Manetei v Menedika [2022] SBHC 40; HCSI-CC 78 of 2017 (30 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Manetei v Menedika
Citation:
Date of decision:	30 June 2022
Parties:	Betty Manetei, Susan Pegoa and Chief Petero Morosivo, v Longden Menedika, Robson Galo, Julie Gado Bosikuru, Commissioner of Lands, Registrar of Titles
Date of hearing:	6 June 2021 (Claimant’s additional Closing submission)
Court file number(s):	78 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	(i) Decline to rule on statute barred or limitation. (ii) (The 3rd defendant does not hold PN 32; 33, 34 and 35 for Kakau and Haubata tribes, or Susan Pegoa, even though these newly sub-divided plots were originally owned in trust for the 2 tribes. (iii) Susan Pegoa is not entitled to sell PN 33/35 to Betty because it was registered in the name of Julie at the time of sale. It follows that Betty did not acquire a valid interest from Susan because Susan was selling something she did not own (PN 33 or PN 35). (iv) I cannot issue a blanket eviction order against settlers as posed in Issue Number 5. (v) To answer Issues of fraud and or mistake posed in Issues Number 6 and 7, I did not find fraud and mistake in the registration of the parcels therein mentioned. (vi) Costs at 50% against the claimants.
Representation:	Mr. L. Hite for the 1st and 2nd Claimant Mr. W Rano for the 1st and 3rd Defendants Ms. P. Taki for 4th Defendant No Appearance for the rest of the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 229 (1) and (2) Evidence Act 2009 (No 11 of 20119 S 105
Cases cited:	Fono v Fiulaua

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 78 of 2017

BETWEEN

BETTY MANETEI
2st Claimant

AND:

SUSAN PEGOA AND CHIEF PETERO MOROSIVO
(Representing trustees of Simbo Kaukau Sub-Tribe)
2^nd Claimant

AND:

LONGDEN MENEDIKA
1^st Defendant

AND:

ROBSON GALO
2^nd Defendant

AND:

JULIE GABO BOSIKURU
3^rd Defendant

AND:

COMMISSIONER OF LANDS
(Represented by the Attorney General)

AND:

REGISTRAR OF TITLES
(Represented by the Attorney General)

Date of Hearing: 4 June 2021 (Claimant’s additional closing submission)
Date of Ruling: 30 June 2022

Mr. L. Hite for the 1^st and 2^nd Claimants
Mr. W. Rano for the 1^st and 3^rd Defendants
Ms. P Taki for the 4^th and 5^th Defendant
No Appearance for the rest of the Defendant

Keniapisia; PJ

JUDGMENT

Introduction and Background

1. Originally the land under dispute was owned in custom by two (2) main tribes known as Kakau and Haubata Land Holding Groups (“KHLG”). Haubata is also spelt as Ghaubata in the materials. The said KHLG land, was initially acquired and registered in the joint names of Savino Laungana and Thomas Botu. The original acquisition and registration took place in or around 1986. The original acquisition and registration was not quashed in the High Court. The land originally acquired and registered was a large area of land covering what we know today as Tasahe/Papaho Land, in the vicinity of Honiara City. I cannot on the merits of this case, go back and touch the initial acquisition and registration of the larger parcel (indefeasible title principle) inherent in our Torrens system.
2. The portion of the larger parcel of land initially acquired and registered I am required to go back and enquire into, on the merit of this case, is Perpetual Estate (“PE”) in Parcel Number 191-077-04. This is one of the PE parcels of the larger Tasahe/Papaho Land originally acquired and registered around 1986. The evidence before me shows that the PE in PN 191-077-04 (PN 04) was registered initially under the joint ownership of Savino and Thomas. Savino and Thomas held the PE in PN 04, in trust, as joint owners, for KHLG^[1], till around 29^th December 1995. The said land (PN 04) has a land area measured about 6.202 hectares^[2].
3. On or around 29^th December 1995, the joint owners gave the PE in PN 04 to one named late Sarina Gado. Late Sarina Gado is the deceased mother of the 3^rd defendant, Julie Gado. The joint owners gave away the PE in PN 04, held in trust for KHLG, to an individual (late Sarina). The joint owners declared that they consulted with the beneficiaries regarding the transfer (See evidence at footnote 1). Materials showed that late Savino and late Sarina are cousins in custom – their two grandmothers being maternal blood sisters.
4. Second claimants assert that they come from and represent Simbo Kakau Subtribe. Simbo Kakau Subtribe branched out from the big Kakau Tribe – which has 5 Subtribes^[3]. So 2^nd claimants assert beneficiary ownership of PN 04, which was initially registered and held in trust for KHLG. Julie who asserts is from Haubata Tribe denied this strenuously^[4]. I do not have evidence before me to confirm 2^nd claimants’ assertion. Similarly, I do not have evidence before me, to confirm 3^rd defendant’s assertion. Tribal connections are matters for the Chiefs to independently settle for me. On the evidence, I am sure the 1^st claimant does not come from KHLG. First claimant is from Malaita Province.
5. Until the Chiefs can settle tribal connections, as a related issue, what I have before me, is a land initially held in trust for KHLG, is now registered under the name of an individual - Julie, who inherited the same from her deceased mother Sarina. I am concerned in this dispute with a registered land, in spite of its prior customary nature.
6. The joint owners gave the PE in PN 04 to late Sarina on or around 29/12/1995. There was no challenge to the said transfer soon after 29/12/1995. Late Sarina then sub-divided PN 04 into PN 191-007-13, PN 191-007-14 and 191-007-15. The sub-division occurred on or around February 2009. Julie again sub-divided PN 191-007-13 into further new parcels namely – PN 191-077-32, PN 191-077-33, PN 191-077-34 and PN 191-077-35. This subdivision occurred after 2009. Then Julie Gado transferred PN 191-077-33 to Manedika, on or around February 2012. Subsequently, in 2013/2014 PN 191-077-33 reduced in size, because SIWA used parts of PN 191-077-33 to erect its infrastructures. So Julie agreed to give a portion of PN 191-077-35 to Manedika, in 2016 (agreed in principal but not yet registered).

Betty’s claim

7. Betty Manetei bought part of PN 191-077-35 from Susan Pegoa, in the belief that Susan Pegoa is the owner in custom. Evidence shows that in 2013, Betty Manetei bought PN 35 from Susan Pegoa, for about $57,000.00, thinking that Susan owns the land in custom. But the land already became a registered land in the name of Julie in 2012^[5]. Both Betty and Susan had no knowledge about this conversion of ownership. Susan was dealing with a property (PN 35), she did not own in 2013. Betty’s claim depends very much on the success of the 2^nd claimants claim. I will concentrate on 2^nd claimants claim and see if Betty’s claim can survive under 2^nd claimants claim.

Second Claimants Claim

8. Second claimants say they own the land (PN 35) in custom, because they come from Simbo Kakau Subtribe, that is connected to the big Kakau Tribe, one of the 2 main tribes of KHLG that Savino and Thomas held the land (PN 04) in trust for initially (up to 12/12/1995). Second claimants say the registration of PN 35 (offspring subdivision plot from PN 04 initially and PN 13 subsequently) to Julie was procured by mistake and or fraud. Mistake and or fraud because Savino and Thomas gave away to an individual (Sarina and now Julie by inheritance) a land that should be owned in trust for KHLG, without consulting the tribal members.
9. Second claimants rely on the admission of mistake Chiefs made in 2011. Second claimants assert that Chief Savino and Chief Thomas admitted that they made a mistake in transferring the land (PN 04) to Sarina/Julie and others. I will spend time to look at the evidence: -

(i) Statutory declaration^[6] – Chief Valeriano Choalu (President Tandai House of Chiefs ), Chief Onisimo Reinunu (Vice President Tandai House of Chiefs) and Chief Stanley Dotho (Secretary Tandai House of Chiefs). The 3 Chiefs are Executive members of Tandai House of Chiefs. The 3 Chiefs attended a ceremony held on 16/07/2011, at Konila Luvusi’s residence at Papaho. The 3 Chiefs witnessed and heard that late Paramount Chief Savino Laugana, a registered trustee of the remainder parcels within Papaho Land made a speech and declared that Papaho Customary Land is customary owned by Simbo Kakau sub-clan according to Tandai customary land tenure system and customs. The 3 Chiefs also witnessed signing of a “Memorandum of Declaration” between Chiefs and members of Ghaubata Tribe and Simbo Kakau Sub-clan confirming that Papaho Land belongs to Ghaubata Tribe and Simbo Kakau Sub-Tribe. The most significant declaration the 3 Chiefs made is at paragraph 5 and is recited as follows:-

• “We act under the authority vested on us by the Tandai House of Chiefs, we made this declaration that Papaho Kakau Sub-clan as solely declared by the paramount chiefs of Tandai, the late Chief Savino Laugana. The customary representation of Simbo Kakau sub-clan are Chief Petero Morosivo, Abel Poro, Susan Pegoa and Valari Tavoatena and we further declare that upon rectification of the title register, the representatives of Simbo Kakau sub-clan shall hold the perpetual estate in land on all remainder parcels within the customary boundary of Papaho Land” (My underlining).

(ii) Addendum to the Memorandum of Declaration^[7] - Shows the true records of the statements Chiefs made at the ceremony held at Konila Lavusi’s residence at Papaho, on 16/7/2011. The meeting pulled together Chiefs, members of Simbo Kakau Sub-clan and members of Haubata Tribe, to address the issue of reckless sale of lands inside of Papaho. That meeting answered for Susan Pegoa and Chief Peter Petero (2^nd claimants) that they own Papaho Land, on which they reside through Simbo Kakau Sub-clan. But that Papaho Land has now become registered land. So until the status of registration is reverted back to customary ownership, the registered portions and the people who live on them should not be disturbed. One big promise that came out from the meeting was the Chiefs and all concerned will work together to quash the registered titles. And Chief Savino will ensure the registered portions in Papaho are quashed. Until that happens, there should be a stop to new selling of lands and a stop to disturbances on those who already bought land and settled at Papaho.
(iii) Memorandum of Declaration^[8] – There was mention that owners of certain parcels of PE connected to the land that Savino and Thomas were joint owners of initially can reside on those lands, though Savino had declared that he made a mistake in the transfer of certain PE parcels. Members of Ghaubata, Simbo and Kakau should not disturb existing owners. Haubata and Kakau tribal members will work to rectify the titles and have the Papaho Land revert back to customary ownership. They will sort out any settlers who did not acquire the parcels for valid consideration. The parcels concerned are many. There are 6 big parcels. But the one disputed here is the PE in PN 191-077-04 initially and later PN 13, PN 33 and PN 35. Background facts to these parcels are discussed in paragraphs 1 to 6 above.

10. Whatever genuine intention may have transpired at the above meeting to try and rectify the problem of an original tribal land ending up in the hands of an individual (PN 04/PN13/PN 33/35) is not proper evidence to proof mistake and or fraud in the transfer of PN 35 between Julie and Manedika. The meeting did recognise that buyers of those PE parcels (PN 13) which have been subsequently sub-divided (PN 33/35) should not be disturbed, until rectification. Such rectification must be instigated by the Chiefs and tribal members of Ghaubata and Kakau Tribes collectively. The Chiefs are mentioned in the 3 documents cited in preceding paragraph. Some of them are – Savino Laugana, Joseph Manimosa, Valeriano Choalu, Thomas Botu, Peter Petero and Dominic Buko. They represent the 3 tribes – Ghaubata, Simbo and Kakau (KHLG). I am not sure if Peter Petero, the Chief named in Page 143 is the same Peter named as Chief Petero Morosivo (2^nd named 2^nd claimant herein). He did not turn up at trial to be cross-examined. I am not sure if Susan Pegoa is a member of Kakau tribe or a subtribe of Kakau (Kakau Simbo). The meeting documents also refer to a Chupu was presented. I do not even know what a Chupu is and how it affects land transaction. Matter for custom or Chiefs to settle for me, as evidence.
11. I am not satisfied that 2^nd claimants have locus standi to come to court representing the Chiefs and members of the 2 tribes that attended the meeting held on 16/7/2011 at Papaho. I am not satisfied that 2^nd claimants represent one of the 5 subtribes of the big Kakau tribe (See also paragraph 4 above). On the materials, I feel that Susan and Julie are acting for themselves rather than for their respective tribes, in the sale of lands and money earned from sale of lands. Materials tell me 1^st claimant paid $57,000.00 to Susan Pegoa and not to the subtribe tribe. The 2011 meeting was a meeting between the 2 tribes or their subtribes and their respective Chiefs witnessed by 3 Chiefs from Tandai Chiefs Executive. I am not satisfied it was a Chiefs settlement of subtribes connected to Kakau and Haubata tribes. So I cannot place reliance on it as settling tribal connections. Whilst 2^nd claimants talked about their tribe as one of the 5 subtribes of the main Kakau Tribe, the meeting did not pick up on this, in terms of facilitating the remaining 4 Subtribes. What will happen to the other 4 remaining subtribes?
12. First and 2^nd claimants have not produced satisfactory evidence on fraud and or mistake to warrant rectification under Section 229 (1) and (2). The original acquisition of the big Tasahe Land (PN 04 one portion of the big parcel acquired initially) was not challenged in 1986. Secondly, the transfer from Savino and Thomas to late Sarina on 12/12/1995, cannot be said to amount to fraud and or mistake, until what was agreed on at the 16/11/2011 meeting was collectively followed through to completion (quashing or de-registration). Thirdly to rectify on the ground of mistake or fraud under Section 229 (1) and (2), claimants must demonstrate that Savino, Thomas, Sarina, 1^st, 3^rd, 4^th and 5^th defendants knew about the mistake/fraud yet they acted with common intent to procure registration in the 1995 transfer to Sarina and later from Julie to Manedika (Daokalia case). The only way claimants can do that is to call the officers at post at the material time of transfer to come to Court. Savino and Thomas are now deceased. The documentary evidence that are before me cannot speak about the fraud or mistake alleged. The documents looked orderly, unless, they are made disorderly, by some properly adduced evidence. Those documents are in the Not Agreed Bundle Book 1. Some can be found at Pages 2, 3, 4, 5, 8, 9, 10, 11, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34.
13. Court cannot rely on the evidence from the 2011 meeting and what the Chiefs stated at the meeting, because it was all hearsay evidence. Hearsay evidence because Susan Pegoa is telling the Court what she heard the Chiefs said. What Susan is telling the Court is not within her personal knowledge. Susan is merely relaying statements, the Chiefs allegedly made without oath, outside of Court. The only way Susan can avoid the hearsay evidence hurdle is to put the Chiefs in the witness box. And to cross examine them on the statements they allegedly made as conveyed through Susan. Evidences based on what the Chiefs said is not admissible under the hearsay evidence rule. Without the Chiefs being cross examined, Court cannot be sure of what Susan alleged the Chiefs said, outside of Court, without oath.
14. I did not take heed of the sworn statement evidence, Betty and Susan filed. I am satisfied those were filed in clear breach of the rule in Fono v Fiulaua. I agree with Counsel Rano’s submission. I am satisfied Susan and Betty were swearing things that they did not understand in the English language. And that it was not explained to them. I will only use public record documents they exhibited. I only considered government public records in the materials before me under the Evidence Act 2009 (No 11 of 2009) – Section 105. There is no evidence produced on fraud and or mistake to warrant rectification. Closing submissions Counsel for the 2^nd claimants used was all over the place, not focussed and introduced new issue(s), whilst Counsel have already filed amended agreed facts and issues on 25/03/2021. Counsel should focus his submission on the agreed issues. As a result, the case for the claimants was very weak even on a lower standard of proof (balance of probability). The additional closing submissions Counsel filed on 4/06/2021, came back to focus on the issues agreed.

Conclusion and Orders

15. I took note and it was true on the materials before me that Savino and Thomas held PN 04/13/33/35 in trust for Kakau and Haubata tribes (statutory trust under the Land and Titles Act). So how a property owned in trust for 2 tribes ended up in the hands of an individual looked disbelieving. But that suspicious or disbelieving transaction was not made out on the evidence to be a mistake or fraud for purposes of rectification under Section 229 of the LTA. The meeting held at Luvusi’s residence in 2011 provides a platform to correct the suspicious transfer of tribal registered land to an individual. What should happen is for the Chiefs of Kakau and Haubata Tribes to sit with their subtribes or members and go to the Chiefs forum to settle that they are from or represent the Kakau and Haubata tribes (inclusive of any subtribes). And then they can file a claim to recover a tribal property that was given to an individual. At the moment I don’t know if the 2^nd claimants or Julie are from Kakau or Haubata tribes. The two tribes cause of action would be repossession of lost trust property in addition to rectification on the ground of mistake or fraud under Section 229. Once the two tribal Chiefs have settled standing or locus standi before the Chiefs forum they can work from the platform laid down in the 2011 meeting. The said meeting resolutions or promises are yet to be followed through. It is not for individuals like Susan Pegoa to follow through. It must be a collective action by the 2 tribes. And then they can come to Court or go through the two lands offices (4^th and 5^th defendants) to rectify the problem of a disbelieving transaction in view of the initial joint ownership nature of the property. For that reason, I will not rule on limitation for the two tribes to pursue their lost property. I merely rejected this claim because mistake and or fraud was not made out on the evidence and lack of locus standi.
16. In the final analysis, I will now answer the issues posed by agreement for the trial of this matter as follows:-
    • (i) Decline to rule on statute barred or limitation.
    • (ii) (The 3^rd defendant does not hold PN 32; 33, 34 and 35 for Kakau and Haubata tribes, or Susan Pegoa, even though these newly sub-divided plots were originally owned in trust for the 2 tribes.
    • (iii) Susan Pegoa is not entitled to sell PN 33/35 to Betty because it was registered in the name of Julie at the time of sale. It follows that Betty did not acquire a valid interest from Susan because Susan was selling something she did not own (PN 33 or PN 35).
    • (iv) I cannot issue a blanket eviction order against settlers as posed in Issue Number 5.
    • (v) To answer Issues of fraud and or mistake posed in Issues Number 6 and 7, I did not find fraud and mistake in the registration of the parcels therein mentioned.
    • (vi) Costs at 50% against the claimants.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See Statutory Declaration of joint ownership at Page 2 of Not Agreed Bundle Book 1
^[2] See Page 1 of Not Agreed Bundle Book 1.
^[3] See Statement of Case at paragraphs 7 and 7 (A) of the Amended Claim.
^[4] See paragraph 28-32 of the sworn statement by Julie filed 21/04/2017, at Page 30 Agreed Bundle.
^[5] See Page 34 of Not Agreed Bundle Book 1.
^[6] See page 136, Agreed Bundle filed 23/2/2021.
^[7] See page 138, Agreed Bundle.
^[8] See page 143 of Agreed Bundle.