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Hano v Toliole [1982] SBHC 17; [1982] SILR 58 (1 June 1982)

1982 SILR 58

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 2 of 1982

HANO

v

TOLIOLE AND ANOTHER

High Court of Solomon Islands
(Mr Commissioner D. R. Crome)
Civil Appeal Case No.2 of 1982

1st June 1982

Registered land - effect of adjudication proceedings - Observations by adjudication officer - limitation of action

Facts:

At adjudication proceedings held under the Land and Titles Ordinance (Revised Edition 1961, Cap. 56) an adjudication officer had found that the Appellant’s predecessor represented owners of land in custom. In making his finding the adjudication officer made observations which suggested that the Respondents were entitled to some form of interest in the land. The Respondents unsuccessfully appealed against the finding that they were not owners to the High Court. The Appellant’s predecessor was subsequently registered as owner of a perpetual estate on 20th October, 1971.

On 12th January 1982 the Respondents issued a writ claiming a share in the rents of the land. They based themselves on the observations of the adjudication officer. The magistrate found in their favour finding that the adjudication officer declared in effect that the Respondents had an equitable interest in land.

Held:

1. The decision of the adjudication officer was limited to finding of whether or not the land was owned by the vendors or lessors (Lilo v. Panda (1980/81) S.I.L.R. 155 applied). The adjudication officer’s observations had no force in law against the person found to be owner in his decision and subsequently registered as such.

2. Per incuriam, in any event the delay of 14 years would extinguish the rights of the Respondents.

Appeal allowed.

Appellant in person
Respondent in person.

Mr Commissioner Crome: This appeal concerns a plot of land which in the proceedings has been called "Lilisiana Beach", and is registered as a perpetual estate in the names of Ramokiria and Lulute’e, under parcel number 151-010-1.

The Registration was effected on the 20th October 1971, being a first registration, under the provisions of S. 52 of the old Lands and Titles Ordinance, Chapter 56, in the 1961 Edition of the Laws of Solomon Islands.

Since the case has to do with the Adjudication Proceedings conducted prior to that registration, it will be helpful if I turn to consider the provisions of S. 52 of the old Chapter 56, as amended by No. 22 of 1964, insofar as they are relevant to this appeal.

The Section offered a procedure to be followed where the Commissioner for Lands wished (amongst other things) to lease customary land. An agreement was entered into with persons claiming to be owners, which agreement then had to be widely advertised.

If, as a result of the advertisements, other parties came forward claiming ownership, there was a right of appeal to an Adjudication Officer who, appointed by the Commissioner of Lands, was bound to institute a public inquiry, in the Ordinance called an appeal, into the disputed claims to ownership, as 15 states:-

"After completing the hearing of an appeal, the Adjudication Officer shall give his decision thereon; and the decision shall be in writing and shall specify whether the whole or any part or parts, and in the latter case which part or parts, of the land is or are owned by the vendors or lessors".

The decision was itself subject to appeal to this court on a point of law or failure to comply with a procedural requirement and by ss 21 read with ss 20, the land the subject of the Adjudication Proceedings:

"shall for all purposes whatsoever be deemed to be ... owned (by the ... lessors) upon the giving of the decision on appeal".

Thereafter a lease should be executed pursuant to the agreement between the Commissioner of Lands and the putative lessor, who had then became owner, and by ss 24 (b):-

"..... the Registrar (of Titles) shall, on receipt from the Commissioner of Lands of the Lease .... and upon preparation of the Registry Map, register the lessor as the owner of a perpetual estate in the land and the Commissioner of Lands as the owner of the Lease".

It is important for the purposes of the present case to bear in mind the nature and effect of this process, Adjudication Proceedings, and see it for what it was, a step in an administrative process. The Adjudication Officer had no power to do other than determine the identity of a vendor or lessor of customary land, with a view to the interest thus determined being registered.

The matter is fully argued in the judgment of Daly C.J. in Customary Land Appeal Cases 10 and 11 now reported as Lilo v. Panda (1980-81) SILR. 155 at p. 165 of 1980 where the authorities are examined and at page 9 the learned Chief Justice expresses this point.

"I have already referred to the terms of S. 52 (15) (of the Ordinance) and the decision to be made by the adjudication officer; it is in my view, limited to a finding of whether or not the land is owned by the vendors or lessors."

With that proposition I respectfully find myself in full agreement. I am of the view that interests in land could not be created by Adjudication Proceedings, existing ownership, alone, could be determined.

Once a title had been registered, the land ceased to be customary land. It may be that there were competing interests of one kind or another hovering over and around the legal estate of the registered proprietor of the title, but those competing interests must, consequent upon registration take their strength and priority within the framework of the principles of law relating to registered land, and not customary land.

Lilisiana Beach was an area of land which in 1968 was the subject of Adjudication Proceedings under the old Chapter 56. The adjudication officer in his Decision, found:-

"(d) that Lulute’e is the owner of the beach as the representative under custom of the Aisisiki Fuingwae of Aisisiki."

He then went on to make what he chose to call "Observations", which, since they form an important part of this case, I shall quote in full –

"Observations:

Nevertheless, I find that Lulute’e has so dealt with the interest of the Marcus Maomaibali and Paul Toliole’s fuingwae over the last 30 years that the people of Marcus Maomaibali, Paul Toliole Fuingwaes of Lilisiana, Ambu, Molou and Auki Island have properly established rights over this beach which cannot be extinguished by the act solely of Lulute’e. These are in the nature of encumbrances upon the land held by Lulute’e for his fuingwae. If a dealing under section 52 of Cap. 56 takes place, this will result in registration of the land and the ownership of it. I consider the interests of Marcus Maomaibali’s and Paul Toliole’s fuingwaes, who have been allowed by Lulute’e over the years to plant tree crops on the land is of such a permanent nature that either they should be fully compensated by Lulute’e for the loss of their interest under the present agreement; or, if by agreement between both the parties themselves this seems preferable, a new Agreement should be made in which Lulute’e is joined as lessor by the customary representative of Marcus Maomaibali’s and Paul Toliole’s fuingwaes, the new agreement would name Lulute’e, Marcus Maomaibali and Paul Toliole as owners in common of the land, their shares being undivided but in proportion 2/3 for Lulute’e and 1/6 each for Marcus Maomaibali and Paul Toliole. If this is agreed then Lulute’e, Marcus Maomaibali and Paul Toliole would each have to make a statutory declaration that they hold this ownership for and on behalf of their fuingwaes in accordance with current customary usage."

The decision of the adjudication officer was the subject of an appeal to this court, and came before Bodilly C.J. as Civil Appeal Cases 2 and 3 of 1969. In a thorough and carefully reasoned judgment the learned Chief Justice came to the following conclusion:-

"In the result the appeals are dismissed in each case. None of the appellants are entitled to land in issue as owners".

As a result, Lulute’e and his colleague in the fuingwae of Aisisiki Ramokiria were registered as owners of Lilisiana under Perpetual Estate parcel number 151-010-1 and granted a lease to the Commissioner of Lands, which was registered in the Lease Register on the 20th October 1971.

The Lease was for a period of ten years from the 1st January 1968 and provided for a rent of $300 per annum. It has since been continued in the form of a licence from year to year.

I should, for the purposes of completeness, mention that under the old Ordinance, Chapter 56, 1961 Edition, the land would revert to customary land at the end of the lease, but this provision was repealed by Number 22 of 1964 and the repeal became re-enacted in the current legislation, the Lands and Titles Act chapter 93. It is important to realise this point because otherwise by S. 231 of the current Act, only the Local Court would have had jurisdiction to determine the competing interests in customary land. But the land remains registered as perpetual estate in Lulute’e and Ramokiria.

Having reminded myself of the Law affecting the matter, I now come to consider the decision of the learned Principal Magistrate sitting at Auki who gave judgment on the 1st March 1982 in a case brought before him by Paul Toliole and Marcus Maomaibali against Frank Hano, in which the plaintiffs claimed one third of the rents received by the Defendant and his line from Lilisiana Beach.

I must make it clear that the plaintiffs were parties to the adjudication proceedings to which I have referred, they were unsuccessful appellants, and that the Defendant is in the same line and represents the same interest as Lulute’e (now deceased) and Ramokiria.

The Plaintiffs case in the Magistrate’s Court and before me on appeal is that they were not aware of their alleged one third interests in the rents of Lilisiana Beach until the copy of the adjudication proceedings in 1968 and the subsequent High Court appeal therefrom, came into their possession earlier this year.

Once the documents came to them, they instituted proceedings on the 12th January 1982 in which they claimed one sixth of all rents received and costs. The writ is not clear on the point, but the case at first instance and on appeal is clearly that they claimed, and at first instance, were awarded one sixth of accumulated rents each. A total of $1,066.66 plus a court fee.

In his judgment the learned Principal Magistrate quotes the Observations of the Adjudication Officer, to which I have already referred, and goes on to say:-

"In my opinion today’s case depends upon one question only; did the High Court’s decision wash out the Adjudication Officer’s determination that the Plaintiffs were entitled to receive one sixth each of any rents which might be received by the landowners? I have decided that the Adjudication Officer’s decision remained valid, and remains valid today, and accordingly the plaintiffs’ claim subject to a small matter which I will deal with later, must succeed."

He went on to say –

"I disbelieve the Plaintiffs’ claim that they did not know about both judgments (Adjudication Officer and High Court) until about 13 years after the event, but I cannot see that this is important."

And went on to find that the Adjudication Officer –

"declared in effect that the Plaintiffs had an equitable interest in land"

but held that because of the operation of the limitation period affecting such matters, they could only recover twelve years arrears of their proportion of the rents and he gave judgment for $543.33 to each Plaintiff including the court fee.

From that decision the Defendant, the present Appellant, appeals by notice of appeal dated the 19th March 1982, on four grounds.

Firstly that no action was ever taken by the Respondents or anyone else, upon the "observations" of the Adjudication Officer, to give effect to the sharing proposal he made.

Secondly that the High Court hearing in 1969 dismissed the Respondent’s appeal and in so doing endorsed the findings of the Adjudication Officer in his "observations".

Thirdly that the Adjudication Officer himself acquiesced in the 1968 Lease by witnessing it being apparent on the face of the lease no interest was given to the Respondents.

Fourthly he really repeats ground two.

In my judgment this appeal must succeed on the grounds canvassed in points one and two. From the propositions I made earlier in this judgment concerning the nature of Adjudication Proceedings the "Observations" of the adjudication officer could have no power in creating any legally enforceable claim against the person in his decision stated to be the lessor of the land and whose interest as owner was subsequently registered.

At best the "Observations" could be given some weight by a Court dealing subsequently with competing beneficial interests in the land.

I find that the learned Magistrate was wrong in determining, as he did, that the case depended upon the "one question" to which I have referred. This issue was whether the Respondents had an interest in the land which, as an interest in possession entitling them, as they asserted it did, to a share of the rents, was an overriding interest not requiring registration.

I question whether the nature of the interest claimed by the Respondents is equitable. But nothing turns on the point and I need not delay this judgment in exploring it.

On the evidence before him the learned Magistrate disbelieved the Respondents’ claim that they only understood their rights when they received the documents relating to the earlier proceedings late last year. That they did not know about the judgments. I agree they must have known about the judgments and have heard evidence of their presence in the High Court in 1969.

The judgment gave them no rights. If they had any rights at all they should have known about them quite independently of the Judgment of the High Court or the decision of the Adjudication Officer. As to that Decision, the Adjudication Officer having performed his statutory duty of determining the lessor had done all the statute allowed him to do. His "Observations", as is clear from the way they appear, as a postscript, are no more than that, his opinion. In evidence Toliole told me he had seen sand being excavated from the beach and, apart from the protest made many years ago, had done nothing and, indeed, as appears from the Writ, only issued proceedings some 13½ years from the 1968 Adjudication proceedings by issuing the present writ.

I respectfully disagree with the application of the law relating to the limitation of actions referred to by the learned Magistrate in his judgment. The position must be that, if the Plaintiffs had any rights in the land, rights to receive rents, the fact that for almost 14 years they have allowed another to receive and keep the rents in his own right, would extinguish their own rights to receive the same.

However, it is clear to me on the record of the Magistrate’s Court and on the evidence and argument brought before me today, that the Respondents have quite failed to establish any legally enforceable claim to the rents arising from Lilisiana Beach.

I dismiss point 3 of the Appeal Points as not being an apposite to the matter before me. The fact of the Adjudication Officer being a witness to the lease is neither here nor there in determining the Appellants rights to rent. It proves nothing one way or another as to what may or may not have been agreed elsewhere.

The Appeal succeeds, on points one and two, the order of the Magistrates Court is reversed and the Appellant is awarded his costs before the Magistrate’s Court and upon this appeal to be agreed between the parties or taxed by the District Registrar (Malaita).