IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Chetwynd, J.)
	
Court File Number:	Civil Appeal Case No. 24 of 2012 (On Appeal from High Court Civil Case No. 333 of 2011)
	
Date of Hearing:	05th November 2013	
Date of Judgment:	08th November 2013	
The Court:	Williams JA, Acting President
Sir Gordon Ward, JA
Sir John Hansen, JA
	
Parties:	LEVER SOLOMON LIMITED
Appellant

-V-

ATTORNEY GENERAL (Representing Commissioner of Lands)
First Respondent

ATTORNEY GENERAL (Representing Registrar of Titles)
Second Respondent	

Advocates:
Appellant: A Shearer and M Pitakaka
Respondent: S Banuve 

Key Words: Land and Titles Act Cap 133, Part VII, Part X, Fixed-term Estates, Right of Resumption, Evidence, Inferences.

reserved: 

Allowed:

Pages: 1 - 19

JUDGMENT OF THE COURT
		
A.	There will be a declaration that the first respondent had no power under the LTA to give the appellant notice to resume Parcel No 192-018-63 (or any part thereof).	
B.	There will be a declaration that the first respondent had no power to resume Parcel No 192-018-63 (or any part thereof). 	
C. 	There will be a declaration that the re-entry notice dated 18 July 2011 is null and void.	
D. 	There will be a declaration that the second respondent had no power to cancel the appellant's fixed-term estate in Parcel 192-018-63.	
E. 	There will be a consequential order that the second respondent restore the appellant's title to the fixed term-estate on the register.	
F. 	There will be an order that the first and second respondents pay the costs of the appellant in this court and below. To be assessed in the absence of agreement.	

Background
[1]	This is an appeal against the judgment of Chetwynd J, delivered on 17 July 2012.
[2]	The appellant had owned freehold land in the Solomon Islands for many years. Upon independence, by operation of the Land and Titles Act [Cap 93], freehold estates owned by non-Solomon Islanders were converted to a fixed-term estate (FTE) for 75 years. The land in question in this case is Parcel No 192-018-63.

[3]	The land, consisting of approximately 400 hectares, is situated to the south of Henderson Airfield. It is in an area known as Hells Point, and extends from the left bank of Alligator Creek to Foxwood. The majority of the land is in cocoa plantation, and was seized from the appellant during the troubles. Despite eviction orders from the High Court, that situation apparently remains.

[4]	Part of the area known as Hells Point was used by the United States Army during World War II as a dumping ground for unexploded ordnance (UXO) left over after the Guadalcanal Campaign. At some stage after the war ended, the Royal Solomon Islands Police Force commenced using the area to store explosives and to dispose of UXO.

[5]	From early 2004 the appellant communicated with RAMSI regarding the removal of UXO from its land, but nothing resulted from this.

[6]	In May 2011, the Solomon Islands Government entered into an agreement with the United States Government to develop a framework for the US Department of State to assist in creating an explosive ordnance disposal capability within the Royal Solomon Islands Police. The Government determined that the Hells Point area was the appropriate place for this work to be carried out, and further there was some urgency relating to it.

[7]	On 17 January 2011 the Commissioner of Lands gave one-month's notice of resumption of part of the parcel. The appellant objected by letter dated 11 February 2011. A re-entry notice was served on the appellant, dated 18 July 2011, and on 5 August 2011 the second respondent informed the appellant the FTE had been cancelled and an entry made on the register to show that the land had been resumed and re-entered by the first defendant.

[8]	We note in passing that the re-entry notice states: 

4.	… The one month's notice period having now expired, the Commissioner hereby resumes part of the land comprised in the estate.

5.	I Tione Bugotu, Acting Commissioner of Lands, hereby re-enters and takes possession of the fixed-term estate comprised in the land.

[9]	It is evident that it was not part of the land that was re-entered, but the whole of the land. The contradictions between paragraphs 4 and 5 of the re-entry notice did not appear to feature in argument, and perhaps nothing turns on it.

[10]	At the relevant time the Land and Titles Act was Cap 93. In the 1996 Revised Edition of The Laws of the Solomon Islands it became Cap 133. The parties agree that the relevant provisions are the same, including Form 2 in the Regulations. As in the Court below, and in submissions, references to the LTA will be references to Cap 133 (LTA).

The judgment of Chetwynd J

[11]	The Judge concluded that under the provisions of the LTA, the only way an FTE in favour of the appellant could come into existence was if there was a grant from the Commissioner. He stated that there was no evidence one way or another about the existence of any grant and the Court was left not knowing how registration had come about. He also accepted there was no contemporaneous evidence available. However, he concluded that there had to be a grant or disposition of the FTE to the appellant from the Commissioner pursuant to s 132 LTA. He further concluded that s 134 LTA required that to be in the prescribed Form 2, which has a deletable clause 3 granting, among other things, a right of resumption. He then went on to find that there was no evidence to conclusively show there was or was not a written grant instrument, nor whether clause 3 was negotiated out of the agreement.

[12]	The Judge referred to s 114 of the Act, dealing with overriding interests, which includes at (c):

rights of compulsory acquisition, resumption, entry, search… conferred by this Act or any other written law;

[13]	He recognised that this section in itself did not create a right of resumption, but concluded, because of these sections, the default position had to be that the grant in this case was subject to a right of resumption. He maintained at 14:

In other words there must be a conscious act to exclude the right otherwise it applies. The Claimant cannot show, on the balance of probabilities, the default position did not apply to whatever kind of grant there may have been.

[14]	Accordingly, he implied there was a right of resumption, and rejected the appellant's claim.

The grounds of appeal

[15]	The following grounds appear in the Notice of Appeal:

1.	The Court below erred in finding that there was an implied right of resumption in respect of the fixed-term estate (FTE) held by Lever Solomons Ltd (LSL) in respect of Parcel No 192-018-63 (Parcel).

2.	Further to ground 1 above, the Court below erred in finding that Form 2 to the Land and Titles (General) Regulations (Form 2) was applicable to the conversion of a perpetual estate to the fixed-term estate under Part VII of the Land and Titles Act [Cap 133] (LTA Cap.133) or the Land and Titles Act (Cap 93) (subject to such amendments as applicable at the time of conversion) (LTA Cap.93) (together without distinction, the LTA).

3.	Further, or in the alternative to ground 2 above, the Court below erred in finding that:

a)	The FTE held by LSL in respect of the parcel was granted by way of Form 2 to the Land and Titles (General) Regulations (Form 2); and/or

b)	That part of the clause of any such Form 2 in respect of the FTE held by LSL in respect of the parcel was not struck out, there being no evidence for such findings or (in the alternative) such findings being contrary to the weight of evidence.

4.	Further or in the alternative to grounds 2 and 3 above, any right of resumption contained in any Form 2 in respect of the FTE held by LSL in respect of the parcel (the existence and application of any such Form 2 being denied) is not a right of resumption "conferred by this Act [viz the LTA] or any other written law" as provided for by s 114 of the LTA Cap.133 or s 104 of the LTA Cap.93 such that the FTE held by LSL in respect of the parcel as recorded in the Register was not subject to any such interest without it being noted on the Register.

The submissions

[16]	We are indebted to counsel for their written and oral submissions. With no disrespect to the extensive nature of those submissions, we briefly summarise them.

[17]	The appellant's starting point is that the absence of a grant was an agreed fact between the parties, and the case proceeded on that basis. Therefore It is submitted it was not open to the Judge to conclude that there must have been a grant and it must have been in Form 2. This is especially so when the Judge himself found that there was no evidence as to how the registration came about, and there was a lack of any contemporaneous evidence. It is further submitted that there is no evidence that would allow the Judge to conclude a right of resumption would have been contained in Form 2, and by default would not have been deleted. It is further submitted, obviously correctly, that there was evidence in both the Whiteside and Dunge statements that the registration had occurred without a grant.

[18]	Next, it is submitted that the Judge erred in finding that Form 2 was applicable to a conversion of the perpetual estate to a FTE under Part VII of the LTA. It is submitted that Form 2 deals with the grant of a FTE by the Commissioner of Lands pursuant to s 132, where in this case the FTE of LSL in the parcel arose by conversion pursuant to s 100 of the LTA under the provisions of Part VII. The appellant submits this is an automatic conversion to an FTE, not by any grant from the Commissioner.

[19]	The appellant points to s 100(1), which states the perpetual estate shall be automatically converted to a FTE estate, which requires nothing further from the Commissioner or the Registrar. The section also provides a date from which the automatic conversion is to take effect, and a method for the calculation of rent. The appellant points to the effect that the transfer of the previous perpetual estate from the landholder to the Commissioner is governed by s 102, for which no instrument is needed.

[20]	The appellant next submitted that s 104 itself recognises the entitlement to the fixed-term estate is not dependent on any grant, its operation being prefaced on the prior existence of such entitlement by reference to a person "who has become entitled" to such an estate "under this Part". That requires a return of a grant within six months of receiving it from the Commissioner, but there is no obligation in this section for the Commissioner to send any such document. Any obligation on the landholder is dependent on a Commissioner so doing, and the appellant submits that there was no evidence suggesting the Commissioner ever forwarded a grant. Indeed, this would be contrary to the agreed position that there was no such grant.

[21]	Essentially, the appellant submits Part VII is a self-contained part with s 100 being the overarching provision, the rest of the part being ancillary to that.

[22]	By contrast, the appellant submits that Part X has separate provisions for the transfer and grant of estates by the Commissioner. Section 132 is an independent source of power for the Commissioner to transfer to any person the perpetual estate in land, or to grant an FTE for a period not exceeding 99 years. That section is also silent on any rent for the FTE. The appellant submits that this section was wholly inapplicable to the vesting of the FTEs pursuant to Part VII, and further, there are contradictions between s 100 and s 132 that show they apply to completely different situations.

[23]	The appellant further submits that, leaving aside the specific reference to s 132 at the top of Form 2, there are further indicators within the form itself to show that it was intended to apply to grants under s 132, and not conversions under s 100.

[24]	The appellant then made lengthy submissions relating to s 114. Essentially, paragraph 67 of the written submissions encapsulates the bulk of that submission. After referring to the Judge's comments at [12]:

…the section makes it clear the right of resumption is an overriding interest and need not be noted on the register. Just looking at the register, or the certified copy, may not be enough. If there is a right of resumption it is an overriding interest and would not, necessarily, appear on the register.

The written submission states:

67.	This involves error as to the proper interpretation of the provision. It ignores the qualifying words of the provision. That is, that the right of resumption must be "conferred by this Act or any other written law". In other words, it is not any right of resumption – however created or conferred – that need not be recorded to override registered title. It is only a right of resumption conferred by the LTA or any other Act, subsidiary legislation or imperial enactment for which the registered interest is relevantly subject. And the trial Judge expressly found that s 114(c) did not itself provide such a right (see reasons 13; and paragraph 16 above).

[25]	It is submitted that the judgment does not reveal the right of resumption being conferred by the LTA or other written law. The appellant submits that if the trial Judge's construction of s 114(c) was followed it would impinge on the indefeasibility purpose of the legislation and the purpose of the register. What it would do would be to protect reservations in underlying documents not recorded on the register and as such the reliability, certainty and conclusiveness of the register would be undermined.

[26]	Essentially, the respondents uphold the Judge's reasoning. They submit that a fixed-term estate can only be granted under s 132(1) (b) of Part X of the Act, and not by operation of s 100(1) of Part VII of the Act. 

[27]	The respondents rely on the High Court Judge's ruling, and what is said to be the unique manner in which estates are created under the LTA.

[28]	The respondents also submit that the submission that a right of resumption presumed in Form 2 is not a right of resumption conferred by the Act or any written law, is wrong. In written submissions they relied on the decision of this Court in Anthony Chee Ming Wong v Attorney General and Commissioner of Lands. We understood the respondent conceded in oral submissions the case had no relevance to the appeal. It is submitted that the right of resumption is an inherent feature of both a statutory FTE one at common law, and, here, can be implied from ss 109, 110 and 114 of the Act.

[29]	The respondents further submitted the judge was correct to go behind the respondents' concession that there was no grant and reach the conclusions he did.

Decision

[30]	We will deal first with the submission that the inferences drawn by the trial Judge were not available to him; secondly with the Part VII argument; and finally with the Part X argument.

Inferences

[31]	Inferences may be distinguished from conjecture or speculation. The fact finder cannot draw an inference unless there are objective facts from which to draw such inferences. If there are not positive proved facts from which such an inference can be made, it is merely speculation or conjecture (Caswell v Powell Duffryn Associated Collieries Ltd). In the legal sense, an inference is the deduction from the evidence, i.e. proved evidence, and if reasonable may have the validity of legal proof (Jones v Great Western Railway Company).

[32]	In this case the Judge appears to have concluded that there was a grant instrument; that it was in Form 2 of the Land and Titles (General) Regulations; and the right of resumption in Form 2 had not been deleted.

[33]	It is necessary to turn to the evidence before the trial Judge. At paragraph 5 of the statement of John Whiteside it is stated:

The Commissioner of Lands (COL) and the Registrar General (RG) registered the FTE in PN192-018-63 without a grant and without reserving any power to the COL to resume the land or any part of it. [our emphasis]

[34]	The Commissioner, in response, states:

5.	I admit paragraph 5 of the said sworn statement in so far as it alleges that the Second Defendant registered the fixed-term estate without a grant instrument, but otherwise do not admit the contents therein… [our emphasis]

[35]	It is an agreed fact between the parties that the registration was without grant and the case proceeded on that basis. 

[36]	The Judge also made findings as follow:

(i)	"There is no evidence one way or another about the existence of any grant."
(ii)	"The present Commissioner seems to accept the Second Defendant registered the FTE "without a grant instrument"."
(iii)	"We are left not knowing how the registration came about."
(iv)	"There is simply no contemporaneous evidence available."
(v)	"Just as there is no evidence to conclusively show there was or was not a written grant instrument there is no conclusive evidence to indicate whether that part of clause 3 was negotiated out of the grant in 1977. There is certainly no contemporaneous evidence."

[37]	In (iii), above, the Judge found that the present Commissioner "seemed to accept the second defendant registered the FTE without a grant instrument". What the present Commissioner accepted was that it was registered without a grant. In other words, there was no grant. It is not a matter of the Commissioner seeming to accept, as it is his positive statement agreeing with the appellant that there was no grant. The final part of the judgment cited above seems to be dependent upon a finding that a Form 2 had been executed by the parties. There is simply no evidential basis for this.

[38]	The agreed basis upon which the trial was conducted in front of the learned Judge was that there was no grant. "That admission of fact, dispensing as it does with evidence, ought to be accepted without any question."

[39]	The 9th edition of Cross on Evidence explains that admissions made by agreement between parties, or made by counsel to the Court, are binding, since civil litigants are free to choose the issues which they wish to raise before the Court. There is an obvious reason for this in that if it were otherwise, parties would need to adduce evidence of all matters concerning their claim, even when admitted by their opponent.

[40]	The first respondent has not suggested at any stage the existence of a grant document with a right of resumption. If such existed, it was in the power of the respondents to produce it, but further it was their statutory duty to retain any such documents, and none has been revealed on the evidence.

[41]	Section 205 imposes a statutory duty on the Registrar to retain grants or other relevant documents. Two requests were made by LSL for a copy of the grant. None was supplied.

[42]	We reject the respondents' argument that because the LTA in a unique way creates interests in land in the Solomon Islands the well established authorities cited above do not apply. Firstly, there is nothing unique about the way interests in land are created by the LTA in the Solomon Islands. Secondly, the well established evidential principles above apply to all cases in the Solomon Islands where evidence is adduced.

[43]	We repeat, the case proceeded on the basis agreed between the parties that the Commissioner and Registrar General registered the FTE without a grant. Against those agreed facts, it was not open to the learned trial Judge to infer that there must have been a grant; that it was in Form 2; and that paragraph 3 thereof, reserving a right of resumption, had not been deleted. In this case the inferences drawn by the learned trial Judge were not based on proved facts. They are merely speculation or conjecture

Part VII

[44]	We consider Part VII to be a self-contained code dealing with the situation when perpetual estates registered in the name of persons not Solomon Islanders would automatically convert to a FTE, coincidental with the independence of the Solomon Islands. The overarching provision is s 100, the rest of Part VII being ancillary to it.

[45]	Section 100 reads:

Conversions of estates held by persons other than Solomon Islanders

100.– (1) With effect from the 31st December 1977, any perpetual estates registered in the name of, or on behalf of, any person who is not a Solomon Islander shall automatically convert to a fixed-term estate of 75 years at an annual rent after the first seven years (which shall be a rent-free period) calculated as a percentage of the unimproved capital value of such estate at a rate not exceeding 8 per-centum.

(2) When a freehold interest is registered under the provisions of this Act and that interest is shown to be owned by a person who is not a Solomon Islander then the provisions of subsection (l) shall apply to convert such interest to a fixed-term estate in like manner as that applicable to a perpetual estate.

(3) "Unimproved capital value" referred to in subsection (1) shall have the same meaning as "unimproved value" as defined by regulation 2 of the Local Government (Rating of Land) Regulations.

[46]	It is to be noted from the section that the conversion to a FTE is mandatory and automatic. It is for a period of 75 years, and the rent is set by the section. Nothing further is required to effect the conversion. We also note that the perpetual estate created under the provision is held by the Commissioner on behalf of the Government of the Solomon Islands pursuant to s 102. In other words the previous perpetual estate was transferred, or vested in, the Commissioner on behalf of the Government of the Solomon Islands and the previous owner of the perpetual estate received in return a FTE for 75 years. The two estates are created, not by grant, but by operation of law.

[47]	Further, in this case by reference to the register itself, the FTE was noted as being registered by operation of Part VII of the Lands and Title Act. Nothing further is required for the creation of the FTE. Section 104 referring to a grant was clearly a procedural envisaged process leading to registration by way of grant, but we know that did not occur.

[48]	The respondents' defence pleads at paragraph 4 that, pursuant to ss 103 and 104 of the Act, certain obligations were vested on the appellant to comply with before a grant instrument was issued to it and the appellant's submission that it does not hold a grant instrument imports that those obligations were not complied with. It is sufficient to say that no submissions were received by the respondent on appeal on this point. That is not surprising. Both ss 103 and 104 are predicated upon a step being taken by the Commissioner and there is simply no evidence that triggering step, under either section, were taken by the Commissioner. In any event, the FTE has been registered and 35 years later is too late to raise these particular issues.

Part X

[49]	The Judge dismissed the respondents' contention that s 114 created a right of resumption and s 110(b) must mean the claimant's interest is subject to such a right. He did not accept the argument that the two sections create a right if one did not otherwise exist. He said, at [13]:

All they mean is if there is such a right which "affects the same" it is effective even if no mention of it appears on the register.

[50]	At [14], he continued:

Nor do I accept the Claimant's contention that a right of resumption cannot be implied. Taken together, Section 109 set out earlier, section 110 and section 114 clearly indicate such a right can be implied. Is there an implied right of resumption in respect of the Claimant's title? From earlier discussions, it is apparent there must be a grant or disposition of the fixed-term estate to the Claimant from the Commissioner. Section 134 requires every "transfer or grant" to be "in the prescribed form". The prescribed form is Form 2 to be found in the Lands and Titles (General) Regulations . Even if the grant is a deemed grant or one which, by operation of law, (i.e. section 100) occurred automatically it would still have to be a grant in the prescribed form. The right of resumption is clearly set out at clause 3 of Form 2. It can be deleted "if inapplicable". In other words, it is possible the right can be excluded, presumably either by agreement or at the Commissioner's discretion. Just as there is no evidence to conclusively show there was or was not a written grant instrument there is no conclusive evidence to indicate whether that part of clause 3 was negotiated out of the grant in 1977. There is certainly no contemporaneous evidence. Because that part of clause 3 is noted as to be deleted if inapplicable the default position must be a grant is subject to a right of resumption. In other words there must be a conscious act to exclude the right otherwise it applies. The Claimant cannot show, on the balance of probabilities, the default position did not apply to whatever kind of grant there may have been.

[51]	We do not accept the respondents' contention that Part VII of the Act does not create estates or grant estates. Section 100 "shall automatically" convert a perpetual estate into a fixed-term estate. It applies in the limited circumstances where the perpetual estate was owned by a person not a Solomon Islander. It is that section that creates the FTE. It is quite different from the Commissioner's independent powers and rights under s 132. 

[52]	The respondents' argument is predicated on a belief that grants can only be made pursuant to s 132. We do not accept that. There are a number of points already made that s 100 is a mandatory automatic conversion to a FTE, and nothing further is required by the Commissioner or the Registrar. Section 100 applies to perpetual estates registered in the name of given persons. This may be contrasted with s 132, which allows the Commissioner to grant a FTE estate in any public land. (In other words where the Commissioner held the perpetual estate). Section 100 provides a fixed term of 75 years, while s 132 is for a period up to 99 years. Section 100 grants free rental for 7 years and then caps the rental to eight per cent of the unimproved capital value, while under s 132 there is no such limitation. It can be seen that Part VII and Part X are dealing with completely different scenarios.

[53]	We consider the respondents attempt to draw a distinction between "Land Ownership" and "Estates" to be incorrect. Reference to the definitions of "estate" "interest" and "owner" in s 2 make this clear. As Mr Shearer asked rhetorically "ownership of what?" As s 100 makes clear it is ownership of an FTE (an estate) for 75 years.

[54]	The power of the Minister to make regulations is contained in s 260 of the LTA. The LTA Regulations are made pursuant to that section. Regulation 3 concerns the making of forms and, importantly, 3(3) states:

(3) The forms from time to time prescribed by the Commissioner of Lands shall, subject to the provisions of the Act and these Regulations, be used for the purposes of the Act or of these Regulations specified in the forms or in relation to the forms in the relevant notice. [our emphasis]

[55]	The notice published by the Commissioner states:

The Commissioner of Lands hereby prescribes the forms set out in the Schedule hereto for the particular purposes of the Act specified on each form, and hereby gives notice that the said forms will be required to be used with effect from the first day of January, 1969. [our emphasis]

The form itself needs to specify the purpose of the Act for which it is to be used.

[56]	For something to be "specified", it needs to be "in explicit terms" (Jolly v District Council of Yorktown); it must be "unambiguously clear" (Bond Corporation Holdings Limited v Sulan); and the words "specify" and "context" could not transform it from signifying "a requirement of clarity and precision"; and that "unambiguous precision" and "unambiguous clarity" are required (Gantry Acquisition Corp v Parker & Parsley Petroleum Australia Pty Ltd).

[57]	The heading of Form 2 reads:

FORM 2
SOLOMON ISLANDS
THE LAND AND TITLES ACT
(Cap. 133)
Grant of a Fixed-term Estate by Commissioner of Lands
(Section 132)

[58]	It follows that Form 2 is to be used for the grant of an FTE pursuant to s 132. But as we have already found, the grant in this case is not pursuant to s 132. It was an automatic conversion in the limited circumstances of Part VII and s 100.

[59]	We have set out above the contrasting terms of the two sections, which show they are for entirely different situations and purpose. Parts of Form 2 also show it was intended to apply to s 132 grants, and not conversions under s 100. Item 2 refers to rent being paid "calculated in accordance with s 135 of the Land and Titles Act", yet rent for the conversion is set under s 100. Item 4 refers to rent being "revisable in accordance with the provisions of the said Act". We are satisfied this is a reference to s 135(3), and is clearly not applicable to conversions under s 100.

[60]	It follows that Form 2 does not apply to an FTE under s 100, there was no requirement for a Form 2 to be provided, and there was no reason for the trial Judge to speculate that one was provided, as he did. 

[61]	That is sufficient to dispose of the appeal. However, it is appropriate that we deal with the appellant's argument that any right of resumption that may be contained in Form 2 is not, in the Part VII circumstances of this case, protected by s 114(c) of the LTA.

[62]	In the appellant's submissions, the appellant deals at some length with the fact that the LTA adopts a Torrens system. It is unnecessary to rehearse the authorities referred to there at length. It is sufficient to cite from Korean Enterprise Ltd v Shell Co (Pacific Islands) Ltd:

The dominant feature of the Torrens system is that, once registered, the interest of the owner of an interest in land is held "indefeasibly"; that is, subject only to such other interests as are registered in respect of it, but free from all other interests that are unregistered. In the case of the Land and Titles Act, these principles are given effect notably in the provisions of ss 109 and 110 of the Act. 

[63]	The register is everything (Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd). It is a system of "title by registration"; as opposed to a system of "registration of title": Breskvar v Wall.

[64]	Both Parts VIII and IX of the LTA incorporate the above as central attributes. It is unnecessary to rehearse the individual sections here, but it is clear from a reading of those two parts that they give effect to the indefeasibility principle and the conclusiveness of the Register. Section 114 falls within Part VIII. 

[65]	Section 110 provides:

Rights of owner

110. The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

(a) to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by this Act; and

(b) to such liabilities, rights and interests as affect the same and are declared by section 114 (which relates to overriding interests) not to require noting in the register:

Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.

[66]	The effect of this is that the rights of the owner of a registered interest: 

a)	are not liable to be defeated, except as provided by the LTA;
b)	are free from all other interests and claims, subject only to encumbrances etc either shown or referred to in the land register;
c)	or implied by the LTA;
d)	or those interests expressly not required to be noted in the register under s 114.

[67]	Section 110 reinforces that the rights of the registered owner are only subject to those matters noted in the register or provided for in the LTA itself. Something similar, dealing with FTEs, appears in s 113.

[68]	Section 114 relevantly provides:

Overriding interests

114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may, for the time being, subsist and affect the same, without their being noted on the register-
…
(c) rights of compulsory acquisition, resumption, entry, search and user conferred by this Act or any other written law;
…

[69]	The reference in (c) to "written law" means an Act, any subsidiary legislation, or "an imperial enactment" (s 16(1) Interpretation and General Provisions Act [Cap 85]).

[70]	The term "subsist and affect the same" means that the rights must already be in existence, and are to continue, and, under (c), where they are conferred by the LTA or any other written law. It is not suggested by the respondents that any other written law applies.

[71]	At [12] of his reasoning, the trial Judge stated:

It is worth pointing out the mention in section 114(c) of "resumption" is the only mention appearing in the Act. However, the section makes it clear the right of resumption is an overriding interest and need not be noted on the register. Just looking at the register, or the certified copy, may not be enough. If there is a right of resumption it is an overriding interest and would not, necessarily, appear on the register.

[72]	We concur in the appellant's submission that the Judge has ignored the qualifying words of the provision. The right of resumption must be "conferred by this Act or any other written law". It cannot be any right of resumption, it is only that created by the LTA or any other written law as defined above. The trial Judge himself found that s 114(c) did not itself provide such a right, at [13]. He was clearly correct in so finding.

[73]	We have already noted above the indefeasibility conferred by registration, and the certainty created by the register. It is clearly intended so that persons dealing with registered owners do not have to go behind the register. We cite, and agree with, the following passage from paragraph 68 of the appellant's written submissions:

The register is both conclusive and exhaustive and searches and investigations beyond the register should be unnecessary: Westfield Management Ltd v Perpetual Trustee Co (2007) 233 CLR 528 at [39]. Title is comprised by the record contained in the register, and it is this which is the source of title rather than a retrospective approbation of a derivative right: Peldan v Anderson (2006) 227 CLR 471 at [20] per Gummow ACJ, Kirby, Hayne, Callinan and Crennan JJ. The very purpose of the system is to give effect to the important public policy "that the land title register should be sufficient of itself to inform those concerned about the nature and extent of any outstanding interest in relation to the land": Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81 at [14] per Kirby J. The "principle way in which the legislation achieved its object has been the elevation of the register above all else", such that the "register has the first and last word on all relevant titles and interest": Black v Garnock (2007) 230 CLR 438 at [75] per Callinan J. As made clear in Manepora'a v Aonima [2011] SBHC 79, once a person becomes registered as the owner of an interest under the LTA, he has absolute liberty to deal with that interest according to the title which attaches to it under the LTA, and an innocent party is not bound to look beyond the register.

[74]	The appellant is right to submit that the trial Judge's construction of s 114(c) would impinge upon the purpose of the legislation and the purpose of the register. It would be contrary to the precise terms of s 118. 

[75]	In this case, it is clear that no document could be obtained. But the overall purpose of the register and the legislative scheme would not be impinged if the right arose under a statutory provision in the LTA or some written law. It would be a straightforward matter to ascertain any such rights that arise in public legislation given the presumption of a knowledge of the law.

[76]	We do not accept the trial Judge's construction of s 114(c). On its face it seems to assume that however a right of resumption arises, it need not be registered to override the interest of the registered owner. But it is clear that only rights conferred under the LTA or other written law are protected by the operation of the section.

[77]	In this case there is simply no evidence of any reservation of a right of resumption. The grant is made pursuant to s 100, and not s 132. It is impossible to import the Form 2 need into a s 100 grant, absent evidence. As the Judge found, s 114 itself does not create a right of resumption, contrary to the respondents' submission below. There is no challenge to that finding as it is obviously correct. The implications drawn by the Judge to reach his conclusions were not available, as they were not supported by any objective facts.

[78]	For the sake of completeness we note that the register is a complete answer to the oral submissions of the respondents. Even if we assumed, contrary to the evidence, there was some notional grant it does not aid the respondent. Page 2 of the register makes the appellant's FTE subject to "The covenants, obligations, liabilities etc. Contained or implied in the Instrument of Grant." But there is no evidence that any such notional grant reserved a right of resumption. Essentially the respondents were arguing that all FTEs created pursuant to Part VII, without evidence, must be subject to such a reservation. There is no basis in law to reach that conclusion. 

[79]	It follows that the appeal must be allowed. However, in saying that, that does not leave the respondents without remedy. Part V, Division 2, ss 71-85 of the Act give rights of compulsory acquisition where land is required for public purpose.

[80]	We are indebted to the appellant for their extensive written submissions.

[81]	We make the following Orders:
1.	 There will be a declaration that the first respondent had no power under the LTA to give the appellant notice to resume Parcel No 192-018-63 (or any part thereof).

2.	 There will be a declaration that the first respondent had no power to resume Parcel No 192-018-63 (or any part thereof).

3.	 There will be a declaration that the re-entry notice dated 18 July 2011 is null and void.

4.	 There will be a declaration that the second respondent had no power to cancel the appellant's fixed-term estate in Parcel No 192-018-63.

5.	 There will be a consequential order that the second respondent restore the appellant's title to fixed-term estate in Parcel No 192-018-63 on the register.

6.	 There will be an order that the first and second respondents pay the costs of the appellant in this Court and below. To be assessed in the absence of agreement.

Williams JA,
Acting President,

Sir Gordon Ward JA
Sir John Hansen JA