[1980-1981] SILR 209

IN THE HIGH COURT OF SOLOMON ISLANDS

Acquisition Land Appeal Case No. 10 of 1981

TETEHA AND OTHERS

v

REGISTRAR OF TITLES & OTHERS

High Court of Solomon Islands
(Daly C. J)
Acquisition Land Appeal Case No. 10 of 1981

18th August 1981

Application to register land - Land and Titles Act - title depended on conveyance in 1912 - whether validity of conveyance to be decided by Registrar or Local Court

Facts:

In 1912 a deed of conveyance of land was entered into between the Resident Commissioner and 3 Solomon Islanders. In 1932 the land was leased by the Government to a company. In 1974 application to register a freehold title of the land was made by the Commissioner of Lands as title holder for Government. The company applied to register its leasehold title. The appellants opposed the application claiming that the 1912 conveyance was ineffective. After hearing evidence and submissions the Registrar of Titles decided to register the two titles. On appeal to the High Court.

Held:

1. The terms of Section 231 of the Land and Titles Act do not give the local court exclusive jurisdiction in such a case as the Act provides for the determination of the dispute by the Registrar.

2. On the evidence before the Registrar he was entitled to find the 1912 conveyance valid. Appeal dismissed.

The appellants were represented by S. Kelly Esq., Lands officer Guadalcanal Province
1st Respondent (Registrar of Titles) in person
For 2nd Respondent (Australasian Conference Association Ltd) K. Eastman
For 3rd Respondent (Commissioner of Lands): F. Mwanesalua

DALY CJ: This is an appeal against a decision of the Registrar of Titles dated 29th September, 1980, in which he decided to register two titles to an area of land known as LR229/1 Kopiu, Guadalcanal ("Kopiu land").

I will deal first with the factual background against which that decision was made. Kopiu land is situated on the coast of Guadalcanal and takes its name from Kopiu Bay where there was at one stage a boat anchorage. It is shown on plan XK 9306 as consisting of 148.81 Hectares excluding the road reserve for the road which runs through it. This survey plan was produced as part of the process of application for registration with which the Registrar was concerned.

This is the third plan that has included this land. The first was made in 1912 and was attached to an Indenture of Conveyance dated 26th September 1912 ("the 1912 Conveyance"). This Conveyance was between Charles Morris Woodford, described as Resident Commissioner and three Solomon Islanders Henry Arise, Charlie Manima and Tati. By that conveyance the three Solomon Islanders agreed to convey to Charles Morris Woodford land at Kopiu "consisting about five hundred acres" for the Resident Commissioner to hold "in fee simple". The purchase price for the land was £70. Shortly after that the land was leased to a limited company but that agreement is of no relevance to the present case.

More to the point, on 14th December 1932 part of the land was leased to the Australasian Conference Association Limited ("the Company"). The lease was for 99 years as from 1st January, 1932. The land leased and shown in the plan attached to the lease was not the entire land as shown in the 1912 conveyance but an area of 364 acres. There is no dispute that the area shown on that lease is the same as the area shown on plan XK 9306. The company is, I am told, a company incorporated in New South Wales as a company limited by guarantee without share. The land it holds it holds on a non-profit making basis for the Solomon Islanders who are members of the Seventh Day Adventist Church. Since 1932 Kopiu land has been used as the site of a church school and of housing for ministers and officers of the church.

On 22nd February 1974 the Company lodged an application for registration of its leasehold title to Kopiu land. On 28th March 1974 the Commissioner of Lands lodged an application for registration of his freehold interest in Kopiu land; the Commissioner of Lands being the successor in title to the Resident Commissioner. These applications were made under section 10 of the Land and Title Act (Cap 93) ("the Act") as voluntary application for first registration.

The applications were advertised in September 1978 by the Clerk to Guadalcanal Province: the delay of four years being due, it would appear, to the need to obtain a survey plan.

On 20th November, 1978 a letter was sent to the Clerk to Guadalcanal Province who had advertised the applications. This letter was a letter of objection to the registration signed by seven Solomon Islanders three of whom are the appellants in this case. They are Wilson Teteha, S. Peter Tahotuhuha and Josephen Tadiswana. There were two objections only one of which is relevant at the present time. The relevant objection was, in short, that the persons who signed the 1912 conveyance were not the true owners of the land and that the signatories to the letter were the descendants of the true owners. Therefore, it was said, registration should not take place. In subsequent correspondence the objectors expanded upon their original grounds of objection.

On 5th May, 1980 the Registrar of Titles held a hearing at Kopiu. At the hearing the appellants Wilson Teteha and Simon Peter Tahotuhuha appeared to present their objections. Other appeared including Onorio and Benjamin Koe who maintained that the Solomon Islanders who were named in the 1912 conveyance did have authority of the land-owning line, that is the Garavu line. Thus these witnesses said that they accepted that the 1912 sale was valid.

After the hearing Onorio and Koe submissions in writing to the Registrar (which submissions were copied to all the parties) and the Registrar of Titles contacted the SDA Church. On 28th September 1980 a further hearing was held at Kopiu by the Registrar. Again the appellants Wilson Teteha and S. Peter Tahotuhuha were given an opportunity to present their cases. They took this opportunity. Again statements were made by other Solomon Islanders that the 1912 sale was a valid one in custom. Pastor Bili on behalf of the SDA Church took the position on behalf of the Church that they did not wish to take sides in the dispute; as far as they were concerned they made an arrangement in good faith with the Government and their only wish was that the dispute should be settled properly and fairly.

Having heard the evidence the Registrar of Titles decided to reject the objection and register the titles. He said:

"It is also clear to me that Harry Gwasi and the others did have rights in this land. It is also clear to me that the ancestors of the objectors did know about the sale at the time of the sale but did nothing about it at the time."

On the 29th October 1980 the Registrar gave his written reasons for his decision. It is sufficient to say that in the decision the Registrar considered carefully and objectively the evidence which he had heard as to the conflicting claims to rightful ownership of Kopiu land. His conclusion is as follows (para. 30):

"The Commissioner of Lands bases his claim on a deed made some 68 years ago. The land has been occupied for many years by the Seventh Day Adventist Church. In these circumstances it is for the objectors to produce compelling evidence that the 1912 conveyance ought not to be relied on. This they have failed to do so the objection fails. Although I dismiss the claim on this one ground I am satisfied that no injustice is being done as the weight of evidence, such as it is, is in favour of the Garavu line’s assertion that the land was validly sold."

By notice dated 26th March 1981 the appellants appealed against that decision under section 213 of the Act which gives wide powers to this court on appeal against a decision of the Registrar.

At the initial hearing on 17th July 1981 Mr Sethuel Kelly appeared for the Appellants and Mr Kenneth Eastman of Counsel appeared for the company who were 2nd Respondents. I am grateful to Mr Kelly who has no personal interest in the land for, lending his experience and ability to the appellants. He presented their case in a forceful but polite and able manner which enabled me to grasp clearly the issues as the appellants saw them. Mr Eastman, too, was of great assistance to the court in that he was prepared to go rather further in presenting his argument on the legal aspects of the matter than he would have done if the Commissioner of Lands had been represented.

Nevertheless it seemed to me that on certain legal issues that arose it would be wrong for the court to make a decision without hearing submissions by the Commissioner of Lands and the Registrar of Titles. On 6th August 1981 the Registrar of Titles was kind enough to make his submissions on the structure of the Act in person and counsel for the Commissioner explained the Commissioner’s position.

I now turn to the substance of the Appeal. The grounds of appeal may be grouped under two headings:

(a) that the Registrar of Titles is not the proper tribunal to decide the issue as to whether the 1912 conveyance is valid;

(b) that the 1912 conveyance should not be regarded as valid and therefore neither the title of the Commissioner nor that of the Company should be registered.

It is necessary to consider point (a) first before considering point (b) as, if it is correct to say that another tribunal should have heard the matter as a whole, then the court would have to remit the matter to the tribunal without offering any view on whether or not the 1912 conveyance was valid (that is on point (b)).

The appellants’ contention is that the proper tribunal to hear and determine the issue as to the validity of the 1912 conveyance is the Local Court. Their argument is first from general principle. They say that the issue as to the validity turns upon whether or not the named Solomon Islanders in that conveyance represented the rightful landowners and, if so, whether they were authorized to sell the property. They go on to say that these are matters which depend upon custom rights to Kopiu land and custom ways of dealing with land. As such it is right, the appellants conclude, that the custom court, that is the Local Court, should hear and determine these matters.

Whilst this argument from general principle is well put and attractive, it omits one vital factor. That is that all formal systems of settling disputes as to land in Solomon Islands are created by the Act. Thus I must look at the Act itself to see what mode of settling this dispute is applicable.

It was on this aspect of the case that I sought, and obtained, the assistance of further argument. Section 231 of the Act provided as follows:

"(1) A local court shall, subject to the provisions of this section, have exclusive jurisdiction in all matters and proceedings of a civil nature affecting or arising in connection with customary land other than - 

(a) any such matter or proceeding for the determination of which some other provision is expressly made by this Act; and

(b) any matter or proceeding involving a determination whether any land is or is not customary land.

(2) A local court shall have jurisdiction to hear and determine any matter or proceeding of a civil nature referred to it by the High Court or a customary land appeal court under this Act.

(3) The decision of local court given in exercise of its jurisdiction under this section shall be final and conclusive, and shall not be questioned in any proceedings whatsoever save an appeal under section 231 B.

(4) The provisions of this section shall have effect not withstanding anything contained in any other law or in any warrant establishing any local court.

(5) Nothing in the foregoing provisions of this section shall operate to confer or be construed as conferring, upon a native court any jurisdiction over any person who by reason of his status would not, apart from those provisions, be subject to the jurisdiction of a native court, except with the consent of such person."

Thus the first question that arises is, is Kopiu "customary land" within the meaning of the Act? Section 2(1) of the Act has the following definition:

"customary land" means any land (not being registered land, other than land registered as customary land or land in respect of which any person becomes or is entitled to be registered as the owner of an estate pursuant to the provisions of Part III) lawfully owned used or occupied by a person or community in accordance with customary usage" (the remainder of the definition is not relevant).

Kopiu is not at present registered land. Nor is it land as yet "in respect of which any person becomes or is entitled to be registered" as that would depend upon the Registrar being satisfied as to "all matters required for the purpose of effecting the registration" (see section 17 (1)) including the validity of the 1912 conveyance. Thus the words in the bracket in the definition do not exclude Kopiu land. The part of the definition on the other hand, that requires further consideration, is that part which requires that the land be "owned in accordance with customary usage". It is, of course, clear that the land is not used or occupied in accordance with customary usage as it is in the possession and use of the company.

Thus we have a somewhat circular position. For the land to be customary land it must be owned in accordance with customary usage; whether it is or not depends on the validity of the 1912 conveyance; whether that conveyance is valid also turns on customary usage.

This would be an awkward situation indeed if the matter were left by the Act in that state. Fortunately it is not as, turning back to section 231, which I set out earlier, we have in subsection (1) two express exceptions to the exclusive jurisdiction of the local court.

I consider paragraph (b) first as that would seem to be entirely in point. What I am considering of this moment in the in the case is whether Kopiu is or is not customary land. So this must involve in the final analysis such a determination as is referred to in paragraph 231 (1) (b) of the Act. On this basis, in my judgment, the local court does not have exclusive jurisdiction.

But that is not an end to the matter, as it is still necessary to decide if some other tribunal does have jurisdiction as otherwise it might be that the local court could still have jurisdiction (although not exclusive). This is the same as answering the question posed by paragraph (a) that is: does the Act expressly provide for the determination of the validity of the 1912 conveyance for the purpose such as we are here considering, that is, for registration propose?

It is submitted to me that the Act does so provide in Part III. That part provides for application to be made to the Registrar and, as I have mentioned, requires him to be satisfied "as to all matters" before effecting the registration. (section 17(1)). The Registrar has power to refer any matter or question to the Commissioner of Lands or Clerk to a province for report or decision (section 17 (2) (e)) or similarly to refer any matter to an Adjudication officer (subsection (2) (f) and section 18). Thus there must be "matters" or "questions" which the Registrar is empowered to decide if he, in turn, can refer such questions for report or decision to others. To turn to the present case it is, in my judgment, thus provided in the Act that the Registrar must determine whether the 1912 conveyance is valid with a view to registering it or not registering it. Therefore section 231 (1) (a) would also apply to remove the exclusive jurisdiction of the local court. As this is a decision vested in the Registrar he not only has jurisdiction but his jurisdiction, in my judgment, ousts the jurisdiction of the Local Court. To hold otherwise would be to leave the situation in the unsatisfactory position that two separate tribunals might hear the matter and produce different results.

I have been referred to the files relating to a leasehold interest in land at TANAGAI (Lots 1 and 2 of L.R. 450 Tanagai). On the 11th December 1972 notice was given that an application had been made to register a lease to take effect on registration as a lease of customary land under section 20 (3) of the Act.

On 18th May 1973 the Local Court considered the question of who was entitled to the reversion to the land in custom. The Local Court decided against those who were the persons found to be entitled on the original negotiation for the lease. This caused the then Registrar of Titles to express some concern about the words "or land in respect of which any person or persons becomes or is entitled to be registered as the owner of an estate pursuant to the provision of Part III" in the definition of customary land in section 2(1); presumably on the basis that the land in question did not fall within these words as no one was entitled to be registered until the Registrar has so decided. Equally the words "lawfully owned" in section 2(1) remained applicable as the land in question was still customary land "owned" by someone in accordance with customary usage despite the lease granted in relation to it.

The first thing I must say about this file relating to Tanagai land is that there is no indication of there being any kind of legal decision which has interpreted the Act in a way that can be of assistance to this Court. Second, that file relates to a lease over customary land whereas in the present case we are considering a perpetual estate granted (if that grant was valid) over land. Therefore concern expressed over the relationship of section 20 (3) and the definition of customary land does not apply as the estate in this case, if registered, would take effect under section 20 (1) of the Act. Whilst an interesting example of a course taken in somewhat different circumstances, the file relating to Tanagai land is not of great assistance to me in assessing the legal implication of the facts relating to Kopiu land.

It was further urged upon me by the Appellants that I should in exercise of my discretion refer the matter back to the Local Court to decide the issues. The suggestion that I have such power was tacitly supported by Counsel for the Commissioner of Lands who said that the Commissioner would have no objection, subject to the Company also agreeing, to this course being taken. However on examination of the Act it becomes difficult to find such a discretion. On appeal under section 213 the court may "confirm, quash or vary the decision" of the Registrar but there is no wider power to refer elsewhere. Section 231(2) gives the local court jurisdiction to hear any matter "referred to it by the High Court under this Act." But there again one must find some provision which enables the court to so refer it. Counsel was not able to point to any such provision. Where the Act, as I find it does, provides for decision upon an issue by the Registrar of Titles it would in my view, be wrong for this court to strain the terms of the Act to enable it to give jurisdiction to a different tribunal. It may well be a meritorious suggestion that the Local Court should hear such matters. But that is a question of policy which can only be effected by a change in the terms of the Act by Parliament.

A further point was taken by the Registrar of Titles on section 231 (5) but, in view of my conclusions on the earlier part of the section, it is not necessary to consider the point.

I now turn to a consideration of the grounds of appeal that suggest that the Registrar was wrong in deciding that the 1912 conveyance should be regarded as valid and that the two titles flowing from it should be registered. I should perhaps make it clear from the outset that I do not consider that the procedure or the fairness of the Registrar can be criticized. Everyone was given a full and proper opportunity to state his case and the Registrar’s decision reflects his careful consideration of the points raised.

Criticism was addressed to the form of the 1912 conveyance and the procedure by which it came into existence it being suggested that Solomon Islanders would understand neither the legal phraseology used nor, indeed, the language. That would very likely be so but, as counsel observed, the point would also be true of many Australian or Englishmen faced with a legal document. There is nothing on the other hand to suggest that the Resident Commissioner did not fully explain the document and its effect. There is also support from the evidence before the Registrar that some Solomon Islanders knew what was happening and approved of it. (see evidence of Benjamin Nanauita at p. 4 of the Record of the Hearing on 29th Sept. 80). The Act provides that the Registrar has power to accept as evidence statements in deeds not less than 20 years old (section 17(2) (a) of the Act). Thus in this case he could, as he did, accept the statement in the 1912 conveyance that the three named Solomon Islanders were owners of Kopiu land. It is obvious that as documents become older then the law must provide that they are to be presumed valid unless there are some suspicious circumstances shown to exist. This paragraph in the Solomon Islands Act gives powers to the Registrar similar to those which exist generally in courts of law (see Halsbury 24 Edition Vol. 17: Evidence para. 129 - 135) to accept ancient documents not less than 20 years old which are produced from proper custody as valid. The Registrar was unable to find any suspicious circumstances relating to the 1912 conveyance and therefore decided that it was effective to do what it purported to do. For my part, having considered the points urged, I do not find anything wrong with that decision. Indeed on the evidence before the Registrar the decision was inevitable. I should perhaps add, in view of the suggestion that the Registrar was dealing with this case on the basis of the law elsewhere, that he applied the principle embodied in the Solomon Islands Act.

In those circumstances I have no alternative but to dismiss the appeal and confirm the decision of the Registrar to register the 1912 conveyance as a freehold title in the name of the Commissioner of Lands and the leasehold title in the name of the Company.

ORDER: Appeal dismissed and decision of Registrar of Titles confirmed.