Koghamotha sub-tribe, which is a sub-tribe of the Ghaubata tribe, is the customary owner of Lot 30 and that Lot 30 was registered in the names of Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei by fraud and mistake.
   
5. He gave the particulars of the fraud and/or mistake as follows:-
   

[1] In or about 1946, the then District Commissioner, Mr. Cross, had identified the Respondent's great, great grandfather, Mr. Gori, of the Khoghamotha sub-tribe as the original customary owner of Lot 30. Despite that finding, Lot 30 got registered in the names of Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei who are not members of the Khoghamotha sub-tribe. The registration was effected without the consent of the Respondent and his Khoghamotha sub-tribe;

[2] In or about 1958, the late Sir Fred Osifelo was appointed as acquisition officer to acquire certain customary lands in North East Guadalcanal and North Guadalcanal for development purposes. At a meeting held at Betipono village, North Guadalcanal, Sir Fred had identified Mathew Tuanivali, Gariniu, Jacob Charles Vouza, Giapoa and Keve as the owners of the lands which were the subject of the acquisition proceedings, including Lot 30. Despite that finding, Lot 30 got registered in the names of Stephen Matagu, Mathew Tuanivali, Joseph Tiva, Eliza Thudu and Benjamin Kuvia as joint owners on 9 January 1975. This was done without the consent of the Respondent and his Khoghamotha sub-tribe;

[3] Lot 30 became registered in the name of the Agricultural & Industrial Loans Board on 29 January 1973. However, before that, a lease in Lot 30 had already been granted to the Solomon Islands Plantations Limited ("SIPL") 29 January 1973;

[4] The Ghaubata House of Chiefs had made a statutory declaration on 30 November 2004 to the effect that Lot 30, belonged to the Respondent and his sub-tribe. On 24 February 2005, the late paramount chief Samuel Saki had also made a statutory declaration that the registration of lands done for the purposes of the development by SIPL were done in a hurry and that a lot of those who were registered as owners of the lands were not necessarily the owners of those lands. Despite these statutory declarations, a Grant instrument was still executed granting the perpetual estate title to Lot 30 to Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei on 11 April 2005. This was done without the consent of the Respondent and his Khoghamotha sub-tribe;

[5] Despite the statutory declarations by the Ghaubata House of Chiefs and the late paramount chief Samuel Saki referred to above, Lot 30 was still transferred to Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei on 4 July 2005. This was done without the consent of the Respondent and his Khoghamotha sub-tribe.

6. In the claim, the Respondent alleges that he and his Khoghamotha sub-tribe were the customary owners of Lot 30, formerly known as Ngalitada customary land. His claim is based on the same grounds referred to as particulars of fraud and mistake in paragraph 5 [1], [2], [3] and [4] above.
   
7. The Applicant submits that those particulars do not disclose any mistake or fraud and therefore no reasonable cause of action is disclosed in the claim.
   

Background.

8. The history relating to the first and subsequent registrations of Lot 30 is largely undisputed. There is no dispute that the first registration of Lot 30 was done on the 15 July 1974 when the land was registered as a perpetual estate in parcel number 192-003-8 in the name of the Agricultural and Industrial Loans Board. The Applicant says that the registration was effected after acquisition proceedings which were held to acquire land for development of palm oil in the Guadalcanal Plains and that initially the property was held by the Commissioner of Lands but on first registration was registered pursuant to the Agricultural and Industrial Loans Ordinance in the name of the Agricultural and Industrial Loans Board to be held by the Board until the Government establishes an entity to hold the title. This is not disputed by the Respondent.
   
9. The parties also agree that on the 9 January 1975, the title to Lot 30 was registered in the names of Stephen Matagu, Mathew Tuanivali, Joseph Tiva, Eliza Thudu and Benjamin Kuvia and that, on 4 July 2005, the title became registered in the names of the current title holders, namely, Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei ("current owners"). There is also no dispute that Lot 30 was leased to the Applicant on the 14 July 2005 and that the lease is still current.
   

Effect of registration of customary land.

10. The law is clear that on registration, customary land loses its customary nature and becomes registered land so that ownership is no longer determined on the basis of previous ownership of the land in custom but on the fact of registration[1]. In other words, the register is everything so that the person whose name appears in the register is the owner of the land. This is what is now known as the Torrens system of land ownership.
    

Registration under the Torrens system.

11. The Land and Titles Act (Cap. 133) ("L&T Act") is an embodiment of the ideals found in the English Real Property Act 1900 which provides for prove of title to land under the Torrens system. Under the old system prior to the Real Property Act 1900, prove of title to land was often difficult and time consuming in that a vendor or purchaser must be able to trace an unbroken chain of dealings with the land back to a "good root of title". A "good title" is a disposition of land which on its face purports to deal with the whole legal and equitable interest in the land. The validity of the title is completely dependent upon the efficacy of each document in the chain of title and registration of the document does not cure inherent defects in the document.
    
12. The Torrens system, on the other hand, provides that title should be independent, that retrospective investigation of title should be done away with, and that each owner (that is, the registered proprietor) should take free from any defect existing in the title in the hands of earlier owners. It provides for a system whereby a "certificate of title" should be the only evidence required to prove title and that transfer of title should be done by a short, simple and uncomplicated form. It is designed to overcome the "dependent nature" of titles under the old system. As stated by the Privy Council in Gibbs v Messer[2]:-
    

"The object (of the Torrens system) is to save persons dealing with registered proprietors from the trouble and expense of going behind the register in order to investigate the history of their author's title and to satisfy themselves of its validity. That end is accomplished by providing that everyone who purchases, in bona fide and for value, from a registered proprietor and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right notwithstanding the infirmity of his author's title."

13. In short, the Torrens system is a system of "title by registration" and not a system of "registration of title" and its fundamental concept is the importance of the register.
    
14. As stated in Waimiha Sawmilling Co. Ltd v Waione Timber Co. Ltd[3]:
    

"The cardinal principle of the statute is that the register is everything".

15. The conclusiveness of the register confers upon the registered proprietor of an interest in land known as an "indefeasible title" to the land. The title has become indefeasible because it cannot be set aside except in circumstances which have been prescribed in the Act itself, namely, that the registration has been effected by fraud or mistake and the proprietor knew of the mistake or the fraud or has substantially contributed to it by his conduct or omission.
    
16. This case must therefore be considered in the light of these principles and the provisions of the L&T Act.
    

Registration of current owners.

17. In the present case, Lot 30 is now registered in the names of the current title holders (Eliza Thudu, Benjamin Kuvia, Philip Sopage, Johnson Vogithia and John Ilei) on 4 July 2005. To succeed in this claim, the Respondent must prove on the balance of probabilities that Lot 30 was registered in the names of the current owners by mistake or as a result of fraud and that the current owners had knowledge of such mistake or fraud or had caused or contributed to such mistake or fraud.
    
18. A mistake is made where the Commissioner of Lands makes a mistake in the performance of his statutory functions which results in the registration as owner of land of a person who should not have been so registered[4].
    
19. To prove fraud, it must be shown that the conduct which led to the registration of the proprietor as owner of the land involved some dishonest conduct[5].
    

No fraud or mistake committed.

20. Unfortunately, none of the particulars set out in paragraph 5 above falls within the meaning of mistake or fraud as defined in paragraphs 18 and 19 above. Nothing has been alleged about who made a mistake or who committed fraud or what was the mistake made or the fraud committed and, if mistake has been made or fraud committed, whether the current owners knew about the mistake or the fraud or have substantially contributed to the mistake of fraud.
    
21. To the contrary, the evidence shows that on 29 January 1973, Lot 30 was leased to SIPL for 75 years from 1 January 1973; that on 15 July 1974, the perpetual title in Lot 30 was registered in the name of the Agricultural & Industrial Loans Board; that on 9 January 1975, the registration of Lot 30 in the name of the Agricultural & Industrial Loans Board was cancelled and the perpetual estate title transferred to Stephen Matagu, Mathew Tuanivali, Joseph Tiva, Eliza Thudu and Benjamin Kuvia as joint owners; that in the meantime, Joseph Tiva, Stephen Matagu and Mathew Tuanivali had died, hence, the perpetual title remained in the joint names of Eliza Thudu and Benjamin Kuvia as joint owners as at 13 September 1983; that on 11 April 2005, Eliza Thudu and Benjamin Kuvia signed a transfer document transferring the perpetual title to the current owners; that on that same day, SIPL surrendered the lease over Lot 30 to current owners and, that on 14 July 2005, the current owners signed a new lease in favour of the Applicant, Guadalcanal Plains Palm Oil Limited ("GPPOL").
    
22. The fact that Lot 30 became registered as a perpetual estate in the name of the Agricultural and Industrial Loans Board in 1974 has changed the customary nature of Lot 30 into registered land.
    
23. Therefore, to the extent that the statutory declarations by the Ghaubata House of Chiefs and paramount chief Saki are meant to show the customary ownership of Lot 30 by the claimant's sub-tribe, those statutory declarations are irrelevant to the question of the ownership of Lot 30. The current owners are the owners of Lot 30 and that ownership can only be dislodged by showing that the registration of the current owners was done by mistake or fraud. Section 110 of the Land and Titles Act (Cap. 133) provides that the rights of an owner of registered interest ... shall be rights not liable to be defeated except as provided by this Act.
    

Decision and orders.

24. I am satisfied the claim has disclosed no reasonable cause of action and is frivolous and vexatious and should be dismissed. This finding is sufficient to dispose of this claim. It follows that it is not necessary to consider the other grounds put forward by the Applicant for the dismissal of this claim, including the objection raised by counsel for the Respondent regarding the representation of Johnson Vogithia by Desmond Nimepo in this case.
    
25. Mr. Nimepo is the son-in-law of Johnson Vogithia and is therefore related to Mr. Vogathia by matrimony. Under sub-rules (1) and (2)(c) of rule 13 of the Legal Practitioners (Professional Conduct) Rules, Mr. Nimepo is disqualified from representing Mr. Vogathia. His submission on behalf of Mr. Vogathia is therefore rejected and are not taken into account in arriving at the decision to grant this application.
    
26. The orders of the court are:-
    

[1] The application by the Applicant to dismiss this claim is granted.

[2] This claim is dismissed.

[3] The Respondent shall pay the costs of the Applicant and the 1st, 2nd and 3rd defendants on standard basis.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Karahu v Paeva [1999] SBHC 7; HC-CC 179 of 1998 (5 February 1999).
^[2] [1891] UKLawRpAC 2; [1891] AC 248 at 254.
^[3] [1926] AC 101 at 106.
^[4] Billy v Daokalia [1995] SBCA5; CA-CAC 001 of 1995 (27 October 1995).
^[5] Assets Co. Ltd -v- Mere Roihi & Others [1905] UKLawRpAC 11; [1905] AC 176 , Waimiha Sawmilling Co. Ltd -v- Waione Timber Co. Ltd [1925] AC 101.