IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

DEROL ILABAE, BEVERLY TALO and KENDALL ANIPOENI (representing the Lonely Hill Community)
Claimants.

AND:

DOUGLAS SIFONI
1st Defendant.

AND:

ATTORNEY GENERAL (representing the Registrar of Titles)
2nd Defendant.

M. Tagini for the claimants.
W. Rano for the 1st and 2nd Defendants.
S. Banuve for the 3rd Defendant.

Date of hearing: 28 and 29 August and 10 September 2014.
Date of judgment: 29 September 2014.

JUDGMENT

Apaniai PJ

Introduction.

1.	This claim is about the ownership of PN 192-004-66 ("Land") which is situated at the Henderson area on the eastern outskirts of Honiara. The Land is popularly known as Lonely Hill. The residents living on the Land call themselves the Lonely Hill Community ("Community"). The total area of the Land is 5 hectares. It was originally owned by Levers Solomons Limited ("LSL") but was bought (allegedly by the Community) and registered in the name of Sipae Sifoni ("late Sipae") on 26 October 1993. The purchase price was $30,000.00.

2.	The Land became registered in the name of Douglas Sifoni ("1st defendant") on 6 August 2002. The 1st defendant is the son of the late Sipae. The Land was transferred to the 1st defendant through transmission and transfer documents signed by Irene Vaukei who was at that time holding the posts of Registrar of Titles and Public Trustee.

3.	In or about 2009, the 1st defendant had subdivided the Land into 13 plots of land. These are PN 192-004-516, PN 192-004-517, PN 192-004-518, PN 192-004-519, PN 192-004-520, PN 192-004-521, PN 192-004-522, PN 192-004-523, PN 192-004-524, PN 192-004-525, PN 192-004-526, PN 192-004-527 and PN 192-004-528. These new parcel numbers have now superseded PN 192-004-66.

4.	After subdivision, he then sold 10 plots, namely, PN 192-004-516, PN 192-004-517, PN 192-004-518, PN 192-004-519, PN 192-004-520, PN 192-004-521, PN 192-004-522, PN 192-004-523, PN 192-004-525 and PN 192-004-526, to various outside persons. So the parcel numbers which now remain registered in the 1st defendant's name are PN 192-004-524, PN 192-004-527 and PN 192-004-528.

5.	The claimants allege that the total proceeds received by the 1st defendant for the sale of the 10 plots were $1,200,000.00. The 1st defendant does not deny subdividing the Land and selling 10 plots. However, he says that the total proceeds he had received was $550,000.00 and not $1,200,000.00. He says that he had used the $550,000.00 to build his residence at Lonely Hill.

6.	It appears that the subdivision of the Land and the sale of the 10 plots by the 1st defendant were the factors which led to the lodging of this proceeding. In their claim, the claimants, representing what they claim to be the 16 families of the Community, allege that the Land was bought by the families and was registered in the late Sipae's name as trustee for the Community. They claim that the 1st defendant is not entitled to subdivide the Land or sell the newly subdivided plots of land. They seek an order, amongst others, to rectify the land register by removing the name of the 1st defendant as owner of PN 192-004-524, PN 192-004-527 and PN 192-004-528 and an account of the proceeds of the sale of the 10 plots. Rectification is being sought on the grounds that the registration of the Land in the name of the 1st defendant was done by mistake and fraud.

7.	The 1st defendant has denied the claim. He alleges that the Land was owned by his father, the late Sipae, and therefore the transfer, and subsequent registration, of the Land in his name were proper. In addition, the 1st defendant has also raised, by way of defence, that the claim is statute-barred by virtue of the Limitation Act (Cap. 18) and should be dismissed. 
Issues.

8.	The issues in this proceeding can be summarised as follows: first, whether the Land was held by the late Sipae in trust for the Community. If the court finds that the Land was not held in trust for the Community, then the claim must be dismissed.

9.	If the court finds that the Land was held in trust for the Community, then the second issue is whether the claim is statute-barred. If the court finds that the claim is statute-barred, then the claim must be dismissed.

10.	If the court finds that the claim is not statute-barred, then the third issue is whether the registration of the Land in the name of the 1st defendant was done by mistake or fraud. If the court finds that no mistake or fraud was committed, then the case must be dismissed.

11.	If the court finds that the registration was done by mistake or fraud, then the fourth issue is whether the 1st defendant had knowledge of the mistake or the fraud or caused the mistake or fraud or substantially contributed to the mistake or fraud by his act, neglect or default.

12.	If the court finds that the 1st defendant had no knowledge of the mistake or the fraud or had not caused the mistake or the fraud or had not substantially contributed to the mistake or the fraud, then the claim must be dismissed. Otherwise, the claim will succeed and the orders sought in the claim will be granted.

Whether the Land was held by the late Sipae in trust for the Community.
13.	In Beatty v Guggenheim ("Beatty"), Cardozo, CJ, said:

"When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee."

14.	In other words, the circumstances have created a constructive trust whereby the holder of the legal title has become a trustee for the beneficiaries of the property.

15.	In the present case, I am satisfied the principle in Beatty applies. I am satisfied that the circumstances in which the Land came to be registered in the name of the late Sipae have given rise to a constructive trust and that the late Sipae had held the Land upon constructive trust for the families living at Lonely Hill. 

16.	It is clear from the evidence that when the Land was bought in 1993, there were 16 families residing on the Land. It is clear that these families have settled on the Land because of their relationship with the late Sipae who was then a senior employee of LSL.

17.	Apart from the families of the late Sipae and the 1st defendant, the rest of the families are Sutcliffe Ilabae & family, Albert Anipoeni Noda & family, Pr. Alfred Talo & family, Jennifer Sifoni & kids, Sipae Anisitolo & family, Leslie Kereka & family, Andrew Saeni & family, Edward Anisitolo & family, Simeon Inomae & family, Derold Ilabae & family, Lency Sifoni & family, Stephen Anisitolo & family, Rowoana Sifoni & family, and, Tafega Molea & family.

18.	The evidence shows that these families are closely related to the late Sipae. For instance, the first-named claimant is the nephew of the late Sipae and first cousin of the 1st defendant. Furthermore, the second-named claimant, Beverly Talo, is the daughter of the late Sipae and sister of the 1st defendant. Also, the 3rd named claimant, Randall Anifoeni, is the late Sipae's granny and nephew of the 1st defendant. Another witness for the claimants in this case is Andrew Saeni. He is a son-in-law of the late Sipae and brother-in-law of the 1st defendant. These are all members of the Lonely Hill Community. The rest of the members of the Community are also closely related to the late Sipae either by blood or through marriage.

19.	The evidence also shows that the families have contributed money towards the purchase of the Land. Beverly Talo, in her sworn statement also filed on 27 May 2010, says that at a meeting held in 1993 the Community agreed that each of the 16 families should contribute $2,000.00 towards the $30,000.00 purchase price. She says that as a result she contributed $1,824.95. She exhibited a list of the names of all the families who have contributed and the balance yet to be paid by the families. Similarly, in his sworn statement filed on 27 May 2010, Derol Ilabae also says that he contributed $1,200.00 towards the purchase of the Land. Andrew Saeni also says in his sworn statement filed on 20 September 2011 that his family had contributed $1,169.50 towards the $30,000.00 purchase price.

20.	The evidence shows that back in the 1970s, the Community came up with the idea to buy the Land for their settlement. Andrew Saeni then discussed with the late Sipae and, on instructions from the late Sipae, wrote a letter on 23 March 1970, under the late Sipae's name, addressed to the Managing Director of LSL (Mr. Joe Walton) requesting the purchase of the Land for their families. Mr. Saeni says that he wrote the letter during his discussions with the late Sipae and that their understanding was that the request was on behalf of the families who had come to settle with the late Sipae at Lonely Hill. The late Sipae was a long time worker of LSL so it was thought that the application would have more chance of success if the late Sipae were to be named as the applicant. Mr. Saeni says he also signed the letter on behalf of the late Sipae. The letter indicated the area wanted to be 5 or 6 hectares.

21.	The evidence shows that nothing seems to have been done by LSL about the application until 30 March 1992 when the new Managing Director of LSL (Mr. David Friend) wrote to the Commissioner of Lands ("Commissioner") requesting the Commissioner's consent for the sale of the Land to the Sipae family who had been living on the Land. In that letter, LSL indicated that it was offering 5 hectares to the late Sipae and his family at $6,000.00 per hectare. This means the total purchase price for the Land would be $30,000.00. The letter by LSL was copied to the Sipae family.

22.	The evidence also shows that sometime in 1993, the Community met and agreed to raise $2,000.00 each family to purchase the Land. In the evening of 3 August 1993, the Community had a meeting and were informed that the $30,000.00 purchase price for the Land was finally secured. This meeting was held approximately 14 months after Mr. David Friend's letter to the Commissioner. At that meeting, the members of the Community attending were informed that payments for the Land were made in three tranches, the first tranche being $3,000.00, the second tranche $15,000.00 and that the final tranche was made with a $12,000.00 loan. In fact the receipt by LSL shows that the purchase price was paid in two tranches only, the first tranche being $3,000.00 and the second being $27,000.00.

23.	The evidence shows that on 5 August 1993, the purchase price of $30,000.00 was paid to LSL. Subsequently, the Land was registered in the name of the late Sipae on 26 October 1993. These facts show that the Land was bought with money contributed by the Community.

24.	Neither the 1st defendant nor any of his witnesses have disputed the contributions made by the families. In fact, the 1st defendant has admitted under cross examination that the Community had contributed towards the purchase price of the Land in 1993.

25.	I am therefore satisfied the late Sipae held the legal title to the Land upon constructive trust for himself and his family and the Lonely Hill Community in shares proportionate to their respective contributions towards the purchase price of the Land.

Whether the claim is statute-barred.
26.	The next issue is whether the claim is statute-barred. The assertion that the claim is statute-barred is contained in paragraph 16(a) of the 1st defendant's defence. The defence says that the transfer to the late Sipae was made by a transfer instrument dated 22 October 1996, therefore, the claim is statute-barred on the ground that it exceeds 12 years.

27.	Although the defence did not say so, it is clear that the 1st defendant, in raising that defence, is relying on section 9(2) of the Limitation Act (Cap. 18) which provides: 

"No action shall be brought nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him...".

28.	The basic requirement of that provision is that all actions for the recovery of land, or of any interest in land, must be brought within 12 years from the time the cause of action accrued. If no action is brought within that period, the registered owner of the land forfeits not only his right of action but also his title to the land.

29.	The barring of the claim and the extinction of the title is said to be for reasons of public policy. That policy was expressed by Sir Thomas Plumer, M.R. in Marguis Cholmondeley v Lord Clinton ("Marguis") as follows:

"The public have a great interest, in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period after which the possessor may know that his title and right cannot be called into question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead and, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept on his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which, the plans in life, habits and experiences of himself and his family may have been unalterably formed and established."

30.	However, the question in this proceeding is when did the cause of action accrue? Section 17 of the Limitation Act provides that a cause of action shall be deemed to accrue on the date on which the right to relief sought by the action first arises.

31.	What then is the date on which the right to relief sought in this claim first arose? This is a claim, which seeks rectification of the register by removing the name of the 1st defendant as registered owner of the Land. Hence, in my view, the right of relief first arose on the date when the 1st defendant became registered as the owner of the Land. That date is 6 August 2002. This claim was filed on 27 May 2010, which is less than 12 years from 6 August 2002. Accordingly, the claim is not statute-barred. That defence fails. 

Whether the Land was registered in the name of the 1st defendant by mistake.

32.	In his sworn statement filed on 7 September 2011, the 1st defendant said that in August 2002 he saw Mrs. Irene Vaukei ("Irene") at the office of the Registrar General ("Registrar") and showed Irene a copy of the statutory declaration. That statutory declaration is marked as exhibit "DS2" to his sworn statement filed on 7 September 2011. In that sworn statement, the late Sipae had declared that upon his (Sipae's) death, the Land shall be transferred to the 1st defendant. The declaration continued by saying that the 1st defendant would be the owner of the Land and would have the responsibility for all matters arising in respect of the Land. The declaration was purportedly signed by the late Sipae on the 18 November 1996 before Timothy Kwaimani as commissioner for oaths. In his evidence in court, Mr. Kwaimani said that after signing the declaration, the late Sipae asked him to give the declaration to the 1st defendant but he was only able to do so after the 1st defendant had returned from Australia. According to the 1st defendant, Kwaimani gave the statutory declaration to him in 2001. Kwaimani also advised him to see the Registrar of Titles. In August 2002, he went to the Registrar General's office and there he saw Irene and showed her the statutory declaration.

33.	The 1st defendant says that he knew that Irene was also the Public Trustee at that time. He says when he gave the statutory declaration to Irene, Irene showed him a transmission document and a transfer document. He says those two documents are at pages 41 and 42 and pages 44 to 47 of the Trial Book.

34.	Despite saying he gave the statutory declaration to Irene, he later deviated from his story and said that when he went to see the Registrar, he was told that the officer responsible for dealing with such matters was attending school. He said the officer's name was John who was a lawyer working at the Registrar's office. He said John asked him to sign some papers and told him that he (John) would work on it. He said he met Irene later when he was following up on the documents. He said he remember having signed a transfer document at the Registrar's office. That was the only document he remembered signing before Irene. He said Irene signed as transferor. He said he knew the Community had contributed towards the purchase price for the Land but did not inform Irene about it. In August 2002, the Land was registered in his name.

35.	Mr. Haelo Pelu has given evidence on behalf of the Registrar General. He has filed a sworn statement on 21 April 2011 and was also subjected to cross examination at trial. In his sworn statement, he confirmed that the Land was registered in the late Sipae's name as sole owner. Then in October 2002, the title was registered by transmission and then transferred to the 1st defendant. He confirmed that the 1st defendant had subdivided the Land and had sold plots of the Land to various purchasers who have now registered the title to those plots in their names while some of the parcels still remain registered in the 1st defendant's name.

36.	Under cross examination, Mr. Pelu says that the transfer by transmission to the 1st defendant might not be valid because there was no letters of administration granted to the Public Trustee in connection with the Land. 

37.	Mr. Cherry Tanito has also given evidence. In his sworn statement filed on 20 September 2011, he said that he had not seen any Letters of Administration being granted to the Public Trustee to justify transferring the Land to the 1st defendant.

38.	Under subsection (2) of section 209 of the Land & Titles Act (Cap. 133), the Public Trustee is permitted to apply to the Registrar of Titles to register him by transmission as owner of land in the place of a deceased owner. Such application must be accompanied by proof of his authority to act in the place of the deceased. Under subsection (4), proof of authority must be in the form of certificate of grant under section 57 of the Wills, Probate and Administration Act or a grant of probate of a will or a grant of letters of administration or an order of the High Court.

39.	Under section 5(1) of the Public Trustee Act (Cap. 31), the Public Trustee is permitted to apply for letters of administration of the estate of deceased person if he becomes aware that the person has died intestate.

40.	These statutory provisions show that the Public Trustee cannot administer land owned by a deceased person in the absence of a grant of probate or grant of letters of administration of the deceased's estate. Without such authority, the Public Trustee cannot transfer land of a deceased owner of the land. In the present case, there is no dispute that the late Sipae had died intestate. Furthermore, there is no evidence of any grant of letters of administration being made to the Public Trustee in relation to the Land. That means the Public Trustee had no power to transfer the Land to the 1st defendant.

41.	Section 229(1) of the Land & Titles Act gives the court a discretion to order rectification of the land register where it is satisfied that the registration has been obtained, made or omitted by fraud or mistake. In Billy v Daokalia it was held that where a mistake is made by the Commissioner in the performance of his statutory functions which results in the registration as owner of land of a person who should not have been so registered, such registration would be set aside on the ground of that mistake. Mistake is tantamount to error. Hence, errors made by persons other than the Commissioner can also amount to grounds for rectification. In this case, the error was made by the Public Trustee.

42.	It is clear in this case that the registration of the title to the Land in the name of the 1st defendant was not the result of a transfer duly executed by the late Sipae in favour of the 1st defendant. The registration was the result of a transfer executed by the Public Trustee pursuant to a transmission also registered by the Public Trustee on behalf of the late Sipae. The late Sipae has died intestate and so there can be no dispute that the Public Trustee is entitled to deal with the late Sipae's estate. However, section 5 of the Public Trustee Act (Cap. 31) has laid down procedures to follow where the Public Trustee deals with the property of a person who dies intestate. Under section 5(1), the Public Trustee must apply to the court for letters of administration. In other words, the Public Trustee has no powers to deal with such property without the court granting letters of administration the Public Trustee to administer the estate. In this case, there is no evidence that letters of administration has been granted to the Public trustee to administer the estate of the late Sipae. It follows that the transmission and transfer executed by Irene Vaukei as Public Trustee in favour of the 1st defendant are not valid and therefore the registration of the 1st defendant pursuant to the transmission and transfer was a mistake.

43.	Fraud has also been alleged by the claimants. However, I do not think this is a case of fraud. In any event, there is no evidence that fraud has been committed by either the 1st defendant or anyone else in relation to the transfer of the Land to the 1st defendant. I am satisfied this is simply a case of a mistake having been committed by the Public Trustee.

44.	The final issue is whether the 1st defendant had knowledge of the mistake or the fraud or caused the mistake or fraud or substantially contributed to the mistake or fraud by his act, neglect or default. The evidence clearly shows that the 1st defendant resides on the Land. The evidence also shows that it was the 1st defendant who approached Irene Vaukei, the Public Trustee, and showed her the statutory declaration signed by the late Sipae granting him the ownership and control of the Land. The statutory declaration was the document which caused Irene to prepare the transmission and the transfer documents which resulted in the title to the Land being registered in the 1st defendant' name. The 1st defendant himself had executed the transfer document and it was his wife, Loviness Sifoni, who witnessed the execution of the transfer document by the 1st defendant. He knew that the Land is also owned by the claimants and the Community they represent yet he caused the Land to be registered in his own name and treated the Land as his own. I am satisfied the 1st defendant had substantially contributed to the mistake. The claimants succeed in their claim.

45.	The orders of the court are:- 
[1] That the Registrar of Titles rectifies the land register by removing the 1st defendant as owner of PN 192-004-524, PN 192-004-527 and PN 192-004-528 and replacing him with the claimants herein.

[2] That the 1st defendant account to the claimants for the proceeds of the sale of parcel numbers PN 192-004-516, PN 192-004-517, PN 192-004-518, PN 192-004-519, PN 192-004-520, PN 192-004-521, PN 192-004-522, PN 192-004-523, PN 192-004-525 and PN 192-004-526.

[3] That the 1st defendant, his servants, agents and any person acting under his authority, are permanently restrained from assaulting, harassing or causing fear to the claimants, including the members of their families, in connection with their residing in PN 192-004-524, PN 192-004-527 and PN 192-004-528 or any part thereof.

[4] That the 1st defendant, his servants, agents and any person acting under his authority, are permanently restrained from obstructing preventing in any manner whatsoever the claimants, including the members of their families, in their going in and going out of PN 192-004-524, PN 192-004-527 and PN 192-004-528 or any part thereof.

[5] That the 1st and 2nd defendants pay the claimants' costs of and in connection with this claim on standard basis to be taxed if not agreed.

THE COURT

J. Apaniai
Puisne Judge