Ri'imana v Fairamo [2017] SBHC 89; HCSI-CC 353 of 2013 (14 July 2017)

DANIEL RI’IMANA -V- PETER FAIRAMO
(Claimant) (Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.353 of 2013

Date of Hearing: 05 May 2017
Date of Judgment: 14 July 2017

Mr. P. Tegavota for claimant
Mr. B. H Etomea for defendant

Judgment in relation to declaratory orders seeking rectification of registered estate land ownership

Brown J:

1. This claim for judicial review by Daniel Ri’imana representing the Kwaibale tribe of Bita’ama, North Malaita is somewhat difficult to understand. Declaratory orders are sought in 1 that;

a) Prior to registration of Perpetual Estate parcel no 1314-00-1 in the name of late Resin Sialeoa the estate was part and parcel of Kwaibale customary land owned by the Kwaibale tribe represented by the claimant.

I propose to deal with this part, for as has been accepted by these courts, the effectiveness of a declaration is by giving to existing legal relations the status of a res judicata, it cannot, change them.^[1] Since the defence put in issue, by paragraph 1 of its defence filed 25 November 2013, the right of the claimant to the assertion to speak for the tribe and further Kwaibale tribe is not of Bita’ama, as Bita’ama is not a district but rather customary land within definite boundaries, history and norms, in the absence of proven authority such as Chiefs court or local court findings relied upon in the statement of case, this court has no power to adjudicate upon matters pertaining to custom. That part of the claim fails.

b) Upon registration of Perpetual Estate parcel no 131-001-1 in the name of the late Resin Sialeoa on the 29 April 1969 through compulsory acquisition, the said property does not form (sic) as a residuary estate of the deceased after death on 23 July 1987;

c) In exercising his powers as an administrator to Perpetual Estate parcel no 131-001-1 the defendant can only devolve the said property as required under S.105 of the Wills Probate and Administration Act.

2. That the issue concerning the devolution of Perpetual Estate parcel no 131-001-1 shall be referred to the Malaita Local Court to be dealt with as required by S.105 of the Wills Probate and Administration Act.

3. That pending determination of the Malaita Local Court, the defendant as administrator shall be restrained not to dispose of Perpetual Estate parcel no 131-001-1 until further orders of the Court.

2. By order made on 27 January 2016 the claimant amended his claim by seeking findings on the special case
   1. Whether Perpetual Estate parcel no 131-001-1 forms part of a residuary estate of the deceased
   2. Whether the devolution of Perpetual Estate etc shall comply with S.105 of the Wills Probate and Administration Act.
      
3. There has been argument over delay in proceeding with this special case but I propose to address the case, refusing to strike on that basis.
   
4. In earlier proceedings, this claimant objected to the grant of administration to this respondent/defendant by way of cross application.^[2]

The cross application sought

“(1) Declaration that there was an equitable trust created by constructive trust in the circumstance of this case; (2) Declaration that Parcel Number 134-001-1 is trust property and the cross-applicant and members of the Kwaibale tribe were beneficiaries to the trust property; (3) An order (under the British Solomon Islands and Gilbert and Ellice Islands (Probate and Administration) order in council, 1914,that the devolution of the perpetual estate in Parcel Number 134-001-1 be referred to the Local Court in accordance with the current customary usage as certified by the local having jurisdiction in the area where the land is situated especially to determine the beneficiary to the trust property; (4) in the alternative, an order that letters of Administration of the Estate of Late Ms. Resin Sialeoa be jointly administered by the Applicant Mr. Peter Fairamo and the cross-Applicant Mr. Daniel Ri’imana; Any other orders the court deems fit; and costs.”
By reasoned judgement Mwanesalua J (as he then was) said,

“[6]. The Cross-Applicant imputes that the Deceased had fraudulently registered the Estate in her name. The Cross-Applicant has not adduced evidence to establish this assertion. There is no evidence to persuade this court that the Deceased had committed fraud in the registration of her title to the perpetual Estate. In actual fact, a Public Notice was issue on 3 October 1963. There was no complaint received and thus the Perpetual Estate was accordingly registered in the name of the Deceased on the 3 September 1969.

[7]. The Cross-Applicant has failed to point to any subsisting equitable interest which he and members of his Tribe have, according the principles of constructive trust in law, in relation to the Perpetual Estate in Parcel Number 134-001-1 held by the Deceased.

[8]. In the circumstance, Letters of Administration is granted to Peter Fairamo and the Application’s Cross-Application is refused and dismissed.”

5. The point the counsel for the defendant now makes in relation to the stated case is the effect of S.105, in terms of devolution of the said properly in accordance with custom to be determined by the Local Court. The argument previously run over equitable or constructive trusts does not arise now.

s.105; “Where a Solomon Islander dies intestate and any perpetual estate owned by him does not form part of the 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.”

6. In this case “residuary estate” has the meaning given by S.3 of the Act, and “does not include any perpetual estate owned by a deceased Solomon Islander which is situate within the customary land boundary of his tribe, clan or line in his province of origin.”

7. Where the perpetual estate does not form part of the residuary estate (where situated within the customary land boundary of his tribe) then it falls to be dealt with in accordance with S.105. On balance I am satisfied the land falls within the customary land boundary of the deceased’s tribe, clan or line. By the effect of S.105, the asset of the intestate, the perpetual estate parcel of land reverts to that person or persons within the tribe, clan or line in her province of origin, to be determined in accordance with current customary usage as certified by the local court having jurisdiction in the area where the land is situated.

8. While obiter, had the late Ms. Resin Sialeoa made a will, she may will have been able to bequeath the property, (subject to any registered or unregistered declarations of trust made in relation to the land).

The answers then to the special case, both a) and b) paragraph 4 above are “yes”.

9. The administrator then shall hold the Perpetual Estate no 134-001-1 on trust for those determined entitled, by the local court and such determination shall not give rise to rectification of the land register in accordance with part XXIV of the Land and Titles Act (cap.133). Rather my order together with the determination of the local court shall be registered by the Registrar pursuant to S.116 (3) of the Act, to have effect by way of recognition of such trust instrument.
   
10. The answers then to the special case effectively resolve the claim.

I accordingly order

a). The local court having jurisdiction in the area of land known as Kwaibale, North Malaita shall determine in accordance with current customary usage, those persons entitled by devolution, to the perpetual estate parcel no 134-001-1,

b) Such determination together with orders a) and b) hereof, shall be conveyed to the Registrar of Titles who shall register such interests of those persons entitled as cestui que trust on the perpetual estate register of parcel no 134-001-1.

c) Costs of these proceedings shall be met by the respondent

d) Liberty to apply.

__________________
BROWN J

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^[1] Dorney v Commissioner of Taxation (1980) 1 MSWR 407 at 408 Per Hutley JA paragraph 6.
^[2] HCCSI-CC 338 of 2012 In the matter of the WP&A Act, In the Intestate Estate of Resin Sialeoa and Application by Peter Fairamo for Letters of Administration