Tanutanu v Misi [2018] SBHC 10; HCSI-CC 470 of 2016 (31 January 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS

(BROWN J)

Civil Case No. 470 of 2016

DENNIS TANUTANU -V- KEVIN MISI AND
AND JOYCE GALASA GEORGE TAYLOR,
(Claimant) ALU DEVELOPMENT
CORPORATION LIMITED, ATTORNEY
GENERAL
(1^st 2^nd 3^rd defendant)

Date of Hearing: 26 October 2017
Date of Judgment: 31 January 2018

D. Marahare for Claimant
J. S. Pitabelama for 1^st, 2^nd defendant
No Appearance of the Attorney General

Declarations affecting a Grant of Administration of an Intestate Estate having an interest in Registered Land
Brown J:

The Claim (Category C) seeks principally declarations setting aside a grant of Letter of Administration to the defendant, the late Kevin Misi in the intestate estate of Silverio Rupai pursuant to S.48 of the Wills Probate and Administration Act (Cap.33) and consequential order affording the claimant the right to convene a meeting “of the beneficiaries of the estate in parcel 019-001-10 for purposes of appointing a new executor to administer the joint estate in Parcel 019-001-10.”

As a presumed consequence of the setting aside of the grant of administration to Kevin Misi (who was registered as owner of the Perpetual Estate in Parcel 019-001-10) a further declaration that the transfer (by the registered owner) Kevin Misi to himself and one George Taylor (the other 1^st named defendant) was thus contrary to law and null and void. As a consequence the Grant of Profit by these registered owners to the 2^nd defendant, Alu Development Corporation Ltd would be nugatory.

The claimant seeks rectification of the Land Register on the basis of fraud and mistake, to remove the registration of both owners from the title and the grant of profit.

Leaving aside the pleaded “fraud and mistake” in relation to the registration of the “transmission application” and subsequent “transfer” to both 1^st defendants for the moment, I propose to address the principal issue raised in the Defence filed by the 1^st defendants (for the standing of the 2^nd defendant, to whom the grant of Profit had been given relies on the status of the Grantors, the two 1^st defendants who admittedly were registered owners on the Land Register).

The Defence pleads that the action taken by the 1^st defendants complies with the resolution in the meeting of interested tribal “landowners” held on 30 December 2015, where paragraph 3 of the resolution affords the defendant Misi, mandate to administer or do any dealings regarding the property, and he acted accordingly.^[1]

This is a case where, it would seem, two competing interests seek to determine who will log the particular parcel, 019-001-10 (the “land”) for the registered owners had given the Grant of Profit while the claimants had, on the 22 October 2015, purported to grant consent to Xiang Lin Timber (by one Silverio Maike) as “landowner trustees” to undertake logging and mining activities.^[2] In support of their claim as “landowner trustees” the two claimants had lodged a caveat to forbid registration of dealing affecting the land, on the 26 April 2017. The claimed basis of the right as caveators was;
“1. Have the equitable interest over parcel no.019-001-10 (the land) and
2. We are the grannies of late Francisco Haisoma and late Catherine Magila.”^[3]

I set out the basis as factual evidence of the document, but do not need to address the legal basis of the two assertion as my following reasons make clear.

It is conceded both named 1^st defendant were the registered joint owners of the Perpetual Estate land. The said Kevin Misi has, since becoming registered and effecting transfer to both persons, himself and George Taylor, has passed away. The 2^nd defendant has a registered Grant of Profit.

The first registration of the land was made in 1972 when particular members of the Silakanengana Tribe (the “tribe”) were registered as owners. They were chief Francisco Haisoma, Catechist Silverio Rupai and Catherine Mangila. In May 1979 Dionisio Tanutanu had his name on the title to replace Chief Haisoma who had passed away. By then, end of January 2003 it is conceded, all registered owners had passed away.

The claimants argue that the last surviving owner was Dionisio Tanutanu, who passed away on 25 January 2003. The grant of administration to Kevin Misi was in respect of his father’s intestate estate, that of Silverio Rupai, who had predeceased Dionisio Tanutanu. There facts are uncontested. The claimants argue that, “Effectively, the registered interest in the said land had vested in Dionisio Tanutanu as the surviving owner when Silverio Rupai died on 16^th July 1996. To this end, it was a gross error of law when Kevin Misi applied for the grant of Letters of Administration in respect of the estate of Silverio Rupia (deceased) as any right possessed by the latter over the registered interest was extinguished at the time of his death.”

This argument is contested. The defendant say the purported application of section 200 (2)(b) of the Land and Titles Act to the fact of the accepted last to pass away, Dionisio Tanutanu as affording that deceased somehow rights of survivorship, cannot exist in law, for all registered owner had died when Kevin Misi became registered as administrator of his father’s estate long afterwards. I accept the defendants’ argument. Section 200(2) (b) of the Land and Titles Act speaks of the registered interest of a joint owner passing on his death to a surviving joint owner but on the fact here, there were no surviving “owners” at the end of January 2003.
In that circumstance, the provisions of S.209 of the Act come into play. The section provides;
S. 209-Where, upon the death of a sole owner or an owner in common of a registered interest, that interest belongs to the Government as bona vacantia, the Commissioner shall be entitled to be registered as the owner on behalf of the Government.

1. The Public Trustee or other personal representative, or the Commissioner, on application to the Registrar in the prescribed form accompanied by proof of his authority to act, shall be entitled to require the Registrar.
   1. To register him by transmission as owner in the place of the deceased and in the case of the official administrator or other personal representative, with the addition after his name of the words “as executor of the estate of .......deceased” or “as administrator of the estate of ...... deceased” as the case may be ; or
   2. To register some other specified person as owner, owner in common, or joint owner of the deceased’s interest.”
      

The phrase bona vacantia used in this context means the deceased’s interest may by executory act pass by the Commissioner of Lands’ application, to the Government on registration by the Registrar of Titles. The executory nature of the act required of the Commissioner does not preclude “any other personal representative” from requiring the Registrar to register such personal representative “as administrator of the estate of the late Silverio Rupai”, whereupon the rights and interest conferred by Ss.109, 110 of the Act arise.

It is clear from the provision to S.110 that nothing in that section “shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.”
By terms of the minutes of the “meeting of Beneficiaries of llimotonu Land, LR.714 (the land) held on 30 December 2015 at 12:00 PM at Silverio Maike’s residence”^[4], I am satisfied the late Kevin Misi accepted the trust resting on him in accordance with the ordinary meaning to be attributed to those words “.......administrator will have the duty to administer or do any dealings regarding the properly in the best interest of the beneficiaries and their wishes”.

Present and recorded as having signed the minutes were,
1. Silverio Rupai’s group
2. Dionisio Tanutanu’s group (including Denis Tanutanu who signed) and
3. Catherine Mangila’s group (Joyce Galasa, who signed).

I set out paragraphs 4-7 of the minutes^[5] and the acknowledgement by those present^[6]
“4. The explanation by George Taylor on the purpose of the meeting was well understood by all beneficiaries who attended the meeting.
5. Mr. Denis Tanutanu nominated that Mr. Kevin Misi be appointed to be an administrator of the property.
6. There was no further nomination and Mr. Kevin was unanimously appointed as administrator of the property.
7. All beneficiaries present at the meeting express their appreciation and wish Mr. Kevin Misi every success in carrying the task that was entrusted on him.
There was no other business to discuss and meeting was declared closed with a closing prayer by Mr. Silverio Maike.”

We confirmed that the above minutes of the meeting of the beneficiaries of llimotonu Land, L.R.714, Land Parcel No.091-001-01, is true and correct record of what was discussed and agreed on at the meeting of the beneficiaries held on 30 December 2015, at Pirumeri Village, Shortlands.”
I am further satisfied the purpose of the meeting included the identification of Kevin Misi “To be administrator of the property” (on the terms of the trust set out). The fact that administration of the estate of Silverio Rupai gave rise to Kevin Misi’s registration as owner does not conflict with the enabling provisions of S.209 (2) of the Act, for the late Silverio Rupai’s standing as a previous registered owner entitled Kevin Misi to apply for registration as “administrator of the intestate estate of Silverio Rupai”, which registration carried with it the express trusts resting on the deceased, Silverio Rupai to beneficially hold the land for all legitimate members of the tribe. The minutes of that meeting, recounted above, merely restated the obligation which passed by operation of law with the appointment as “administrator of estate” of a former registered owner.

The appointment by the Court of Kevin Misi as administrator of his late father estate according to Division 2 of the Will Proate and Administration Act, whilst attacked by the claimants, for reasons unrelated to the grant, has not been shown, on any part of the material read in the claimant case, to satisfy this court such grant should be amended or revoked. Such claim is refused.

I am further satisfied, on refusal of that part of the claim, no alternative order directing fresh application for grant of letters of administration in respect of the estate Dionisio Tanutanu, deceased is available to this court.

For the reason above, I refuse a declaratory order that the transfer by the registered owner Kevin Misi to both himself and George Taylor is null or void. The claimants have not satisfied me Kevin Misi’s right accorded by s.110 to transfer the land (carrying with it the underlying duty or obligation to which he is subject as a trustee) may be defeated. Consequently the benefit of the Grant of Profit to the 2^nd defendant remains and the surviving registered owner George Taylor, is subject to the underlying Trust to benefit the tribe.

No fraud or mistake has been made out on the evidence. The apparent assertion by these claimants made to Xiang Lin Timber that they stood as “landowner trustees” able to grant logging and mining rights over registered land has not been made out in fact, rather it begs the question as to their standing and may have, by their own belief and adoption of the assertion, brought about the institution of these proceedings. For all these reasons, the claims for declarations shall fail.

There shall be judgment for the 1^st and 2^nd defendants together with costs in their favour. I give liberty to apply. I make no order as to costs as they affect the 3^rd defendant.

BROWN J

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^[1] Defence para 9, filed 30/1/17, page 20 of the Court Book.
^[2] Exhibit “GT-2” to George Taylor statement filed 14 July 2017, page 123 of Court book.
^[3] Court Book page 114
^[4] Exhibit “KM-4” to affidavit of Kevin Misi filed 24/06/16; page 53 of the court book
^[5] 53,54 page of the court book
^[6] Page 54 of the court book