Tiva v Manu [2019] SBHC 11; HCSI-CC 202 of 2015 (22 January 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tiva v Manu
Citation:
Date of decision:	22 January 2019
Parties:	James Tiva, Paul Popora Bowawai v Derick Manu, Emma Manededea, Gaoka Gibo, Billy Belakake
Date of hearing:	4 October 2018
Court file number(s):	Civil Case Number 202 of 2015
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands
Judge(s):	Kouhota PJ
On appeal from:
Order:	I am not willing to exercise my discretion in favour of the claimants, the orders sought are refused and the claim is dismissed. In circumstance of this case; parties will bear their own cost. Inform of Right to Appeal
Representation:	Mr. D Nimepo for the Claimants Mrs A. Willie for the Defendants N/A
Catchwords:
Words and phrases:
Legislation cited:	Lands and Title Act, Civil Procedure Rule 2007
Cases cited:	Kuve v Ragoso

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 202 of 2015

JAMES TIVA AND PAUL POPORA BOSAWAI
(Representing Landowners trustee of Michael Samanea in Property 192-003-13)
First Claimants

DERICK MANU
(Representing Landowners trustee of John Manegavea in Property 192-003-13)
Second Claimant

V

EMMA MANEDEDEA AND GAOKO GIBO
First Defendants

BILLY BELAKAKE
Second Defendant

Date of Hearing: 4 October 2018
Date of Judgment: 22 January 2019

Mr. D Nimepo for the Claimants
Mrs. A. Willie for the Defendants N/A

JUDGMENT

Introduction

Kouhota PJ; The Court on 29^th August 2018 set the trial of this matter for 4^th -5^th October 2018. A notice to that effect was issued by the Registrar of High Court on 18^th September 2018. When the matter was called in Court on 4^th October 2018, counsel for the claimants was present but neither the defendants nor their counsel was present. Counsel Mr. Nimepo for the claimants, however, asked the court to proceed with trial as matter was adjourned in court and notice of the trial date had been given to the parties. The court, therefore, proceeds with the trial by virtue of Rule 12.24 of the Solomon Islands Court Civil procedure Rules, 2007. After hearing Mr. Nimepo for the claimants the court directed that he file written closing submission within 14 days and counsel for the defendants to file closing submission 14 days thereafter and the court will make its judgment thereafter. Mr. Nimepo complied with the court direction and filed a closing submission on 26^th October 2018. That been the case counsel for the defendants should have filed closing submission by 9^th November 2018 but she never did. This is the judgment.

Registration of the property

The property the subject of this dispute prior to 1974 was registered under the Agriculture and Industrial Loans Board by compulsory acquisition under Division 2, Part V of the Lands and Title Act. On 9^th January 1975, it was transferred and registered in the name of Memerio Singele Tila, John Manegavea, Leonard Tuke, Michael Samanea and Gaoka Gibo as Joint owners.

On 7^th April 2005, by registration on death of Joint Owner, the property was registered in the name of Memerio Singele Tila, John Manegavea, Michael Samanea, Goaka Gibo and Emma Manededea as Joint owners.

Three of the Joint Owners Michael Samanea, John Manegavea, and Memerio Singele Tila are now deceased thus leaving, Gaoka Gibo and Emma Manededea as the two Surviving Joint owners.

The first and the second claimants claimed to represent the landowner’s trustee of Michael Samanea and John Manegavea in the property Parcel No. 192-003-13 respectively. The first defendants Goaka Gibo and Emma Manededea are two the Surviving Joint owners of the property while the second defendant Billy Balekaka is the son of one of the surviving Joint Owners and first defendant Gaoka Gibo.

The property is currently leased to Guadalcanal Palm Oil Ltd (GPOL), this obviously gave rise to the current dispute. There have been attempts by claimants to have two of the claimants namely James Tiva and Derrick Manu to be registered as joint owners to replace the deceased joint owners Michael Samanea and John Manegavea respectively but the three defendants do not agree and would not allow them to do so hence this claim.

The claim and counter claim

The three claimants filed a category C claim on the 20^th May 2015 and by an amendment claim later filed, seek the following relief;

(1) An order, replacing the deceased trustee of Michael Samanea in property No. 192-003-13 by James Tiva as new trustee representing their interest.
(2) An order, replacing the deceased trustee of John Manegavea in property No.192-003-13 by Derick Manu as new Trustee representing their interest,
(3) An order the first and second defendants to pay damages by way of royalties dividends, rental and lease from the property in the interest commencing from the death of Michael Samanea on 30^th May 2010 and John Manegavea on 27^th July 2011 to the two claimants respectively until final judgment.
(4) Cost
(5) Any orders the court deems fit to make.

The basis for reliefs sought by the claimants in paragraphs 1, 2 and 3 above is that the claimants assert that they are representatives of their Landholding group and beneficiaries under the trustees of the late Michael Samanea and John Manegavea.

The defendants have filed their defences and denied the claimant’s claim, then as a counterclaim seeks inter-alia the following orders;

(6) An order to disqualify James Tiva as new trustee to replace the trustees of Michael Samanea in property in Parcel No.192-003-13,
(7) An order to disqualify Mr. Derick Manu as new trustee to replace the trustees of John Manegavea in the same property.

Is the property a Trust property?

Whilst both the claimants and the defendants premise their claim and counterclaim on the basis that the property was held in trust by the Joint Registered Owners there is no evidence before the court that the property was held in trust by the Joint Owners. Neither party was able to show any evidence of a trust deed or trust instrument in respect of the property. I can only assume what the parties refer to as a trust was the common practice where a number of selected customary landowners would sign on behalf of a tribe when commercial activities are carried out on their customary land by outsiders. Normally those who signed are referred to as trustees. I guess the term trustee is used in a broader sense or for want of better terminology rather than a legal terminology.

In the present case, therefore, the crucial question is whether the property parcel No. 192-003-13 is a trust property?

Trusts in the legal sense are created according to the Law of Trust, usually by a trust deed by the settlers transferring the property to the trustees to hold in trust for the beneficiaries

On the materials before the court, there was no evidence of any trust deed by the original customary landowners to show that they had transferred the property to be held in trust by the Joint owners for the benefit of the customary Landowners. On the materials contained in the trial book agreed bundle, I believed what happened was that the customary Landowners selected a number of people to register the property in their name as joint owners. The action of the customary Landowners in my views does not create any trust in the legal sense, it has however changed the status of the Land from that of a Customary Land to a Perpetual Estate hence it is subject to the provisions of the Lands and Title Act cap 133.

What the Customary Land Owners may not realise is, once the status of Customary Land had changed, it has changed for all purposes. In the present case, therefore, after the registration of the Customary Land as a perpetual estate, in the absence of any trust deed, the owners of the property are the registered Joint Owners by virtue of the provisions of section 200 of the Lands and Title Act. The provision of the Act would also apply to the property as far as succession is concern. The relevant provisions are contained in section 200 of the Lands and Title Act, Cap 133, which states as follows;

(1) “where a registered interest in land is owned jointly the joint owners shall hold on the statutory,
(2) Where two or more person are joint owners of a registered interest in land-

• (a) Such disposition of the interest shall be made only by all the joint owners; and
• (b) On the death of a joint owner, the interest shall vest in the surviving owner or owners.

Obviously, section 200(1) does not apply here because there is no evidence of any intention that the land will be sold. In the present case whether the claimants are entitled to be registered as replacement trustees depends on whether the property is a trust property otherwise it must be with the concurrence of the two surviving Joint Owners.

It is apparent from the pleading that both parties assume that the property is a trust property. This is obvious from the actions taken by the claimants to replace the deceased Joint Owners Michael Samanea and John Manegavea by following the procedures under section 195(3) of the Lands and Title Act. The provision of section 195 is applicable only in cases where Customary Land is converted to registered title under the Land Settlement Scheme under part IV of the Lands and Title Act, Cap 133. In Kuve v Ragoso [SBHC] 90; HCC 232 of 1999, Kabui J, as he then was said “I think the Registrar of Titles made a mistake. He must have assumed that section 46 of the Act applied. This assumption on his part was demonstrated by Exhibit 24 being the statutory declaration required by section 46(ii) as read with section 195(3) of the Act. His Lordship then went on to said “Whilst section 195 (3) of the Act does allow more than one Solomon Islander to hold interest in land as Joint Owners, it does not make them trustees for others unless joint ownership has been obtained under Part IV of the Act.

Conclusion

In the present case, there is no evidence that the property Parcel No. 191-003-13 was obtained under Part IV of the Lands and Title Act, Cap 133, hence section 46 and 195 (3) of the Act does not apply.

Further, since the property was not transferred by any trust deed or instrument the property parcel no. 191-003-13 is not a trust property as assumed by the parties hence succession would be in accordance with section 200 (2) of the Lands and Title Act, Cap 133.

This means, on the death of the three Joint Owners Michael Samanea, John Manegavea and Memerio Singele Tila, the property is vested in the two surviving Joint Owners, the first defendants in this case hence any dealings or disposition of any interest in the property can only be made by the two Surviving Joint Owners provided they had complied with section 216 of the Lands and Title Act, Cap 133. For these reasons despite the stipulations of Rule 12.24 (b) of the Solomon Islands Court Civil Procedure Rules 2007, I am not willing to exercise my discretion in favour of the claimants, the orders sought are refused and the claim is dismissed.

The defendants also filed a counterclaim but did not pursue it further because neither the defendants nor their counsel were present at the hearing. In any event, my conclusion makes it unnecessary to consider the counterclaim except to say that consequent to my conclusion the caveat placed on the land is discharged forthwith. In circumstances of this case, parties will bear their own cost.

Inform of Right of Appeal

THE COURT
_______________________
Justice Emmanuel Kouhota
Puisne Judge