Ziru v Duddley [2020] SBHC 114; HCSI-CC 426 of 2014 (30 November 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ziru v Duddley
Citation:
Date of decision:	30 November 2020
Parties:	Reuben Lave Ziru v Ishmael Taisi Duddley and Ishmael Taisi Duddley, Attorney General, Reuben Lave Ziru
Date of hearing:	24 April 2020
Court file number(s):	426 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	The cross-claim is baseless and must be dismissed. Judgment is given to the Claimant in the original claim and Second Defendant in the cross-claim. The Defendant/Cross-Claimant to pay the cost of the Claimant in the original claim, Second Defendant in the cross-claim, and also the First Defendant in the cross-claim, the Attorney General. Cost to be taxed if not agreed.
Representation:	Rano W: For the Claimants : 2nd Defendant in the cross-claim Kofana S: For the Defendant/Cross-Claimant Banuve S: For Attorney General
Catchwords:
Words and phrases:
Legislation cited:	Wills, Probate and Administration Act [cap 33] Land and Titles Act S.229
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 426 of 2014

BETWEEN

REUBEN LAVE ZIRU
Claimant

AND:

ISHMAEL TAISI DUDLEY
Defendant

BY WAY OF CROSS-CLAIM

ISHMAEL TAISI DUDLEY
Claimant

AND:

ATTORNEY GENERAL
First Defendant

AND:

REUBEN LAVE ZIRU
Second Defendant

Date of Hearing: 24 April 2020
Date of Ruling: 30 November 2020

Rano W: For the Claimants: 2^nd Defendant in the cross-claim
Kofana S: For the Defendant/Cross-Claimant
Banuve S: For Attorney General

JUDGMENT

Kouhota PJ

On 23^rd February 1996, the Commissioner of Lands granted Fixed Term Estate No. 191-029-192 to Joseph Ziru for a term of 50 years. On 27^th March 1997, about one year and one month after, Mr Joseph Ziru died intestate. At the time of his death, the property remained undeveloped. The Claimant is the biological son of the late Joseph Ziru and is the current registered holder of FTE 191-029-192. He acquired the property by grant of letters of administration under the Wills and Probate Act, Cap 33.

In 2009 twelve years after the death of Joseph Ziru, a person by the name of Donley Beti pretending to be Joseph Ziru wrote to Ishmael Dudley, the Defendant/Cross-Claimant, and offer to sell him Parcel Number 191-029-192 for $55,000-00. The Defendant entered into an agreement with the imposter and paid $27,000-00 to the imposter Mr Donley Beti. The fraud was later discovered by the Lands department so the title was not transferred to the Defendant.

The Defendant, however, pursued the Commissioner of Lands to forfeit the land. However, apart from a letter written on 15^th June 2009, address to Joseph Ziru, no forfeiture was carried out on the land. The Defendant, however, insist and pleaded that forfeiture was carried out and referred to a letter of 21^st January 2012 written by Mr Silver Dunge, the Commissioner of Lands at that time. Notwithstanding no forfeiture or transfer of title was made to the Defendant, the Defendant went and occupy the land and built a house on the land.

While there are a number of legal issues advanced in the submissions of counsel, I consider the crucial question in this matter is, did the Commissioner of Lands validly forfeiture of PN 191-092-192? For if there is no valid forfeiture, the Claimant’s claim would succeed since he had acquired the land from his late father through a legal process under the Wills and Probate Act, Cap 33. This also means that if there was no valid forfeiture, the Cross-Claimant’s claim will not succeed as the cross-claim is baseless. Fraud or mistake referred to in Section 229 of the Land and Title Act refers to situations where the registration of title was obtained by fraud or mistake. It does not refer to fraud as in the present case where a fraudster tricked the defendant to pay him money for land which he has no interest in or owns. As the Fraudster, Mr Donley Beti, has no interest in or title to PN 191-092-192, he cannot transfer the title of PN 191-092-192 to his victim defendant, Mr Ishmael Dudley.

On the materials before the court, there is no evidence the Commissioner of Lands had forfeited Parcel Number 191-092-192. As the title is in the name of another person, the Commissioner of Lands cannot transfer the title to Mr Ishmael Dudley hence when Mr Dudley entered the land and built a house he was a trespasser as he obtained no legal interest in or title to the land. He should have known that he has no title to the PN 191-092-192 not even an equitable interest. The cross-claim is baseless and must be dismissed. Judgment is given to the Claimant in the original claim and Second Defendant in the cross-claim. The Defendant/Cross-Claimant to pay the cost of the Claimant in the original claim, Second Defendant in the cross-claim, and also the First Defendant in the cross-claim, the Attorney General. Cost to be taxed if not agreed.

The Court
Justice Emmanuel Kouhota
Puisne Judge