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Davispina v Taraniseu [2018] SBHC 51; HCSI-CC 228 of 2012 (25 May 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 228 of 2012

Date of Hearing: November 2017 (Trial); 9^th March 2018 (Closing submissions).
Date of Decision: 25^th May 2018.

Mr. A. Rose for the Claimants.
Ms. L. D. Ramo for the First Defendants.
No Appearance for the Second and Third Defendants.

KENIAPISIA; PJ:

DECISION

Introduction

1. Claimants are from Ahia village, Ulawa Island, Makira Ulawa Province. Claimants are chiefs of Ahia village - not in issue. Claimants are the registered owners of the Fixed Term Estate (FTE) in Parcel Number 239-001-2 (“PN 2”). PN 2 is one of 3 islands, commonly known in this province as the 3 sisters’ islands. The 3 islands are positioned between Ulawa, Ugi and the coast of Central Makira. One can see the 3 islands, on a fine sunny day, standing on the black sand beach in front of Waimapuru National Secondary School. I went to this school in 1992^[1] and could vividly recall.
   
2. The commissioner of lands is the Perpetual Estate (PE) owner of PN 2. Commissioner granted the FTE of PN 2 to the claimants and registered in their joint names on or around May of 1992.
   
3. Malaupaina island (PN 2), as is known locally, belong to Levers Pacific Proprietary Limited initially. This is the biggest of the 3 islands, as the name denotes in Ulawa language. I can understand this language to some extent and therefore take judicial notice of this fact. In 1977, Levers transferred PE in the property to the commissioner.
   

Claimants’ case

4. Claimants aver that the commissioner granted Temporary Occupancy License (“TOL”) to them in 1986. In possession of the TOL, claimants organised for the re-planting of coconuts on the island. Claimants engaged the 1^st defendants or some of them as casual workers. As a result of claimants’ good work, during the TOL occupancy period (1986 – 1992), the commissioner eventually granted FTE to the claimants in May of 1992.
   
5. Claimants continued that the 1^st defendants are trespassing and overstepping the authority given to them by Sir Nathaniel Waena. The authority was to use the island as a “safe haven” for fishing purposes, going between the island and Kirakira where, they would sell their catch. Sir Waena gave the permission to one named Arthur Raura (deceased), from whom the 1^st defendants are descendants.
   
6. And so in this claim, claimants seek the main relief of eviction and damages against the 1^st defendants, in relation to PN 2. The 2^nd and 3^rd defendants took inactive role in this case; saying they would abide by orders of the court.
   

First defendants’ case

7. First defendants on the other hand, put to this court that, they were part of initial communal efforts to acquire the island from the commissioner. The communal efforts include replanting and planting of new coconut plantations on the island. The communal efforts were made under the auspicious of Malaupaina Development Association (“MDA”). First defendants say the association comprised of four villages on Ulawa namely: Ahia, Maraja, Ha’au and Su’ulopo. Collectively these 4 villages with assistances from the Government, had developed the island, with the aim of acquiring the FTE from the commissioner, under a standing government policy to return alienated lands back to the original land owners or locals.
   
8. Mobilising under MDA, first defendants and others have planted coconut plantations (replanting and new planting) on the island. Members of MDA, had asked Sir Nathaniel Waena, to assist them obtain the FTE. Working against that common/collective intention, Sir Waena instead worked to promote the interest of the claimants. Sir Waena eventually succeeded when FTE was granted to the claimants only, instead of being granted to MDA. First defendants alleged this was a mistake or fraud. Alternatively first defendants sought relief in counter claim that they have equitable interest in the island and that claimants are holding the legal title to the island in trust for them as beneficiaries.
   
9. Beneficiaries, because mobilising collectively under MDA with assistance from Government, they had developed coconut plantations on the island, with the collective belief, that the island would be registered as a communal property under MDA. First defendants alleged they were on the island, as far back as the 1970’s during the colonial era, when Levers was still the owner of the island.
   

Summary of claimants’ evidence

10. I look first at the summary of evidence from the claimants. I took the evidence from that of chief Martin Awao, Collin Haununu, Christopher Tara and Sir Nathaniel Waena. The evidences came from sworn statements (ss) filed and on cross-examination.
    
    1. Claimants are 3 chiefs of Ahia village on Ulawa. Claimants are the registered owners of the legal title (FTE) in PN 2^[2]. Commissioner granted FTE to the claimants in May of 1992.
       
    2. Prior to grant of FTE, claimants were given a TOL in 1986 and had been developing PN 2 with coconut plantations in an effort to convince the commissioner that the claimants are able to develop the property.
       
    3. On satisfying the commissioner by planting coconuts during the TOL period, commissioner granted the FTE to claimants in 1992.
       
    4. Sir Waena as an elder and advisor to Ahia village chiefs, with vast knowledge of the government system, assisted the claimants to obtain the FTE grant from the commissioner.
       
    5. First defendants or some of them worked on developing (coconut planting) on the island as paid casual labourers. First defendants elder Mr. Arthur Raura (deceased) was given permission to have “safe haven” on the island because he was a fisherman, travelling between the island and Kira Kira, where he would sell his catch. Sir Waena gave this permission to Arthur.
       
    6. Claimants have never come together with first defendants and any other villages from Ulawa to work under MDA, with the collective aim of obtaining the FTE in the island. It was all the sole effort of Ahia chiefs and Ahia community; with assistance from their elder and advisor Sir Waena.
       
    7. First defendants only came onto the scene in 2009, with planting of coconuts and causing problems for the claimants, being the FTE owners - abusing the permission granted to their elder Arthur. On first defendants’ association with the island, in the colonial era, claimants could only say, that had to do with Levers, as their then employer. Claimants are only concerned with the period of their TOL ownership in 1986 and FTE ownership since 1992.
       
    8. Claimants out-rightly deny any fact been suggested that the island was to have been returned to locals on Ulawa under the collective banner of MDA; utilizing Government policy.
       

Summary of First defendants’ evidence

11. I turn to the summary of evidence for the 1^st defendants. Evidence for the 1^st defendants come from George Hilly Taraniseu, Colton Pua, Lawrence Wagoa and Selwyn Riumana. All except Riumana made ss. Riumana gave oral evidence only. All witnesses who gave ss were cross examined.
    
    1. Arthur Raura, from whom the 1^st defendants are descendants, reside on the island as a labourer, when Levers was still the legal title owner at and prior to independence in 1978. That Arthur lived and worked for Levers in 1974. Arthur provided transport for Levers to Kirakira and later operated a trade store bought from John Tom and Sons.
       
    2. Being on the island with Levers, Arthur group^[3] then had knowledge that Levers will surrender legal title of the island to Government (commissioner).
       
    3. Arthur group also learnt that Government under its standing policy to return alienated lands back to original land owners or locals was to give back the island to the local people, interested on developing the island.
       
    4. Arthur group show interest on the island and had mobilised under MDA, a collective group consisting of 4 villages on Ulawa. Grouped together, Arthur group then engaged their senior elder and former politician, Sir Waena, to assist them get the island back. Initially Arthur group got TOL under MDA and started developing the island (coconut planting).
       
    5. Arthur group asked Sir Waena to assist them and Sir Waena advised them that MDA must include 4 villages on Ulawa.
       
    6. Arthur group then requested Sir Waena to protect their interest on the island through a caveat in 1985.
       
    7. MDA was recognised by Government and came directly under the Land Use Development Planning Unit (LUDPU) in the Ministry of Agriculture and Lands. Arthur group trusted that Sir Waena would help them achieve their goal to get the island back. Mean time Arthur group continue to develop the island working together collectively under the banner of MDA.
       
    8. Arthur group under MDA had planted coconuts on the island up to year 1992, when eventually they learnt with dismay, that Sir Waena betrayed the trust Arthur group bestowed in Sir Waena, when he instead registered the island in the names of the claimants and Ahia community to the exclusion of MDA.
       
    9. In the 1990s, Arthur group learnt that Sir Waena had attempted to register the island in his own name, and protested through a caveat lodged by Philip Tegavota; on their behalf. The island was in 1992, registered in the claimants’ name, a move engineered by Sir Waena, which 1^st defendants view as a betrayal of communal undertakings initiated under MDA, with support from the Government.
       

Analysis of the evidences

12. In the heart of the evidence, there is a major disagreement or contradiction. That the disputed island is the sole property of the chiefs of Ahia village, Ahia community and nobody else, not even Arthur group and his descendants (the 1^st defendants). Claimants deny outright any knowledge about the island being obtained as a collective property under the auspices of MDA.
    
13. First defendants on the other hand say the island was supposed to have been obtained as a collective communal property for 4 villages on Ulawa under MDA and that includes Arthur group (the first defendants themselves). That Sir Waena was entrusted to assist MDA to achieve this goal. Instead Sir Waena betrayed the trust and assisted the Ahia chiefs to obtain FTE of the island to the exclusion of MDA and Arthur group. First defendants alleged, this was as a result of fraud and mistake. This court however failed to see evidence of fraud or mistake. And so rectification sought under Section 229 (1) of Land and Tiles Act (Cap 133) on the grounds of fraud and or mistake must fail. Alternatively, the first defendants produced evidence that they contributed equity and sweat to develop the island under MDA. And therefore had equitable interests, so that the claimants holding of the legal title to the island is in trust for them as beneficiaries^[4].
    
14. Claimants’ evidence came from Sir Waena, Chief Martin Awao, Collin Hauhunu and Christopher Tara. All these witnesses are relatives and come from Ahia village to support the case of the claimants, who are chiefs of Ahia village. All witnesses have blood or village relationships to claimants. First defendants’ evidence came from George Hilly Taraniseu (one of the 1^st defendants), Lawrence Wagoa, Colton Pua and Selwyn Riumana. Except for George Hilly, the other witnesses have no blood or village relationship with the 1^st defendants. All witnesses for the claimants and George Hilly apparently have personal interests in the island and therefore the outcome of this case. They cannot be said to be truly independent. I must therefore exercise great caution in total reliance on their evidence unaided. This is where I turn to verify the evidence from an independent source. I find assistance from independence source through “government public records” before me in evidence. I accept “government public records” as good evidence under the Evidence Act^[5], because, no irreparable doubt was raised in relation to those records. Also because the concerned officers working for the government at the material time, have confirmed the veracity of the evidence contained in the “government public records”.
    
15. Arthur groups contact with the island is dated back to 1974, then as labourers and have been living on the island since. Arthur group through MDA obtain TOL initially. Arthur group mobilised under MDA, assisted by Government’s LUDPU to repatriate the island, through developing the island, utilizing Government policy to repatriate alienated lands to original land owners or locals.
    
16. I find independently verified evidence to substantiate the evidence produced in support of the first defendants’ case. That is to say, four villages on Ulawa joined together under MDA^[6], with the common goal to develop the island, so that they could be eligible to repatriate the island, under Government policy on return of alienated lands to original land owners. Arthur’s group were part of MDA. MDA got TOL initially. The MDA was recognised and assisted by LUDPU to develop the island in anticipation of converting the TOL to FTE title. This evidence is consistent with and supported by evidence from “government public records^[7]”, attested to by two former Government employees – Mr. Riumana^[8] and Mr. Colton Pua^[9].
    
17. On the other hand, claimants’ evidence, I cannot find any supporting independently verified evidence. The pleadings in a criminal trial and in a civil trial are allegations to be proved by independent witnesses^[10]. Claimants say in 1980 chiefs of Ahia instructed Sir Waena to assist them repatriate the island. Initially TOL was given to Ahia chiefs. They develop the island and eventually obtained FTE from the commissioner. The whole evidence for the claimants, sits on wobbly grounds because, I cannot independently verify what they say, weighed against their personal interest in the outcome of this case.
    
18. I will therefore favour the evidence produced by the first defendants. That Government assisted MDA under Government’s standing policy on return of alienated land to original land owners - 4 villages on Ulawa, including the 1^st defendants whose elder Arthur and Devine were part of the people that developed the island initially, subsequently leading to repatriation. The repatriation however ended up in 3 people’s names only and for one village only. This is not a surprising outcome because the Riumana report had identify Waena’s group as not cooperating with the rest under MDA. Although Riumana report was made released in 1992, I am satisfied Riumana got what he wrote in the report from within the LUPDU’s existing work programs starting from 1984. Riumana said in oral evidence, he knew about and wrote in his report, that, MDA started in 1984, because it was in the Ministry records. Government public records also show the LUDPU’s Development Plan^[11] for MDA, in relation to coconut planting on the island was dated 18/06/1987. This is consistent with what Colton said in his statement, as the Assistant Field Officer in the Ministry of Agriculture and Lands LUDPU section responsible for Makira Ulawa Province.
    

Legal arguments on the applicable laws

19. First defendants submitted that on the basis of their sweat and equity contribution in developing the island under MDA^[12], they are entitled as beneficiaries and the claimants are holding legal title to the island in trust for them. They seek in their counter claim a declaration to this effect.
    
20. And therefore in reference to the first issue, whether or not the claimants are entitled to evict the first defendants, they submit that, in the circumstances of this case, whilst claimants may hold legal title, they do so for first defendants as beneficiaries and so cannot evict first defendants from the island. They argue that there is overwhelming evidence to show that the island is a trust property held by the claimants for them as beneficiaries. Therefore they are equally entitled to possession and enjoyment of the island.
    
21. First defendants argue that developing the island with endorsement from Government through recognition and assistance to MDA, they contributed labour and sweat towards developing the Island. And are therefore entitled as beneficiaries.
    

Constructive Trust – Equitable Remedy

22. First defendants argued that their equitable rights in the island should be recognised by the court under constructive trust, as an equitable remedy, even though they failed to make out a case for rectification under Section 229 (1) of the Land and Titles Act (Cap 133), because they failed to established allegations on fraud/mistake to the required standard of proof.
    
23. Constructive trust as an equitable remedy has been established and recognised by this court in Ilabae^[13] and Toliliu^[14]. Constructive trust is judicially construed, where the court feels that individual circumstances justify its imposition, irrespective of the intention of the parties. The remedial objective of constructive trust in “righting a wrong” is among considerations for imposition of constructive trust. Also the court will impose a constructive trust, where the merit and circumstances of a given case meant that “good conscience” require the court to do so. In Toliliu, CJ Palmer said:

“In a constructive trust, the court imposes a trust by law based on “good conscience” and “justice” (underlined my own emphasis). It is a process founded in the principles of equity and is to be applied in cases where a party cannot conscientiously keep the property for himself alone, but ought to allow another to have a share in it. It is a remedy by which the court can enable an aggrieved party to obtain restitution. An example would be where one person contributes to the purchase price of the house. The owner holds it on a constructive trust for him proportionate to his contribution even though there is no agreement between them, no declaration of a trust or no evidence of any intention to create a trust. A case in point would be where a wife had contributed money to the purchase of the property from the outset. It would be inequitable for the husband as legal owner to take the property for himself and exclude the wife from it. In that case the law imputes a trust for her benefit.”

24. Considerations that this court must be satisfied with before it can impose constructive trust on the basis of cases cited are:-
    
    1. Constructive trust is imposed by the court on the merit or circumstance of each case, on the basis of equity.
       
    2. Constructive trust is imposed where “good conscience” and “justice” requires it.
       
    3. Imposed to “right a wrong”.
       
    4. Imposed where equitable contribution was made by the aggrieved party.
       
25. Court is of the view that the circumstances of this case, it must impose constructive trust in favour of the 1^st defendants and 4 villages on Ulawa, initially working together under MDA. Claimants hold legal title over the island for the people of these 4 villages as beneficiaries, not Ahia village alone. This conclusion is reached having accepted the verified evidence produced by the 1^st defendants.
    
26. The court recognises the collective goals worked for under MDA to engineer return of the island to these 4 villages, working together collectively under MDA with assistance from Government’s LUPDU, to utilize standing government policy. It is therefore a “wrong” that the property had ended up in the hands of one village only. It is good conscience and justice for the court to recognise and uphold the noble intentions under MDA and to recognise the labour/equity contributions those villages (including 1^st defendants) have made to develop the island, forming the initial policy intention to repatriate the island. And for this court to put right the “wrong^[15]” that has happened. Court is satisfied the “wrong” came about as a result of non-cooperation by Waena^[16] group, who registered PN 2 to the exclusion of MDA.
    

Commissioner has “Discretion” - “Policy” not Statute to confer binding legal obligation on the Commissioner

27. Claimants argue that the commissioner has the discretion to grant government land to anybody it sees fit. Counsel for the claimant did not elaborate; but it seems he was making reference to Section 4 (4) of the Lands and Titles Act (Cap 133). Section 4 (4) provides:
    

“The commissioner shall have power to hold and deal in interests in land for and on behalf of the government, and, subject to any general or specific directions from the Minister, to execute for and on behalf of the Government any instrument relating to an interest in land.”

28. Though commissioner has sole discretion he/she exercises his/her discretion on behalf of the Government and can act on specific or general directions from the Government. General or specific directions, if, am not mistaken, is government policy. To this end, I found from the evidence by Riumana and Colton Pua supported by “government public records evidences”, that it was Government policy to return this island (PN 2) to 4 villages (original land owners or locals) on Ulawa, under MDA, if they can demonstrate ability to develop the island. Riumana said in oral evidence that other alienated lands on Malaita and Isabel, Government through the same LUPDU, had also assisted locals there, through formation of associations of locals to benefit from this policy. Formations of associations was deemed fitting, because associations will pull together tribes. Tribes owned customary lands, prior to registration. To return alienated lands to locals, it must return to tribes, who owned the lands prior to registration.
    
29. For this island, Government through LUPDU, had assisted 4 villages under MDA, to repatriate the island. Riumana’s oral evidence was that Government set up LUPDU to purposely assist locals in the country to benefit from the policy. This is consistent with ss evidence by Colton Pua that Bio and Aitora alienated lands on Makira were also affected by the same policy with assistance from the same unit - LUDPU. Pua said since these alienated lands on Makira were agriculture/commercially developed, government had to come up with policy guidelines for return to locals. Those guidelines as Riumana and Pua alluded to in evidence is to form associations of locals, to develop the properties (alienated lands) as condition for repatriation. This is why MDA was formed for PN 2 and LUPDU assisted MDA to develop PN 2 and upon satisfactory development, commissioner was to have transfer FTE in PN 2 to MDA. So for PN 2, policy guidelines was not only return to locals, but locals must demonstrate ability to develop the island, because this island was developed by Levers when Levers gave PE to government.
    
30. The case^[17] counsel for the claimant cited for his argument that policy is not a Statute or Act that can legitimately confer legal obligations on the commissioner to transfer title to someone, claiming under return of alienated land policy, does not help the claimants’ cause. For in the case cited, court was dealing with an interlocutory injunction application. And one of the issues for trial was whether the commissioner had decided to repatriate the disputed alienated land on Isabel back to the claiming party. In this case on the evidence before me, not disputed by the commissioner, Government had already decided to assist MDA to benefit from the policy. In other words; Government had accepted and taken affirmative actions to repatriate FTE in PN 2 to MDA to benefit from government policy. Those affirmative policy implementation actions, were executed by LUDPU, in the Ministry of Agriculture and Lands. Evidence from this same Ministry in the form of “government public records” supports this conclusion.
    

Conclusion and Orders

31. In the final analysis, I therefore found that MDA was Government’s target beneficiary to assist locals on Ulawa, benefit from government policy on return of alienated land to locals. I will therefore impose constructive trust to give effect to this noble intention to benefit 4 villages and not one village alone. The 4 villages also include the 1^st defendants. I have not seen any contradictory evidence coming from the commissioner, who chose to remain silent and to accept any outcome of this case. Therefore the government policy was actually to have been implemented in the intended transfer of Government’s FTE in PN 2, Malaupaina Island to MDA. Why this did not happen is a “wrong” that can be remedied under constructive trust. Why this wrong came about was because of non-cooperation by Waena’s group, with the communal intentions under MDA, recognised and assisted by Government, as attested to in Riumana’s report.
    
32. Accordingly Court make the following orders:-
    

32.1. Claimants are the legal owners of the island, as trustees. First defendants do have equitable rights as beneficiaries that must be accommodated/facilitated/recognised by the claimants.

32.2. Claimants hold legal title to the island as trustees for the 1^st defendants and 3 other villages along with Ahia namely Maraja, Ha’au and Su’ulopo as beneficiaries.

32.3. As trustees, claimants are accountable hereafter, to the 4 beneficiary villages on Ulawa, inclusive of the 1^st defendants.

32.4. First defendants and 3 other aforementioned villages are entitled to be recognised as beneficiaries of the island.

32.5. Claimants to convene a meeting with 3 other aforementioned villages and 1^st defendants. Meetings will result in appointments of 4 new representative trustees. Newly appointed representative trustees will be registered as joint owner trustees, together with claimants. Four new representative trustees, plus claimants will hold legal title jointly, in trust for all 4 villages, plus 1^st defendants. Second and Third defendants to facilitate this in rectifying the register of PN 2.

32.6. Parties will meet their own cost, because they must ultimately cooperate under this court imposed constructive trust arrangement.

THE COURT

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JOHN A KENIAPISIA

PUISNE JUDGE

^[1] Court took judicial notice of the location description of the 3 islands.
^[2] Agreed fact No. 1 – see page 75, Court Book 1.
^[3] Arthur group in this judgment, broadly refers to MDA and specifically to Arthur and Devine plus their descendants - 1^st defendants; inclusive of those 10 families named in Riumana report, at page 64 of Court Book 2.
^[4] See the Re Amended Defense and Counter Claim, at page 39 – 45 of Court Book 1.
^[5] Evidence Act 2009 (Act No. 12 of 2009) – Section 105 (1) (b) (ii); Section 105 (2) (a).
^[6] MDA was formed in 1984 – Riumana report admitted as Exhibit 16.
^[7] Government public records are at pages 59 – 60 and 62 – 68 of Court Book 2 (Development Plan for MDA from 1988 – 1992 and Riumana report, respectively).
^[8] In oral evidence.
^[9] In sworn statement evidence and oral evidence under cross-examination.
^[10] Kimitora –v- Marovo Council of Chiefs (2002) SBHC 84; HCSI-CC 220 of 2002 (20^th November 2002).
^[11] Development Plan for MDA by Colton Pua from 1988 - 1992 – Assistant Field Officer for the LUPDU, Makira Province in 1987; in footnote 7 above.
^[12] Riumana estimated in oral evidence that MDA planted coconuts on the island in an area that exceeds 100 hectares. See also his report.
^[13] Ilabae –v- Sifoni (2014) SBHC 144; HCSI-CC 196 of 2010 (29^th September 2014), upheld by Court of Appeal on appeal by Sifoni.
^[14] Toliliu –v- Toliliu (2008) SBHC 25; HCSI-CC 248 of 2004 (9^th June 2008).
^[15] “Wrong” is that what Government intended to benefit 4 villages ended up in the hand of one village only?
^[16] Riumana Report.
^[17] Loni –v- Premier of Isabel Province (2015) SBHC 110; HCSI-CC 62 of 2014 (21^st December 2015).