Wate v Wate [2021] SBHC 68; HCSI-CC 74 of 2015 (9 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Wate v Wate
Citation:
Date of decision:	9 July 2021
Parties:	Ansa Wate and Richy Hou v Chris Wate, Southern Forest Industry, Global (SI) Limited
Date of hearing:	5 March 2021
Court file number(s):	74 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. The claim is hereby dismissed in its entirety. 2. That the first Defendant and Suuri Community must sought two new trustees from the Community to replace Mr. Ansa Wate and Mr. Richy Hou to join with the first Defendant as trustees, because of their contaminated dealings. 3. Cost of this trial is to be paid by the Claimants to the first Defendant.
Representation:	Mr. B. Upwe for the Claimants Mr. D. Nimepo for all the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, S.200 Subsection 2 (a), S. 195 (3)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 74 of 2015

BETWEEN

ANSA WATE AND RICHY HOU
Claimants

AND:

CHRIS WATE
First Defendant

AND:

SOUTHERN FOREST INDUSTRY
Second Defendant

AND:

GLOBAL (SI) LIMITED
Third Defendant

Date of Hearing: 5 March 2021
Date of Judgment: 9 July 2021

Mr. B. Upwe for the Claimants
Mr. D. Nimepo for all the Defendants

JUDGMENT

Faukona, DCJ: There are three major reliefs under claim category A filed by the Claimants on 12^th March 2015. Basically they are; an order declaring all the Defendants their agents and or servants, by entering Lot 2 (PN: 209-003-2) amount to trespass in law.

2. Consequent to order (1) order for damages to be assessed against Defendants first and second. And thirdly permanent injunction is to be granted to restrain first and second defendants themselves, agents and or servants from interfering with the use and quiet enjoyment of Lot 2. And cost on indemnity basis.
3. The first Defendant had been registered as an owner of FTE PN; 209-003-8, or (Lot 8). Lots 1, 2, 3, and 4 are located within Lot 8. Those lands can be identified as located at the Southern tip of big Malaita. All the lots are adjoining each other and lie parallel to Maramasike passage. Lot 1 is where the Maka Police Station is situated; Lot 2 is the disputed land, Lot 3 is owned by the first Defendant and Lot 4 is owned by the Church of Melanesia.
4. According to land registry documents disclose Lot 2 is jointly owned by the two Claimants and the first Defendant. And they held in trust on behalf of their Community which was later disputed, as to which community?
5. Joint ownership in registered land must be held in trust as required by section 200 of the Land and Title Act. Subsection 2 (a) states a disposition of the interest shall be made only by all the joint owners.
6. Section 195 (3) of Land and Titles Act requires that interest in land can only be registered as joint owners, when they produce a statutory declaration naming or describing group name that will have beneficial interest in the land. Any disposition of such interest must be done by producing a statutory declaration to the Registrar signed by the joint owners, that persons having beneficiary interest have been consulted and they are in favor of such disposition and that they would be entitled to major position of such beneficial interest.
7. A major trigger to this case emerged from logging activities. The Defendants were actually conducting logging operation in some customary land in inland. It was alleged that after the signing of the Technology, Management and Marketing agreement on 16^th January 2015, the Defendants landed machines and cleared the sea front of Lot 2. The Claimants aver that they were not consulted neither the tribe and were not given consent to grant used of any interest therein.
8. Without their consent the Defendants entered Lot 2 to construct road, used the house erected therein, store logs, construct road, store log truck; therefore such action was a clear trespass to the land.

Whether the land was held in trust for the Suuri Community or the Utasusu tribe.

9. In adhering to the first part of S.195 (3) of Land and Titles Act, I will deal with the trusteeship issue. The question is, were the Claimants and first Defendant signed the statutory Declaration on 22^nd September 1998, as trustees for Utasusu tribe or for Suuri Community?
10. The Claimants attested that they all signed in trust for Utasusu tribe first as stated in paragraph 2 of the Statutory Declaration signed as 22^nd September 1998.
11. The first Defendant in evidence denied signing any Statutory Declaration for Utasusu tribe but he signed a Statutory Declaration with Ansa Wate as trustees for the Suuri Community.
12. Upon Cross examination by the Court the first Defendant stated that they had never or discussed that they would sign as trustees for Otasusu tribe in respect of Lot 2. He further stated that Utasusus tribe is not being part of Suuri Community. He was not from Utasusu tribe but part of Suuri community. Utasusu tribe as commonly understood is from Tarapaina area in Small Malaita, far away from Suuri community.
13. The first Defendant further stated that only himself and Ansa Wate signed. On that date the Community was yet to select the third trustee for the purpose of wider representation. Mr. Rich Hou was still at Suu Secondary School doing form 1 at that time. Mr Richy Hou had agreed in evidence that in 1998 he was doing Form 1 at Suu Secondary School.
14. I have perused the document (Statutory Declaration) signed by the parties. Unfortunately the words “Utasusu Tribe” appears different from the rest of typeset. It may be coming from a different type setting. The letters were thick as bold and not in line with the rest of the wordings in the sentence. As it appears I must question the authenticity of the document, though I may not be an expert.
15. Another significant factor is in relation to which tribe the parties belong? In cross examination Claimant Richy Hou, in his oral evidence said he was from Wari tribe. Further on cross examination he affirmed that Ansa Wate and J. Isihola were of the same tribe.
16. When re-examined he changed his mind and said Mr. Ansa Wate, M. J. Isihola and himself are from Utasusu tribe. However Mr. Chris Wate explains during cross examination that Mr. Richy is truly from Wari tribe on patrilineal linage. Mr. Ansa Wate is from iroiseu tribe. Both are first cousins on matrilineal linage inside of amota tribe, of tamiroi village further than arauponesa land. That means Mr. Richy’s mother and Mr Ansa Wate’s mother are from the same tribe that is amota tribe and they have their land some distance away.
17. Despite genealogical difference the Claimants and the first Defendant are members of the Suuri community. There is consensus that Suurii community comprise of 3 tribes according the Claimant’s version and 5 tribes according to the evidence of Chris Wate.
18. If members of Utasusu tribe is among tribes inhabiting Suuri Community, then why Chris Wate should signed as a trustee for Utasusu when he was not a member of that tribe. And both Claimants as Mr Chris Wate affirms are not from Utasusu tribe as well. That version is not challenged in the submissions on behalf of the Claimants.
19. How would it be possible that the Claimants and the first Defendant from different tribes act as trustees for Utasusu tribe, a different tribe altogether? Who then have rights to be benefitted from the trust? Mr. Ansa Wate states in sworn statement because their ancestors were from Utasusu tribe who had signed an agreement to transfer the land to the Government. He further states there was a copy of that agreement attached but nothing was attached to his sworn statement at all.
20. From the fore going analysis and the irregularity of the Statutory Declaration as to the beneficiary I must therefore doubt the Claimants on this point.
21. On the second requirement of S.195 (3) of the Land and Titles Act, the Claimant and members of the Utasusu tribe denied giving any consent and not being consulted for the use of the house located in the land, construction of road, storage of logs or machines by the Defendants. I have determined after perusing and critically assessing looking at the content of paragraph 2 of the Statutory Declaration. I could concisely verify that the document was tampered with. The true and the original content of paragraph 2, in particular the benefitted tribe was erased and was replaced by Utasusu tribe. The type setting was never matched. I may not be an expert in writing but the test of the balance of probability assist me to conclude in that manner.
22. I am satisfied on the evidence that Utasusu tribe was not the tribe the parties originally agreed to act as trustees on their behalf. In my finding they are not, therefore their consent and consultation is not necessarily required.
23. There is also dispute as to irregularities when the transfer instruments were endorsed. These prior events are significant because they contribute towards verifying of the actual trespass that was alleged.

Signing of the transfer document of Lot 2.

24. The transfer instruments of the Perpetual Estate title to the trustees, that is both the Claimants and Mr C. Wate, was actually endorsed by the three men on the 19^th of August 1998. The Declaration by joint owners was signed by them on 22^nd September 1998.
25. The mischief noted is that Richy Hou’s signature appeared to be forced in between Ansa Wate and Chris Wate’s signatures. At that time of the signing it appeared, there were only two of them and the Community has not chosen any third trustee as yet.
26. However, the Claimant’s version is that they were all signed together on the same date. That was in line with the transfer instrument which shows the three trustees appeared before the Commissioner of lands and endorsed the instrument dated 19^th August 1998. The mischief is that at that time Mr. Richy Hou was still at Suu Secondary School doing form 1.
27. It follows that another mischief emerged, if all trustees endorsed the instrument in Honiara on 19^th August 1998, then how Mr. Richy would be in Honiara because there was no Secondary School holidays in August every year.
28. The third mischief I noted, how would Mr Richy Hou who was 18 years old was in Form 1 in 1998? That could be possible in the Colonial era. In modern Solomon Islands students expected to enter Secondary School at the age 12, 13 or 14. I entered Secondary School when I was 16 years in 1972 that was possible in Colonial days but not today or even 20 years ago.
29. The conclusion I would draw is that Mr Hou had accelerated his age to 18 so that he could be capable to sign the document which was not allowed for juveniles below the age of 18 to sign.
30. Again the inclusion of Richy’s name on the transfer instrument could not be held valid. In fact there are two set of instrument of transfers of perpetual estate documents. One is on page 15 and the other on page 138 of the trial book. The one on page 15 has two signatures; the other on page 138 carried three signatures. Expectedly both should be the same because the instruments were signed on the same date, 12^th August 1998 bearing the same names of the three trustees. In any event there is no answer for those irregularities. The only answer I would conclude is the instruments were replicated to suit the Claimants case. This applies to the statutory Declaration form as well. I must not accept any infiltration with the instruments and must regard them as invalid.

The issue of trespass.

31. A significant issue that cannot be denied is that the administration and signing of important instruments related to transfer and trusteeship by the Claimants were either tampered with or intentionally fabricated to suit their case. I have alluded to that they were contaminated with irregularities and manipulation which under the instruments to favor the Claimants’ agendas.
32. It has been shown that all the parties come from Suuri Community. How would it be possible for the second Claimant to sign as trustee for a different tribe which be denied at the first place and diverted later, he was in fact conflicted himself. Utasusu tribe as the first Defendant stated were living near Tarapaina Catholic Station which is far away in the middle of Maramasike passage.
33. The oral evidence shows that Mr. Richy had admitted twice on cross examination that he belongs to wari tribe including the other Claimant. When he was re-examined he changed his story saying they came from Utasusu tribe. In evidence he was inconsistence on that issue. This I find has weakened the evidence for the Claimants in relation to trespass into Lot 2.
34. I noted Mr. Richy’s sworn statement stating that by maintaining the old road it encroaches into Lot 2. This by presumption confirms Mr. Wale’s evidence. That peg marks of HT 11 and HT 12 had been removed.
35. However I am convinced by the first Defendants evidence that HT 11 and HT 12 had been washed away be sea and waves. Hence, he obtained permission from Suuri Community (as assured he was trustee for) to reclaim the front of the land. In doing so of course there are gravels and machinery work right up to the boundaries of the two peg marks HT 11 and HT 2. At the same time maintained the old road.
36. The first Defendant in evidence denying storing any log on Lt 2, neither machines, trucks nor other heavy equipment. In fact the machines and logs in the photos were stored in Lot 3 which is located next to Lot 2.
37. I had to accept the first Defendant’s evidence on the balance of probability. He admitted using the old building but the Claimants cannot claim because they had messed up the transfer documents which would have given them powers to make objections. The tribe of Utasusu which they tend to represent is fake and unimaginable.
38. In regards to the Counter – clam considering the irregularities of the instruments of transfer and Statutory Declaration, I would make an order that the first Defendant and the Claimants are holding trust in property in PN 209-003-2 for the Suuri Community, and that the Registrar of Titles should rectify his records accordingly, and remove Utasusu tribe.
39. That the Claimants should not continue as registered trustees for the Suuri Community.

Orders:

1. The claim is hereby dismissed in its entirety.
2. That the first Defendant and Suuri Community must sought two new trustees from the Community to replace Mr. Ansa Wate and Mr. Richy Hou to join with the first Defendant as trustees, because of their contaminated dealings.
3. Cost of this trial is to be paid by the Claimants to the first Defendant.

The Court.