Bitiai v Hatomo [2018] SBHC 64; HCSI-CC 497 of 2015 (24 May 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Bitiai v Hatomo
Citation:
Date of decision:	24 May 2018
Parties:	William George Lepping, John Batiai v Lawrence Hatomo, Morris Boch
Date of hearing:	6 February 2018, 2 March 2018, 22 March 2018
Court file number(s):	497 of 2015
Jurisdiction:	Civil
Place of delivery:
	Faukona PJ,
Judge(s):
On appeal from:
Order:	Order that Chief Hotomo is hereby appointed as joint administrator to administer the estate of John Bitiai together with the current administrator. Costs of this hearing are to be paid to the applicants in this case.
Representation:	Mr. P Tegavota for the appointed Administrator. Mr. W. Rano for the Applicants
Catchwords:
Words and phrases:
Legislation cited:	Wills and Probate Act
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case 497 of 2015

IN THE MATTER OF: THE WILLS PROBATE AND ADMINISTRATION

AND IN THE MATTER OF: An application by William George Lepping on behalf of the Children of the late Sir George Lepping for a grant of letters of administration to administer the estate of John Bitiai of Aleang Village, Shortland Islands.

AND IN THE MATTER OF: An application by Chief Lawrence Hatomo of Aeang and Chief Morris Boch of Nuhu both of Silakanegana Tribe of Shortland Islands.

Date of Hearing: 6 February 2018, 2 March 2018, 22 March 2018
Date of decision: 24 May 2018

Mr P. Tegavota for the Appointed Administrator.
Mr W. Rano for the Applicants.

DECISION ON APPLIACTION FOR GRANT OR JOINT GRANT FOR LETTERS OF ADMINISTRATION

Faukona, PJ:

An application for letters of administration was filed by Mr William George Lepping on behalf of the siblings of the late Sir George Lepping for the grant of the letters of administration, to administer the estate of John Bitiai of Aleang Village, Shortland Islands.

2. This was the legal process required after the deceased Sir George Lepping died on 24th December 2014.
3. On 14th September 1987, the late John Bitiai executed a will in favour of his son John Bitiai Pita, appointing him as the sole executor of the will. Paragraph (3) of the will stated that late John Bitiai devised and bequeath Lot 4 of LR 637 to his son John Bitiai Pita to hold it during his life time and on his death to be inherited by his grandson the late Sir George Lepping, the father of the appointed administrator Mr William Lepping.
4. Lot 4 of LR 367 consisted of perpetual estate PN. 019-001-8. by mutation process on or about 19th September 1983, PN: 019-001-8 was sub-divided into three perpetual estates, PN 019-001-41, 019-001-42 and 019-001-43. PN: 019-001-42 was the only parcel registered in the name of the late John Bitiai which is the subject of this application.
5. On 21st November 2015 the Registrar of the High Court decided that the letters of administration was granted to Mr William Lepping to administer the estate in PN 019-001-42.
6. Against that determination, both applicants (the two chiefs) filed this application to be appointed instead, or appointed as joint letters of administration with Mr William Lepping. This can be identified as within the meaning of S.32 of the Act.
7. On the outset, it ought to be noted that a person appointed to administer the deceased’s estate, does not necessary mean he will own the property. He merely administers the estate and decides whose name should be on the estate after the deceased died, considering the purpose the registered property intended to serve and the beneficiaries.
8. Often arguments and complications arise because the estate holder fails to make a will. In this case the late Sir Lepping had died intestate. He even failed to execute the will during his life time after the late John Bitiai Pita died.

The Issue:

9. The issue before this court is whether Chief John Bitiai Pita acquired the title in perpetual estate in trust for the tribe or for himself. That on the date of his death, the late Sir George Lepping acquired the same status.

Brief arguments:

10. The arguments by the parties stand out clear and are quite obvious. The appointed administrator argues that the title was in the personal names of the deceased as it appeared from the instruments. On the other hand the two applicants argue the land was reverted from the Commissioner of Lands and the deceased had held the perpetual estate title on behalf of their tribe, silakangegana.
11. Documentary evidence has revealed by letter dated 3rd June 1981 written by the Registrar of Titles Mr Broughton, and addressed to Mr Bitiai Pita that the Commissioner of Lands had decided to transfer the Southern part of LR 367 to the descendants of the original owners (plural) in return for a lease to allow forestry operation to precede.
12. What exactly did Mr Broughton meant, in my opinion he expressly stated the land must be transferred back to the tribe that originally own the land. There is no personal ownership of any land mentioned therein.
13. Because there was no one responded to public notice to file a claim except for Mr Bitiai alone, the land was transferred to him, on behalf of the beneficiaries, see Kama’s letter dated 5th August 1982.
14. Another piece of evidence which supports my view is that the land Lot 4 of L. R 637 consisted of 1,450 hectares. Yet that was merely part of two other parcel numbers subdivided under the mutation process No. 24/81.
15. The subject land as one could imagine is not small but a mass of land which only a tribe can own and cannot possibly be owned by an individual. Imagine if two other parcels add on, would that mean only an individual can own. I do not think so. It is impossible in the context of Solomon Islands. The mutation process was conducted for the purpose of sub-division within one mass of land. Definitely and certainly cannot include other lands to fulfil the purpose of the mutation. Conclusion can be drawn that all the parcels of lands, put together is one land owned by a tribe as the original land owners. Such land in that mass cannot be owned by an individual person.

Status of Chiefs in Shortlands Islands:

16. In my short stint in the Western Province, as a resident Magistrate, I had learnt the culture and customs of the Shortland people through many customary land cases the court heard.
17. The traditional expository is that Shortland Islands Chiefs are highly regarded and respected, in every way and everywhere, in their own houses, their villages and even in Churches. They are positioned, treated and adored differently from any Melanesian island Chiefs in Solomon Islands.
18. One common traditional phenomenon adopted is that all the properties of a tribe are conferred upon a Chief as a caretaker on behalf of the tribe. In other special circumstances, in the exercise of his discretion, a Chief can dispose of a property at will. But the original theory of trusteeship prevails and a Chief is responsible as sole custodian of the land own by a tribe. He does not own it by himself.
19. In this case the transfer of the land was purposely to the original landowners, that is tribe, and not to John Bitiai as an individual. The land was transferred to him because he was a Chief and at the same times a member of the tribe which own the land. And perhaps above all, he was the only person responded to the public notice by implicating his interest. By common sense he should hold the land in trust on behalf of the beneficiaries, his tribesmen and women.
20. There are documents on file which implicated that the land acquired by the Government derived from an agreement signed by persons in trust representing all tribal land owners. If that was the case the land should return to the landowners in a like manner.
21. Unfortunately, it would appear, after the appointment of the administrator he treated the land as his own personal property. There is evidence he had commenced logging operations on the land.
22. It ought to be noted, the traditional inheritance in regards to how land was handed down was through the Chiefs and not through ordinary individuals. This is very clear as far as Shortland Islanders are concerned.
23. From John Bitiai’s genealogy, Exh. WG1 attached to the administrator’s sworn statement, clearly stated that land rights were inherited from previous Chiefs. Chief John Bitiai had made a will to his son Chief John Bitiai Pita and upon his death the late Sir George Lepping who was also a Chief would hold the title himself but not his son the administrator. Unfortunately the administrator is not even a chief right up until this moment.
24. Chief John Bitiai knew his son John Bitiai Pita did not have a son so he transferred the title to his sister’s son the late Sir George Lepping. Upon late Sir Lepping’s death where would the right of the tribe go? Mr William the appointed administrator was not a Chief of the tribe, but Mr Hotomo yes, the brother of Chief Lepping who died intestate.
25. Both applicants focal point of contest is that they would have been proper persons to be appointed as administrators and not Mr William Lepping. This was an in accordance to how land custodian responsibility inherited from generation to generation in Shortland Islands.
26. However, Mr Lepping relies on S.29 (1) of the Wills and Probate Act as read with Regulation 3 (1) of Grants of Probate and Administration (Order of Priority). As the son of the last intestate who held the title in his personal name, in law, he acquires high degree in the order of priority.
27. However, s29 (2) clearly states, though order of priority is prescribed by the rules made under subsection (1), where it appears to the Court by reason of any special circumstances or current customary usage, any estate ought to be administered by some person other than those specified in the order of priority, the Court may grant administration to such person.
28. I have emphasized above that this is a very special case related to customary usage of the people of Shortland Islands. It had been recognized and well documented that land in Shortlands has always confer in the custody of a Chief who hold on behalf of his tribe, similar to common law trust.
28. Another significant point commonly renowned is the fact that land cannot be owned by a sole individual. That is alien to the customary usages of the people of Solomon Islands. Of course, few had acquired individual lands but not as the size of the current subject land.
29. Lastly, I have taken cognisance of the date of the written will and make comparison as to the date the land was transferred to Chief John Bitiai Pita. Quite amazing the will was signed on 14th September 1982. And the transfer instrument in respect of the perpetual estate title was executed on 8th September 1983, a year after the will was signed. Certainly at the time the will was signed Chief John Bitiai had not received the perpetual estate title yet. In reality there was no land to will and the will was a mere empty document. It did not confer any right or title to anyone including John Bitiai Pita.
30. Also noted the will was never executed by the late Mr Bitiai Pita or the late Sir George Lepping after the death of Mr Bitiai Pita. Ultimately, the legal reality is that the perpetual estate title was never transferred to the late Sir George Lepping. The will was never executed.
31. In the peculiar circumstances of this case, which is so special and unique of its own, it is prudent that I include Chief Hotomo to be appointed as joint administrator of the estate of the late John Bitiai.

Orders:

(1) Order that Chief Hotomo is hereby appointed as joint administrator to administer the estate of John Bitiai together with the current administrator.
(2) Costs of this hearing are to be paid to the applicants in this case.

The Court.