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Tenavatu Tenaru Original Descendant Trust Board v Maelue [2024] SBHC 174; HCSI-CC 667 of 2019 (3 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 667 of 2019

BETWEEN

TENAVATU TENARU ORIGINAL DESCENDANT TRUST BOARD
Claimant

AND:

JIMMY MAELUE, RITA RITI, BEN RATU, RUBINA AITOREA, NELSON RATUKENCY PADA & BALE RATU
Defendants

BY COUNTER-CLAIM

AND:

JIMMY MAELUE, RITA RITI, BEN RATU, RUBINA AITOREA, NELSON RATU, KENCY PADA & BALE RATU
Counter-Claimants

AND:

TENAVATU TENARU ORIGINAL DESCENDANT TRUST BOARD
First Counter-Defendant

AND:

ATTORNEY GENERA
(Representing the Registrar of Titles)
Second Counter-Defendant

AND:

THE REGISTRAR OF TITLES
(Representing by the Attorney General)
Third Counter-Claim

Date of Hearing: 16^th August & 18^th October 2024
Date of Decision: 3^rd December 2024

Ms Alice Willy for the Claimant/First Counter-Defendant
Mr Desmond Nimepo for the Defendants/Counter Claimants
Mrs Connie Bula Bird for the Second & Third Counter-Defendants

JUDGMENT

Bird PJ:

1. Tenavatu Tenaru Original Descendant Trust Board (the Claimant) holds the Fixed Term Estate in respect of Parcel Number 192-001-21 (the disputed land). The Claimant is a Board registered under the Charitable Trusts Act (cap 115). The FTE was granted to them on 14 March 2019 for a period of 75 years. The Commissioner of Lands holds the Perpetual Title over the land.
2. Jimmy Maelue, Rita Riti, Ben Ratu, Rubina Aitorea, Nelson Ratu, Kency Pada and Bale Ratu referred to as the Defendants have been living on the land prior to registration in favour of the Claimant. They have constructed permanent buildings therein. They occupied and developed 5 hectares of the disputed land.
3. The Claimant filed this proceeding to have the Defendants evicted from the land. They say the Defendants are illegal settlers.
4. The Defendants deny the allegations against them. They filed their defence and counter-claim naming the Attorney General as a party to the proceeding. They seek rectification of the land register pursuant to section 229 of the Land & Titles Act (LTA) (cap 133). They say that the registration of FTE in the name of the Claimant was obtained by fraud and or mistake. They also say that are entitled to remain on the land through adverse possession.
5. The Attorney General is representing the Registrar of Titles and the Commissioner of Lands as Second and Third Counter- Defendants. The allegations of fraud and mistake by the Defendants is denied by the Attorney General.
6. From the above brief, parties have filed the agreed facts and issues on 1 November 2023. I need not state the agreed facts. The wordings of the agreed issues are confusing but I have tried to work out what is stated. They are:
   • (a) Whether the Defendants/Counter-Claimants have trespassed on five (5) hectares of the FTE in PN 192-001-21?
   • (b) Whether the Defendants/Counter-Claimants are entitled to the land by prescription or adverse possession because of their uninterrupted occupation for 12 years under section 224 and 225 of the LTA, (cap 133)?
   • (c) Whether the Defendants/Counter-Claimants are entitled to the FTE PN 192-001-21 by rectification under section 229 (1) (2) of the Act for allegations of fraud and mistake?
   • (d) Whether the Claimant’s registration in FTE PN 192-001-21 amounts to fraud and mistake and requires rectification under section 229?
7. It is agreed by the parties that the Claimant is the current holder of FTE over the disputed land. The Defendants have been in occupation of five (5) hectares of the land before registration in favour of the Claimant. They have developed the 5 hectares of land and have constructed permanent buildings therein.

Arguments on behalf of the Claimant

8. In their amended claim the Claimant states it is the registered FTE holder of the disputed land. The FTE was registered in its name on 14 March 2019. It has complied with all requirements to have the land registered in its name. An application for transfer of Perpetual Estate was made to the Commissioner of Lands on 1 October 2017. Members of the Claimant are asserted to be descendants of the original landowners who were the vendors. They claim to have produced documentary evidence for proof of their relationship to the original vendors of the disputed land.
9. The constitution of the Claimant’s executive members are siblings and close family members. They are representatives of their clan. They do not know how the Defendants can say and claim to be descendants of the original vendors and landowners of the land.
10. They say that the Defendants have constructed permanent buildings on the land and are living therein. Upon their registration as FTE holders, they tried to remove them from the land but were unsuccessful. They now seek to have them evicted.
11. They admitted that the Defendants have lived and constructed permanent buildings on the land prior to their registration. Nonetheless, they still maintain that they are illegal settlers therein and must be removed.
12. They also say that the Defendants do not have any equitable interest nor any legal right to remain on the land. They are also not entitled to claim an overriding interest therein and they are not entitled to any claim of adverse possession.
13. The Claimant denies that the registration of FTE in their favour by the Commissioner of Lands was done by fraud and or mistake. They have lodged their application to the Commissioner of Lands. Their application had gone before the Land Board. The Land Board required a landowner association to be registered. That recommendation had led to the registration of the Claimant. It was registered under the provision of the Charitable Trusts Act. Thereafter, the FTE over the land was registered in its name. Due process under the LTA was complied with before registration was finalised and finalised.
14. Consequently, they say that the Defendants’ counter-claim for rectification of the land register is without basis and must be dismissed.

Arguments on behalf of the Defendants

15. The Defendants deny that they are illegal settlers on the land. They are also descendants of the original vendors and or landowners. Their ancestors have been living on the land. They are members of the Ghaubata tribe who was one of the three tribes that sold the land before it was registered in the name of the Commissioner. The other two tribes were Thimbo and Lathi. In that regard, they have equitable interest therein. See page 58 of the court book.
16. Their ancestor namely late Lia Vonghamane was one of the persons in the Deed of sale of Tenavatu land. The land in issue is part of Tenavatu land.
17. They have lived on the land since around 2000. They occupy about five (5) hectares of the land. They have developed the land and have constructed permanent houses on it. They are people in actual occupation of the land. They have enjoyed uninterrupted occupation and possession of the land for more than twelve (12) years. They therefore have a valid claim under the legal principal of adverse possession.
18. Like the Claimant, they have also lodged their application through Cairns Pada in respect of Parcel Numbers 192-001-20 and 192-001-21, Lot 23 of LR184/R in around September 2018. The application was addressed to the Commissioner of Lands with supporting documents to prove that they were descendants of the original vendors.
19. In October 2018, an officer of the Commissioner’s office wrote a letter to the Guadalcanal Provincial Assembly for their recommendation and endorsement of the application. The two registered land applied for, were located within the Guadalcanal Provincial boundary.
20. An endorsement of the Physical Planning Division of the Guadalcanal Provincial Assembly was done. It was recommended that the Mr Pada’s application be facilitated and processed. At the time of assessment, it was confirmed that the Defendants have constructed a permanent building therein. Evidently, their application was not considered by the Commissioner of Lands.

Argument by the Attorney General

21. As per the counter-claim, the Attorney General says that the registration of the land in favour of the Claimants was done in good faith. The Land Board, who has the mandate to approve applications for allocation of land in the name of the Commissioner of Lands has performed its functions in accordance with the provisions of the LTA.
22. In evidence before the court, the Commissioner of Lands said that he was not aware of the application for allocation of the land by the Defendants. The only application that came before him was that of Mr Sale who is the Claimant’s Chairman. In his application, Mr Sale stated, he and his family were members of the original landowners. Supporting documents were also attached to the application.
23. That application was tabled before the Land Board. The Land Board had during its meeting on 10 September 2018, endorsed and approved the application. A condition to the approval was for Mr Sale to formalise a landowner association to register the land in. Upon that condition being fulfilled, it comes back to the Land Board for consideration of premium and rental before being formally offered.
24. Following the approval and registration of the Claimant as the landowner association, the application came before the Land Board again on 26 February 2019. By then, the Land Board has in their possession a Valuer’s assessment on the premium and rental on the land. The Land Board then allocated the land to the Claimant. Thereafter, the Commissioner of Lands and the Registrar of Titles facilitated the transfer of the land to them.
25. The Attorney General denies that the registration of the land in the name of the Claimant was obtained by fraud and or mistake. Due process was complied with and all requirements of the LTA were adhered to before registration. The counter-claim of the Defendants is without basis and should be dismissed.

Discussion on issue (i)

26. As stated above, the Claimant is the registered FTE holder of the land. Registration was effected in its favour on 14 March 2019. The Defendants have lived on 5 hectares of that land since about 2000 and have developed it. They are still living on the land.
27. The Commissioner of Lands holds the PE Title over the land. The Commissioner and Registrar of Titles have facilitated the transfer of FTE to the Claimant following its application. Supporting documents were attached to its application (not included in the court book). The Claimant consist of close family members who have claimed to be descendants of the original vendors.
28. The Claimant’s application was tabled before the Land Board. Notwithstanding having reservation, the Board approved the Claimant’s application upon two conditions. First, the person applying being Mr Francis Sale was to formalise a landowner association. That led to the creation and registration of the Claimant pursuant to the Charitable Trusts Act. The second condition was having completed the formality as well as assessment and valuation of land premium and rent, the Land Board will further meet to decide on land premium and rental before being formally offered.
29. The Claimant formalised the registration of the Claimant. A valuer has assessed and determined the land premium and rental. Consequently, in its second meeting the Land Board approved the land premium and rental as well as the name of association for registration.
30. With the above scenario, it could seem obvious that the Defendants have trespassed into the land as claimed. Notwithstanding, this issue is not as simple as it seems. I will need to discuss the other issues raised by the parties before coming to a just conclusion.
31. Unaware of the above position, the Defendants also lodged their application for the transfer of the disputed land and PN 192-001-20 to them. They also claimed to be descendants of the original vendors. Their application through Mr Pada was addressed to the Commissioner of Lands. The office of the Commissioner referred the application to the Physical Planning Office (GP). That office provided a report also addressed to the Commissioner of Lands.
32. The application and recommendations in the report were not considered and or addressed by the Commissioner. In effect, the Commissioner stated in his oral evidence that he was not aware of the Defendants application. He also said they has not authorised the Defendants to enter and develop the land. He is the PE holder.

Issue (ii)

33. The above discussion leads me to issue (ii). There is evidence that the Defendants have lived on and occupied the land since on or about 2000. It is undisputed by the Claimant that the Defendants have lived and developed 5 hectares of the land before registration in their favour. They have also constructed permanent building inside the land.
34. A site inspection was carried out by the Physical Planning Office - Guadalcanal Province, on the land in about 20 September 2018. A report was engrossed and is contained on pages 154 to 155 of the court book. It confirmed that the Defendants moved inside the area in about 2010. They constructed a 3 bedroom permanent building. It was near completion. There was also presence of pockets of gardens.
35. The report further stated that the Defendants were interested in acquiring 5 hectares of the land. The Provincial Physical Planning Office had no reservation to their application and recommended a subdivision to be done and the 5 hectares to be registered in their favour.
36. Section 224 and 225 of the LTA deals with the issue of prescription or adverse possession. The combined effect of these provisions is that the Defendants must prove that they have enjoyed peaceful, overt and uninterrupted adverse possession of the land for a period of twelve years.
37. There is evidence that the Defendants started to live on and occupied the 5 hectares of land since 2010. They could have started making gardens since 2000. According to the report on pages 154 and 155 of the court book, the Defendants moved into the area and started developing it in 2010.
38. Apart from the above, there is also evidence from the Defendants that they used the land since about 2000. In the joint sworn statement of Nelson Ratu and Clement Kuki on pages 115 to 158 of the court book, they outlined inter alia, the activities they have been performing on the land from generation to generation. The Defendants are members of the Ghaubata Tribe. That tribe was one of the three tribes that initially sold the land that led to its alienation.
39. They stated in detail their genealogical attachment to the land from their ancestors. From 2000 after the ethnic tension, they moved back into the land. They have taken active steps to participate in activities including commercial activities by Levers Solomons Limited and the Solomon Islands Government through the Ministry of Agriculture.
40. They say that in about 2004, they were given authorisation by Levers Solomons Limited to remain on the land and look after properties belonging to them. In about 2014, they were also involved with activities relating to cattle breeding and grazing by the Ministry of Agriculture in the area.
41. Apart from the above, they have also protected the land from intruders and trespassers who have illegally entered upon the land. See paragraphs 14 to 25 of the sworn statement on pages 118 to 120 of the court book.
42. Their Ghaubata Tribe have also secured part of the area through court cases. One case in particular was decided in favour of their tribe. Such were the efforts and activities of the Defendants to make sure the land was protected and secured. It all started during and after the ethnic tension period in 2000.
43. The relevant provisions that can assist me to determine the issue of twelve years under s. 224 of the LTA is s. 255 (2) and (8) therein. Section 225 (2) provides:
    • “Where it is shown that a person has been in possession of land, or in receipt of rents or profits thereof at a certain date and is still in possession or receipt thereof, it shall be presumed that he has, from that date, been in continuous possession of the land or in continuous receipt of the rents or profits until the contrary is shown”.
44. Section 255 (8) provides for three circumstances in which adverse possession shall be interrupted. S. 255 (8) (a) and (c) are not applicable in this proceeding and I need not discuss them. The most relevant law is s. 255 (8) (b) which provides:
    • “Possession shall be interrupted –
    • .................
    • By the institution of legal proceedings by the owner of the estate or lease to assert his right thereto;
    • ................”
45. Upon perusing and noting the above provisions, I can therefore determine with certainty that the twelve years requirement under s. 224 of the Act ends on 23 November 2019. That was the date of the filing of the Claimant’s claim. Any claim by the Defendants under s. 244 of the Act ceases on that date.
46. The next issue to be determined is the date the Defendants’ right under s. 244 commences. Evidence has been provided by the Defendants in relation to dates of commencement. They carried out various activities and engagements on the land since about 2000. Those activities and engagements continued from then on.
47. The information contained in the report on pages 154 and 155 of the court book further confirmed that the Defendants moved into the area in 2010. The combined effect of all the evidence from the Defendants is that they were in possession of the land since 2000. They continued to be engaged in various activities including commercial activities from thereon. They started to vigorously develop and build structures therein in 2010. They are still in occupation to this date.
48. Mr Francis Sale in his sworn statement on pages 164 to 167 replied to the evidence by the Defendants. There is nothing contained in that sworn statement that directly answer to the evidence produced by the Defendants. Upon that basis, I can take as unchallenged fact the possession of the land by the Defendants since 2000.
49. Mr Sale might not be able to have personal knowledge of the evidence because he does not live on the land. The land is located in North Guadalcanal Constituency and Mr Sale resides at Talaura Village in North East Guadalcanal Constituency. That aspect of evidence is also not challenged by Mr Sale except to say that distance is not an issue.
50. Taking into account all of the evidence in relation to this issue, I am satisfied that the date occupation of the land by the Defendants commenced is 2000. From 2000 to the filing of the Claimant’s claim, the Defendants have been in occupation. They have shown in their evidence that they continued to carry out and maintain that position until they finally constructed permanent buildings and settled permanently therein since 2010 to date.
51. From 1 January 2000 to 23 November 2019 is a period of more than 19 years. The period of twelve years of peaceful, overt and uninterrupted adverse possession of the Defendants on the land under s. 224 of the LTA has been sufficiently satisfied in evidence.
52. To further assist me in my determination, I will take into account section 225 (1) (a) of the Act. That section provides:

“Possession of the land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of the estate or lease from whom the owner of the lease derives title”.

53. The above provision describes what possession means under s. 224 of the Act. The description will and can qualify the right under s. 224. It is prescribed that possession must be without the permission of the registered owner of the estate. That possession must be against the owner of the estate. It is not against the owner of the estate from whom the current owner derives title.
54. In this proceeding, the current FTE holder of the land is the Claimant. The persons in occupation since 2000 are the Defendants. The PE holder is the Commissioner of Lands. The Commissioner transferred FTE of the land to the Claimant on 14 March 2019.
55. There is no evidence before me to say that the Claimant was aware of the Defendants occupation before registration in 2019. It was after their registration as FTE holder that the Claimant was aware of their occupation.
56. I have also perused and noted the case authorities cited by all parties to assist me in my deliberation.
57. From the evidence before me, possession of 5 hectares of the land by the Defendants was done without the permission of the Claimant, the current FTE holder. The Defendants’ possession of the land is against the Claimant’s interest therein. Upon this basis, I am sufficiently satisfied that the Defendants have made out their claim for adverse possession of the disputed land.

Issues iii and iv

58. Issues iii and iv are inter-related and could be dealt with together. These two issues relate to section 229 of the LTA. The Defendants have raised the provision in their amended counter-claim. They assert that the registration of FTE in the Claimant’s name was obtained by fraud and or mistake.
59. The Defendants’ assertions included non-compliance by the Commissioner of Lands of specific provisions of the LTA. The provisions included s. 4 (4) of the 2014 amendment to the Principal Act as well as sections 132 and 69 of the Act. The second assertion is that the Claimant has made false and has produced misrepresented information to the Commissioner to obtain FTE title of the land.
60. On the issue of non-compliance of provisions of the LTA, it is the case for the Defendants that the Commissioner of Lands derives his powers under s. 4 of the 2014 amendment. Section 4 (4) prescribes the powers of the Commissioner of Lands. The powers include the holding and dealing with interests in land subject to section 8C. It also include execution of instruments. The 2014 amendment placed the power of allocation of land to the Land Board provided for under s. 8C therein.
61. Section 8 (C) (4) provides:-
    • In allocating land the Board shall –
    • Where it decides to allocate land by tender, public auction or by ballot, direct the Commissioner to –
    1. Cause the land to be advertised what whatever mode it deems appropriate in the circumstances;
    2. Undertake any administrative actions required for allocation;
    3. Ensure that any applicable requirement under any other law is complied with fully;
    4. Provide a report to the Board on the actions taken in sub-paragraphs (i) to (iii) together with recommendations; and
    5. Soon after allocation, inform the applicants and the public of the result.
    1. Where it decides to allocate land directly, direct the Commissioner to –
    1. carry out the acts in sub-paragraphs (a)(i), (ii) and (iii);
    2. cause a search to confirm the capability of the selected applicant, to fulfil the obligations attached to the allocation; and
    3. undertakes any actions as it deems necessary.
62. In his oral evidence in court, the Commissioner said that he did not publish any notice before allocation was made to the Claimant. A notice was published in their website after the allocation was made. There is clear admission by the Commissioner of his failure to cause the land to be advertised as required under s. 8C (4) (a) and (b) above.
63. The next requirement under s.8C (4) (a) and (b) is his obligation under sub-paragraph (ii). There is absolutely no evidence provided by the Commissioner that he has caused a search to confirm the capability of the selected applicant, to fulfil the obligations attached to the allocation.
64. I have perused and noted s. 4 (4) and s. 8 (C) of the 2014 amendment which are absolutely relevant to this proceeding. S. 4 (4) is to be read and applied but subject to s. 8 (C). Having read and perused s. 8C (4) therein, I hold the view that it is a mandatory provision. That must and should be complied with and applied by the Board and the Commissioner. I am of that view because of the use of the word ‘shall’ therein. It is not a discretionary power or function that is placed upon their shoulders by law. It should not have been overlooked by the Board as well as the Commissioner.
65. In trying to determine the issue of non-compliance with this mandatory requirement of the law, I have perused and noted the minutes of the Land Board on pages 186 to 187 and 189 to 191 of the court book. There is absolutely no mention of the mandatory requirement of section 8 (C) (4) in both reports.
66. In effect, the Board should have directed the Commissioner during its first meeting on 10 September 2018 to deal with the requirements of s. 8 (C) (4) (a) (b) of the Act. The Board had failed to do that. They have failed to properly discharge their duties under that section. Because there was no directive from the Board in its meeting of 10 September 2018, no report was provided by the Commissioner in compliance with s. 8 (C) (4) (iv) of the Act in its further meeting on 26 February 2019.
67. From the above discussion, I can say that non-compliance of s. 4 (4) as read with s. 8C (4) (a) and (b) of the Act is a mistake in the registration of the FTE of the land in the name of the Claimant. I am not satisfied that it amounts to fraud. It could have been an oversight by the Board and the Commissioner. Their oversight is fatal to the Claimant’s registration.
68. Section 8A of the amendment is most essential in such instances. It spells out in no uncertain terms the object of the 2014 amendment. Its object was to establish a Land Board and confer on it all powers and functions relating to the allocation of interest in land, the development of land and to ensure that the administration of land is carried out in a fair, transparent and equitable manner, to meet the needs and welfare of the people of Solomon Islands.
69. In order to attain its object, the Board and the Commissioner actions in administrating the provisions of the Act must also be seen to be fair, transparent and equitable. That must have led to the amendment and the mandatory inclusion of section 8C (4) of the Act. The requirement therein should not have been overlooked by the Board and the Commissioner.
70. In this instant, the Board and the Commissioner have miserably failed to take into account the mandatory requirements stipulated therein.
71. In relation to the non-compliance of s. 132 of the Act, I have perused and noted the inclusion of a new subsection (5). That subsection provides:

“A decision made by the Board under subsection (4) shall be implemented in the prescribed form executed by the Commissioner and the owner of the estate”.

72. The above provision is another mandatory requirement of the Act that the Commissioner must comply with. There is no grant instrument provided by the Attorney General in respect of the land allocation to the Claimant. In effect, the Commissioner when cross-examined in court admitted there was no grant instrument.
73. In the absence of the grant instrument, there can be no valid transfer of the interest by the Commissioner of Lands. It is obvious that there was a grave error committed by the Commissioner in that regard. The grant referred to in section 132 is prescribed in Form 2 of the Act. I have not sighted any Form 2 in this proceeding. That is another error committed by the Commissioner in the transfer of the disputed land to the Claimant.
74. With regard to non-compliance of s. 69 of the Act, I can say on the outset that the provision is in relation to acquisition of land by the Commissioner under Part V of the Act. This case does not involve acquisition of land but transfer of land. I am therefore not satisfied that this ground is sufficiently made out.
75. In any event, and in the allocating of land by the Board and the Commissioner, the consent of the Commissioner is paramount. In this proceeding, there is no evidence provided by the Commissioner to confirm that he has given consent for the allocation. It is stated in his defence but no document was provided to the court for verification. Section 172 (2) of the LTA requires the consent of the Commissioner.
76. The final ground under which the Defendants have sought rectification is the misinformation by Mr Sale to the Commissioner about his application as a descendant of the original vendors.
77. From the application lodged to register the Claimant under the Charitable Trusts Act, Mr Sale and other members of the association are close family members. Mr Sale confirmed in his oral evidence that they are siblings and cousins from a clan within the Ghaubata Tribe. That aspect is also confirmed by the application letter on page 181 of the court book.
78. From the document on pages 58 to 64 of the court bbok, it can be confirmed that the land in issue is owned by the Ghaubata, Thimbo and Lathi Tribes of Guadalcanal. These three tribes were the original owners of the land. On page 64, the three tribes have formed an association. They have a common seal titled ‘Ghaubata, Thimbo and Lathi Tribes Association’. That association should have been the rightful one to have applied for transfer of the said land.
79. I have sighted and noted the document on page 46 and several other pages in the court book. It is evident from that document that the land mass is 58.462 hectares. It is a vast land mass. That whole land mass was registered in the name of the Claimant who are merely representatives of their own family members. It is absurd to say the least that the Board and the Commissioner have seen it fit to allocate to a single family unit, more than 58 hectares of land. There is also no evidence before me how that Claimant has proposed to develop the vast land mass
80. In the absence of that evidence, the Land Board and the Commissioner has seen it fit to make the allocation to a single family unit. Parliament could have included the provision of section 8C (4) (b) (ii) in 2014 to avoid allocation of land to persons who might not be able to develop it. In this case, there is absolutely no evidence before me as to how the Claimant will and should be able to develop the disputed land.
81. It could be the case that the said land have been allocated by the Board and the Commissioner to the Claimant under the Government Policy for the return of alienated land to original landowners. There has been a draft policy by the Commissioner on the ‘Return/granting of alienated land in Solomon Islands’. That document although not yet legalised described the processes and procedures that must be observed and followed before allocation.
82. In noting s. 8 (C) (4) of the 2014 amendment, the processes and procedures in that discussion paper authored by the Commissioner are summarised therein. There is a need for advertisement, a hearing and the applicant must have a development plan on how he/she intends to develop the land. All these issues are to be complied with and the Commissioner must report back to the Board. That was never done in this case.
83. The Claimant’s application at page 181 of the court book is very brief. The application was made by Mr Sale and his family. He has claimed to be an indigenous original landowner. The development plan he briefly stated included commercial and industrial activities, housing estate, private school from early childhood to secondary, emergency evacuation centre, resettlement for original landowner and farming.
84. Apart from the letter of application above, there is absolutely no evidence before me on his development plans and how to fund them. There is no evidence as to his own capacity and that of his family’s to realise his plans.
85. In the Commissioner’s draft policy, it is inscribed that if there is no development plan showing how the applicant intends to develop and use the land, the application cannot be considered any further. In this case, there is no evidence how the applicant intends to develop and use the land, it should have ended there and then. As it transpired, the allocation was done and the land is now registered in the name of the Claimant contrary to his own policy.
86. The Commissioner has legal obligation to carry out his duty under s. 8C (4) (b) (ii) of the Act. He must carry out a search to confirm the capability of the selected applicant, to fulfil the obligations attached to the allocation. There is no evidence before me to confirm if that requirement was done by the Commissioner. Minus a copy of the Grant Instrument, it is also unknown to me if there are any conditions attached to the allocation.
87. Apart from the above, the Commissioner and the Registrar of Titles are in custody of all relevant documents pertaining to the original sale of the land by landowners. Upon that basis, they would have known or ought to have known that the land was originally owned by the Ghaubata, Thimbo and Lathi Tribes. There is no mention whatsoever in the Claimants letter of application for allocation that they are of the three tribes or any one of the threes tribes. In effect the letter was made by a single family unit.
88. In Solomon Islands, it is common knowledge that land is owned by a tribe, a sub-tribe or a clan and a sub-clan. No customary land in the country is owned by a single family unit. There could be exceptions if land is gifted according to custom.
89. The Board and the Commissioner could have enquired further into the application as to the issue of descendants of original landowners. They never did. The land is located within the boundary of Guadalcanal Province. They could have used their powers under s. 8D of the Act to make enquiries from the Chairperson of the Provincial Town and Country Planning Board on the status of the land and as to the original landowners. That option was open for them but it was not used. These sentiments were raised by this court in its ruling dated 8 March 2022.
90. In short therefore, when the Board or the Commissioner is dealing with an application for the return of alienated land to the original landowners, there must be an enquiry to first determine if the applicant is the original vendor and or landowner. That is important because any person for that matter might make an application claiming to be an original vendor and or landowner but he is not. When that happens, it defeats the very purpose of the Government policy.
91. In order to avoid such issues from occurring, the amendment to the LTA was made in 2014. The amendment has given rise to the creation of the Land Board. The Board was given the power to allocate land by tender, by public auction, by ballot or by direct allocation. In order to properly discharge the power vested upon them and to properly perform their duties and functions according to law, processes and procedures were set out. Some of the processes and procedures if not all are mandatory in nature and must be complied with. Such is the requirement of s. 8C (4) of the Act.
92. In this proceeding, the only relevant document that I am provided with in relation to the Claimant’s application is Mr Sale’s letter and list of supporting documents. I am not given any copy of the supporting documents. They are not tendered as evidence before me by the Claimant. The Commissioner of Lands has disclosed a copy of the letter. The Claimant did not attach any documents about its application including the letter.
93. Other relevant documentary evidences tendered by the Commissioner are the two minutes of the Board, letter of confirmation of receipt of the letter of application, report, valuation assessment and a copy of the FTE register.
94. In his letter, Mr Sale merely stated he and his family are indigenous original landowner. That is the only evidence before me. It did not state what tribe they originate from. Only in court did Mr Sale answered questions from the court, did he say that he was a member of the Ghaubata tribe.
95. Upon the above basis, it could be said that he has not provided correct information about his originality in his letter. In receiving the letter of application, the Board and the Commissioner could have used s. 8C (4) (b) (iii) to undertake any other action it deems necessary. According to its draft policy referred to above, if an applicant has shown how he intend to develop and use the land, then a public hearing could have to be carried out.
96. The above requirement in my view is in conformity of section 8C (4) (b) (i) of the 2014 amendment. If that requirement has been complied with, the Defendants could have had an opportunity to make objection and or to state their claim. Likewise, the Ghaubata, Thimbo and Lathi Tribes Association could have made their objection to the Claimant’s application. There was no opportunity to do that because there was no advertisement published by the Commissioner as required of him under the provision.
97. Section 8C (6) (b) is also worth noting in the circumstances of this case due of the nature of the Claimants application. The land was originally customary land. In that regard, it could be foreseen that the allocation could have adverse consequences. That is exactly what has transpired in this case.
98. From the above discussions and in the absence of the relevant documents in support of the Claimants application, the Claimant has made unsupported and unverified representation of himself and his family as original landowners to the Board and the Commissioner. On the same note, the Commissioner ought to have had knowledge that the land was originally owned by the Ghaubata, Thimbo and the Lathi tribes. In that regard, it could have been prudent for him to further enquire if the applicant represents all three tribal groupings.
99. The Land Board and the Commissioner have both failed to take note of the very important inclusions of section 4 and section 8 of the 2014 amendment. Their failure in properly administer the allocation of alienated land to supposed to be original vendors and or landowners, have been grossly undermined.
100. Upon the above discussions, I am therefore satisfied that the Commissioner has committed a mistake to readily accept as the truth the information provided by the Claimant without further enquiring into the facts and circumstances surrounding it. I am therefore satisfied that the Defendants have proved that the registration of FTE over PN 192-001-21 in favour of the Claimant was obtained by mistake.
101. Consequently, I hereby order that the registration of Fixed Term Estate over PN 192-001-21 in favour of the Claimant is hereby cancelled under section 229 (1) of the LTA. I hereby grant the order sought in paragraph 11 of the Defendants counter-claim.
102. Having earlier found that the Defendants claim for adverse possession of 5 hectares of the land in PN 192-001-21 is also proved, I hereby direct that the Commissioner do facilitate and process their application to be brought before the Land Board for its consideration under the provisions of the Land and Titles Act and taking particular note of section 8C and 8D of the 2014 amendment.
103. In light of the fact that I have found for the First Defendants under sections 224, 225 and 229 (1) of the LTA, the claim for trespass by the Claimant is hereby dismissed with cost.
104. As I am satisfied that the Defendants counter-claim is sufficiently proved, I hereby make the following orders:
     1. The registration of Fixed Term Estate in Parcel Number 192-001-21 in the Claimant’s name is cancelled on the ground of mistake;
     2. The Perpetual Estate remains vested in the name of the Commissioner of Lands;
     3. The Commissioner of Lands is hereby directed to put before the Land Board the Defendant application for allocation of 5 hectares of land within Parcel Number 192-001-21 to be dealt with according to law;
     4. The Defendants claim for adverse possession is also sufficiently proved;
     5. I order cost in favour of the Defendants as against the Claimant and the Attorney General.

THE COURT
Justice Maelyn Bird
Puisne Judge