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Soriacomua v Avangaio [2024] SBHC 175; HCSI-CC 161 of 2023 (13 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 161 of 2023

BETWEEN:

FREDA TUKI SORIACOMUA
Claimant

AND:

JOHN MARK AVANGAIO
Defendant

BY WAY OF COUNTER-CLAIM

BETWEEN:

JOHN MARK VANGAIO
(Representing himself, family members and other relatives occupying the Perpetual Estate in Parcel No. 251-002-16)
Counter-Claimant

AND:

FREDA TUKI SORIACOMUA
First Counter-Defendant

AND:

REGISTRAR OFTITLES
Second Counter-Defendant

Date of Hearing: 3 October 2024
Date of Decision: 13 December 2024

Mr Haniel Waisanau for the Claimant/First Counter-Defendant
Mr Andrew Radclyffe for the Defendant/Counter-Claimant
Mr Philip Kelesi for the Second Counter-Defendant

JUDGMENT

Bird PJ:

1. This is a case involving registered land on Parcel Number 251-002-16 situated at Nukukaisi Village, Waimasi, Makira/Ulawa Province. The land is 5.236 hectares in size. It was originally registered in the names of John Mark Sarenja and John Pama Tureki as owners in common. They each hold ½ undivided shares. Both of them are now deceased.
2. On 28 February 2018, ½ share of the late John Mark Sarenja was transferred and registered in the name of Freda Tuki Soriacomua (Claimant). John Pama Tureki’s ½ share remained unaffected. He had become deceased on 3 September 2006.
3. By letters dated 23 March and 14 July 2020 respectively, the Claimant through her advocate make application to the Registrar of Titles to have the remaining ½ share belonging to the late Tureki transferred to her. Her intention was to become the sole owner of P/N 251-002-16.
4. The letter dated 23 March 2020 highlighted that she is the surviving joint owner. The application was made under section 216 of the Land and Titles Act (cap 133). The letter of 14 July 2020, further included that the late Tureki has been deceased for about 13 years and no person has come forward to make any claims in relation to his estate. She also questioned the registration of the late Tureki as a co-owner.
5. On the very next day being 15 July 2020, the then Registrar of Titles executed a Vesting Order under s. 175 of the LTA, thereby vesting the Perpetual Estate in P/N 251-002-16 solely in the name of the Claimant. On the very same day, the PE title of the whole estate was registered in her name.
6. It is by virtue of the her registration that the Claimant commenced this proceeding against John Mark Vangaio (Defendant) seeking relief of eviction and vacant possession of the land, restraining orders and other subsequent orders.
7. The Defendant filed his defence and a counter-claim. He is the brother of the late Tureki. The Defendant and all his family members have been living and occupying the land since the 1970s to date.
8. In his defence, the Defendant asserts that the application of the Claimant contained incorrect facts. The late Sarenja and the late Tureki were not joint owners. They each hold ½ undivided shares in the estate. The Claimant was not a surviving joint owner. The Defendant therefore say that the Registrar of Titles has no right in law to vest the whole estate to the Claimant.
9. Consequent to the above, the Defendant counter-claims for rectification of title upon the ground of mistake. The Registrar of Titles lacks power to vest the ½ interest under s. 175 of the Act. Only the late Sarenja agreed to transfer his ½ share to the Claimant. The late Tureki’s ½ share remained unaltered notwithstanding the said transfer. The Defendant is a beneficiary of the estate of the late Tureki. He and members of his family has the right to continue to occupy and live on the land without any interference from the Claimant.
10. The Registrar of Titles was added to this proceeding as a consequence of the Defendant’s counter-claim. The Registrar is the Second Counter-Defendant in this proceeding.
11. The position of the Registrar is the PE Title in respect of P/N 251-002-16 was registered in the names of John Mark Sarenja and John Pama Tureki as owners in common on 21 February 1972. They each hold ½ equal and undivided shares. There is no evidence that the late Tureki sold his share to the late Sarenja and or vice versa. His one-half undivided shares still subsists. The then Registrar has erred in law to vest the whole estate to the Claimant under s. 175 of the LTA.
12. The Registrar could have been misled by the Claimants letter of 23 March 2020. Both letters should have been read together to get to the intention of the Claimant. Apart from the letter of application and the follow-up letter of 14 July 2020, there is no evidence provided by the Claimant on the alleged sale by the late Tureki of his ½ share to the late Sarenja for $90.00. There is also no instrument to confirm the alleged transaction in the Registrar’s office.
13. The Registrar admits that the transfer and registration of the ½ undivided shares of the late Sarenja to the Claimant is a valid transaction. He denies that the further transfer of the late Tureki’s ½ undivided shares to the Claimant was a valid transaction. In saying that, the Registrar say that the vesting by the then Registrar of the late Tureki’s ½ shares to the Claimant was made in error and by mistake and the transfer is null and void and is of no effect.
14. In view of the above position, the Registrar supports part of the Defendant’s counter-claim.

Discussion

15. As the registered PE Title holder over P/N 251-002-16, the Claimant commenced this eviction proceeding against the Defendant. The Defendant is the brother of the late Tureki. He has been occupying and living on the land with his family members for a period of more than 50 years.
16. Having perused the pleadings, the sworn statements by respective parties and the oral evidence in court, I am of the view that the pertinent issue I will determine is whether or not the Vesting Order of 15 July 2020 by the then Registrar of Titles was valid.
17. I shall commence with the Claimant’s application to the Registrar. The initial application for transfer of title in respect of the late Tureki’s ½ shares was premised on s. 216 of the LTA. That section provides for transfer of title by transmission upon the death of a joint owner. In this proceeding, the original owners were owners in common. They were not joint owners.
18. Transfer by transmission can only be facilitated upon production of an order of this court granting Letters of Administration to a particular person where the deceased has died intestate. From the facts of this case, the late Tureki died intestate.
19. In her letter of 23 March 2020, the Claimant did not provide to the Registrar an order from this court granting her Letters of Administration under Part III of the Wills, Probate and Administration Act (cap 33) (WPAA).
20. The subsequent letter of 14 July 2020 specifically requests the Registrar to cancel the registration of the late Tureki’s ½ undivided shares. The ground stated in the letter for the requested cancellation was the unsubstantiated allegation on how his name was registered as a co-owner.
21. Again no evidence was presented by the Claimant. It would also be difficult to support the allegation because both of the original owners names were registered on the very same day as owners in common. The allegation is therefore unfounded. On the face of the letter, the then Registrar should have never accepted the reason stated in the letter. The Registrar is the custodian and is in possession of all relevant documents regarding the estate. He should have been more vigilant to make sure the information provided by the Claimant are true and correct.
22. Further to the above, if the Claimant was requesting to have the registration of the late Tureki’s cancelled, the powers vested on the Registrar is covered under s. 228 of the LTA and not s. 175.
23. From the above scenario, it is obvious that the Claimant made two distinct applications. One was made under s. 216 and the later one should have been made under s. 228 of the Act. So if the then Registrar has considered the letter of 23 March 2020, the Claimant is not entitled to be registered under that section. That application was made outside of the bounds and spirit of the WPAA and the LTA.
24. If the then Registrar was acting upon the letter dated 14 July 2020, he should have turned his mind to the provision of s. 228 instead. From the face of the letter, there are possible allegations of mistake and or fraud contained therein. The allegations are not substantiated. Therefore, the only recourse that he could have lawfully exercise his powers is under that provision.
25. Without addressing the purpose, grounds and reasons for the Claimants application in both of her lawyer’s letters, the then Registrar had opted to use his powers under s. 175 of the Act, vesting the late Tureki’s interest in the Claimant’s name.
26. What is of concern about the vesting is the timing of the letter to the actual registration in the Claimant’s favour. The Claimant’s subsequent letter was dated 14 July 2020. The Vesting Order was executed on 15 July 2020. The registration of the interest was also made on 15 July 2020. The Claimant was informed of the result on 16 July 2020. Within a matter of a single day, all the relevant processes were facilitated and finalised. The Claimant was informed of the outcome of her application on the second day. In this instant, paragraph 1 of the Defendant’s defence on page 5 of the court book is worth nothing.
27. The power of the Registrar under s. 175 of the LTA is only exercisable if he is satisfied with specific requirements. First, he is to be satisfied that the interest must be sold or disposed of by the registered owner. Secondly, he is to be satisfied that the whole of the consideration for such sale and disposition has passed but that a transfer or other proper instrument of disposition cannot be obtained because the registered owner is dead or out of Solomon Islands or cannot be found or because of any reason, it is impractical to obtain his signature within a reasonable time.
28. The Vesting Order on page 78 of the court book, shows that the then Registrar considered the two letters of 23 March 2020 and that of 14 July 2020 together. In the Vesting Order, he initially stated that the original owner, the late Sarenja never sold or transfer any shares to the late Tureki. How he acquires shares remains a mystery.
29. The above statement in the Vesting Order is a mistaken statement of the facts. In the PE Register on page 68 of the court book, it is very clear that both the late Sarenja and the late Tureki were the original owners since 21 February 1972. The said register was in the possession and custody of the then Registrar. He never took into account his own records. The statement contained in paragraph 1 of the Vesting Order dated 15 July 2020 is an error and amounts to a mistake committed by the then Registrar.
30. In relation to paragraph 2 of the Vesting Order, there is a statement about time limitation. I am of the view that s.175 of the Act is restrictive. It does not include issues of time limitation. Quite apart from that, is if there was payment done by the late Tureki, copies of receipts should be placed and should have been kept in the Commissioner of Lands file in respect of PN 251-002-16. The relevant file could have been made readily available to him if he has requested it.
31. Also of essence in the Claimant’s case is the timing of the events leading up to the vesting and registration of the interest in her name. As discussed in paragraph 26 above, the timing of the events leading up to the registration is only a matter of one day or two. It would seem obvious that the then Registrar had never put his mind on the requirements under s. 175 before acting upon it. It is important for him under that section to be satisfied with certain matters.
32. It is obvious that he did not give himself time to properly and diligently consider the Claimant’s application. In essence, it was an application under s. 216 of the Act. If he had with due diligence apply the provisions and requirement of the Act, he could have exercised his discretion to reject it and advise the Claimant accordingly.
33. If on the other hand, he had given himself time to consider the application, he could have verified from his own records that the information and facts provided by the Claimant were erroneous. He never took the time to properly peruse and verify the relevant information from his own file so that he is satisfied with the requirements under s. 175 of the Act. That is another mistake that he had committed in the execution of the Vesting Order that directly relate to the registration in the Claimant’s name.
34. In light of the above discussion, the third paragraph of the Vesting Order is null and void ab initio and is of no effect. The then Registrar has vested the interest of the late Tureki upon erroneous facts and information contained in paragraphs 1 and 2 therein. He therefore is not entitled to vest the late Tureki’s interest in P/N 251-002-16 to the Claimant.
35. Consequently, the registration of the Perpetual Estate Title in respect of P/N 251-002-16 effected on 15 July 2020 in favour of the Claimant is hereby cancelled under section 229 (1) of the LTA on the ground of mistake.
36. Entry 4 and 5 of the Perpetual Estate Register of P/N 251-002-16 are to be re-instated as validly registered in respect of those entries.
37. As I have declared the Vesting Order null and void ab initio and entry 4 and 5 of the Perpetual Estate Register of P/N 251-002-16 be re-instated, the Defendant is not a trespasser on the land. He is the brother of the late Tureki. He could therefore be entitled to remain on the land through that relationship.
38. I am unable to go further and order that the Defendant be registered as owner of the late Tureki’s ½ shares. That issue can be properly dealt under its own processes.
39. In summary and having taken into account the above discussions, I refuse to grant the orders sought by the Claimant. I hereby dismiss the Claimant’s claim with cost.
40. In retrospect, I am satisfied that the Defendant’s counter-claim is made out. I hereby make the following orders:-
    1. I declare that the Vesting Order dated 15 July 2020 by the then Registrar of Titles is null and void ab initio;
    2. I order that the registration of the Perpetual Estate Title in respect of P/N 251-002-16 effected on 15 July 2020 in favour of the Claimant is hereby cancelled under section 229 (1) of the LTA on the ground of mistake;
    3. I further order that Entry 4 and 5 of the Perpetual Estate Register of P/N 251-002-16 are to be re-instated as validly registered in respect of those entries;
    4. I consequently order that the Claimant, her associates or agents vacate the part of land which the defendant and his family members are occupying;
    5. They are hereby restrained from interfering in any way with the Defendant and other occupants’ lawful use and enjoyment of the land.

THE COURT
Justice Maelyn Bird
Puisne Judge