[1983] SILR 265

IN THE HIGH COURT OF SOLOMON ISLANDS

Acquisition Land Appeal Case No.3 of 1983

UMA

-v-

REGISTRAR OF TITLES

High Court of Solomon Islands
(Daly C.J.)
Acquisition Land Appeal Case No.3 of 1983

18th November 1983

Evidence - civil case - burden of proof - balance of probabilities - Land and Titles Act section 20(4)(a).

Facts:

The Commissioner of Lands applied in 1974 for registration of a freehold title of Mandoliana Island under section 20(4) (a) of the Land and Titles Act which provided that the title, on the Land Acts, “shall be registered... unless it is proved that such land was not public land”. Land “owned by natives” was not public land. The history of the Island was that it had been deserted in about 1880 by the custom owners after a British boat crew was killed on it. In 1911 an official of the Government purported to grant a 99 year lease over the Island but prior to that the authorities in Fiji and U.K. had been unable to find any grant of the Island to the Government. Expatriates occupied the Island under the lease and made gifts to the custom landowners but expressed the view that the matters which he found to be ‘likely’ or ‘unlikely’ were not capable of proof at this stage and therefore concluded that the custom owners had not satisfied the burden of proof which was on them. 
On appeal:

Held

As this was a civil matter, the burden of proof was for the custom owners to satisfy the Registrar on the balance of probabilities. Even if there is no definite proof a conclusion could be reached on the evidence on the probabilities. Looking at the Registrar’s findings they were sufficient to sustain a conclusion that the Island had remained “owned by natives” and therefore registration should have been refused. Appeal allowed.

For Appellant: In person
For Respondent (holder of 1911 lease) K. Brown:
The Registrar of Titles and Commissioner of Lands were not represented.

Daly CJ: This case concerns Mandoliana Island, Nggela (“the Island”). On 3rd September, 1974 the Commissioner of Lands applied to the Registrar of Titles for registration of a freehold title in the Island under section 20(4) (a) of the Land and Titles Act (“the Act”). Over the following years that application has been pursuing its desultory way through surveys, production of documents, objections, and hearings by an adjudication officer. On the 21st October 1982 the learned Registrar gave his decision that he would register the freehold title in the name of the Commissioner. Against that decision John UMA representing persons said to have interests in custom (‘the customary claimants’) in the Island appealed to this court. At the hearing the customary claimants were represented with admirable brevity and force by Mr Ishmael TAVASI. Neither the Registrar nor the Commissioner were represented at the hearing but the Public Solicitor represented the Official Administrator of Unrepresented Estates who, as administrator-of the Estate of the late A.M. Andresen, claims that he has an interest by virtue of a ninety-nine year lease of the Island granted by the Government on the 1st January 1911, that lease (“the 1911 lease”) being one of the assets of the estate.

To understand the nature of the present dispute, it is necessary to consider something of the history of the Island which was dealt with in detail by the Adjudication Officer and the Registrar-of Titles in their full and careful report and decision respectively. The Island first came to the forefront of modern Solomon Islands history when a boat’s crew from H.M.S. Sandfly landed on it in 1880. All except one of the crew were killed by the villagers from nearby TALUMOGA. As a result the Naval authorities took retaliatory action against TALUMOGA by shelling it. The leader of the villagers who killed the sailors was executed.

Although prior to that incident the Island had been used by the customary owners the learned Registrar found that “It seems, and I emphasize seems, likely that the Island was virtually abandoned after the ‘Sandfly’ incident by its customary owners”. This fact no doubt made the Island attractive to expatriates for in 1908 a Claud Bernays applied for an occupation licence of the Island. The then Resident Commissioner Charles M. Woodford, in seeking consent to the grant of the licence stated that the Island had been presented to the Government by the local inhabitants as some ‘reparation for the murder and for the leniency in which they were treated’. However research in Fiji and London revealed that no such presentation to the British Government had been made and, although there was a suggestion that the Island be regarded as ‘wasteland’ on the applicant for the licence entering government service, no further action was taken.

However in 1911 Mr Woodford was again dealing with the Island. This time he granted by the 1911 lease a lease of ninety-nine years of the Island to the Buffet brothers; the rent reserved being £.2 for the first five years £4 for the second five years and thereafter £8 per annum. The Buffet brothers had some dealings with the ancestors of the customary claimants; whether before or after this grant is not clear. Nor is the nature of those dealings clear. I quote from the learned Registrar’s decision (para 24):-

“There is ample evidence (Christine Miki, Comins Toai, Isaac Kogana, John Piupitu, Daniel Manedika) of agreement to the Buffets being allowed to occupy the land but it is not at all clear what the foundation for this was. Some witnesses say that island was “sold” but for tobacco, biscuits, axes, and other trade goods - not for money. “Sold” I take to be a general expression to cover the giving of gifts in exchange for permission to use the land rather than a formal sale in the sense of an outright transfer of all interest. At all events, occupation by the leases has been accepted for seventy years or so. It would be usual, where such consent was so widely accepted and long lasting, for the occasion of the giving of the consent to be marked by some ceremony but this does not seem to be so in this case.”

There matters have remained until the application for registration was made and various customary claimants objected to the registration on the basis that the Island should be returned to the customary landowners. The application was granted. The function of this court is to consider whether the decision of the Registrar, on the facts before him, was a correct one as this Court is given by section 213 of the Act power to confirm, quash or vary that decision “as it thinks just.”

What first, are the legal provisions that apply? The original application for registration was made under section 20 (4) (a) of the Act. This reads:-

“(4) (a) Subject to the provisions of this section, all land which during the period of twelve years immediately preceding the 1st February, 1963 had been continuously dealt with as public land within the meaning of the Land Ordinance, shall, upon submission to the Registrar of a statutory declaration to that effect by the Commissioner, be registered as public land, unless it is proved that such land was not public land within the meaning aforesaid.”

The Land Ordinance defines “public land” in section 2 as meaning “all land not being native land or private land” and in turn “native land” is said to mean, 

“land owned by natives or subject to the exercise by natives of customary rights of occupation, cultivation or other uses.”

and ‘private land’ means ‘land owned by non-natives in freehold’.

Thus the first question is, had the Island been continuously dealt with as public land ... during the period of twelve years immediately preceding the 1st February, 1963? In paragraph 17 of his decision the learned Registrar came to the conclusion, looking at the dealings in the land in that period, that the land was dealt with as public land during that period. That was clearly a decision open to the Registrar on the facts and not one of which complaints is made. It must stand.

The second question is, was it “proved that (the Island) was not public land”? As there is no possibility that the land was private land, that question resolves itself as, was it proved that the Island was either –

(a) land owned by natives: or

(b) land subject to the exercise by natives of customary rights of occupation, cultivation or other uses?

As to (b) the learned Registrar dealt with the evidence in paragraph 19 of his decision and came to the conclusion “that customary occupation, cultivation and other use ceased at or after the time of the “Sandfly” incident and before “1908”. Again this is a conclusion supported by the evidence and must stand.

Thus the final remaining question is, “was it proved that the land was owned by natives?” This question, as such, was not considered by the adjudication officer although he recorded the following conclusion:-

“3. I also conclude that not one of the objectors has any knowledge of any Government dealing over Mandoliana Islands.

4. The evidence shows that the people are not clear whether the land was passed from the people to Mr Buffet and the others or from the Government to Buffet and the others or from the people to the Government or from the people to the Government and then to Mr Buffet and others. It is really a dilemma as to how the land got out of the hands of the customary owners. The people thought their ancestors were transacting directly with the settlers that was why they spoke of “land was not paid for”, “only tobacco etc were given””.

The Registrar’s decision, however, very properly and thoroughly dwells upon this question at some length before coming to the conclusion (para 28) that the “objectors have been unable to prove that the land was not public land.” The learned Registrar commenced his consideration by dealing with the burden of proof in this way (para 22):-

“I remind myself that this must be proved i.e. that it is not sufficient merely to throw doubt on the Commissioner’s claim that this is public land.”

Having repeated his view of the burden of proof in virtually identical terms later (para 27) the Registrar goes on:-

“The evidential burden on the objectors is heavy particularly since they must rely on oral, customary history and have no written evidence to help them.”

There can be no argument but that, first, as this is a civil matter the burden of proving an assertion is on the party making it. Thus as it is the custom claimants who seek to prove that the land is not public land then the burden is upon them as, without such proof, the Registrar would be bound to find in favour of registration. Second, again as a civil matter the standard of proof is to satisfy the Registrar on the balance of probabilities that the land is not public land. In so doing the Registrar should consider all the evidence adduced before him and the adjudication officer. With respect, the use of the words, “throw doubt” imply that the test to be applied is more akin to the criminal burden where expressions such as “beyond reasonable doubt” are commonplace. I also consider references to an evidential burden to be unattractive as proof on the balance of probabilities can be achieved by the person upon whom such a burden rests assailing the evidence of his opponent in such a way as to result in the tribunal finding that on the balance of probabilities the case for that person has been made out.

The simple question for the Registrar, and this court, to ask is, on the balance of probabilities and after consideration of all the evidence am I satisfied that the Island is owned by natives? If the answer to that question is yes, the Registration is to be refused. If no, the registration is to be granted.

I now turn to the findings of fact made in the light of that question. As to the aftermath of the Sandfly incident the Registrar found (my numbering):-

1. “It seems, and I emphasize seems, likely that the island was virtually abandoned after the ‘Sandfly’ incident by its customary owners.”

2. “I have the greatest doubts that such lack of use amounts in custom to abandoning “ownership””.

Without indulging in semantics, finding 1 could be otherwise expressed as “on the balance of probabilities the island was virtually abandoned after the incident by the customary owners”; indeed the evidence on this point was all one way. Equally the evidence as to custom was that there was no abandonment of ownership, at least at that stage. Thus that finding too could have been expressed as a finding on the balance of probabilities.

The next finding is expressed thus -

3. “It seems unlikely, having regard to the fact that there was no government in 1880, that in 1908 neither the Secretary of State nor the High Commissioner could find any evidence of a gift of the island and that they were then prepared to invoke the Waste Land Regulation, that the Government ever acquired a valid title enabling it to grant the lease to the Buffet brothers. While this seems to me likely, it is still only “seems” -there is no definite proof.”

With respect, I find this a somewhat surprising form of expressing the position in relation to the 1911 lease. The documentary evidence was that in 1908 high level discussion and research over a period of one year resulted in the conclusion that the Island was not government property. Without any record of appropriate proceedings changing that situation, the next step is the grant of a lease by the Official who had originally asserted that the Island had been presented to the Government. Looking at all the evidence in this case including the evidence that the customary claimants knew nothing or very little about the government dealings with the land, on the balance of probabilities I would have no hesitation in saying that I am satisfied that the Government did not acquire a valid title enabling it to grant the lease. If it had done so, documents would have existed to establish that fact. Whether or not there is definite proof is not material as long as there is sufficient evidence to reach a conclusion on the probabilities. I am satisfied that one can do so on this aspect of the case.

It follows that the writing of the lease cannot have divested the customary claimants of ownership. The next question is, did the action of the Buffet brothers have this effect? I have already referred to the Registrar’s conclusions that the gifts given were “in exchange for permission to use the land rather than an outright transfer of all interest”. It is suggested in the grounds of appeal that the Buffet brothers took the land at gun point in 1903 but there is no evidence to substantiate this suggestion. Whenever the Buffet brothers took possession and by whatever means, they did not consider they acquired sufficient title from the customary owners as they entered into the 1911 lease with the Government. I consider that the Registrar’s conclusion that there was no outright sale or transfer to the Buffet brothers cannot be faulted.

There remains the question of long possession by the Buffet brothers and their successors in “title”. Of this the Registrar said:-

4. “On the other hand there is evidence of widespread and long-lasting consent to the occupation of the islands by the lessees. It seems unlikely that this would have been given unless it was widely accepted, in 1911 at least, that there was just cause. Again this only seems - it is probably incapable of being proved either way now”.

In view of the finding that gifts were given for permission to use land, it does not seem at all surprising that in 1911 there was consent to occupation. Nor that that consent continued. But that as the Registrar said, was a consent land and not a transfer of ownership.

Looking at all these findings I consider the learned Registrar was, in effect, satisfied on the balance of probabilities, as I am, of the following matters:-

A. That the 1911 lease was granted by the Government at a time when it did not posses the freehold to the Island and it was therefore a nullity:

B. That ownership of the Island in custom continued to exist in the custom owners both before and after that lease was signed: and

C. That ownership of the Island was not passed from the custom owners to the Buffet brothers or to any other persons claiming under the 1911 lease.

On those conclusions a finding that the Island was and is “owned by natives” and is therefore not public land within the meaning of the Land Ordinance is inevitable.

It follows that the application of the Commissioner of Lands under section 20(4) (a) of the Act for the Island to be registered as a freehold in his name should have been refused.

I allow the appeal and quash the decision of the Registrar of Titles to register the title of the Commissioner of Lands dated 21 October, 1982.