HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 196 of 1996

JOSEPH MANEHAMOSA AND OTHERS

-V-

SETHUEL KELLY AND OTHERS

High Court of Solomon Islands
(LUNGOLE-AWICH, J)

Hearing: 9 April 1999
Judgment: 26 April 2000

C Ashley for the plaintiffs
A Nori for the first defendants
P Kenilorea for second and third defendants 

JUDGMENT

(LUNGOLE-AWICH, J): The plaintiffs, Joseph Manehamosa, Valerion Chualu, Peter Sageli, Peter Marosiva, Dominic Mikin and Jacob Vuvulo are representatives of Haubata, Simbo and Kakau tribes of northern Guadalcanal Island. They are represented by learned counsel Mr C. Ashley. They claim that they are entitled to have the perpetual estate in land, Parcel No. 192-016-7 situate at Lunga River area, near Honiara. The land is now registered in the Register of Perpetual Estates in accordance with the Land and Titles Act, Chapter 133 in the statute laws of Solomon Islands. The owners of the perpetual estate on the register are the first defendants, Sethuel Kelly, Silas Chekana, Edison Seani, Edilon Abaita and Bethzel Kikuli. All except Mr Kelly, are represented by learned counsel Mr A. Nori. The second defendant is the Commissioner of Lands and the third is the Registrar of Titles, both are represented by learned counsel Mr P. Kenilorea, for Attorney General. In summary, the plaintiffs have asked the Court to grant an order to rectify the Register of Perpetual Estates by removing from the register the names of the first defendants as the owners of the estate and substituting the names of the plaintiffs therefor.

The Plaintiffs' Case

The facts relied on by the plaintiffs, which they would like the Court to accept are, in my narrative, as follows: When the defendants were registered on 29.11.1995 as the owners of the perpetual estate in land parcel No. 192-016-7, there was government policy to return alienated lands which reverted to the Commissioner of Lands, on behalf of the government, to the, "original land-holding groups or tribes for resettlement or development." I shall refer to the groups, tribes or their representatives as original owners of customary land. The policy obtains to this day. The plaintiffs say that they are the original owners of the customary land, parts of which were alienated and became land parcels 192-016-7 and 192-016-8. They say, their ancestors lived on the land and that in the early days of the protectorate, their ancestors sold parts of the land including the parts which are now parcel 192-016-7 and parcel 192-016-8, to European traders who resold to Levers Pacific Plantation Limited and finally the alienated parts of the land reverted to the Commissioner of Lands by operation of s:100 of the Lands and Titles Act. The plaintiffs further say, the Commissioner was then obliged to return the land parcels to them, instead he allocated Parcel 192-016-7 to the first defendants, and when he did, the Commissioner had been deceived and acted on a mistake of fact that the first defendants were the original owners of the original customary land before parts were alienated. In the alternative the plaintiffs say, the Commissioner had been fraudulently deceived by the first defendants. The plaintiffs have asked for declarations and orders which they hope will effect their claims, I set out the declarations and orders here:

"1. 	a declaration that the applicants were the original customary landowners of the Tandai Customary lands now comprised in the Perpetual Estate in parcel Numbers 192-016-7 and situated at Mount Austin Guadalcanal.

2.	a declaration that the applicants or some of them are entitled to receive the transfer of the perpetual estates in Parcel Numbers 192-016-7 from the Second Respondent pursuant to the Government policy to transfer all perpetual estates to the original customary landowners.

3.	an order that the perpetual estates register in Parcel No. 192-016-7 be rectified (with the effect) (sic) to cancel the registration of the First Respondents as joint owners of the said perpetual estate.

4.	an order that the First Respondent transfer the perpetual estates in parcel numbers 192-01607 to the Applicants.

5.	an order that the Third Respondent register the names of the Applicants or some of them as joint owners of the perpetual estates in parcel numbers 192-016-7.

6.	Costs of this application be paid by the First, Second and Third Respondents."

To prove their claim, the plaintiffs made available much evidence to show that they or their predecessors had raised their claim to customary right in the original customary land at various legitimate fora and even got judgments of the Local Court and of the High Court in their favour. I have to say that the judgments they obtained were binding inter partes, that is, between the present plaintiffs and those parties the plaintiffs proceeded against on those occasions, not between the present plaintiffs and the present defendants - see John Sori -v- Toata Gagame and Others, SICOA No. 6 of 1997. One of the items of evidence made available by the plaintiffs directly challenged any claim by the first defendants to any customary right in the original customary land, it was in the affidavit of Valerion Chualu, deposing that all the first defendants are people of the Weather Coast, that is, the southern coast of Guadalcanal Island.

S:100 of the Land and Titles Act by which, the plaintiffs say, the land reverted to the Commissioner, provides that with effect from 31.12.1977 perpetual estate registered in the name of a person who is not a Solomon Islander, shall automatically convert to a fixed term lease of 75 years. S:101 reduces all leaseholds of more than 75 years held by non Solomon Islanders to 75 years. S:102 gives the Commissioner of Lands the perpetual estates. It is the perpetual estate, the reversion, by which the land returns to the Commissioner after the expiry of the lease of 75 years, that the plaintiffs say there was policy that the Commissioner was to return to them in respect of Parcel 192-016-7. Even when the 75 years lease continues benefits such as rent and timber right could accrue to owners of the perpetual estate.

The Defence

Learned counsel Mr A Nori, filed memorandum of appearance for all the first defendants, later Mr Sethuel Kelly, one of the first defendants, filed conditional appearance for all the first defendants and a paper on which he stated the heading, "Defence on behalf of the First Respondents." Notwithstanding, Mr Nori has confirmed his instruction to represent the rest of the first defendants. He was of course forced to apply for leave to withdraw from representing Mr Kelly. Leave was granted. Then there were some difficulties in getting notices and case papers to reach Mr Kelly even at the address he had provided to the Court and to the plaintiffs and despite the fact that he described himself as Chief Policy Analyst in Government. The Court made at least two direction orders, and adjourned the case so that Mr Kelly could physically be reached and would attend Court. Service of court papers were done at the address Mr Kelly provided as well as by radio service messages, by order of the Court. The radio messages ordered must have reached him. It was not necessary to do more than serve Mr Kelly at the address he provided, but the Court considered it to be the best in the circumstances, to afford Mr Kelly opportunity to be heard. The case was eventually conducted without him in attendance, when the Court was satisfied that all had been done to afford him opportunity. The Court, in reaching its decision, has taken into account what Mr Kelly stated in the papers he filed. All the counsel in the case did not object to Court considering the contents of the papers. The conditional appearance of Mr Kelly elapsed without any application to set aside the originating summons or service of it or to protest jurisdiction. It became unconditional appearance.

In their defence, the first defendants did not include a contention that they were the original owners of the customary land, parts of which were alienated. Further, nowhere in their evidence did the first defendants deny the deposition of Mr Chualu for the plaintiffs, that the first defendants are people of the Weather Coast. Mr Chekana who swore affidavit on behalf of them, deposed that they had bought Parcel 192-016-7 from the plaintiffs in accordance with the requirement of custom and that the transaction was acknowledged by customary feast. By Mr Chekana so stating, the first defendants, except Mr Kelly, conceded that as between the plaintiffs and them, the plaintiffs were the original owners of the original customary land. Mr Kelly for his part was too vague on the point for the most part, mostly making the general point that it is difficult to prove customary right in customary land, but in a letter dated 9.11.1995, now exhibit D, addressed to the Commissioner of Lands, he stated, "First we are the original owners of the land, and the present government policy is to return alienated land to original landowners." The Commissioner, according to his affidavit, understood Mr Kelly to be giving reason for the Commissioner to transfer the perpetual estate in the land to them, the first defendants. Mr Kelly did not provide evidence about his claim that they were the original owners of the land.

The main defence raised by both Mr Kelly and Mr Nori, for the rest of the first defendants was a point of law. In somewhat winding way, Mr Kelly seemed to say that the government policy relied upon by the plaintiffs had not been, "legislated", and therefore the Commissioner was free to give the land to anybody; he gave it to them, the first defendants, rightfully. Mr Nori made the same point in an emphatic and clearer way, submitting that the policy has not been enacted and has not become law. He went on to submit that government policy which has not become statutory law may become the basis of a claim only if the policy has been made a term in a contract between the claimant and the government.

The Issues

Mr Nori's submission about the general principle of law is correct. The question to be asked in this case though, is whether when the Commissioner allocated land parcel 192-016-7 to the first defendants he was deliberately acting with it in mind that the defendants needed not be the original owners of the original customary land. Put another way, would the Commissioner have decided to allocate the perpetual estate in the land parcel to the first defendants if he had known that the first defendants were not the original owners of the original customary land?

I have to make it clear right at this point, that it is my view that as far as the facts and claim in this case are concerned, it is not necessary for the Court to decide who the original owners of the original customary land are as between the plaintiffs and the first defendants. If it were necessary, it would be a question to be raised first before the Local Court in accordance with s:254 of the Lands and Titles Act, also see Gandly Simbe -v- East Choiseul Area Council and Eagon Resources Development Company Ltd, SICOA Case No. 8/97. This Court would then apply the determination of the Local Court unless the determination was appealed, in which case the decision on appeal would be applied. 

The crucial issue for determination is whether the facts proved will make it possible for the Court to order cancellation of the entry on the Register of Perpetual Estates, that the first defendants are the owners of the perpetual estate in parcel 192-016-7. Rectification of land registers is authorised by the Land and Titles Act; conditions for rectification by order of Court are set out in s:229; the section states:

"229.	(1)	Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2)	The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake or substantially contributed to it by act, neglect or default."

Determination:
(Effect of Law and Effect of Policy)

Before I apply the evidence in order to answer the question I have posed above, I need to state generally the ways in which the Commissioner deals with policy which has become law, and how he deals with policy which has remained just that.

Had the policy in this case been enacted into law, the Commissioner would have been bound without choice, to allocate the land, Parcel 192-016-7, only to someone or those who would have demonstrated that they were the original owners of the customary land before it was alienated. On the evidence, before this Court, which evidence now presents two and not only one side of the claim of the first defendants, I do not think the Commissioner would be persuaded that the first defendants were the original owners of the original customary land. I also doubt that the Local Court would decide that the first defendants have proved that they were the original customary owners.

The second point is that if the policy of the Executive had become an important established fact to consider when the Commissioner exercised his discretion to allocate land that had reverted to him, he would still allocate the land only to someone or those who would have demonstrated their customary right in the original customary land, but there would be discretion occasionally to allocate to someone else. In my view, on those occasions that the Commissioner would depart from deciding according to the policy, he would be obliged not to exercise his discretion arbitrarily and not on irrelevant consideration. One of the ways to answer criticism of acting arbitrarily or on irrelevant consideration would be by showing that the Commissioner deliberately acted contrary to the established policy, after having considered the policy in the peculiar facts of the particular case and has come to the conclusion that it was just to depart from the long established policy. I also think that before the Commissioner would deliberately exercise discretion to depart from the established policy, he would be required to give the original owners or those who claim to be the original owners, a hearing because his discretion to depart from the policy would deny them what has become their legitimate expectation. Giving them a hearing would be what the duty to act fairly demands. Executive or administrative discretion does not vary with the foot of the executive or administrator nor with his whim, favours, friendship, nor pocket; well it is not supposed to. Important cases that come to mind are: Ridge -v- Baldwin [1964] AC 40, McInnes -v- Onslaw-Fane [1978] 1 WLR 1520, and compare the now almost discarded judicial reasoning in R -v- Metropolitan Police Commissioner, ex parte Parker [1953] 1 WLR 1150 to the judicial reasoning in Schmidt -v- Home Secretary [1967] 2 Ch. 149 and in Ridge -v- Baldwin.

Applying the provisions of s:229 of the Lands and Titles Act, it follows that if the Commissioner acted on mistaken facts or on fraud when he exercised his discretion to allocate the land and the Registrar of Titles acted on the allocation and had the title registered, the Court may order rectification because of the mistake of fact or fraud. The Court will not order rectification if someone is in possession of the land as the result of having provided valuable consideration unless he had been aware of the mistake, or fraud or contributed to.

Determination:
(Was there Mistake of Fact?)

The answers to the question as to what the Commissioner had in mind when he allocated parcel 192-016-7 to the first defendants are in the affidavit of Eliam Tanirono, the then Acting Commissioner of Lands, the affidavit of Mr Chekana sworn on 27.1.1997, the letter dated 9.11.1995, of Mr Kelly to the Commissioner of Lands, the letter dated 7.11.1995, of "Honourable Francis Orodani," to the Commissioner of Lands and the letter dated 12.10.1995, of the Commissioner to Mr Chekana advising that the Commissioner of Lands had agreed to transfer Lot 114 of LR 83/R (which is parcel 192-016-7) and Lot 5 of LR 83/1 (which may be connected), to Mr Chekana, "and his community."

The affidavit of the Acting Commissioner, in particular at paragraphs 3,4,6,7,10 and 11, points to the fact that the Commissioner intended to decide the allocation of Parcel 192-016-7 according to the government policy to return land to the original owners of the original customary land, for settlement or development. The directive from the Minister responsible did not change what the Commissioner had in mind because the Minister made it clear that he based his directive on the policy, he stated it in the preamble of his directive. The directive merely made it unnecessary for the Commissioner to proceed to investigate the claim of Mr Chekana and "the undersigned," to customary right in the land by customary transfer. The Commissioner had stated in his letter dated, 19.6.1995 that he would carry out search to avoid complication……".

At paragraph 3 of his affidavit, the Commissioner deposed that, "the applicants" (the first defendants) submitted application letter dated 24.5.1995 for the land. The letter, exhibit A, actually stated that it was an, "application to acquire title." The reason the first defendants gave was that they had already, "acquired [the land] through customary process," their intention was, "to secure their ownership through the legal formalities." They obviously intended to have the land registered with them as the owners of the perpetual estate and therefrom have the protection available under the Land and Titles Act. The Commissioner took the asserted customary acquisition seriously, he replied in his letter dated, 19.6.1995 that he would, "carry out search to avoid complication…..". The asserted acquisition by customary requirement was restated in the affidavit of Mr Chekana, sworn on 27.1.1997, as evidence in Court. The significance of the letter and affidavit as I see it, is that Mr Chekana had considered that the right of the original owners of the customary land would be important to the Commissioner in deciding to offer the land for registration of title, and further Mr Chekana acknowledged that as between the first defendants and the plaintiffs from whom the first defendants were said to have acquired the land according to customary requirement, the first defendants did not have rival customary right over the land before the said acquisition. The letter and affidavit are also evidence that the policy of the government to return land to the original customary owners was a well known policy. My experience is that it is raised frequently in Court, as the policy to deal with land that has reverted to the Commissioner. The policy has been cited frequently as the policy of even previous governments.

At paragraph 6 of his affidavit, the Commissioner deposed that "the applicants" in a letter dated, 9.11.1995, now exhibit E, gave reasons why the Commissioner should, "transfer the land to them." The letter, was signed by Mr Kelly. It was obviously intended to add to the reason given in the original application letter dated, 24.5.1995, signed by Mr Chekana and to speed up consideration. In the second and third paragraphs Mr Kelly clearly asserted that the most important, if not the only reason for giving the land to the first defendants was that they were the original owners and that there was government policy to return such land to the original owners. I quote the paragraphs:

"I have explained to you verbally in your office this morning in detail the reason why we want the perpetual estate to be returned to Silas Chekana and Eddie Saeni and to other trustees who Silas Chekana may decide to include in the statutory trusts.

Firstly, we are the original owners of the land, and the present Government policy is to return alienated land to the original land owners."

Mr Kelly was in fact demanding that the Commissioner was to "return" the perpetual estate to them. That was not applying for the allocation of the land, based on the fact that since the policy had not been legislated the Commissioner was free to allocate to anyone.

At paragraph 7 of his affidavit, the Commissioner deposed that he acted on the directive of the Minister responsible, Honourable Francis Orodani. The directive was in a letter, dated 7.11.1995, just 2 days after Mr Kelly's letter. The Minister instructed that the consideration for the land be $50,000. That became necessary because the Commissioner had assessed the consideration at $1,300,000. The important point to note in the letter is that the Minister, in the preamble to his directive, cited the policy to return land to the original owners of the original customary land as the basis for his directive. Despite the remission in the directive, I have not seen any evidence of the payment of the $50,000 consideration, apart from reference to it in the Register of Perpetual Estates. Both counsel and Mr Kelly did not submit on the consideration. Fortunately nothing turns on it in the determination because the first defendants are not in possession of the land.

At paragraph 10 of his affidavit, the Commissioner deposed that the policy of the government was, "to return land held by the Commissioner to [the] original land-holding groups or tribes either for settlement or development." He obviously included it in his affidavit to show that it was a policy he was to act upon. He seemed to regard it as something he had to comply with.

If there is still any doubt that the Commissioner had in mind the policy to return land as the most important, if not the only fact to determine his decision to whom he was to allocate Parcel 192-016-7, his letter dated 12.10.1995, exhibit D, addressed to Mr Chekana should dispel the doubt. In the letter, the Commissioner stated that he took the decision based on the "various discussions and directive from [the] Minister." The contents of the discussions are already known, they are those in the letters of Mr Chekana and Mr Kelly on behalf of the first defendants. Both letters stressed the existence of customary right of the first defendants in the land. The directive was of course based on the policy to return land to the original owners of the original customary land before alienation, for settlement or development.

For the reasons I have stated above, I find as facts that the Commissioner had in mind the government policy to return land to the original owners of the original customary land, when he decided to allocate Parcel 192-016-7 to the first defendants. He believed that the first defendants were the original owners of the customary land before alienation or that they had acquired it from the original owners. The Commissioner therefore believed that he was returning the land parcel to the original owners of the original customary land, or at least to those to whom the original owners had transferred their customary right. The Commissioner was mistaken about that fact because according to the facts now before this Court, that is false, although he and may be the Minister, did not know about the falsehood at the time. As between the plaintiffs and the first defendants, the plaintiffs have demonstrated better customary claim. It is not necessary, neither is it proper for me to say at this stage that the plaintiffs have proved conclusively their customary right in the customary land. Further there was a mistake of fact that there had been undisputed acquisition by the first defendants according to customary requirement. The facts from the evidence in this Court show that the plaintiffs deny there has been such an acquisition, there needed to be some materials to persuade the Commissioner and the Minister that the denial of the plaintiffs was baseless. In fact the Commissioner and the Minister were completely unaware of the denial by the plaintiffs. Based on the allocation made by the Commissioner, on mistaken facts, the Registrar registered the first defendants as the owners of the perpetual estate in Parcel 192-016-7.

Order at Paragraph 3 Granted

The evidence is overwhelming that the first defendants are not and have never been in possession of the land whereas there are items of evidence to show that the plaintiffs are and have been in possession and that their ancestors were allowed to squat on the land after alienation. There is also ample evidence to show not only that the first defendants knew about the mistakes of facts, but that they supplied the mistakes. The plaintiffs have proved grounds for cancelling the entry in the Register of Perpetual Estates naming the first defendants as the owners of the perpetual estates in parcel 192-016-7. By authority of s:229 of the Lands and Titles Act, the Court grants prayer at paragraph 3 and orders rectification of the Perpetual Estates Register, by removing the names of the first defendants as the owners of the perpetual estate. The Registrar of Titles is to act accordingly. Although the evidence was about Parcel 192-016-8 as well, the plaintiffs have not asked for specific order about the parcel, may be they considered it unnecessary.

Determination:
(Was there Fraud?)

The plaintiffs' claim for rectification of the Perpetual Estates Register was also based on allegation of fraud. It is not necessary to consider fraud in view of my finding that there have been mistakes of facts, and my order that the register be rectified because of the mistakes of facts, but I shall briefly state my findings and decision on the issue of fraud.

The evidence suggests that the first defendants were deliberately not honest to the Commissioner of Lands when they informed him in the letter of Mr Chekana, of the supposed acquisition of the land by them in accordance with customary requirement, presenting the acquisition as undisputed fact. The Commissioner took the information seriously. He replied that he would, "carry out search to avoid complication….." The first defendants then actively engaged in efforts to get their application considered and granted quickly. One would expect that the first defendants would assist in the inquiry intended by the Commissioner, by producing acknowledgment by the plaintiffs, the transferors, or by taking a representative of the plaintiffs to at least one of the meetings the first defendants had with the Commissioner. Instead they decided to circumvent the Commissioner's inquiry by approaching the Minister for a directive to the Commissioner. In the circumstances of the case, the letters of Mr Chekana and of Mr Kelly were deliberate, intended to cause the Commissioner to believe that the first defendants had customary right in the land, while at the same time the reaction of the plaintiffs would remain concealed from Commissioner. The bold statement of Mr Kelly, in his letter to the Commissioner, that they were the, "original owners of the land" was even a greater falsehood, and it was intended to speed up allocation by the Commissioner. The Commissioner acted on the falsehood presented by Mr Chekana and Mr Kelly when the Commissioner allocated parcel 192-016-7 to the first defendants. The cases of R -v- Customary Land Appeal Court (Western) Ex parte Simi Pitakaka [1985/86] SILR 69 and Barclays Bank Ltd -v- Cole [1966] 3 All ER 948, cited by Mr Ashley, give good illustration of fraud and its consequence. The plaintiffs would succeed in their claim for rectification under s:229 of the Lands and Titles Act, based on fraud.

Declarations and Orders that are Refused

Prayers at paragraphs 1, 2, 4, 5 and 6 have been asked for prematurely. Now that the first defendants are ordered removed from the Register of Perpetual Estates, the plaintiffs may lodge their application to the Commissioner of Lands in the normal course, for the return of the land to them, based on the policy to return land to the original owners of the customary land. The Commissioner may then proceed in the normal way to make inquiries and if satisfied, he may allocate the land to the plaintiffs. From there the plaintiffs may proceed to have the land registered with them as the trustees of the owners of the perpetual estate.

Observations

The letter of Mr Kelly to the Commissioner stated that the first defendants are owed by the government a colossal sum of $266,600,427 for the use of "Komarindi Catchment area," another piece of land around the Lunga River. If that is true, I hope that the first defendants have not got themselves registered as owners of interests in the Komarindi land on the same falsehood as in this case. The sum of over $266.6 million suggests that Komarindi land is a very large land.

The plaintiffs in this case discovered only long after the events, that alienated land that they claim customary right in had been allocated and registered with the first defendants as the owners of the perpetual estate. From the cases we see in Court, such near secret applications are common. The Commissioner's approach to, "carry out search to avoid complication during the acquisition process," is well intentioned. It could be improved upon by advertising publicly any application for allocation of land that has reverted to the Commissioner. Those who have claim can then come forward and are vetted. Those who do not claim customary right, but believe that they have good reason to apply for reverted land can then put their application in with the full knowledge of the claim of those who have customary claim, and may be could find that they have to compensate the claimants of customary right. That would be consistent with s:8 of the Constitution which protects property.

One other matter has always puzzled me. The policy to returned land that has reverted to the Commissioner to the original owners of the original customary land has been a long standing policy, adopted by successive governments, yet no government has seen it necessary to enact it or include it in existing Act such as the Lands and Titles Act. May be some consideration could be given to the matter.

Costs

The Commissioner of Lands and the Registrar of Titles did not oppose the plaintiffs' claim, no order for costs is made against the Commissioner of Lands and the Registrar of Titles. The first defendants alone are to pay costs to the plaintiffs.

Delivered this Wednesday 26th day of April 2000
At the High Court
Honiara
Sam Lungole-Awich
Judge