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Kulolo v None [2022] SBHC 46; HCSI-CC 116 of 2019 (6 July 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 116 of 2019

BETWEEN:

SAM KULOLO and JOHN TUPE
Claimants.

AND:

JENNY NONE
Defendant.

Civil Case No. 308 of 2019

BETWEEN:

ELIZABETH VOTUCHKAI, SARANDE KIRUWAI, JUDITH CHAPI ORO and JAANTAKALAI VEVI (representing themselves as registered
Owners of PE 191-007-31).
Claimants

AND:

BEMOBILE (SI) LIMITED
1st Defendant.

AND:

IRENE HASO, MARGARET HASO, SIMON NONE2
And AGNES NONE (representing themselves and
Members of Ghaubata-Hanigoana Sub-tribe of
Guadalcanal).
2^nd Defendant

Civil Case No.223 of 2019
BETWEEN

MARGRET HASO, SIMON NONE Jr BERNARD GADO & MOSES ENI (Representing themselves and Members of Ghaubata-Hanigoana Sub-tribe of
Guadalcanal).
Claimants

AND:

Deceased Estate of SAM KULOLO
(Registered trustee representing himself and members of
Ghaubata-Tonavua Sub-tribe of Guadalcanal).
1^st Defendant

AND:

JOHN TUPE
(Registered joint owner of PN: 191-077-30).
2^nd Defendant

AND:

ELIZABETH WALE, MARITINA KIRUNWA
JUDITH CHAPIORO & JACINTA VEVI
(Registered joint owners of PN: 191-077-31 &
PN: 191-078-11).
3^rd Defendant

AND:

The REGISTRAR OF TITLE
4^th Defendant

Date of Hearing: 9 March 2022
Date of Ruling: 6 July 2022

Mr. D Lidimani for the Claimant in CC 223 of 2019
Mrs. S. A Kilua for the 1st and 2nd Defendants in CC 223 of 2019
Mr. B Upwe for the 3rd Defendant in CC 223 of 2019

RULING ON PRELIMINARY POINT OF LAW

Faukona DCJ: A claim in Category A was filed on 16^th April 2019. The reliefs sought are ten in all with costs on indemnity basis. Mr. Lidimani on the outset submits that CC.223 of 2019 is the major case of the three. The determination on preliminary points of law will affect the two other cases no matter where the decision goes.

Relevant facts.

2. On or about 20^th November 2011, one of the registered joint owners and Trustee of the subject parcels of lands, namely 191-077- 30, 191-077-31, 191-078-11, 191-078-2, Mr. Thomas Botu died, thereby leaving Mr. Savino Laugana as the sole surviving trustee and owner.
3. Those four registered parcel of lands were part of customary land known as Tasahe. The rights to Tasahe customary land were vested on the two sub-tribes of the Claimants and the 1^st Defendant.
4. Mr. Savino, the surviving trustee and owner, died intestate on 5^th June 2013 without any will or executing any transfer instrument.
5. With the estate rendered bona vacantia the Public Trustee on 16^th November 2016 took out letters of administration for the estates of Mr. Savino (deceased).
6. By Statutory Declaration of 13^th July 2017, the 1^st Defendant declared himself as entitled to be registered as joint owners of the subject parcels pursuant to S. 216 of the Land and Titles Act.
7. Relying on such Declaration, the 4^th Defendant, on 4^th August 2017 registered the 1^st Defendant as joint owner of the subject parcels.

The issue.

8. The issue in this application is whether the registration of the 1^st Defendant on 4^th August 2017 as joint owner of the subject parcels complied with S.216 of the Land and Titles?
9. The defense by the 4the Defendant filed on 19^th September 2020, the Attorney General in paragraphs 10 and 12 conceded to the mistake committed in registering the 1^st Defendant as owner based on the Statutory Declaration.
10. When the four (4) parcels of lands were registered in 1994 respectively, the only two trustees were late Thomas Botu and the late Savino Laugana.
11. At that time of registration of Sam Kulolo as replacement trustee on 4^th August 2014, both original trustees had since died. Mr. Laugana died on 15^th June 2013 earlier, some four (4) years before the registration of Mr. Kulolo as surviving trustee. None of the original trustees executed any transfer instrument in favor of Mr. Kulolo (deceased) while still alive.
12. Upon perusing the statement of defense filed by the 1^st and 2^nd Defendants, I noted certain important facts making reference to certain documentations.
13. One of the documents was a letter written by the late Laugana and Mr Botu on 19^th September 2007 to the Commissioner of Lands informing him that they have agreed to transfer the four lands to the first Defendant.
14. Again on 16^th June 2008, the said Mr. Laugana (deceased) and Mr. Botu (deceased) confirmed with the Surveyor General the extent of the boundaries of Lot 67. Transfer could not be completed as they died before the subdivisions could be done.
15. It is important that the letter addressed to the Commissioner of Lands, by both deceased men on 19^th September need to be retrieved. It may contain important factual material of authorization.
16. The fact that this case has not reached disclosure stage as yet, it may be detriment to consider any preliminary point now. The relevant facts have not been disclosed yet.
17. It may be upon that authorization that the 1^st Defendant had acted upon. It may be as well, the resolution by the Laonavua sub-tribe of the Haubata tribe which is attached to the Statutory Declaration dated 13^th July 2017, which Mr. Kulolo may have obtained as a source of authorization and representation.
18. Since disclosures are yet to be made it would be unfair to determine the preliminary points of law at this stage. The late Mr. Laugana and the late Mr. Botu could have agreed to transfer the titles in the land to Mr. Kulolo. We will see if a copy of that letter be extracted from the Commissioner of Lands. This could be one of the facts to be resolved which attributed to the mistake committed.
19. I noted the 4^th Defendant had conceded to a mistake committed in its defense paragraphs 8, 10 and 12, in registering the 1^st Defendant as the owner.
20. What the 1^st Defendant did was because of some confirmation from the two deceased trustees, even, despite the resolution document signed by certain members of the sub-tribe, he took it that the proper process is provided for in S.216 of Land and Titles Act, in fact it was not.
21. My observation is that the 1^st Defendant was wrong by resuming to a wrong process. What may seem the case is was he lacked proper and legal advice as to what process was relevant. In fact, what he did was in a situation when one of the trustees died and a replacement was sought to replace him.
22. I do not wish to blame him for the mistake. He is a villager and probably with some or little education background. He may not have possessed any knowledge of such legal transaction. At the same time there is no evidence of any legal advice given him. This was a result of the two original trustees not executing any transfer instrument to the 1^st Defendant whilst they were still alive.
23. Despite that failure I would suppose the Registrar of Titles could have done better. He would have rethink and question the process by making enquiries; whether the process is correct or not.
24. Of course I would agree the proper process is through an application for letters of administration which the Public Trustee had done but uncompleted.
25. There is some mention of Mr. Tegavota involved; however, nothing progressed from thereon. There was no result achieved.
26. Then there is the defense raised by the 3^rd Defendants who pleaded that they were honest purchasers for valuable consideration. They purchased two (2) parcels from the first Defendant, PE: 191-078-078-11 and PE: 191-077-31. They also attested that they were protected by S.32 (5) (b) of the Limitation Act. They claim they were innocent third party, and did not at the time of purchase, know or have reason to belief that a mistake had been done.
27. S. 32 (4) (a) of the Limitation Act, reads”, “nothing in this section shall enable any action or arbitration (a) to recover the value of, any property to be brought or commenced, as the case may be against the purchaser of property.... In any case where the property had been purchased for value of, any property to be brought, or commenced, as the case be, against the purchaser of a property...in any case where the property has been purchased for valuable consideration by an innocent third party since the transaction in which the mistake was made or took place”.
28. In the case of Maebata V Maena^[1], paragraph 22, the Court decided as follows,

Clearly, the third Respondent was a purchaser for value, who is in possession, had no knowledge of any fraud or mistake and had not contributed in any way to such fraud or mistake. It also follows that any claim relating to rectification against the 1^st and 2^nd Respondents as they are no longer the registered proprietors.

29. In this case the 3^rd Defendants had purchased two blocks of land for valuable consideration, and had no knowledge of any such mistake, or them contributed to it. So the claim related to rectification of the two PE titles, clearly would not succeed by virtue of the decision of the above case.
30. Therefore to declare the registration of the 1^st Defendant on 4^th August 2017, as joint owner, for the subject lands, that they did not comply with S.26 of the Land Titles Act, could render an easy route to rectify the lands purchased by the 3^rd Defendants. And that the transfer to himself (Mr Kulolo, deceased) and the 1^st Defendant were made by mistake or fraud is unwarranted at this stage.
31. As I have mentioned earlier that there are facts yet to be resolved or disclosed. At the same time the third Defendants have a strong defense against any rectification against their titles.
32. In this instance I must therefore rule that the registration of the 1^st Defendant, on 4^th August 2017, as joint owners of the subject parcels cannot be said as proper and complied with S.216 until full facts of the case are resolved.
33. I must therefore dismiss the Claimant’s application for determination on preliminary issue.

Orders:

1. Application for determination of preliminary issues is dismissed accordingly.
2. Cost of this hearing is to be paid by the Claimant to the Defendant on standard basis.

THE COURT.
Hon. Mr. Rex Faukona
DEPUTY CHIEF JUSTICE.

^[1] [2018] SBCA 11; SICOA-CAC 20 of 2017 (11 May 2018).