Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Viva v Kivilisi [2013] SBHC 154; HCSI-CC 101 of 2011 (12 November 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 101 of 2011.

Between:

CHARLES VIVA and CLESTON OTI
Claimants

And:

LAWRENCE KILIVISI, ALRICK JIMURU
And PLIMMER VIVA
First Defendants

And:

ATTORNEY-GENERAL
Second Defendant
(Representing the Registrar of Titles).

Dates of Hearing: 29th July, 2013, 30th July, 2013,
31st July, 2013, 15th August 2013,
2nd September, 2013, 7th October, 2013.

Date of Judgment: 12th November, 2013.

Mr J. Keniapisia for the Claimants.
Mr D. Tigulu for the 1st Defendants.
Mr E. Kii for the 2nd Defendant.

Judgment.

Faukona J: An amended claim in (category c) was filed on 8th August, 2011. The Claimants seek a number of reliefs in a form of declarations. At foremost is a declaratory order rectifying the Land Register of the perpetual estates in PN 122-001-6; 122–001-7; 122-001-8; 122-001-9; 122-001-10; and 122-001-11(6 block altogether) on the ground of mistake, therefore null and void. The six blocks of land comprise approximately 671.31 hectares of land. They are part and partial of kalivarana customary land, viru harbour, New Georgia, Western Province.

Background facts:

2. The Claimants and the 1st Defendants are members of kalivarana tribe which own kalivarana customary land situated at Viru harbour, Western Province.

3. On 24th August, 1994, was an acquisition proceeding to lease the six blocks of land to the Western Provincial Government. The purpose of acquisition proceedings was for a tourist resort development to be undertaken by the Western Provincial Government. At the conclusion, the Acquisition Officer determined that Mr, Laurence Kilivisi and Mr. David Vula to be persons (trustees) who had rights on behalf of the kalivarana tribe to lease the lands to Western Provincial Government.

4. Mr D. Vula, filed an appeal with the Magistrates Court, Gizo against the determination and act of the Acquisition Officer. In 1996, Mr Vula withdrew his appeal after an out-of-Court settlement was made.

5. On 1st June 2005, the Commissioner of lands made a vesting order in relation to 1994 acquisition determination. Upon receipt of the vesting order the Registrar of Titles on 9th November 2005, registered the vesting order in the names of Mr Lawrence Kilivisi and David Vula, as joint owners (refer to as First Registration).

6. On 28th June, 2006, the 1st Defendants lodged an application for change of trustee by way of transfer of titles to the office of the Registrar of Titles. On 8th November, 2006, the Registrar of Titles registered the transfer in the names of the 1st Defendants (refer to as second registration).

7. The Claimants are challenging the two registrations, that they were obtained by mistake or fraud. Alternatively, they were ultra-vires to the 1994 acquisition notice.

8. Emanates from pleadings, it appears there seems to be nothing supporting, or indicate any allegation of fraud in both original and amended claims. Therefore this Court is cautious not to entertain any submission relates to allegation of fraud. I agree with Mr Tigulu that mistake and fraud has distinct grounds for rectification of register and ought to be pleaded and particularise separately, or in the alternative. No pleading was done inclusive of fraud except for mistake.

Mistake in dealing with land by Commissioner and Registrar:

9. Section 229 (1) of the Land and Titles Act vested on the High Court power to order rectification of the title by directing the registration be cancelled or amended, if the Court is satisfied that the registration was obtained, made or omitted by mistake. By subsection (2) registration cannot be rectified to affect the owner who is in possession and had acquired interest for valuable consideration unless the owner has knowledge of, caused such omission or mistake, or substantially contributed to it by his act.

10. In the case of Iodanis V AG and other[1] the Court define mistake by adopting definition quoted from on Australia case authority which stated;

"Mistake not only signifies a positive belief in the existence of something which does not exist but also may include sheer ignorance of something relevant to the transaction in hand".

11. In the case of Hwang Shu Fen and Others V National Bank of Solomon Islands[2] His Lordship Chetwynd J explain the duty of the Registrar of Titles and said;

"I cannot see that the Registrar has any duty other than to consider and deal with such paperwork as is presented to him. He was entitled to accept the documents on their face value. The duty of the Registrar is to register the documents. That duty include checking the documents have been duly being completed, in the sense that he is bound to check they been completed in accordance with the requirements of various Acts. As a matter of law, it not part of his duty to go behind the document presented and to make all manner of additional enquiries".

That passage was approved by the Court of Appeal in Iodanis case which stated on paragraph 14;

"We agree with those comments. Chetwynd J was correct in his view of the duties placed on the Registrar. It would be unreasonable to expect him to check on the provenance and authenticity of every document with which he is presented before he can register it. If the document is genuine on its face especially if it is an official document and there is no other reason to suspect its authenticity there is no reason why he should be expected to make further investigation. However, that does not mean that, where a challenge has been made or there is apparent ground for suspicion, his duty allows him to ignore it"

12. What the Court of Appeal was sayings is that the Registrar can make further investigation where there is challenge and suspicion in his duty.

13. The case of Maukera V AG[3], Martin Saefafia and Martin Haikau was an illustration and reinforcement of what the Court of Appeal stated above. On page 3, paragraph 3 His Lordship Palmer J, as he was, stated pointing out to the Commissioner;

"He ought to have exercised due diligence and care and refrained from entering into any transaction that could unnecessarily expose the Government to unnecessarily liability. That unfortunate has happened in this case. No sense of care, concern and responsibility had been exercised in the way the Consent Grant and Transfers had been executed on 18th October 2002, 12th November, 2002 and 18th November 2002, respectively".

To the Registrar His Lordship state on page 4, paragraph 2;

"The discrepancies (errors) stand out like a sore thumb and should have been detected by the Registrar. Nowhere in a normal Registrar of Titles Office would such an application have been allowed to proceed through. It would have been reflected outright. Amazingly the Registrar failed to detect the glaring discrepancies/errors in the date of presentation (13th November, 2002) as uncontrasted with the purported date of Re-Entry (18th November, 2002) and the date of Grant instrument (12th November 2002). Had the Registrar exercised due diligence in checking those documents lodged for registration in that application she would not have failed to notice the glaring discrepancy in the date of Grant and the date of Re-Entry. Her actions or lack of it have contributed to the whole fiasco."

On page 4, paragraph 4 His Lordship further stated by combining the discrepancies made by the Commissioner and the Registrar.

"On 19th November 2002, a further application for transfer of the fixed term estate from Martin Saefafia to Martin Saefafia and Martin Haikau was lodged with the Registrar. Again the Registrar failed to pick up a discrepancy in the Consent instrument lodged with the transfer document. The Consent instrument was issued on 18th October 2002, when the Commissioner was yet to repossess the property. That Consent therefore was a valueless document. How could the Commissioner consent to the transfer of the fixed-term estate in the property when the titles were still vested with the plaintiff? This discrepancy should have alerted the Registrar that something has not right. She again failed or deliberately overlooked the discrepancy and proceeded with registration of the grant and transfer in favour of the Second Defendants".

14. On the overall, the duties vested on the Commissioner and the Registrar is not absolute in the manner as Chetwynd J described as static and inflexible. But the Court of Appeal had drawn a line, and vigorously elaborated by Palmer J, as he was, that is the law, the duty of the Commissioner and the Registrar in dealing with land is well defined.

The "Wishes" of the Commissioner and Provincial Assembly as expressed in S.61 (1) and (2) of the Land and Titles Act:

15. Though the word "wishes" is simple in English grammar and commonly use, however, it is not simple when use in legal term. Mr Tigulu relies on the Oxford Dictionary which define "wish" to mean "have or express desire or aspiration for, want or want (person) to do; request"... It is a subjective word which personalises a decision making process to a particular case either by the Commissioner of Lands or the Provincial Assembly.

16. In the case of Rodney Hiva V Ivin Mindu[4] the Court Appeal stated on pages 6, paragraph 2, another meaning of the, word "wishes";

"Part V provides for what is to happen where the Commissioner "wishes" to purchase or take a lease of customary land: see S.61 and S.62 (b). It does not extend to the acquisition of a mere right in the nature of mere profit as defined in the Act or at common law. Attempting to use Part V procedure to acquire, or as a means to acquiring, such a right is beyond the terms of the status and therefore invalid. It may well be correct to say that in fact there never was, within the meaning of S.61 (1), a "wish" on the part of the Commissioner is an ordinary English word, and it is not necessary here to encumber it with undue refinements of meaning. The fact is that the acquisition process that was undertaken here was not directed to purchasing or leasing the subject land, but to acquiring only a "profit" in respect of it. As such, it was and is outside the scope of Part V of the Act and is invalid".

17. The above authority sparingly confine the term "wishes" use in S.61 (1) and (2) to mean wishes to purchase customary land or to take a lease. Any further activity falling within wishes by those two institutions outside of the scope of the Act is invalid.

Acquisition process:

18. I take cognisance of Mr Tigulu's submissions that I will in uttermost attempt avoid presiding over an appeal from the Magistrates Court or a claim for judicial review of the Acquisition Officer's determination and action, which time for it had long been gone. This case is a claim purely premises on the allegation of mistake alleged to have occurred at the time of the registration following the submission of the vesting order and the registration of the transfer of the title in six blocks of lands in the names of the 1st Defendants.

19. Any customary land may be sold or leased to the Commissioner or any Provincial Assembly in accordance with Part V of the Lands and Titles Act. In this case, the Western Provincial Assembly wishes pursuant to S.61 (b) to venture into tourist development as the prime purpose for acquisition process. An Acquisition Officer was appointed under S.61 (a) of the Land and Titles Act to act as its agent in the process. By S. 62 (b) that Officer is to make a written agreement for lease of the lands with persons purporting to be owners of the customary lands or who were authorised to represent the owners. When all the requirements have been fulfilled, by S.67 the Commissioner may (not must) implement the agreement.

20. How is the agreement implemented? S.68 provides where Acquisition Officer, or the Court on appeal, has determined the same persons written in the purported lease agreement signed on 20th July, 1994, then by S.68 (1)( (a) the Commissioner may implement the purported lease agreement under S.62 (b). Where the Acquisition officer or the Court on appeal determines persons different from the names mentioned in the purported lease agreement, the Commissioner by virtue of S. 68 (1) (b) may rescind the agreement and may enter into a fresh agreement with those persons determined by the Acquisition Officer or the Court, who have the right to lease the land and receive the rent. If the Commissioner decides to implement the purported lease agreement without rescinding it, then there is no need for a fresh agreement and names of those appeared in the purported lease agreement is registered as perpetual estate owners. In this case, the registered title holders are Mr Kilivisi and Mr Vula, as joint owners different from the names appeared in the purported lease agreement. Thus prompted, though early, to ask whether the registration was done by mistake, or was the Commissioner failed in his utmost duty to rescind the purported lease agreement and made a fresh one as required by S.68 (2).

21. Additionally S.69 (1) emphasizes that an agreement for the purposes of sections 67 and 68 shall be implemented. Subsection 1 (d) states, where the Provincial Assembly has interest, the Commissioner must do four things;

1. Making an order vesting the perpetual estate in the land in the persons named in the agreement as lessors;

2. Requiring the person so named to execute a lease in favour of the Provincial Assembly in accordance with the terms of the agreement;

3. Paying to such persons after receiving the same from the Provincial Assembly any premium or initial payment of rent payable in accordance with the terms of the agreement; and

4. Allowing the Provincial Assembly to take possession of the land.

22. Eventually a vesting order dated 1st June 2005, received from the Commissioner under section 69. After preparation of the registry map, the Registrar then compiled the registers in respect of the perpetual estate in the lands. Subsequent to that order, Lawrence Kilivisi and David Vula were registered as joint owners in perpetual estate of the six parcel numbers currently the subject of this case, on 9th November, 2005.

23. Apart from public notice of 20th July, 1994, there is no evidence that the Commissioner of Lands had rescinded the purported lease agreement in accordance to the determination by the Acquisition officer required by S.68 (1) (b). There is also no evidence that the Commissioner of Lands had entered into a fresh agreement with Kilivisi and Vula who had been found by the Acquisition officer under S. 68 (2). None of those mentioned in paragraphs (ii) – (iv) of S.69 (1) (d) had been fulfilled in this case. All that the Commissioner did was submitting a vesting order to the Registrar and no more. In present instance, no lease was ever executed; the duration of any lease was not agreed or fixed; neither was the amount of rent or premium to be paid, nor possession was taken by Western Provincial Assembly. With that result, nothing more than interesse termini could have been acquired at common law. There is therefore good reason to suppose that, the parties have long since tacitly abandoned any agreement for lease that may have been made. Plainly, the statutory requirements prescribed in S.69 (1) (d) have never been complied with or completed.

24. It is a pre-requisite under the provisions that an agreement be signed with the lessors (Laurence Kilivisi and David Vula) after the Commissioner had submitted the vesting order in their names for the purpose of leasing the six lands to the Western Provincial Assembly. In normal processes, after receiving the vesting order, the Registrar will register the lands, given their parcel numbers, and registered the perpetual estate in the names of Kilivisi and Vula as joint owners.

25. After receipt of the first registration, the Commissioner would have drawn a lease agreement to be signed by the trustees and the Western Provincial Assembly and then forwarded to the Registrar to be registered. Nothing was done in this case. A registrar exercising due diligence in checking the documents lodged for registration could have noticed the discrepancy. Instead, he registered the perpetual estate title in the lands in the names of the two trustees, on 8th march, 2005. That action or lack of it contributed to the whole fiasco. Until that happens the two determined trustees are not qualified to be registered as perpetual estate owners. The missing important instrument which upholds the purpose of acquisition process was incomplete. On this point alone the Commissioner of Lands had committed on error and the Registrar would have noticed and furnished further inquiries why no lease agreement was furnished for registration. Therefore the registration that was done on 8th March, 2005, was made in error and mistake, whether in ignorance or deliberate or in fulfilment of some other agenda. In its entirely, the Defendants cannot rely on the lease agreement dated 20th July, 1994, because it was merely a purported one for the purposes of acquisition process, and not the final one.

26. In another incident, at the time being 9th November, 2005, when the lands were registered in the names of Kilivisi and Vula, was established by undisputed evidence that Vula had already died in 2001. This is confirmed by defence witness Plimmer Viva in his oral evidence that his group had knowledge of Chief Vula's death.

27. Impropriety as it was, the vesting order was submitted to the Registrar on 1st June, 2005, three years and nine months after Vula had died. Despite Vula's death he was registered with Kilivisi as joint owners of the perpetual estate title. The question ought to pause, why a non-living human be registered as an estate owner? Why should it be one of the rarest occasions? I noted Mr Kilivisi was anxious to have the lands registered. He checked with the Lands Officer in Gizo twice in 1996 concerning the appeal. See letters by Mr Kotomae dated 20th August, 1996 and 29th October, 1996 attached to sworn statement of Charles Viva filed on 23rd March, 2011. Again, Mr Kilivisi consulted the Commissioner of lands in 1999, according to the oral evidence by Plimmer Viva. In 2003, Mr Kilivisi and Plimmer Viva consulted the Commissioner again; the conversation seemed to focus on a certificate of no appeal.

28. What expectedly could have transpired in 2003 that both Kilivisi and Plimmer could have rightly informed the Commissioner of Vula's death before the vesting order was submitted on 1st June, 2005. As it were, whilst pursuing the process for first registration both men have knowledge of this important fact. Did they forget to inform the Commissioner, or were they deliberately concealed from the Commissioner and the Registrar. This is an important fact and should not be concealed because dead body cannot own a property, only a living person can. Important still, after the vesting order registration of perpetual estate was done in the names of lessors. Lessors are living persons who have granted the lease or their successors in title.

29. What apparently occurred and appeared in the vesting order, followed by registration of Kilivisi and the deceased Vula was well versed with by 1st and 3rd named Defendants. Therefore it could be out of reasonable logic to sustain an idea of having a deceased person registered as an estate owner. If one would argue otherwise, then of course insanity has made its toll with all its negativity. The only reasonable conclusion to draw is that a real mistake had been committed. To say the least is a lenient approach, however, the actions of those involved were perceived as gross mistake.

The purpose of acquisition process:

30. The purpose of the acquisition process advocated in the purported lease agreement dated 20th July, 1994, was for the Western Province assembly to engage in tourist resort development. It becomes apparently clear that the resort development be undertaken by the 1st Defendants from funds made available through the Western Provincial Assembly. On the outset, it is not a bad idea at all. However, it ought to be recognized as necessity that the acquisition process should have fulfilled the prescribed purposes result in a lease vesting the lands in the Provincial Assembly. In this case, neither the purpose expressed in the acquisition process, nor the intended outcome was within the framework of the acquisition process. See Hiva V Mindu.

31. In this case there is undisputed evidence that after the registration of the perpetual estate in six parcel numbers, in the names of Kilivisi and Vula, Mr Kilivisi had made a grant of profit in the lands to an incorporated entity Kalivarana Forest, a business entrepreneur of which Mr Kilivisi was a proprietor along with the rest of the 1st Defendants.

32. Being indulged in business activities after the registration, the purpose of acquisition process to lease to the Western Provincial Assembly had never been executed. The question whether to achieve the purpose the acquisition process meant for, or is it an orchestrated misrepresentation to serve Mr Kilivisi and his followers for their own benefit. It would appear that evidence seems to support the latter. Furthermore, I find comfort in the letter by Chief Lands Officer (Western) Mr Peter Taisira dated 9th June 1999 exhibit CV 5 attached to Charles Viva sworn statement filed in 23rd March, 2013. The letter clearly expressed in the last paragraph that there are no records on file to clearly show whatever the purpose the acquisition was for and also the effect of the appeal and the declaration of the out of Court settlement. The letter seems to support Mr Viva's contention that the Western Provincial Assembly had never interested in leasing the lands at all.

33. It is for those reasons that the process was flawed ab initio, in that it was for a purpose outside the acquisition process. The rationale was succumbed by personal gain confine to certain people only and not for the benefit of the whole entire tribe. This boils down to the exceptional or qualification imposed by S.229 (2) which has no application because any interest in the land by Kilivisi and Vula was not acquired for valuable consideration, therefore, ultra vires statutory authority. Furthermore there can be no doubt an anomaly had protruded jeopardising the motive of the acquisition process.

Has the 1st Defendants knowledge of mistake or omission?:

34. The first point to note is that the determination by the Acquisition Officer may not be contemplated by the 1st Defendant's intention. Such indeed had diverted the entire threshold of their prospect. If there should be any grievance, however trivial, had reflected by their action in due course. Secondly, Mr Kilivisi was well versed that Western Provincial Assembly was a major player in this case in terms of lease agreement. The fact that it had not emerged in any stages of the process was subject to speculation. Thirdly, Mr Kilivisi is someone who keen to advance his interest. He did make regular consultations with the lands officer in Gizo and with the Commissioner of Lands.

35. With that background, Mr Kilivisi was fully aware that at the time of registration there was no intention on his part to lease the lands to Western Provincial Assembly. Evidence by letter from Chief Lands Officer in Gizo and the grant of profit he made and assigned to a Company he was a proprietor to log and extract timber, is a clear affirmation that Mr Kilivisi had a clear adverse motive from that of the acquisition process. When he failed to execute a lease agreement with Provincial Assembly was indeed the fruit of his harvest. He cannot excuse that he played no part in it, and perhaps push aside that it was the process of which the Commissioner and the Registrar were responsible for under their assignments. He should have picked up the omission, the fact he did not is immaterial, he had knowledge of the mistake or omission and had substantially contributed to it by his act.

36. The same cavalier attitude reflected earlier. Mr Kilivisi and Mr Plimmer Viva knew in 2003 when they consulted with Commissioner of Lands that the registration was yet to be done. At that time, they had full knowledge of David Vula's death in 2001. They concealed it and failed to inform the Commissioner of Lands. As a result the vesting order was submitted in 2005 for registration of the two trustees, one of whom Mr Vula had already died. Had they been; something could have been done earlier rather than registering a deceased person as a title holder. This attitude reflected further in later course of time when replacement for the deceased trustee is to be identified followed by transfer and lease of the estate. It appears from materials that the prospective candidate to replace the deceased was his son Delenty Vula. That choice was not conceded instead the named 1st Defendants. At the time of trial there is evidence that Dilenty Vula will be included, why now, why not given a thought immediately after his father died twelve years ago.

37. The events that unfolded in this case emerged from a kind of discernment and dominance to promote self-service type of leadership. The Defendants in particular Mr Kilvisi knew such mistakes or omission, caused them or substantially contributed to it. A reasonable and diligent Commissioner and the Registrar could have picked the discrepancy and inquire or cause further inquiries why there was no lease agreement registered following the vesting order. Yet registration was proceeded with, turning a blind eye to the blatant omission and mistake by the Commissioner. They are inexcusable.

38. I find to my full satisfaction that the first registration obtained in this case was omitted by mistake and therefore should be null and void.

2nd Registration:

39. The Second registration was done when the transfer instrument was executed to transfer the perpetual titles in the 6 blocks of land in the names of the 1st Defendants. This was seen necessary because one of the original trustees Mr Vula had died in 2001. In ascertaining whether the registration was obtained by omission or mistake consideration must be had on the entire circumstances surrounding the registration and not on one incident or issue alone.

40. On the outset, it would be mined bogging in an attempt to consider all the necessary facts. Suffice to say that the second registration cannot be considered in isolation from the first registration. The second registration could not be effectual without the valid existence of the first registration. In other words, the second registration was a follow on from the first. In this case, I find that the first registration was obtained by omission and mistake. Any transfer from the first registration to the second registration carries with it the mistake as a living phenomenon. Therefore any logical thinking person would concluded that the second registration also obtained by automatic mistake.

41. The only issue is whether the 1st Defendants have knowledge, or knowingly contributed to the mistake. The 1st Defendants deny, and adduced they were merely acting in good faith on advice by the commissioner. Contrary to that, were facts which clearly stated that two weeks after the first registration on 9th November, 2005, the 1st Defendants consulted the Commissioner on 25th November, 2005, to enquire how to withdraw the name of the deceased trustee (Mr Vula) appearing in the first registration. This showed they knew Vula was deceased by 2005, even before the first registration. Their hastening reaction showed there was some kind of an expectation to remove Vula's name from the registration and replaced with their own names. Having done so they executed a grant of profit to a company, which Mr Kilivisi was the proprietor. Is it not a self-service motive which arose in a spur of a moment, or is it a well-planned discernment to pave way for their own gain and dominance?

42. Having concluded, it is not necessary to encompass the rest of the issues contended in the second registration, in particular concerning documents lodged, their contents, a report of collective decision as to replacement and whether they fulfilled the requirements of the Act. However, I noted an anomaly in the declaration, which stated, the 1st Defendants were joint owners of the perpetual estate in the six parcel numbers on 19th May 2006. At the time, the transfer documents were yet to be executed and those properties were still registered in the names of Kilivisi and Vula.

43. The argument by the 2nd Defendant is that the declarations belong to the transferees who were yet to be registered. Counsel for AG admits that information per se is just an error, which would not provide a hint to arouse the Registrar suspect that something drastic had gone wrong so that he would inquire beyond the documents lodged before him for registration. At the same time, there was no apparent ground for suspicion.

44. I have outlined the duty of the registrar and there is no urgent need for me to re-emphasize again, enough to say that I am satisfied on the evidence that the 1st Defendants had knowledge of the mistake from the first to the second one and had substantially contributed to it. Equally, the second registration should in all aspect and respect is invalid.

Rectification-Cancellation or amendment:

45. Section 229(1) vested the power in the High Court to order rectification of the land register where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. Subsection(2) provides exception that land register cannot be rectified to affect the title of the owner who is a bona fide purchase for valuable consideration and in possession, unless the owner had knowledge of the omission, fraud or mistake or caused it or substantially contributed to it by his act. See Maukera V Malaita Development authority and Walter Billy V Daokalia.

46. It can be argued that errors or mistake is limited to those occasioned by the Commissioner and the Registrar and not someone else. That in itself is a logic view, however, the case of Hiva V Mindu the Court of Appeal stated that, "although power to order rectification of the register is not one that should be widely construed, there is no doubt that it is exercisable in the circumstances disclosed here".

47. The Court of Appeal further elaborated on a wider perspection in application that any error, mistake or fraud, occasion by someone and links with the registration process is subject to rectification by the High Court.

48. The Court of Appeal further pronounce on page 6, paragraph 2 that, "the qualification or exception imposed by subsection (2) has no application because any interest in the land acquired by the appellants was not acquired by them for valuable consideration".

49. In my respectable view, it would mean that if the 1st Defendant made mistake out of ignorance in regards to the purpose of acquisition process, which led to registration that can be rectified by an order of this Court. Similarly, if the mistake or error was committed by the Commissioner or the Registrar in accomplishing the registration, the 1st Defendants cannot be protected under S.229 (2) as being not aware of it, caused or substantially contributed to it, because they did not acquire the interest in the lands for valuable consideration. In other words, if it can be established that the mistake had been occasioned whether the 1st Defendants aware of it or participate in it is immaterial, the register can be rectified accordingly.

50. Mr Tigulu submits that there are mistakes in form and not in substance, more so with errors made out of ignorance than intentional. Simply a result of lack of proper understanding of the relevant provision of Act.

51. The tone of such submission is to legally urge this Court that the mistakes or errors are trivial and are curable by way of amendment. I do not think so. Mistakes or errors compounded in this judgment have grave impact on the registration of the original trustees and subsequent to 1st Defendants on transfer. Firstly, how can a deceased person is registered as being holder of perpetual estate title, having aware of it, despite consultation with the commissioner prior to submission of the vesting order. Secondly, why should a purported lease agreement persistently rely on as valid when in fact the Acquisition officer had already determined the persons indifferent from the purported lease agreement? This boils down to the very purpose of the acquisition process, which by material evidence has never complied with or completed in whole of acquisition process. The Western Provincial Assembly had no intention to lease the lands for the purpose alleged in the purported lease instrument. Are those errors or mistake, which was occasion curable by amendment? I do not think so the mistakes are error of law and rectification by way of cancellation is the only proper conclusion in the circumstance disclose here. I therefore grant all the remedies the Claimants sought.

Orders:

1. Grant order declaring that the registration by the Registrar of Titles in the land register of the perpetual estate in Parcel No. 122-001-6 (land) in the names of Lawrence Kilivisi and David Vula on 8th August 2005, has obtained by mistake and is null and void.

2. Grant order declaring that the subsequent registration by the Registrar of Titles in the land register of the perpetual estate in parcel No. 122-001-6 in the names of Lawrence Kilivisi, Alrick Jimuru and Plimmer Viva on 28th June 2006, is null and void.

3. Grant Order declaring that the registration by the Registrar of Titles in the land register of the perpetual estate in Parcel No. 122-001-6 in the names of Lawrence Kilivisi Alick Jimura and Plimmer Viva on 8th June 2006, was obtained by mistake and is null and void.

4. Grant order declaring that the registration by the Registrar of titles in the land register of perpetual estate in Parcel Nos. 122-001-6, 122-001-7, 122-001-8, 122-001-9, 122-001-10 and 122-001-11 (properties) in the names of the three above named persons in 2005/2006 is void ab initio and /or ultra-vires.

5. Grant order declaring that the registration as described in paragraph 4 above was made outside of the acquisition process prescribed by the statutory regime in Part V of the said Act, and ought to be rectified pursuant to section 229(1) of the Lands and Titles Act (Cap 133).

6. Grant order that the grant of profit purportedly made by the 1st Defendants to themselves, trading as Kalivarana Forest, on or about 22nd May, 2006 in null and void.

7. Grant order that the Registrar of Titles forthwith rectify the land and/or properties register by cancelling the registration of the perpetual estate in Parcel no. 122-001-6 and/or properties.

8. Grant order that the 1st Defendants account for any monetary benefit that the 1st Defendants have acquired when they granted profit in favour of Kalivarana Forest in 2006 from the land and/or properties.

9. That the 1st and 2nd Defendants pay costs of the Claimants.

The Court.

^[1] High Court Civil Case No. 408 of 2009.
^[2] High Court Civil Case No. 348 of 208, 5 May 2011.
^[3] (2003) HCSI – CC No. 14 of 2003 (19 September 2003).
^[4] (2007) CAC, CMC No. 13 of 2008 (23 July 2009).