Kulolo v Loboi [2017] SBHC 52; HCSI-CC 221 of 2014 (27 January 2017)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

HCSI-CC No. 221 of 2014

BETWEEN: SAM KULOLO AND PETER - Claimants
PUKUVATI (Representing the
Gaubata tribe of Tandai)

AND: ANDREW LOBOI - 1^st Defendant

UROSSHILL TRUST BOARD - 2^nd Defendant
(Incorporated)

And in CC No. 067 of 2016

BETWEEN: FRANCIS PEROGOLO, MICHAEL - Claimant
LILIAU, MICHAEL BEN, HILDA

KII AND PAULA ARUHURI

(Representing the Kakau Valimauvo sub-tribe)

AND: ANDREW LOBOI (Representing his family) - 1^st Defendant

UROSSHILL TRUST BOARD - 2^nd Defendant
(Incorporated)

ATTORNEY GENERAL - 3^rd Defendant
(Representing the Commissioner of Lands &
Registrar of Titles)

Date of Hearing: 25 October 2016
Date of Judgment: 27 January 2017

Mr. P. Tegavota for the claimants in cc. 221 of 2014
Mr. M. Ipo for the claimants in cc. 067 of 2016
Mr. D. Marahare for the 1^st defendant in both cases.
Mr. F. Hollision representing the Attorney General for the Registrar of Titles in cc. 67 of 2016.

Brown J:

These two proceedings have been consolidated for the decision in the earlier case, cc. 221 of 2014 may affect the later claim, cc. 67 of 2016.

In the earlier case, by amended statement of claim filed on the 9 January 2015, the two claimants representing the Gaubata tribe of Tandai, Guadalcanal seek a declaration that they are beneficial owners of the registered perpetual estates in land situate between Rove Stream and Mataniko River previously registered in the names of Savino Laugana and Thomas Botu of the Gaubata tribe. The claimants plead since the defendants are registered estate holders, the transfer into their names was effected by fraud or mistake. While it is not clear whether the defendants are now named on the Perpetual Estate Register in the light of a caveat, I propose to proceed on the basis of refusal of registration of transfers pending findings by these court orders.

That may be the Claim, but by the supporting statement of case, at paragraph 9, the claimants concede that:- “ unfortunately the first defendant (the claimant in cc.212 of 2009) and the Savino Laugana and Thomas Botu did not produce any evidence to show that all the lands they held perpetual titles over, from Rove Stream to Mataniko are trust properties and that they merely held the registered titles on trust on behalf of the Gaubata tribe.”
By careful enunciation, Chetwynd J [cc. 212 of 2009] found on the facts that the registered land (dealt with in by the judge in cc.212 of 2008) had earlier been sold by those two earlier registered owners, Salvino and Thomas and consequently the 1^st defendant, Andrew Loboi as purchaser was entitled to benefit from the sale. [There is no prohibition on sale of registered land].

The basis of the claim for the declaration is the Court’s power by way of judicial review, to grant declaratory relief in relation to matters affecting an Act or subsidiary legislation [R.15.3.7 (a)]. By virtue of the Land and Titles Act, registered interests in land are wholly subject to the provisions of that legislation. The Attorney-General [for the Registrar of Titles] has not been named in the 1^st proceedings although both will be considered in any event to expeditiously dispose of the proceedings for no fraud or mistake has specifically been alleged by the Registrar of Titles and the Registrar will abide by the court order.

The claim for declaratory relief is made on the tribe’s behalf in the 1^st proceedings and seeks a consequential order that the registered titles revert to the claimants, as trustees for the Gaubata tribe. In the 2^nd proceedings, other sub-tribal members seek similar orders in favour of the sub-tribe.
The difficulty faced by the claimants is that the sale was pursuant to an order of the Court and the transfer was by way of specific performance pursuant to that judgment with a charging order followed by an order for sale. These defendants rely on the protection afforded them in accordance with S.218(3) of the Act (Cap.133).

On the 23 March 2016, a further amended claim was filed in the first proceedings, varying the claim for rectification of the Perpetual Estate Parcel numbers 191-079-15, 191-080-48 and 191-081-1 alleging that the sales were “without the consent of the Gaubata tribal members” to rectification of only Parcel no. 191-081-01. The claimant’s whole argument is prefaced on the fact of a sale and rather ignores the nature of Justice Chetwynd J’s ruling and orders. There was no sale in the ordinary course of events where the court may consider an argument in relation to s. 229 of the Land and Titles Act.

By amended defence, the 1^st and 2^nd defendant admit that orders were made in High Court cc.212 of 2008 whereby registered land was affected by orders of this Court.

For by order of the Court [perfected on the 11 March 2011], the Perpetual Estate in the area of land identified on the map appended to the sworn statement of Irene Loboi filed on the 1 December 2010 “shall be transferred to the claimant, which area of land to exclude the land marked “B-3” as well as Lots 73, 74 and 74 of LR 951”. I shall deal with the map later in these reasons, suffice to say now that the whole area of land marked was that land found to be earlier sold and the reserved portions named was land unable to be transferred to the purchaser through intervening acts of the earlier proprietors, Savino and Thomas.

By further court orders of the 12 April 2011 those persons, Savino Laugana and Thomas Botu were ordered, (in terms of the assessment pursuant to the earlier court order) to pay Andrew Loboi, damages in the sum of $ 550,000. The damages flowed from the fact that the whole area of land originally sold was no longer able to be registered in Andrew Loboi’s name so the court awarded damages reflecting the value of the loss of the land unable to be transferred.

On the 5 December 2011, the court directed the Registrar to execute the necessary transfer document in relation to the land to be transferred to the claimant by earlier order given on the 11 March 2011.

By order perfected on 24 August 2012, leave was given by the Court to sell by way of public tender, Perpetual Estate Parcels, 191-080-1, 191-081-1, 191-080-48, 191-078-9, 191-079-15 and 191-077-19 which estate were the subject of a charging order made on the 27 March 2012, following the award of damages in favour of the defendant Andrew Loboi, by earlier judgment given in cc. 212 of 2008.

Before addressing the effect of these various court orders, I propose to look at the claim in cc.212 of 2008 for while the defendants rely on the un-appealed findings in cc. 212 of 2008, the facts are rather illuminative of the current claimants’ plea to ownership as beneficiaries of a trust.
Chetwynd J in proceedings HC-SI cc. 212 of 2008 between Andrew Loboi, claimant and Savino Laugana and Thomas Botu (respectively 1^st and 2^nd defendants) Rex Saika (3^rd defendant) Moses Eni Ofasisili (4^th defendant) and the Commissioner of Lands and Registrar of Titles (by the Attorney General) recounted the history of the land sale by the 1^st and 2^nd defendants to the claimant. At paragraph 5 of the judgment, Chetwynd J said:-

“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 1^st and 2^nd and 4^th defendants admit there was a sale of land to the Claimants. The 1^st, 2^nd and 4^th defendants also admit that ceremonies in custom took place.”

There has been no appeal from the findings of Chetwynd J from which the various court orders followed. For the judge had recited findings of facts leading to his conclusion, for although on the 15 March 1993 the Commissioner of lands became the 1^st Perpetual Estate Holder of parcel no. 191-080-1(formerly Lot 4 of LR 951 Tasahe land) being 142.3 hectares, and on 14 July 1993 Savino Laugana and Thomas Botu were registered as owners, a day later there was a “ Land Purchase Agreement” by the registered owners as settlers and the claimant Andrew Loboi as purchaser (who was found by the judge to have been for twenty three years in possession of a particular parcel of land within the larger parcel no. 191-080-1 registered in the names of Savino and Thomas). The judge found the Agreement satisfied the requirements of S.117 of the Land and Titles Act and operated as a contract. In addition the judge referred to a Statutory Declaration apparently dated 5 June 1998 confirming a sale of 13.58 hectares to Andrew Loboi had taken place and the purchase price had been paid. All this factual material satisfied the judge that Andrew Loboi had the right to seek an order of the court requiring the registered owners Savino Laugana and Thomas Botu to “do all that is necessary to ensure the claimant is able to register his interest.” For the factual material confirmed the claimants purchase when he commenced occupation in 1987, the time of the original sale evidenced by the custom ceremony. The judge accordingly granted specific performance of the contract. The land was then registered land and not customary land. No mistake has been shown going to the acts of the Registrar of Titles for a caveat, preventing registration of various documents would appear to have prevented the registration of transfers of various parcels following the earlier court orders, and the Registrar will abide the decision of this court and any orders in relation to the caveat.
There were then various orders, providing for that transfer and award of damages. As I say, no appeal against any of those findings has been made yet these claimants now come to court, representative of the Gaubata tribe to claim trustee status as customary landowners claiming this land. The findings of Chetwynd J effectively extinguished any claim of right to customary land in relation to the land sold to Andrew Loboi ^[1]. For the claimants are estopped from challenging the orders made in High Court cc no. 212 of 2008.
Counsel have made submissions to assist me in the matters and while I make no reference to a particular submission, I have taken into account all the matters raised in argument. It needs to be remembered that established facts rather go to the two court decisions and consequently the arguments are ones of law.

While counsel for the claimants in cc. 67 of 2016 seek to find support from Chetwynd J’s later decision given in Francis Perogolo anors v Savino Laugana and Thomas Botu^[2], I am satisfied on the evidence the land the subject of the earlier proceedings, cc. 212 of 2008 had already been sold and by Chetwynd J’s order for specific performance of the agreement with Andrew Loboi, his judgment in cc. 212 of 2016 concerning the land sold remained unaffected by the decision in cc. 152 of 2009.

So far as the land particularly identified in the various court orders, [cc. 212 of 2008] in favour of Andrew Loboi is concerned, while it may have once formed part of Lot 4 of LR 951 (which has become 191-080-1), by mutation the parcels so described in the various court orders for sale and transfer correspond with the land the subject of court orders in cc.212 of 2008. It consequently follows that I may not presume to further consider the claim to rectification in relation to 191-081-1. My reasons follow.
While the defendant claimed to have the proceedings dismissed pursuant to R.15-3-18 at a preliminary conference [for that the claim should not be heard], these cases have proceeded to trial and I make final orders.

In cc. 67 of 2016, the representatives of the Kakau Valimauvo (a sub tribe, it would seem, of Ghaoghaubala-bata tribe) Guadalcanal, filed a category C Claim on 26 February 2016, seeking declarations that these representatives were entitled to land given the defendant Andrew Loboi by order of specific performance in proceedings cc.212 of 2008 and land which became the subject of charging orders made following that earlier judgment given in cc.212 of 2008.

For orders sought, consequential upon the declarations claimed, the parcels of land the subject of the judgment in cc. 212 of 2008 be returned to and registered in the names of the appointed trustees, these claimants.

For on the 3 October 2011, a judgment in separate proceedings for specific performance was obtained in relation to an earlier agreement between this sub tribe and Thomas Botu and Savino Laugana, to transfer land in the name of these two individuals to the sub tribe. The area to be transferred was to be surveyed but the land has not yet been registered in the claimants’ name, because they say, of the death of both registered owners and the fact that part of the land to be transferred, was adversely affected and transferred elsewhere pursuant to the court orders given following judgment in cc. 212 of 2008. The claim in the present proceedings, cc. 67 of 2016, must fail for the land claimed had long before been sold to Andrew Loboi and by judgment of Chetwynd J these Kakau Valimauvo people are estopped from claiming any registered land [and that is land with which we are concerned] the subject of Justice Chetwynd’s earlier orders for specific performance or sale of land by way of damages to compensate Andrew Loboi. No appeal followed Justice Chetwynd’s earlier decision in cc. 212 of 2008 and any appeal to this court now is long out of time.

It is important to identify the particular parcels of land which these claimants seek for by paragraph 10 of their statement of case, they exclude the land adjudged by Chetwynd J in cc. 212 of 2008 to have been sold to Andrew Loboi and consequently made subject of the specific performance order covering an area of 13.58 hectares, to be delineated by survey. For the claimants say in paragraph 10, that parcel is a separate land from land claimed in these proceedings. Yet the proceedings have been instituted against these defendants and orders sought against them. If other land of Savino and Thomas remains unaffected by sale or court order, then the claimants in cc. 67 of 2016 may by judicial review seeking declaratory orders, seek to effectuate the court orders in cc. 152 of 2009. Obviously they will need evidence of land remaining in these deceased persons names and proof they held land on trust for the Gaubata tribe, land subject to the findings and orders in cc. 152 of 2009.

Land subject to sale under charging orders given in the proceedings cc. 212 of 2008. affected only part of Lot 4 LR 951 Tasaha lands (which become Registered Parcel no. 191-080-1 of some 142.3 ha) for the award of 13.58 hectares to Andrew Loboi could not be transferred in toto.

Since the time of judgment delivered in cc. 212 of 2008 on the 30 July 2010, when 13.58 hectares of land was determined to belong to Andrew Loboi and he became entitled to the order for specific performance of the sale agreement with the registered owners, Savino Laugana and Thomas Botu, part of the had been sold to one Rex Saika, who had it appears, taken title from the two registered owners in his and his wife’s name, notwithstanding, as Chetwynd J found, Rex Saika’s knowledge of the (equitable) ownership in Andrew Loboi. No consideration for the sale was shown on the instrument of transfer to Rex Saika, although Chetwynd J refused rectification, preferring to compensate Andrew Loboi for the loss of part of his 13.58 hectares by an award of damages against Savino Laugana and Thomas Botu. That is what he did for on the 30 July 2010, “the 1^st and 2^nd defendants (Savino Laugana and Thomas Botu) are ordered to do all that is necessary to enable the land covering an area of 13.58 hectares, which the claimant purchased from the first and second defendant, to be registered in the claimant name.” Since the judge acknowledged the whole of the 13.58 ha could not be transferred, he awarded damages for the loss of that portion unable to be transferred, giving his reasons. A survey was ordered to particularize and identify the land which made up the 13.58 ha.

On the 8 March 2011, the court ordered, “ land identified on the map annexed to the sworn statement of Irene Loboi filed 1 December 2010 shall be transferred to the claimant, which area of land to exclude the land marked “B-3” as well as Lots 73, 74 and 79 of LR 951. Damages to be assessed in respect of the areas of land which could not be transferred to the claimant namely the areas of land marked “B-3”, Lots, 73,74 and 79 of LR 951”
(Damages were to be assessed based on the value of the land found unable to be transferred to Andrew Loboi.

Clearly “B-3” and Lots 73, 74 and 79 were parcels of land [unable to be transferred] to be valued for the purpose of the damages assessment-the damages relating to the breach of contract or Agreement Chetwynd J had earlier found for these parcels could not have been transferred to Andrew Loboi, although they originally formed part of the 13.58 ha bought by Mr. Loboi.

The reality then, is that “B-3” and those numbered lots were subject to the original judgment in favour of Andrew Loboi. [The parcel registered in the name of Rex Soika attracted the alternate finding of damages for breach of Agreement].

By paragraph 12 of the statement of case, the claimants admit that part of the land which could not be transferred to Andrew Loboi was “B-3”, lots 73, 74 and 79 of LR 951, valued and assessed at $ 650,000.
Again by claim, at paragraph 1(b) the claimants acknowledge that Perpetual Estate Parcel nos. – 191-079-15, 191-080-48 and 191-081-1 were lands charged “to meet the costs, expenses and damages awarded against the late Savino Laugana and Thomas Botu” and while alleged to have been “sold....without the consent of the Gaubata tribal members”, the lands were by un-appealed judgment, directed to be sold. (see Chetwynd J’s judgment, paragraph’s 30, 31)

It is perhaps necessary to reiterate the parcel numbers mutations.
191-079-15 into 191-079-20 and 191-079-21;
191-080-48 into 191-080-57 and 191-080-58.
191-081-1 remains the same.

The caveat lodged by Philip Tegavota, Barrister and Solicitor on behalf of Sam Kulolo and Peter Pukuvati purportedly affects these land parcels. The caveat has prevented dealings following the court orders for sale pursuant to the charging order and the order for specific performance. The caveat for these reasons has no basis in law. The tribe no longer had an estate in rem for it was sold long ago and the court orders in cc. 212 of 2008 have extinguished by issue estoppal any rights to these particular registered lands.

On the 23 March 2016, the claimants amended their claim to identify only Perpetual Estate Parcel no. 191-081-1 as the only land which they claim as beneficial owners.

A copy of that parcel number folio is annexed to the sworn statement of Sam Kulolo, one of the claimants, filed on the 4 February 2016. At paragraph 9, he refers to the judgment (in cc.212 of 2008) and at paragraph 10 lists the various parcel which he claims were transferred to the 1^st & 2^nd defendants.

At paragraph 11, he claims 191-081-1 was transferred and at “SK-10” and by map at “SK-11”, seeks to show this. At 46 of the annexures (“SK-12”) is a cadastral map copy from the Ministry of Lands, Housing and Survey. While the copy has the 191-081-0001 printed on the Topographical photo map, with “5” immediately below, there are no boundaries superimposed on the map.

By “SK12” (47) a copy of the Perpetual estate register relating to parcel 191-081-1 is shown. This copy register names Lot 5 of LR 951, Tasaha land containing area (approx.) 143 hectare. No mutations are listed. The owners listed following transfer by the initial owner, the Commissioner of lands, are “Savino Laugana and Thomas Botu by Transfer on 14 July 1993”.

On the 15 July 1993 a caveat by the claimants in cc. 221 of 2014 is shown to have been presented. My concern with the right of the caveators to a caveat in these circumstances is addressed by these reasons for while looking to the asserted right on the face of the document^[3], the plea of ownership in custom, any such assertion has no basis in law to affect these particular parcels of registered land. Whether other parcels may be subject to correction of the Estate Register is not before me to consider in these proceedings.
I am satisfied Register parcel no. 191-080-1 is that larger parcel of land from which Andrew Loboi successfully purchased his 13.58 ha^[4]. Consequently declarations based on the mistaken registration in the name of Andrew Loboi as pleaded in paragraph 3 of the claim is without basis in fact. Andrew Loboi was never shown to have been registered as owner of 191-081-1.

The demarcation survey report was at “SK-6” and contained the statement of Irene Loboi confirming that the 13.58 ha was identified and shown by the map and explanatory notes. This area was in three parts, contiguous on the map. Using the survey Report (“SK-6”, at 11)
“B1, the shaded area is 7.1322 ha, excluding Lot 79, 73 and 74, within the shaded area.
B2 as it is shown the attached map, the total area for lots 184 (of LR 951) is 3.8605 hectares.
B3, lots 189-193, the total for this 5 lots is 2.8576 hectares.”
(A small difference in area was surrendered by Mr. Loboi.)
When I look at the map showing, in B1 the 3 small parcels and the whole of B3, excluded from that land available to be transferred, to Mr. Loboi [by court order following the judgment given in cc 212 of 2008], I see that these smaller parcels are obviously land parcels already subdivided and occupied by others, hence the judge’s decision to order damages representing the value of these lands lost to Mr. Loboi.
The global claim to a declaration that this tribe is the beneficial owner of 191-081-1 is refused. The courts power to rectify the land register is found in section 229 of the Land and Titles Act. The Court needs to be satisfied registration has been obtained by fraud or mistake. No fraud or mistake has been shown. For while the claimants plead customary ownership, in the case of this registered land dealt with following court order, the rights of owners are by S.110 “not liable to be defeated except as provided by this Act”.

The proviso to S.110, “that nothing in this section shall be taken to relieve owners from any duty or obligation to which he is subject as a trustee” recognizes a duty or obligation which may give rise to a cause of action in personam between the trustee and the beneficiaries but will not, failing a finding for rectification pursuant to S. 229, afford aggrieved persons any other rights of rectification of the land register. The claim for various declaratory orders for rectification affecting these defendants then is refused.
For the reasons given, since dealings with the registered parcels of land have been pursuant to Court order and do not fall to be considered under S.118 (2),

I make the following orders.

1. The claims are struck out pursuant R 9.75(c) as an abuse of the process of the court.
2. The caveat lodged by the two claimants in cc. 221 of 2014 preventing registration of dealings by Andrew Loboi in relation to 191-079-20 and 191-080-57 and Urosshill Trust Board [Incorporated] in relation to 191-079-21 and 191-080-58 and 191-080-1 shall be removed by the Registrar of Titles.
3. I grant leave to apply in relation to these orders.
4. The claimants shall pay the defendants’ costs.
   

__________________

BROWN J

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^[1] Emco Pacific (SI) Ltd v Anita Emmet (2011) AC-CC no.45 of 2011 (23 March 2012)
^[2] HC-CC no. 152 of 2009 (3 October 2011)
^[3] Statement of Andrew Loboi filed 15 May 2016 cc. 67 of 2016 annexure “A” at 35
^[4] Judgment of Chetwynd J cc. 212 of 2008, paragraph 7,8