Rizu v Viuru Land Trust Board (Incorporated) [2018] SBHC 48; HCSI-CC 97 of 2016 (27 April 2018)

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JAMES RIZU, RENCA SOLOMON, ALGREN GILBERT AND GARRY ZUTU
Claimant

VIURU LAND TRUST BOARD
ATTORNEY GENERAL
1^ST 2^ND Defendant

BETWEEN:	JAMES RIZU, RENCA SOLOMON, ALBERT GILBERT AND GARRY ZUTU (Representing the Voko Tribe, Kolombangara, Western Province)	Claimants
AND:	VIURU LAND TRUST BOARD (Incorporated)	First Defendant
AND:	ATTORNEY GENERAL (Representing the Commissioner of Lands and Registrar of Titles)	Second Defendant

M. Ipo for claimants
N. Tongarutu for 1^st defendant
F. Hollison for Attorney-General

Rectification of Perpetual Estate Register on grounds claimed by original customary owners.

The claimants come to court claiming representation for the Voko tribe, Kolombangara, Western Province, to seek an order directing that the perpetual estate register in respect of parcel number 097-020-2 be rectified or amended on the grounds pleaded in the statement of case and such land be returned to their Voko tribe as the original customary landowners. They also seek a permanent injunction restraining the first defendant, members of their Viuru tribe, or anyone else acting under their authority, from carrying out any development on the parcels of land. The statement of case recites a series of land cases concerning the boundaries of the claimants Voko tribal land.

It is necessary to refer to the determination of the Vella local court on 24 January 1979 where that court accepted that Voko and Viuru are different lines. Further the court when referring to the land stated; “the land started from Ruvi to Kolakori is Viuru land and this land in dispute is between Kolakori to Meresu is Voko land.” It is important to realise the court was dealing with arguments in custom expressed to be about boundaries.

Curiously on appeal to the customary land appeal court, whilst the judgment of the local court was upheld, the customary land appeal court referred to the ownership of the land as “the Voko and Zorutu land”. A further appeal to the High Court resulted in the dismissal of such appeal whereby the High Court confirmed the decision of the CLAC.

It is clear from the statement of case that the claimants rely on these series of court decisions to base their claim for rectification. They say the decisions clearly acknowledge a separate land known as Voko land and these claimants represent the land owners.

The Attorney General by his representative Felix Hollison, in his well-reasoned submissions on behalf of the second defendant, representing the Commissioner of Lands and the Registrar of titles, suggests the preliminary issues to be whether the claimants have standing in custom to institute this proceeding and whether the claim falls to be decided within an appropriate category of proceeding; suggesting the claim should be by way of judicial review.

This court is satisfied it need not deal with these preliminary issues but rather may address the main issues which will subsume the preliminary issues and which have been listed to be whether;
1] the perpetual and fixed term estate in parcel numbers 097-020-2 and 097-020-1 [the parcel numbers] were still customary lands in 1979;
2] the local court and customary land appeal court have jurisdiction and competency to deal with registered perpetual or fixed term estate land;

3] the Viuru land Trust Board is one of the legal entities entitled or capable of owning a perpetual estate under the Land and Titles Act;
4] the claimants in this present case meet the requirements under the LT Act to Lodge a caveat or whether the caveats have any basis in law.

It is necessary to go directly to these main issues for the registration of this customary land under the Act effectively took the land from any further consideration as customary land with such incidents as may attach to customary land having been extinguished by registration. There is no issue with the fact that the land in dispute is on the perpetual estate register. I accept, reliant on the sworn statement of Nelson Naopu filed on 30 August 2016 annex “NN-5” that both parcel numbers were registered in the name of the Commissioner of Lands on 25 April 1975 for and on behalf of the British Solomon Islands Protectorate and after 1978 on behalf of the Solomon Islands government. The parcels were no longer customary lands in 1979.^[1]

By virtue of S. 120 of the Act no person who deals with the Commissioner in connection with any interest in land shall be concerned to enquire whether any consent authority to or for the dealing, required by or under this Act or any other written law, has been obtained, or whether the dealing contravenes any direction given by the Minister to the Commissioner. The overriding interests provided for by S. 114 of the Act has no relevance to this case and it is wrong to suggest there is an underlying equity in the parcel numbers by virtue of some customary claim. The Limitation Act may be read as a bar to proceedings to now challenge the registration of the Commissioner of Lands in 1975 as owner, for I am satisfied these claimants are statute barred for judicial review of the initial registration of these parcels in the Commissioner’s name. The Attorney’s argument suggesting the avenue of judicial review was the more appropriate in these circumstances cannot stand.
Justice Kabui [as he then was] made plain in Karahu v Paeva^[2] registered land has a new status in law to that of customary land. For by the interpretation section 2[1] of the Land and Titles Act, “customary land” means any land not being “registered land” so to adopt the ratio of the decision, the interpretation definition read with S. 254 [the jurisdiction of the local court] and S. 255 [the jurisdiction of the customary land appeal courts] of the Act, shows that the ownership of any registered land under the Act would be a matter beyond the jurisdiction of both the local and the customary land appeal court. Certainly decisions of house of chiefs concerned with custom may not relevantly affect registered land.

This court is bound by the earlier decisions concerning the “Torrens System of Land Registration” adopted in the Solomon Islands by enactment of the Land and Titles Act. Where the factual situation is clear, the Commissioner having been owner of the land parcels since 1975, any dealings with the land must be in conformity with the Act.^[3] By S. 110 the rights of an owner of an estate are set out, “rights not liable to be defeated except as provided by this Act”.
The Torrens System has within it, the concept commonly known as “indefeasibility of title”. In similar vein to the sections with which the Privy Council were concerned in Frazer v Walker anors^[4] the Land and Titles Act confers protection on a registered proprietor or owner of land under our Act.
“It is these sections which, together with those next referred to, confer on the registered proprietor what has come to be called indefeasibility of title. The expression not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration. It does not involve that the registered proprietor is protected against any claim whatsoever; as will be seen later, there are provisions by which the entry on which he relies may be cancelled or corrected or he may be exposed to claims in personam these are matters not to be overlooked when a total description of his rights is required; but as registered proprietor, and while he remains such, no adverse claim (except as specifically admitted) may be brought against him.”^[5]

On 10 November 2015 the Viuru Land Trust Board (Inc) became the registered owner of parcel number 097-020-2. Mr. Ipo, counsel for the claimants, made submissions concerning the effectiveness of the caveats lodged against both land parcels. Whilst he did not address at any length on the fact of registration of the trust board, reliant on his arguments concerning the caveats, Mr. Hollison was at pains to answer the question whether the land trust board is a legal entity entitled to own a perpetual estate under the Land and Titles Act.

By section 112 (3) of the Act, no perpetual estate shall be vested in a person who is not a Solomon Islander unless he is a person who falls within one of the categories in subsection [4]. The certificate of incorporation of the Viuru land trust board forms part of the court book, at 181. The board was duly incorporated under the provisions of the Charitable Trusts Act on 23 October 2015. By his sworn statement the chairman of the trust board, Gordon Darcy Lilo (page 303 court book) stated; “on the application by Viuru Forest Enterprise Ltd, a company owned by Viuru Land Trust Board, the trust board is established to hold and protect their customary rights and obligations of the Viuru tribe and therefore has the right to apply for the transfer of the said registered lands, which was originally leased by the chiefs of Viuru tribe to the BSIP and thereafter the perpetual title held by the Commissioner of lands”.
I am satisfied having regard to the chairman’s expression of trust in favour of the tribe in terms of the Charitable Trusts Act concerning vesting of property, that registration of the trust board may be deemed to comply with subsection [4] of section 112 of the Act for that the declaration of trust extends to Solomon Island tribal members of the Viuru tribe.
Passing to the question of these custom land cases, I find that the claimants statement of case reliant as it is on a claim to an equitable interest in the registered lands fails to show any basis for such caveats in terms of section 220 of the Act. Their claim to an equitable right to the land parcels is not a claim recognized by the Act as supporting ground for a caveat. The claimants consequently have no interest in the registered land parcels sufficient to support caveats. Nor have they shown other claim to a benefit under a trust affecting the lands, rather the evidence is to the contrary. The caveat was expressed to be on behalf of Voko tribe and landowners who have the equitable interest over both land parcels^[6]. As determined, no equitable interest in these land parcels can arise in the circumstances of this case. I need not consider any possible claim in personam by these claimants against the trust board. Any such claim may not fall to be decided by this court.

For these reasons there is no need to address the preliminary issues and the claimants’ right to institute these proceedings remains unaffected.
The claimants for all these reasons have not made out a cause of action in terms of the category C claim. There shall be judgment for the first and second defendant. I further order the Registrar of Titles to remove any caveat affecting either or both of the named land parcels. In the absence of reasonable cause for their lodgment, I allow a claim in this proceeding by the 1^st defendants [in relation to adverse acts of the claimants] for compensation for loss, if any occasioned in terms of section 223 (7) of the Land and Titles Act by way of further order of this court.
The 1^st and 2^nd defendant shall have their costs on the normal scale.

High Court of Solomon Islands

Rizu v Viuru Land Trust Board (Incorporated) [2018] SBHC 48; HCSI-CC 97 of 2016 (27 April 2018)