Inito'o v Kurilau [2020] SBHC 54; HCSI-CC 69 of 2020 (11 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Inito’o v Kurilau
Citation:
Date of decision:	11 August 2020
Parties:	Gilbert Inito’o and Gwalili, Sade Belo v Vincent Kurilau, Fangs Company Limited, Attorney General
Date of hearing:	24 July 2020
Court file number(s):	69 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Higgins J
On appeal from:
Order:	It is not appropriate to make any finding as to this aspect of the matter. For the present matter it suffices to strike out the claim in so far as it is made against the second Defendant. I will hear the parties as to costs.
Representation:	B Etomea for Claimant R. Dive for First Defendant J. To’ofilu for Second Defendant No Appearance for third and Fourth Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap. 133]part V, s 229 (2) ,s 200
Cases cited:	Arnold v Foaraota [2012] SBHC 104, Sade v Dettke [2017] SBCA16), Barry v Heider [1914] 19CLR 197, Heid v Reliance Finance Corp [1983] 154 CLR32, Abigail v Lapin (1934) 51CLR 58, Breskvar v Wall [1971] 126CLR 376,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 69 of 2020

BETWEEN

GILBERT INITO’O AND GWALILI SADE BELO
Claimant

AND:

VINCENT KURILAU
First Defendant

FANGS COMPANY LIMITED
Second Defendant

ATTORNEY GENERAL
Third Defendant

ATTORNEY GENERAL
Fourth Defendant

Date of Haring: 24 July 2020
Date of Decision: 11 August 2020

B Etomea for Claimant
R. Dive for First Defendant
J. To’ofilu for Second Defendant
No Appearance for third and Fourth Defendant

DECISION

Higgins

This is an application on behalf of the Defendants to strike out the claim of the Claimants on the basis that it discloses no reasonable cause of action.

The dispute relates to land on the foreshores commencing from Ura stream to Takate stream in Honiara identified as a leasehold Estate in Parcel No. 191-082-06 known as Fishing Village foreshore.

The perpetual estate was on 22 August 2017 registered, pursuant to Part V of the Land and Titles Act (cap. 133) to Vincent Kurilau and Renato Kavigharu (since deceased) of Kakabona village.

Section 60 [LTA] permits the sale or lease of customary land to “the Commissioner

[4th Defendant] or any Provincial Assembly [3^rd Defendant]”

These lands (high to low watermark) were so categorised.

Vincent Kurilau on 14 September 2017 granted a lease, pursuant to s. 150 LT Act, for a term of 50 years to the 2^nd Defendant.

It is that transection registered as 988 of 2017 which the claimants challenge.

They seek an order under s. 229 LT Act which provides:

“Subject to subjection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake”

That is qualified by s. 229 (2)

“The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”

The lands in question were acquired by the Commissioner of Lands pursuant to s. 60 of the L & T Act. An Acquisition hearing was conducted on 30 May 2012. A determination was made by the Acquisition officer for acquisition of the subject lands. No appeal was lodged in respect of it up until the appeal period expired on 30 August 2012.

An order was made on 18 August 2017 vesting those lands in the first Defendant, initially jointly with Renato Kavighavu, and on his death, Vincent Kurilau only (see s. 200 L & T Act).

On 14 September 2012, the Perpetual Estate owner leased the land to the second defendant for a period of 50 years from 12 September 2017. That interest was duly registered on 15 September 2017.

The title thus registered to the second defendant is alleged to be defective in that “On the 17^th day of July 2009 the first Defendant and some others representing the land owning group regarded as assignors (sic) did signed (sic) a Deed of Assignment of Customary Land with the Claimants regarded as assignee (sic)”.

It is the claimant’s contention that a Deed of Assignment of customary land was executed on 17 July 2009.

An article “State, Society & Governance in Melanesia “by Joseph D Foukona of the USP published 2017, “in brief” notes that-

“Since the change in land law in 1959, there is no legal provision allowing customary land owners to lease their land to locals or foreigners. Even so, customary law does allow customary land owners, particularly near Honiara, to permit the occupation of their land subject to implied or express conditions. The land dealings usually involve the customary practice of feasting or chupu (traditional gift exchange)”

The Deed relied upon recites that the assignment is “in consideration of natural love and affection” and purports to assign:

“The relevant portion of the foreshore that the assignors assigned to the assignees under this deed is that which commences at the Ura stream which flows immediately east of the Pacific Casino Apartment and runs eastern and towards the Takate stream which flows along the eastern boundary of the Kukum Campus of the Solomon Islands College of Higher Education as shown on the map attached hereto.”

The Deed is purportedly annexed by way of particulars to the Amended claim but does not particularise or annexe the map referred to.

It may be inferred that the relevant fraud was to enter into a lease to the second defendant in defiance of the rights of the beneficial owners conferred by the chupu ceremony apparently performed in July 2009 (see Arnold v Foaraota [2012] SBHC 104). That case also stands as authority for the proposition that it was open to the claimants to apply for rectification of the register to reflect their customary title against the registered owners.

However, that does not end the matter. The registered owners have encumbered that title with a lease to the 2^nd Defendant. That encumbrance has been registered.

The question is whether the rights of the registered holder of the lease from the holders of the registered perpetual estate are subject to the rights alleged by the beneficiaries of the alleged transfer of customary ownership by chupu.

That claim if made, would require an allegation to be made that the 2^nd Defendant took its interest with notice of the customary rights of the claimants (see Sade v Dettke [2017] SBCA16)

The Land and Titles Act [Cap 133] mirrors the provisions of the Real Property Act 1900 (NSW) which is known as the Torrens System. The general purpose is to establish certainty of ownership of interests in land by registration.

Nevertheless, since 1914 at least, equitable interests, though unregistered, have been recognised, (see Barry v Heider [1914] 19CLR 197). There is then an issue as to whether the prior customary rights alleged by the claimants are capable of qualifying the registered leasehold estate of the 2^nd Defendant (see Heid v Reliance Finance Corp [1983] 154 CLR32)

It is not alleged that the Commissioner of Lands, the Acquisition Officer, the Registrar of Titles or any relevant officer of the 2^nd Defendant was or ought to have been put on notice of the alleged interest of the claimants.

There is, accordingly, no allegation, nor any ground alleged to challenge the presumption that the 2^nd Defendant was a bona fide purchaser for value of its registered leasehold interest (see Abigail v Lapin (1934) 51CLR 58 (P.C.); Breskvar v Wall [1971] 126CLR 376).

That is not to say that the Claimants have no remedy against the first Defendant but there is no apparent cause of action against the second to fourth Defendants. There is also the evidence of Mr McNeil, Acting Commissioner of Lands, that: “The purported landowners, including the First Defendant misused the acquisition process to sell the lease directly to Fangs Company Limited...”

It is not appropriate to make any finding as to this aspect of the matter. For the present matter it suffices to strike out the claim in so far as it is made against the second Defendant.

I will hear the parties as to costs.

THE COURT
Justice Terence Higgins
PUISNE JUDGE