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Attorney General v Iodanis [2012] SBCA 6; CA-CAC 23 of 2011 (23 March 2012)

JUDGMENT OF THE COURT

[1] The first respondent, Louis Iodanis, wrote to the Commission of Lands on 11 September 2001 seeking to lease on a plot of land, PN 191-032-142, known at that time as Lot 3184, which lay adjacent to a plot to which he already had title. He had first applied for that Lot in March 2001 but his request had been rejected on the grounds that the plot was to be used as a reserve park. His letter of 11 September sought to have that decision reconsidered and was supported by a letter from the Honiara City Council.

[2] On 11th of June 2002, the Commissioner of Lands approved his request and, by an undated letter clearly sent prior to 12 February 2003, Mr Iodanis was offered a fifty year Fixed Term Estate in Lot 3184 and requested to pay $1,507.00 for premium, rental, fees and stamp duty. He paid that sum on 12 February 2003.

[3] The second respondent, John Kuluwai, a lands officer in the Lands Department, was also hoping to obtain title to Lot 3184 and, on 5 November 2001, nearly two months after Mr Iodanis's application, applied to the Commissioner of Lands. That application was approved in a letter of 28 February 2002 from the, then, acting Commissioner of Lands and the Lot allocated to Mr Kuluwai. However, by a further letter dated 13 March 2002, the same acting Commissioner withdrew that approval with the somewhat opaque explanation that "there was an approval for a further extension of five (5) by the former Commissioner of Lands for the same land allocated to you".

[4] Despite that, the next acting Commissioner, wrote to Mr Kuluwai on 8 July 2003 offering a 50 years Fixed Term Estate for Lot 3184 and requesting settlement of premium and fees amounting to $2,688.00 within 30 days. That appears to have been paid and accepted on 29 September 2003. On 1 November 2004, the fixed term estate was granted to Mr Kuluwai and the grant registered on 4 November 20004 backdated to 1 January 2004.

[5] On 12 August 2004, a date before the grant to Mr Kuluwai or its registration, Mr Iodanis wrote to the Registrar of Titles applying to enter a caveat over the land, setting out the dates of the various steps described above and attaching supporting documents.

[6] On 17 December 2004, the Registrar of Titles sent him a Notice of Dealing under section 223(5) confirming that the caveat had been lodged on 25 August 2004 and advising him that the Commissioner of Lands had applied for the registration of the grant to Mr Kuluwai on 4 November 2004. It gave notice, in accordance with subsection (5), "that the said Grant of fixed term estate be registered unless you lodge with me before the expiration of 30 days after this Notice a certified copy of pending proceeding in the High Court". It further advised, "If the said Grant of the fixed term estate is registered your caveat will lapse and be removed from the register".

[7] An extension of two weeks was granted on the application of Mr Iodanis's lawyer and, although a case was filed in the High Court to prove his interest in the land, a certified copy of the claim was not served on the Registrar as required in the Notice of Dealing. In consequence, the title was registered in the name of Mr Kuluwai on 21 March 2005.

[8] The High Court action was to rectify the register by the registration of the fixed term estate in the name of Mr Iodanis. The principal facts set out above were agreed for the hearing and on 12th of August 2011, Faukona J ordered rectification in favour of Mr Iodanis on the ground of mistake and declared that he be entitled to launch grant instruments to have the fixed term estate in PN 191-032-142 registered in his name with costs against the first defendant.

[9] The Attorney General has appealed that judgment. The grounds of appeal are that the learned judge:

1. erred in law in holding that it was part of the appellant's duties as Registrar of Titles to go beyond the documents lodged with him for registration;
   
2. that on the application of Hwang Shu Fen and ors v National Bank of Solomon Islands and ors, HCSI Civil Case No 364 of 2008, 5 May2011, per Chetwynd J, there was no law that prevented the Registrar, in performing his duties to register documents lodged with him for Registration, enquire with the Commissioner of Lands;
   
3. erred in law in holding that by the first respondent's intention to lodge a caveat the Registrar ought to have had notice of the first respondent's interest in the property; and
   
4. erred in law in holding that the Registrar of Titles had a duty to ensure that he was satisfied with the facts before deciding to register the documents in situations where prior allegations were received.
   

[10] After a careful review of the evidence, the learned judge concluded that there was a binding agreement between the Commissioner and Mr Iodanis which had to be discharged before there could be a valid offer made to anyone else. The purported grant to Mr Kuluwai, therefore, was a nullity based on the mistaken belief that the Commissioner had power to make the second grant. He cited the case of Malaita Development Authority v Ganiferi and ors, HCSI Civil Case No217 of 2000 in which a similar factual situation arose and Palmer ACJ ruled:

"The effect of this means the Commissioner had no right in law to make a fresh offer of a grant in respect of Lot 450/A to the first defendants. He had nothing to offer as what he initially had had been divested of his control. The purported offer made by the Commissioner ... was a nullity. The Commissioner cannot give what he does not have. Acceptance of that invalid offer would have made no difference."

[11] The learned trial judge concluded on the evidence that the Registrar had knowledge of the original offer to Mr Iodanis. He referred, in particular, to the lodging of the caveat at which point the Registrar was clearly aware of the problem and could and should have made further inquiry. The letter of 12 August 2004 plainly explained that the problem was that there were contracts of sale to different people in respect of the same land. He acknowledged the failure of lawyers representing Mr Iodanis to file a certified copy of the pending High Court proceedings but considered that did not absolve the Registrar from the need to make further enquiry about the validity of the Commissioner's earlier offer to which Mr Iodanis's letter had drawn his attention.

[12] In his helpful submissions, Mr Muria suggested that the duty of the Registrar when registering documents does not extend to going behind the documents presented to him. It is limited to ascertaining whether the requirements of various acts have been complied with before registering them. He relies on the following passage from the judgement of Chetwynd J in Hwang Shu Fen.

"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 documents. That duty must include checking the documents have been duly completed, in the sense that he is bound to check they have been completed in accordance with the requirements of the various Acts. As a matter of law, it is not part of his "duty" to go behind the documents presented and to make all manner of additional enquiries."

[13] Faukona J dealt with this matter when reaching his conclusion that the Registrar had prior knowledge of the challenge to Mr Kuluwai's title. He stated:

"[The registrar should] have made an enquiry upon lodgement of the caveat. Not necessarily with the High Court but with the Commissioner of Lands. Had he done so, he would have versed himself with the real situation. It may not be part of his duty as emphasised in Hwang Shu Fen's case which confines to registering of documents and ascertaining whether requirements are met and not to go behind the documents as presented to him. However, there is no law that gated him not to do so. In my view, it should be seen as part of providing efficient service to people and ensuring he satisfies himself with facts before deciding to register the documents, in particular in a situation where prior allegation was received."

[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.

[15] The learned judge clearly had section 89 of the Act in mind when he referred to the registrar ensuring he satisfies himself of the facts:

" The land register shall be compiled from –

(a) details of ownership of interests in land, which, according to satisfactory information in the possession of the Registrar, would entitle any person to be registered as an owner ..."

[16] His finding on the evidence before him was that Mr Iodanis's challenge to Mr Kuluwai's right to this land had been clearly and specifically brought to the Registrar's attention. That was a conclusion that he could properly draw from the evidence presented to him. With that knowledge, the Registrar not only failed to make prudent enquiries but went on to register a claim he knew was under challenge. We do not consider such actions can be considered a proper performance of his duty.

[17] Having concluded that the registration had been made as the result of a mistake by the Registrar and that the mistake was known by Mr Kuluwai, the learned judge ordered rectification of the land register under section 229 of the Land and Titles Act. There is no challenge to his right to do that.

[18] The appeal is dismissed with costs and the orders made in the court below are confirmed.

Sir Robin Auld,
President

Sir Gordon Ward, JA
Member

Justice Francis Mwanesalua, JA
Member