South Pacific Property Law

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SOUTH PACIFIC PROPERTY LAW

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SOUTH PACIFIC PROPERTY LAW Sue Farran Associate Professor, University of the South Pacific Don Paterson Emeritus Professor, University of the South Pacific

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First published in Great Britain 2004 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 45 Beach Street, Coogee, NSW 2034, Australia Telephone: + 61 (2)9664 0909 Facsimile: +61 (2)9664 5420 Email: [email protected] Website: www.cavendishpublishing.com.au

© Farran, Sue and Paterson, Don

2004

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer.

British Library Cataloguing in Publication Data Farran, Susan South Pacific property law 1 Property – law and legislation –Oceania I Title II Paterson, Don 346.9'5'04 Library of Congress Cataloguing in Publication Data Data available ISBN 1-85941-660-8 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain

To the present and future generations of students of law of the South Pacific

ACKNOWLEDGMENTS A number of students have assisted in researching for this book, notably Kamni Naidoo, Wilson Rano, Joseph Foukona, Lorrie Johnson and Asher Johnson with research funding from the Law Department of the University of the South Pacific. Many others have contributed indirectly by sharing their knowledge and experience, especially of customary law with the authors.

CONTENTS Acknowledgments Table of Cases Table of Legislation Table of Abbreviations Glossary of Terms Introduction 1

2

3

4

5

WHAT IS PROPERTY LAW?

vi ix xxiii xxxvi xxxvii xxxix 1

Introduction Defining property 1.1 Property as things 1.2 Property as rights 1.3 What rights are there? 1.4 The temporal division of rights Conclusion

1 1 1 2 6 18 23

OWNERSHIP

25

Introduction 2.1 What is ownership? 2.2 Individual ownership and co-ownership 2.3 Unconditional ownership and conditional ownership 2.4 Prerogative ownership of land by Crown or State and substantive ownership of land by estate holders and customary landowners 2.5 Legal ownership and equitable ownership of property 2.6 Original ownership and derivative ownership Conclusion

25 25 28 31

POSSESSION AND OCCUPATION

51

Introduction 3.1 Possession of land 3.2 Possession of chattels 3.3 Possession of incorporeal property Conclusion

51 52 66 79 80

SPECIAL INTERESTS IN PROPERTY

81

33 43 47 49

Introduction 4.1 Liens and mortgages 4.2 Mesne profits and profits à prendre 4.3 Easements 4.4 Covenants 4.5 Burial rights 4.6 Ritual or symbolic rights and taboos Conclusion

81 81 90 93 97 101 102 104

MANAGEMENT OF PROPERTY

105

Introduction 5.1 Persons or legal entities who can manage properties 5.2 Kinds of uses of property Conclusion

105 105 121 129

viii

6

7

8

9

South Pacific Property Law

USE AND ENJOYMENT

131

Introduction 6.1 Usufructuary rights 6.2 Beneficial rights 6.3 Controlling use and enjoyment Conclusion

131 131 140 141 148

ACQUISITION OF PROPERTY

149

Introduction 7.1 Capacity to acquire rights and interests in property 7.2 Acquisition of legal rights to property 7.3 Acquisition of equitable interests in property Conclusion

149 149 151 176 181

ALIENATION OF PROPERTY

183

Introduction 8.1 Voluntary alienation of property 8.2 Involuntary alienation of property 8.3 Alienation by operation of law 8.4 Alienation by abandonment Conclusion

183 183 203 205 206 206

PROTECTION OF PROPERTY

209

Introduction 9.1 Physical preservation of property 9.2 Prohibitions against unlawful physical interference with property 9.3 Prohibitions against copying of property 9.4 Registration of rights and interests in property Conclusion

209 209

10 RESOLVING CLAIMS TO PROPERTY Introduction 10.1 Traditional processes 10.2 Introduced institutions 10.3 Combinations of methods for determining claims to property 10.4 General issues Conclusion

210 214 217 230 233 233 233 239 248 249 252

11 REMEDIES IN PROPERTY LAW

255

Introduction 11.1 Rights to the property 11.2 Self-help 11.3 Personal rights Conclusion

255 255 269 272 286

Index

289

TABLE OF CASES Abdul Rahman Sahu Khan v Dhupraji (1967) 14 FLR 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167n Abercrombie v Wellington (1957) 73 WN (NSW) 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Adderley v Dixon (1824) 2 LJOS Ch 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n Adjeibi Kojo II v Kwadwo Bonsie [1957] 1 WLR 1223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161 Administration of Papua New Guinea v Guba [1973] PNGLR 603; [1972–73] CLR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34n, 162n Adrian Best and Others v the Owners of the Ship Glenelg [1980–94] 1 Van LR 48 . . . . . . . . . .261 Afu v Lebas (1958) II Tonga LR 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Agip (Africa) v Jackson and Others [1991] Ch 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258n Aitken v Richardson [1967] 2 NZLR 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281n Aitken v Williamson [1956] NZLR 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198n Alatini v LDS Church [1990] Tonga LR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72n, 89n Ali Hussain v Puran (1965) 11 FLR 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71n Allardyce Lumber Co Ltd and Others v AG [1988–89] SILR 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134n, 135n Allardyce Lumber Co Ltd v Laore [1990] SILR 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n, 136n Allcard v Skinner (1887) 36 Ch D 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n Re Allen (Deceased) [1953] Ch 810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32n Allen v Gulf Oil Refining Ltd [1981] AC 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Alliance Trading Association (Solomon Islands) v Sanau [1993] SBHC 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273n, 274n Allison Benjamin v Kosrae State KSC Civil Action No 19-85 [1988] FMKSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53n, 66, 255 Re Alton Corporation [1985] BCLC 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151, 152n Amodu Tijani v Secretary, Southern Nigeria [1921] AC 399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n Anton Pillar KG v Manufacturing Processes Ltd [1976] Ch 55 . . . . . . . . . . . . . . . . . . . . . . . . .285n Antoniades v Villiers [1990] 1 AC 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62n ANZ Bank (Vanuatu) Ltd v Marchand [2001] VUCA 5 . . . . . . . . . . . . . . . . . . . . . . . . . .276n, 277n ANZ Banking Group Ltd v Merchant Bank of Fiji (1994) 40 FLR 266 . . . . . . . . . . . . . . .187, 188n ANZ Group Ltd v Ale [1980–93] WSLR 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267 Ao v Leota and the Bishop and President of the Church of Latter Day Saints (1970–79) WSLR 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Archer-Shee v Garland [1931] AC 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Aremwa v Naura Lands Committee, Nauru Law Reports [1969–82] Part B, 17 . . . . . . . . . . .200n Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67, 164n Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653 . . . . . . . . . . . . . . . .116n Ashby v Tollhurst [1937] 2 KB 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70n Ata Mohammed v Victoria Grant (1875/1946) 3 FLR 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269n Atiifale Fiso v Reid (unreported) Court of Appeal of Western Samoa CA8/95, Reid v Fiso [2001] WSCA 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Attorney-General for Duchy of Lancaster v GE Overton Farms Ltd [1982] Ch 277 . . . . . . . .164n Attorney-General of the Gambia v Jobe [1985] LRC (Admin & Const) 556 PC . . . . . . . . . . .280n Attorney-General for Hong Kong v Reid [1994] 1 AC 324 . . . . . . . . . . . . . . . . . . . . . . . . .263, 279n Attorney-General (NSW) v Brown (1847) Legge 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 162n Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n, 172n Attorney-General v Hardeo Shandil (1974) 20 FLR 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . .58n, 271n

x

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Attorney-General v Super Entertainment Centre Ltd [1996] SBHC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285n Attorney-General v Yaviong [1995] VUMC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n Australian Competition and Consumer Commission v Golden Sphere International Inc [1998] VUSC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286n Australian Provincial Assurance Co v Coroneo (1938) SR (NSW) 700 . . . . . . . . . . . . . . . . . . .172n Avondale Printers v Haggie [1979] 2 NZLR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265n Azam v Azam (1967) 13 FLR 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n Ba Town Council v Becharbhai Holdings Ltd Civil Appeal No 112 of 1985 (unreported) Court of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Baden, Delvaux and Lecuit v Société Géneral pour Favouriser le Developpement du Commerce et de l’Industrie en France [1983] BCLC 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264n Baiju v Jai Kumar [1999] FJHC 19; [1999] 45 FLR 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58, 59n Baker v Archer-Shee [1927] AC 844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Bakoto v Obed [1999] VUSC 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n, 63n Bank of New Zealand v Greenwood [1984] 1 NZLR 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Bank of Tonga v Peacock [1996] Tonga LR 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n Banque Belge pour l’Etranger v Hambrouck [1921] 1 KB 321 . . . . . . . . . . . . . . . . . . . . .164n, 256n Baram Sen v Govind Swamy Naidu and Another (1979) 25 FLR 42 . . . . . . . . . . . . . . . . . . . .275n Barclays Bank International v Société Huilerie Nouvelles Hebrides, Civil Case No 167 of 1983 [1980–94] Van LR 88 . . . . . . . . . . . . . . . . . . .259 Barrett and Sinclair v McCormack [1998] VUSC 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Barton v Armstrong [1976] AC 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n Batcheller v Tunbridge Wells Gas Co (1901) 84 LT 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Baumgartner v Baumgartner (1984) 164 CLR 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Bechani Golay v North End Property Development Ltd (1989) 35 FLR 89 . . . . . . . . . . . . . . .167n Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Benefield v the State [1992] FJCA 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282n Berking v Betham [1960–69] WSLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 Berry v Saolo [2001] VUSC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133n Betham Brothers Enterprises Ltd v Big Save Timbers Ltd [1994] WSSC 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73n Beti v Aufiu [1991] SBHC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n Bhagat v Chandra [1995] FJCA 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58n Birch v Treasury Solicitor [1951] Ch 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .202n Bird v Registrar of Titles [1980–81] SILR 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167, 168 Bird v Syme-Thompson [1979] 1 WLR 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54n Blades v Higgs (1865) 11 HLC 639; 11 ER 1474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162n Blathway v Baron Crawley [1976] AC 397, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11n Blue Lagoon Cruises Ltd v Evanson [1980] 26 FLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154n Re Blyth Shipbuilding and Dry Docks Company Ltd [1926] Ch 494 . . . . . . . . . . . . . . . . . . . .193n Boardman v Phipps [1967] 2 AC 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263n Bogart v The John Jay 58 US (17 How) 399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Bognuda v Upton & Shearer Ltd [1972] NZLR 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15n Bolton v Stone [1951] AC 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Re Bond Worth Ltd [1980] 1 Ch 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152n, 178n Bopi v Pasa [1990] SBHC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n

Table of Cases

xi

Borden (UK) Ltd v Scottish Timber Products Ltd [1981] 1 Ch 25 . . . . . . . . . . . . . . . . . .151n, 174n Borman v Griffith [1930] 1 Ch 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93n Boscawen and Others v Bakwa and Another [1996] 1 WLR (AC) 328 . . . . . . . . . . . . . . . . . . .257n Bray v Ford [1896] AC 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263n Bridges v Hawkesworth (1851) 21 LJQB 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68, 164n Brocklebank v Thompson [1903] 2 Ch 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94n Re Brown [1954] Ch 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11n Brown v Flower [1911] 1 Ch 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93n Bruce Duncan Lawlor v Timoci Duaibe (1976) 22 FLR 134 . . . . . . . . . . . . . . . . . . . . . . . . .46, 181n Brusewitz v Brown [1923] NZLR 1106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n Bue Manie Kenneth Kaltabang v Sato Kilman Land Appeal [1988] VUSC 9; [1980–94] 2 Van LR 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56n Buga v Ganifiri [1982] SILR 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53n, 101n, 160, 244n Lulu Buksh v Official Receiver (1987) 33 FLR 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203n Bull v Bull [1955] 1 QB 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53n Bulou Eta Kacaliani Vosailagi v Native Lands Commission (1989) 35 FLR 116 . . . . . . . . . . .235n Burnie Port Authority v General Jones Pty Ltd (1944) 120 ALR 42 . . . . . . . . . . . . . . . . . . . . . .142n Cable and Wireless plc v Mataele [1989] Tonga LR 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111 Caird v Sime (1887) 12 App Cas 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n Cal Timber Co Ltd v Santa Cruz Timber Ltd [1999] SBHC 36 . . . . . . . . . . . . . . . . . . . . . . . . . .135n Caldwell v Mongston (1908) 2 FLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 162n Campbell v Hall (1774) 1 Cowp 204; 98 ER 1045 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n Capelle v Mwareow Dowaiti, Nauru Law Reports [1969–82] Part B, 51 . . . . . . . . . . . . . . . . . .161 Capital Finance Co Ltd v Stokes [1969] 1 Ch 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178n Carlos Etscheit Soap Company, Inc, Yvetee Etscheit Adams and Renee Etscheit Varner v Pensure Epina and Others Civil Action No 1997-064 (8 FSM Intrm 155) (Pon 1997) (unreported) www.vanuatu.usp.ac.fj.paclawmat/Micronesia_cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59 Carlton Brewery (Fiji) Ltd v Bubble Up Investments Ltd [1998] FJHC 70 . . . . . . . . . . . . . . .285n Carmel v Satya [1996] SBHC 39 & 48179/1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285n Carpet Import Co Ltd v Beat & Co Ltd (1927) NZLR 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Carter v Wake (1877) 4 Ch D 605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n Case of Swans (1592) 7 Co Rep 15b; 77 ER 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171n Cassell & Co Ltd v Broome [1972] AC 1027 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274n Castle v St Augustines Links (1922) 38 TLR 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n The Cella (1888) 13 PD 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86n Celsteel v Alton House Holdings Ltd (No 2) [1987] 1 WLR 291 . . . . . . . . . . . . . . . . . . . . . . . . .62n Chalmers v Pardoe [1963] 1 WLR 677 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83, 179n Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 6 . . . . . . . . . . . . . . . . . . . . .286n Charley Jim v Moses Alik [1989] FMKSC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267 Chern Chin Her v Public Prosecutor [1989] VUSC 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268n Ching v Elisara [2000] WSSC 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n Chow v Hutaiwao [1997] SBHC 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97n City of London Corporation and Others v Appleyard and Another [1963] 1 WLR 982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67n Clark v Pikokivaka and Others, Civil Case No 90/93 [1993] Tonga LR 50 . . . . . . . . . . . . . . . .69n Clarke v West Ham Corporation [1909] 2 KB 858 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73n

xii

South Pacific Property Law

Clavering v Ellison (1859) 7 HLC 707; 11 ER 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10n, 32 Clayton v Ramsden [1943] AC 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Clayton’s Case (1816) 1 Mer 529; 35 ER 781 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258n Clifton Securities v Huntley [1948] WN 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70n Re Cole [1964] Ch 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196n Combined Fera Group v AG [1997] SBHC 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136n Re the Constitution of the Republic of Vanuatu, The Infant Vorongo [1984] VUCA 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103n Re the Constitution, Taamale v AG [1995] WSCA 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124n Cook v Sauvao [2002] WSSC 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138n Cooper v Stuart (1889) 14 App Cas 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Copeland v Greenhalf [1952] Ch 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94n Re Craig (Deceased) [1971] Ch 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198n Credit Corporation (Fiji) Ltd v Kennedy Hotel Ltd [1999] FJCA 13 . . . . . . . . . . . . . . . . .20n, 84n Credit Suisse Fides Trust v Cuoghi [1998] QB 818 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286n Cundy v Lindsay (1878) 3 App Cas 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156n Dairy Farm Co Ltd, Australian Dairy Farm Ltd and Dairy Farm Ice and Cold Storage Co Ltd v Dairy Farm Ice Cream Co Ltd (1980) 26 FLR 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n Dale v Copping (1610) 1 Bulst 39; 80 ER 743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Dalton v Angus & Co (1881) 6 App Cas 740 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n Darby v Harris (1841) 1 QB 895; 113 ER 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Darling v Clue (1864) 4 F & F 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 53 . . . . . . . . .267n Davie v New Merton Board Mills Ltd [1957] 2 QB 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Davies v Beynon-Harris (1931) 47 TLR 424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Dayaram Sharma v Northern Hotels Ltd (1968) 14 FLR 157 . . . . . . . . . . . . . . . . . . . . . . . . .110, 111 Dillwyn v Llewellyn [1861–73] All ER Rep 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Re Diplock: Wintle v Diplock [1948] Ch 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44n, 257n Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458 . . . . . . . . . . . . . . . . . . . . . . . . .126n Dominion Hardware Company Ltd v Master Foods (Fiji) Ltd (1988) 34 FLR 177 . . . . . . . . .203n Donald Pickering & Sons Enterprises Ltd and United Marine (South Pacific) Ltd v Karim’s Ltd, the Vessel Bainiuvaliku and the Vessel Senibiyan Admiralty Action 0002 of 1996 Fiji [1997] FJHC 20; (1997) 43 FLR 41 . . . . . . . . . . .9n, 86n, 262 Donaldson v Beckett (1774) 4 Burr 2408; 1 ER 837 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n, 214n Donoghue v Stevenson [1932] AC 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71, 126n, 274n Dovan v Public Prosecutor [1980–94] 1 Van LR 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74n Drane v Evangelou [1978] 1 WLR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274n Re Dugirouwa, Nauru Law Reports [1969–82] Part B, 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n Edgington v Fitzmaurice (1885) 29 Ch D 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n El Ajou v Dollar Land Holdings [1994] 2 All ER 685, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264n Betty Elisara v Mataese Elisara and Neti Kerisoma (Div 21/93) [1994] WSSC 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 181, 265 Re Ellenborough [1903] 1 Ch 697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198n Re Ellenborough Park [1956] Ch 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93n Ellison v Vukicevic (1986) 7 NSWLR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97n Elwes v Briggs Gas Co (1886) 33 Ch D 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67n, 164n

Table of Cases

xiii

Emmerson v Maddison [1906] AC 569, PC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n Esau v Tokon [2002] VUSC 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101n, 138n Etpison v Perman, 1 FSM Intrm 405 (Pon 1984) (unreported) www.vanuatu.usp.ac.fj/paclawmat/Micronesia_cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55n Faafulu v Su [2000] WSSC 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60n, 133n Faccini v Bryson [1952] 1 TLR 1386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62n The Family of the Former High Chief of Butaritari v The Old Men of Butaritari, Civil Appeal No 1 1975 [1975] KIHC 1 . . . . . . . . . . . . . . . . . . .220 Family Sope v Family Kalulu Civil Case No 1 (1994) (unreported) www.vanuatu.usp.ac.fj/paclawmat/Vanuatu_cases . . . . . . . . . . . . . . .140 Fasi v Fifita [1996] Tonga LR 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Federal Business Development Bank v SS Thorfinn, Seaward Holdings Ltd and Seaward Holdings (Micronesia) Ltd Civil Action No 1989-1016 [1989] FMKSC 8; [1990] FMKSC 20 Appeal Case No T2-1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85 Fifita v Fie’eiki (No 2) Civil Case 788 [1995] Tonga LR 187 . . . . . . . . . . . . . . . . . . . . . . . . .66, 278n Filimone Vatusere v Jaimal (1936) 3 FLR 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Fletcher v Noakes [1897] 1 Ch 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269n Fongs Holdings Ltd v Hariman Ltd [1996] FJHC 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94n, 95 Forster v Blyth Shipbuilding and Dry Docks Company Ltd [1926] Ch 494 . . . . . . . . . . . . . . .193n Fosita v Tu’inau [1981–88] Tonga LR 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317 . . . . . . . . . . . . . . . . . . . . . .64n France, Fenwick & Co v The King [1927] 1 KB 458 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n Fraser and Fraser v Angco Pty Ltd [1977] PNGLR 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185n French v Auckland City Council [1974] 1 NZLR 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Fry v Lane (1888) 40 Ch D 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n Re Fuld (No 3) [1968] P 675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201 Funua v Cattle Development Authority [1983] SILR 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n Gairy v Attorney General of Grenada [2001] 4 LRC 671, PC . . . . . . . . . . . . . . . . . . . . . . . . . . . .280 Garrick v Costello (1974) 20 FLR 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Gaya Nomgui and Others v Administration of the Territory of Papua and New Guinea (Re Lae Administration Land) [1974] PNGLR 349 . . . . . . . . . . .38n Geita Sebea v Territory of Papua (1941) 67 CLR 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 162n Gifford v Lord Yarborough (1828) 3 Bing 163; 130 ER 1023 . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Gillies v Keogh [1989] 2 NZLR 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181n Gissing v Gissing [1971] AC 886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181n, 265 Godin v London Assurance Co (1758) 1 Burr 489; 97 ER 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . .84n Re Goldcorp Exchange Ltd [1995] AC 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45n Goldman v Hargreave [1967] AC 645 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Government of Malaysia v Selangor Pilots Association [1978] AC 337 . . . . . . . . . . . . . . . . . .212n Government of the State of Penang v Ben Hong Oon [1972] AC 425 . . . . . . . . . . . . . . . . . . . .172n Grant v Australian Knitting Mills [1936] AC 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Grant v Edwards [1986] Ch 638 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181n Great Eastern Railway Company v Lord’s Trustee [1909] AC 109 . . . . . . . . . . . . . . . . . . . . . . .82n Grigsby v Melville [1974] 1 WLR 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16n Guadalcanal Resource Development v Dalsol Ltd (No 2) [1996] SBHC 62 . . . . . . . . . . . . . . .135n Gulam Rasul v Native Land Trust Board 91/1975 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Fiji_cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n

xiv

South Pacific Property Law

Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275n Hakim Mohammed v Mohammed Nasir (1994) 40 FLR 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . .53n Re Hall [1914] P 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n Re Hallett’s Estate (1880) 13 Ch D 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258n Halsey v Esso Petroleum Ltd [1961] 1 WLR 683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Hambrook v Stokes [1925] 1 KB 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Hamps v Darby [1948] 2 KB 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162n Hannah v Peel [1945] 1 KB 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51n Harman v Towson and Harman (1943) 3 FLR 344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n, 172n Harmer v Bell (1850) 83 RR 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86n, 262n Harrikissoon v Attorney-General [1979] 3 WLR 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Hart v O’Connor [1985] AC 1000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n Havea v Tu’iatitu [1974–80] Tonga LR 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Haynes’ Case (1613) 12 Co Rep 113; 77 ER 1389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n, 206n Hayward v Giordani [1983] NZLR 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n ‘The Heinrich Bjorn’ (1985) 10 PD 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9n, 262n Helby v Matthews [1895] AC 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n Hendy Lennox (Industrial Engineers) Ltd v Grahame Puttick Ltd [1984] 1 WLR 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n, 174n Hewett v Court (1983) 57 ALJR 211; (1983) 149 CLR 639 . . . . . . . . . . . . . . . . . . . . . . . . . . .83, 259n Hibbert v McKiernan [1948] 2 KB 142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164n Hinz v Berry [1970] 2 QB 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Hobson v Gorringe [1897] 1 Ch 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Holland v Hodgson (1872) LR 7 CP 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Holroyd v Marshall (1862) 11 ER 999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193n Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339 . . . . . . . . . . . . . .16n Hudson v Cripps [1896] 1 Ch 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62n Hulbert v Dale [1909] 2 Ch 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166n Hull v Parsons [1961] NZLR 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Humphrey v Burrell [1951] NZLR 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Hunt v Australasian United Steam Navigations Company Ltd (1919) 2 FLR 72; [1921] 2 AC 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79n Hussain Sahib v Native Land Trust Board [1997] FJHC 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Ilena Bernhard [1938] 2 KB 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 In the Land Titles Application 90/101 (Re Hides Gas Project Land Case) [1993] PNGLR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160, 161n Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198n Indian Oil Corporation Ltd v Greenstone Shipping SA (Panama) [1988] 1 QB 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152n, 174n Industrial Properties v AEI Ltd [1977] 2 All ER 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157n Ingram v Little [1961] 1 QB 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157n, 282n IRC v Muller & Co’s Margarine Ltd [1901] AC 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154n Irene Bongnaim v Government of Vanuatu [2001] VUSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278 JV Kapadia & Co v Suva Motors Ltd (1974) 20 FLR 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110, 111 JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n James Morrison & Co v Shaw, Savill and Albion Co [1916] 2 KB 783 . . . . . . . . . . . . . . . . . . . . .71n Jay Mingo Pty Ltd v Steamships Trading Pty Ltd [1995] PNGLR 129 . . . . . . . . . . . . . . . . . . .179n Jefferys v Boosey (1854) 4 HL 815; 10 ER 681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n, 214n

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Jennings v Onesemo [2001] WSCA 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14n Re Jigrose Pty Ltd [1994] 1 Qd R 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n, 206n Jimmy v Karie [2002] VUCA 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273n Johnson v Agnew [1980] AC 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283n Johnstone & Wilmot Pty Ltd v Kaine (1928) 23 Tas LR 43 . . . . . . . . . . . . . . . . . . . . . . . .165n, 206n Jones v De Marchant (1916) 28 DLR 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152n, 174n Jones v Lock (1865) 1 Ch App 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Josateki Seru v Ramesh Pala (1989) 35 FLR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110, 111 Re K [1985] Ch 85; [1986] Ch 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n Kaibakia v Tabokai, Land Appeal No 9 of 1996 [1997] KICA 23 . . . . . . . . . . . . . . . . . . . . . . . . .229 Kanaifiolo v Umai [1996] SBHC 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n Karezama v Jesina Ltd [1997] SBHC 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282n Keene v Carter (1994) 12 WAR 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n, 206n Kennaway v Thompson [1981] QB 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Kennel v Abbott (1797) 4 Ves 802; 31 ER 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n Kiere v Han Sin Construction Ltd [1999] SBHC 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n King v Attorney-General of Barbados [1994] 1 WLR 1560 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Kinisita v Ramolele (Land Appeal Case No 1) [1996] SBHC 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18n, 132 Kippion Harry & Others v Attorney General and The China Chang Jiang Energy (Group) [1994] VUSC 1 . . . . . . . . . . . . . . . . . . . .14n, 142n, 277 Kofana v Aute’e [1999] SBHC 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18n Kosrae State v Molid Tolenoa [1989] FMKSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133, 271n Kovovulavula v Public Service Commission, Court of Appeal 6/1994 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Fiji_cases . . . . . . . . . . . . . . . . . . . . . . . .221n Kuen v Pongi [1997] SBHC 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19n, 268n Ladup Ltd v Williams and Glynn’s Bank plc [1985] 1 WLR 851 . . . . . . . . . . . . . . . . . . . . . . . . .65n Sir James Laing v Barclay, Curle & Co Ltd [1908] AC 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193n Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJKB 601 . . . . . . . . . . . . . . . . .281n Lawrence v Jenkins (1873) LR 8 QB 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94n Lazarus Estates Ltd v Beasley [1956] 1 QB 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n Re Leach [1912] 2 Ch 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10n Leakey v National Trust [1980] QB 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n Lee Bow Yiu v Patel (1957) 5 FLR 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167n Lee v Butler [1893] 2 QB 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Lee v Lee’s Air Farming Ltd [1961] AC 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116n Leigh v Taylor [1902] AC 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Leua v Kalena Timber Co Ltd [1999] SBHC 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135n Li v Katoa [1996] Tonga LR 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283n Liamatua v Mose [1998] ASHC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14n Liesbosch Dredger v SS Edison [1933] AC 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273n Ligairi v State [2001] FJHC 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276n Liiou’ou v Saruhohola [1999] SBHC 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133n Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] AC 85 . . . . . . . . . . .190n, 191n Lister & Co v Stubbs (1890) 45 Ch D 1, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n Lloyds Bank v Bundy [1975] QB 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n London Corporation v Appleyard [1963] 1 WLR 982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164n Lone (Tagaloa) v Kalati (Tuse Auali’itia) [1970–79] WSLR 284 . . . . . . . . . . . . . . . . . . . . . . . . . .70n

xvi

South Pacific Property Law

Loumia v DPP [1985/86] SILR 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Louth v Diprose (1992) 175 CLR 621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198 Re Lowrey’s Will Trusts [1967] Ch 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Re Luabar Logging Pty Ltd [1988] PNGLR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Lucas v Lucas and High Commissioner for India [1943] P 68 . . . . . . . . . . . . . . . . . . . . . . . . . .191n Ludwig Tilfas v Heirs of Alik Luke (Civil Action No 80-93) 1998 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Micronesia_cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55n Luthier v Kam, Civil Case No 98 of 1983 [1980–94] 1 Van LR 116 . . . . . . . . . . . . . . . . . . . . . . . .84 Lynch v Dalzell (1729) 2 ER 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Ma’asi v Akau’ola (1956) II Tonga LR 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Mabo v Queensland (1992) 175 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 McCleay v Commissioner of Inland Revenue [1963] NZLR 711 . . . . . . . . . . . . . . . . . . . . . . . .193n McCosker and King v Kuster [1967–68] PNGLR 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n McDougall v Aeromarine of Emsworth Ltd [1958] 1 WLR 1126 . . . . . . . . . . . . . . . . . . . . . . . .193n McEntire v Crossley Bros [1895] AC 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 McPhail v Persons Unknown [1973] Ch 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57n Maerua v Kahantarou [1983] SILR 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239n Maharaj v AG of Trinidad and Tobago [1947] AC 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n Malas Family v Songoriki Family [1980–88] 1 Van LR 235; [1986] VUSC 12 . . . . . . . . . . . . . .161n Mani Lal v Satya Nand (1994) 40 FLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Manie v Kilman [1988] VUSC 9; [1980–94] 2 Van LR 343 . . . . . . . . . . . . . . . .53n, 103n, 160, 161n Manitoba Fisheries Ltd v The Queen (1978) 88 DLR 462 . . . . . . . . . . . . . . . . . . . . . . . . .211n, 212n Mapusua Pelenato v Faalogo Vaitusi [1994] WSLR 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n Mara v Browne [1896] 1 Ch 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264n Marlor Investments v Symmons [1967–68] PNGLR 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185n Mataele v Havili Civil Appeal No 258/94 [1994] Tonga LR 73 . . . . . . . . . . . . . . . . . . . . . . .21n, 70 Melanesian Mission Trust Board v AMP [1977] 1 NZLR 391 (PC) . . . . . . . . . . . . . . . . . . . . . . .62n Merchant Bank of Fiji Ltd v Girdhar Lal Raniga & Suresh Maharaj [1993] FJHC 4 . . . . . . . . .286 Meredith v Pa’u [1994] WSSC 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Miller v Dell [1891] 1 QB 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n Millington v Fox (1838) 3 My & Cr 338; 40 ER 956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n, 215n Ministry of Lands v Kulitapu [1974–80] Tonga LR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Mitchell v Ealing London Borough Council [1979] 1 QB 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71n Moa v Faka’osita [1990] Tonga LR 195; affirmed [1991] Tonga LR 32 . . . . . . . . . . . . . . . . . . .226n Mohammed and Others v R [1975] FJCA 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Moore v Regents of the University of California (1988) 249 California Reports 494 (Court of Appeals); (1990) 271 California Reporter 146 (SC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9n Moorgate Mercantile v Finch [1962] 1 QB 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281n Morris Hedstrom (Samoa) Ltd v H & J Retslaff Ltd [1980–93] WSLR 521 . . . . . . . . . . . . . . . .281n Morris v Morris (1982) 1 NSWLR 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83n Mosley v Loughman [1893] 1 Ch 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198 Motuliki v Namoa, Motuliki and Minister of Lands [1981–88] Tonga LR 141 . . . . . . . . .46, 181n Muirhead v Industrial Tank Specialities Ltd [1986] 1 QB 567 . . . . . . . . . . . . . . . . . . . . . . . . . .126n Murphy v Gregory [1959] NZLR 868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n Muschinski v Dodds (1985) 160 CLR 583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Re Mwareow, Land Appleal No 6 of 1969 Nauru Law Reports [1969–82] Part B, 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160n

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Re The Nagol Jump, Assal & Vatu v Council of Chiefs of Santo [1992] VUSC 5; [1980–84] 2 Van LR 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139n, 255n Nambali v Public Prosecutor No 2 [1980–94] II Van LR 280 . . . . . . . . . . . . . . . . . . . . . . . . . . . .268n Nandan v Datt [1984] FJCA 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94n Nariki Kautu v Makirita Rinikarawa and Others [1997] KICA 3 . . . . . . . . . . . . . . . . . . . . . . .171n Nash v Inman [1908] 2 KB 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n National Bank of Vanuatu v Reece Kaluat and Mose Moli [1998] VUSC 19 . . . . . . . .257n, 263n Native Land Trust Board v Maikeli Nagata (1993) 39 FLR 148 . . . . . . . . . . . . . . . . . . . . . . . .30, 33 Native Land Trust Board v Phul Kuar and Another (1973) 19 FLR 55 . . . . . . . . . . . . . . . . . . . . .60 Nausori Meat Co Ltd v Fiji Electric Ltd (1983) 29 FLR 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53n Nelson Kile v Maga Corporation Ltd and Others [1996] SBHC 5 . . . . . . . . . . . . . . . . . . . . . .285n Nena v Kosrae State Civil Action No 18-85 [1988] FMKSC 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n Neste Oy v Lloyds Bank [1983] 2 Lloyd’s Rep 658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45n New Zealand Shipping Company Ltd v AM Satterthwaite & Co Ltd [1975] AC 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111n Newborne v Sensolid (Great Britain) Ltd [1954] QB 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230 Nichols v Ely Beet Sugar Factory Ltd (No 1) [1931] 2 Ch 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n Nickel v Ah Vui [2000] WSSC 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273n Re The Ninety Mile Beach [1963] NZLR 461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34n, 35 Nippon Yusen Kaisha v Kaageorgis and Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509, CA . . . . . . . . . . . .285n Nisha v Munif [1999] 45 FLR 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Noel v Toto, Civil Case No 18 [1995] VUSC 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10n Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 . . . . . . . . . . . . .192n, 193n, 197n North Western Railway Co v M’Michael (1850) 5 Exch 114; 155 ER 49 . . . . . . . . . . . . . . . . . .150n Northern Counties of England Fire Insurance Company v Whipp (1884) 16 Ch D 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n Northern Utilities v London Guarantee Insurance Co [1936] AC 108 . . . . . . . . . . . . . . . . . . .125n Oakley v Lister [1931] 1 QB 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281n Re Oatway [1903] 2 Ch 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258n Ofa Lotu Koloi v Enele Ongoongotau and Minister of Lands [2001] TOLC 4 . . . . . . . . . . . .226n Official Receiver v National Bank of Fiji (1992) 38 FLR 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Official Receiver v Sibluk Transport (1993) 39 FLR 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n OG Sanft and Sons v Tonga Tourist and Development Co Ltd [1981–88] Tonga LR 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 181 Oliver v Bradley [1987] 1 NZLR 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Re Ontario Securities Commission (1985) 30 DLR (4d) 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258n Opet v Mobil Oil Micronesia Inc (1987) SPLR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281n Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274n Palik v Kosrae State Civil Action No 17-90 [1991] FMKSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n Pao On v Lau Yiu Long [1980] AC 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n Re Papua New Guinea Block Company Pty Ltd (In Liquidation) [1982] PNGLR 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .202n Parker v British Airways [1982] 2 QB 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67, 68, 164n Pasi v Kamana [1986] 1 NZLR 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Patel v Badal (1943) 3 FLR 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84n Pati Westerlund v Director of Lands, Survey and Environment [2000] WSSC 30 . . . . . . . . .145n Pauliasi Natiri v Viliame Rakuli (1972) 18 FLR 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109

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Pearce v Brain [1929] 2 KB 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276 Peters v Fleming (1840) 6 M & W 42; 151 ER 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Pettitt v Pettitt [1970] AC 777 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181n Pettkus v Becker [1980] 2 SCR 835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Pharmaceutical Society of Great Britain v Dickinson [1970] AC 403 . . . . . . . . . . . . . . . . . . . .115n Phipps v Pears [1956] Ch 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93n Pilcher v Rawlins (1872) 7 Ch App 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Plimmer v Mayor etc of Wellington (1884) 9 App Cas 699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Re Polemis and Furness, Withy and Co Ltd [1921] 3 KB 560 . . . . . . . . . . . . . . . . . . . . . . . . . . .274n Police v Tipi Magasiva Malaitai [1994] WSSC 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15n, 78, 271n Polly Peck International v Nadir [1992] 2 Lloyd’s Rep 238, CA . . . . . . . . . . . . . . . . . . . . . . . .264n Polynesian Airlines Ltd v Moin [1981–88] Tonga LR 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71n Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd [1981] 1 WLR 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111n Precision Dippings Ltd v Precision Dippings Marketing Ltd [1986] Ch 447 . . . . . . . . . . . . . .116n Prince Vyas Lakshman & Veena Devi Lakshman v The Trustees of Sanatan Dharam and Others (1989) 35 FLR 164; (1992) 38 FLR 42 . . . . . . . . . . . . . . . . . .95n Public Prosecutor v Baldwin Jacobson Lonsdale (unreported) judgments of the Joint Court of the New Hebrides 1970–73 . . . . . . . . . . . . . . . . . . . . . . . . .212n Public Prosecutor v Firiam [1998] VUSC 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276n Public Prosecutor v Jean Denis Noses [1991] VUSC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276 Public Prosecutor v Kalmet Kaltabang [1980–94] 1 Van LR 211 . . . . . . . . . . . . . . . . . . . . . . . . .266 Public Prosecutor v Leslie Galt and Others [1980–94] 1 Van LR 158 . . . . . . . . . . . . . . . . . .74n, 75 Pukuweka Sawmills Ltd v Winger [1917] NZLR 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Pung Nimp v Rumants [1987] PNGLR 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 114, 126 Re The Queen in right of Manitoba and Air Canada (1978) 86 DLR 3d 631 . . . . . . . . . . . . . . .16n The Queen v St Pancras Assessment Committee (1877) 2 QB 581 . . . . . . . . . . . . . . . . . . . . . . . .51n The Queen v Symonds (1847) NZPCC 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Queensland Mines v Hudson (1978) 18 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264n RJ Reuter Co Ltd v Ferd Mulhens [1954] Ch 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154n R v Adachi Requeo [1998] SBHC 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282 R v Arnold (1883) 4 NSWR (L) 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 R v Aseri Raratabu [1972] 18 FLR 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n R v Asuanu [1990] SILR 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276 R v Ball [1951] 2 KB 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75n R v Garlick (1843) 1 Cox CC 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n R v Inwood (1974) 60 Cr App R 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .276n R v Kelly [1998] 3 All ER 741 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n R v Miller [1955] NZLR 1038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75n R v Musuota [1997] SBHC 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n R v Price (1884) 12 QBD 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n R v Sharpe (1857) 26 LJMC 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n R v Symonds (1847) NZPCC 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162 R v Tadakusu [1999] SBHC 108 and 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74n R v Turner (No 2) [1971] 1 WLR 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Rabaul Stevedores Ltd and Another v Seeto and Another (1985) LRC (Comm) 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74n, 111 Radiach v Smith (1959) 101 CLR 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n

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Ram Charan v Labasa Blue Metal Supplies Ltd [1997] FJHC 133 . . . . . . . . . . . . . . . . . . . . . . .57n Ram Manohar v Lalu Chaudhary (1967) 13 FLR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Ram Nandan v Shui Datt [1984] FJCA 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n Ram Narayan and Another v Richard Hussain Shah (1975) 21 FLR 139; [1979] WLR 1349 (PC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n Ram Shankar (Suva Bowling Club) v Suva City Council (1982) FLR 148 . . . . . . . . . . . . . . . .284n Ramsden v Dyson (1866) LR 1 HL 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Ranger v Giffen (1968) 87 WN (Pt 1) NSW 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164n Rasch v Akibwib, Nauru Law Reports [1969–82] Part B, 145 . . . . . . . . . . . . . . . . . . . . . . . . . . .200n Rathwell v Rathwell [1978] 2 SCR 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Ratu Filimone Naliva v Ratu Sailasa Naisau (1935) 30 FLR 115 . . . . . . . . . . . . . . . . . . . . . . . . .235 Ratu Nacanieli Nava v Native Lands Commisssion, High Court JR 9/1002 (11 November 1992) www.vanuatu.usp.ac.fj/paclawmat/Fiji_cases . . . . . . . . . . . . . . . . .235n Reef Pacific Trading Ltd v Price Waterhouse [1997] SBHC 14 . . . . . . . . . . . . . . . . . . . . . . . . . .277n Reef Shipping Co Ltd v Prime Minister of Tonga [1981–88] Tonga LR 7 . . . . . . . . . . . . . . . . . .110 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264n Regenvanu Family v Ross and Abel [1980–88] 1 Van LR 284 . . . . . . . . . . . . . . . . . . . . . . . . . . .161n The Ripon City (1946) P 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261 Roberts v James (1903) 89 LT 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166n Robins & Co v Gray [1895] 2 QB 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261 Rokomatu Namulo v Native Lands & Fisheries Commission [1995] FJHC 13 . . . . . . . . . . .235n Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246 . . . . . . . . . .116n Rookes v Barnard [1964] AC 1129, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 Rormy Posada v Miika Talanga [1988–89] Kiribati Law Reports 1 . . . . . . . . . . . . . . . . . . . . . .281n Ross v Shamin [1998] FJHC 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n Ryan v Bhardwaj [1999] WSSC 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145n Ryder v Wombwell (1868) LR 4 Exch 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Rylands v Fletcher (1868) LR 3 HL 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 125n, 142n Sadhulal Bhakshkar v Morrison (1957) 5 FLR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153n, 172n ‘St Elefterio’ (1957) 1 Lloyd’s Rep 283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .262n St Helens Smelting v Tipping (1865) 11 HLC 642 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124n Re St Michael’s, Orchard Portman [2001] Fam 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172n Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n Salomon v Salomon & Co Ltd [1897] AC 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116n Salt v Marquess of Northampton [1982] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n Samnut v Strickland [1938] AC 678 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35n Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680 . . . . . . . .152n, 174n Santley v Wilde [1899] 2 Ch 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n Schalit v Joseph Nadler Ltd [1933] 2 KB 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Schneideman v Barnett [1951] NZLR 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193n Schoenderwoerd v Hunt [1994] WSSC 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4n Seager v Copydex Ltd [1967] 1 WLR 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n Sekovolomo v Eagon Resources Development Company Ltd [1999] SBHC 116 . . . . . . . . . . . . .61 Re Selby’s Will Trusts [1966] 1 WLR 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Sen v Headley [1991] Ch 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .202n Shamshul Nisha v Abdul Munif (1999) 45 FLR 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 266n Sheila Maharaj v Jai Chand [1986] 1 AC 898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181n, 265 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 . . . . . . . . . . . . . . . . . . . . . . . . .275n

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Shevill v Builders’ Licensing Board (1982) 149 CLR 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n The Ship ‘MV Voseleai’, The Captain and Crew of Vessel ‘MV Voseleai’ v The Owners of the Ship ‘MV Voseleai’ (1994) FLR 40; [1994] FJHC 4 . . . . . . . . . . . .86n, 261 Sifton v Sifton [1938] AC 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Simon Dorsen v Frederick Brysten [2001] VUCA 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278 Sinclair v Brougham [1914] AC 398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Singh v Bhadra [1995] FJCA 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n Singh v Wilson-Speakman [1998] FJCA 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269n Sione Malamala v Sione Halahifi Malamala (1958) II Tonga LR 169 . . . . . . . . . . . . . . . . . . . .226n Sivaro v State [1998] FJCA 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 SMEC v Temeakamwaka Landowners [1998] KICA 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14n Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 . . . . . . . .99n Smith v City Petroleum Co Ltd [1940] 1 All ER 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Société United Docks v Government of Mauritius [1985] LRC (Const) 801 . . . . . . . . . . . . . .212n Sorochan v Sorochan [1986] 2 SCR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n South Staffordshire Water Co v Sharman [1896] 2 QB 44; [1896] 2 QB 562 . . . . . . . .67n, 68, 164n Southern Centre of Theosophy Inc v South Australia [1982] AC 796 . . . . . . . . . . . . . . . . . . . .172n Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218 . . . . . . . . . . . . . . . . . . . . . . .270n Sovita v Police [2000] WSSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n Sowler v Potter [1940] 1 KB 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157n Spence v Union Marine Insurance Co Ltd (1868) LR 3 CP 427 . . . . . . . . . . . . . . . . . . . . . . . . .174n Re Spike & Rocca Group Ltd (1980) 107 DLR (3rd) 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99n Spyer v Phillipson [1931] 2 Ch 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173n Stamp v United Dominions Trust (Commercial) Ltd [1967] 1 QB 418 . . . . . . . . . . . . . . . . . . .266n The State v Director of Lands ex p Charan [1998] FJHC 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 State v Native Lands Commission ex p Koroimata [1997] FJHC 49; (1997) 43 FLR 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .235n Steinberg v Scala [1923] 2 Ch 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Stephen Seokovolomo v Eagon Resources Development Company Ltd and Others [1999] SBHC 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282n Stott v Milne (1884) XXV Ch D 710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Street v Mountford [1985] AC 809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Re Stucley, Stucley v Kekewich [1906] 1 Ch 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82n, 259 Sutton v Moody (1697) 1 Ld Raym 250; 91 ER 1063 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162n, 163n Sutton’s Hospital Case (1612) 10 Co Rep 23a; 77 ER 960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115n Swain v Ayres (1888) 21 QBD 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Swainston v Clay (1863) 4 Giff 187; 66 ER 672 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 . . . . . . . . . . . . . . . . . . . . . . . . . . .178n Tada v Usa [1996] SBHC 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14n, 53n, 66, 255, 282n Tahi v Kwemoli [2001] VUSC 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274n Tailby v Official Receiver (1888) 13 App Cas 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193n Talili v Satele Momosea [1988] SPLR 2 (American Samoa) . . . . . . . . . . . . . . . . . . . . . . .123n, 133n Tamworth Industries Ltd v Attorney-General of New Zealand (1991) 3 NZLR 616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67n, 68 Tangitau v Paunga [1974–80] Tonga LR 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281n Tappenden v Artus [1964] 2 QB 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .260 Tatwin v Attorney General [1995] VUSC 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n Taylor v Pickering (1936) 3 FLR 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167n Teika v Maui [1985/86] SILR 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244n Teitinnong v Ariong [1987] LRC (Const) 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n

Table of Cases

xxi

Television Broadcast Ltd v Yee Ting Man [1998] FJHC 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285n Tenefufu & Others v Squash Export Co Ltd and Others [1993] Tonga LR 81 . . . . . . . . . . . . .275n Re Tepper’s Will Trusts [1967] 1 Ch 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32n Thakurain Ritraj Koer v Thakurain Sarfaraz Koer (1905) 21 TLR 637 . . . . . . . . . . . . . . . . . . .172n Re Thesia Maip N958 [1991] (unreported) www.vanuatu.usp.ac.fj/paclawmat/PNG_cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103n Thomas v The Times Book Co [1966] 1 WLR 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196n Tito v Waddell (No 2) [1977] 1 Ch 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 177n Toba Pty Ltd v Poole [1984] PNGLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186n Tofe v Fera [1999] SBHC 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263n Tokyo Corporation v Mago Island Ltd and Borron (1982) 38 FLR 28 . . . . . . . . . . . . . . . . . . . .34n Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 . . . . . . .191n The Tolten (1897) P 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261 Tonga Development Bank v Carafa [2001] TOSC 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n To’ofilu v Oimae [1997] SBHC 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103n Tooma Tokintekai v Tobotika Obera Land Appeal No 6 of 1996 [1997] KICA 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199n Toplis & Harding Pty Ltd v Dadi Toka and Grandsen [1982] PNGLR 321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110, 112 Total Oil of Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n Tretham Construction Ltd v Malas [1996] VUSC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114n Tucker v Farm and General Investment Trust Ltd [1966] 2 QB 421 . . . . . . . . . . . . . . . . . . . . .171n Re Tuck’s Settlement Trusts [1978] Ch 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32n Tufele Liamatua v Mose [1998] SPLR 41; [1998] ASHC 1 . . . . . . . . . . . . . . . . . . . . . . . . . .56, 141n Tufton v Spermi [1952] 2 TLR 516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194n Tu’ifua v Tui [1974–80] Tonga LR 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Tuivaiti v Faamalaga [1980] WSSC 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273n Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100n Tutton v AD Walter Ltd [1986] 1 QB 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79 . . . . . . . . . .154n, 211n, 212n Ulufa’alu v Attorney General [2001] SBHC 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n United Bank of Kuwait plc v Sahib [1997] Ch 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n US Attorney’s Office for the Western District of Washington v Private International Development Bank of American Samoa [2000] WSSC 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .286n Usuli v Gagame [1997] SBHC 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282 Vai v Uli’afia [1989] Tonga LR 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Vaka’uta v Vaka’uta and Minister of Lands [1977] Tonga LR 26 . . . . . . . . . . . . . . . . . . . . . . . .230 Valentini v Canali (1889) 24 QBD 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n The Vanuatu Mission of the Seventh Day Adventist Church v The Seventh Day Church of the Republic of Vanuatu [1996] VUSC 19 . . . . . . . . . . . . . . .154n Vea and Totfili v Finau [1981–88] Tonga LR 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Veikune v To’a [1981–88] Tonga LR 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 181n Victoria Laundry v Newman Industries [1949] 2 KB 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275n Victoria Park Racing v Taylor (1937) 58 CLR 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 255n

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Waisake Turuva v Kelevu Tabanivau and Others (1999) 45 FLR 177 . . . . . . . . . . . . . . . . . . . .211n Walden v Hensler [1987] 163 CLR 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16n, 271, 272 Re Wallis & Simmonds (Builders) Ltd [1974] 1 WLR 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Walsh v Lonsdale (1882) 21 Ch D 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65n, 178 Warner v Metropolitan Police Commissioner [1969] 2 AC 256 . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Wasawasa Fisheries Ltd v Karim’s Ltd (No 1) [1998] FJHC 20 . . . . . . . . . . . . . . . . . . . . . . . . . .86n Wati v Nand and Others [1997] FJHC 180 and 181; [1997] 43 FLR 289 . . . . . . . . . . . . . . .84, 260n Waverley Borough Council v Fletcher [1995] 3 WLR 722; [1996] QB 664 . . . . . . . . . . . . . . .67n, 68 Re Welsh Ferries Ltd [1986] 1 Ch 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178n Re Welsh Irish Ferries Ltd [1986] 1 Ch 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86n Wema Kaigo v Siwi Kurondo [1976] PNGLR 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170n Re Wembley Park Estate Co Ltd Transfer [1968] Ch 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99n West Samoa Trust Estate Corporation v Leoteleifaleese Tuionoula et al [1987] SPLR 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284n Westbrook v Esera and Su’a [2002] WSSC 4 . . . . . . . . . . . . . . . . . . . . . . . .48, 49n, 110n, 111, 157n Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45n Western Samoa Trust Estates Corporation v Charles Leung Wai and Another [1960–69] WSLR 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269n Western Samoa Trust Estates Corporation v Faisaovale [1970–79] WSLR 136 . . . . . . . . . . . .169n Wheeldon v Burrows (1879) 12 Ch D 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Wheeler v JJ Saunders Ltd [1996] Ch 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125n White v City of London Brewery Co (1889) 42 Ch D 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65n Whittingham v Murdy (1889) 60 LT 956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Wi Parata v Bishop of Wellington (1877) Jur (NS) 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 162n Wilkinson v Joughin (1866) LR 2 Eq 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n William Brandt’s Sons & Co v Dunlop Rubber Company [1915] AC 459 . . . . . . . . . . . . . . . .191n Williams v Attorney-General (NSW) (1913) 156 CLR 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Williams v Bayley (1866) LR 1 HL 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n Williams v Commissioner of Inland Revenue [1966] NZLR 395 . . . . . . . . . . . . . . . . . . . . . . . .193n Williams & Glyn’s Bank v Boland [1981] AC 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54n Wilson v Lombank [1963] 1 WLR 1294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n Wine v Giglmai [1990] PNGLR 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Worrell v Power (1993) 46 FCR 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259n Wright v Stavert (1860) 2 El & El 721; 121 ER 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Wroth v Tyler [1974] Ch 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283 Wu Koon Tai v Wu Yau Loi [1997] AC 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178n Re Yabo Sabo for Nagi Clan [1995] PNGLR 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Yakub Ali v Ram Singh (1966) 13 FLR 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167n Yha Hauka Coffe Pty Ltd v Kumul Kopi Export Pty Ltd [1991] PNGLR 332 . . . . . . . . . . . . .185n Re Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n Zalao v Attorney-General [1996] SBHC 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277n

TABLE OF LEGISLATION AUSTRALIA Appeals (Amendment) Act 1974 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n ss 44–45 . . . . . . . . . . . . . . . . . . . . . . . . . .242n Designs Act 1906–34 (Cmth) . . . . . . . . . . . .216n Fauna Conservation Act 1974 (Queensland) . . . . . . . . . . . . . . . . . . . . . . .272 Law Reform (Property Perpetuities and Succession) Act 1962 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267n Native Title Act 1993 . . . . . . . . . . . . . . . . . .272n Trade Marks Act 1955–58 . . . . . . . . . . . . . .215n COOK ISLANDS Ariki Act 1966 . . . . . . . . . . . . . . . . . . . . . . . . .18n Births and Deaths Registration Act 1973 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101n Companies Act 1970–71 . . . . . . . . . .176n, 191n Constitution . . . . . . . . . . . . . . . . . . . . . . . . . .123n Arts 8–11 . . . . . . . . . . . . . . . . . . . . . . . . .123n Art 47 . . . . . . . . . . . . . . . . . . . . . . .242n, 245n Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 59(2) . . . . . . . . . . . . . . . . . . . . . . . . . .243n Constitution (Amendment) (No 9) Act 1981–82 . . . . . . . . . . . . . . . . .245n Cook Islands Amendment Act 1946 s 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133n Crimes Act 1969 s 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n s 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n s 242(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .77n s 250(3) . . . . . . . . . . . . . . . . . . . . . . . . . . .276n s 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n s 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n Dogs Registration Act 1986 . . . . . . . . . . . . .275n Hire Purchase Act 1986 . . . . . . . . . . . . . . . . .21n House of Ariki Act 1966 . . . . . . . . . . . . . . .123n Land (Facilitation of Dealings) Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . .220n Pt I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108n Pt II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 s 51 . . . . . . . . . . . . . . . . . . . . . . . . .189n, 197n Land Use Act 1969 . . . . . . . . . . . . . . . . . . . .127n Marine Resources Act 1989 . . . . . . . . . . . . . .136 Rarotonga Environment Act 1994–95 . . . . .145 Shipping Registry Act 1985 . . . . . . . . . . . .156n s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Short Term Crop Leases Act 1966 Sched of Covenants . . . . . . . . . . . . . . . . . . . .98n

FEDERATED STATES OF MICRONESIA Code Vol 7 No 34 . . . . . . . . . . . . . . . . . . . . . . .273n Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art XIII s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n Copyright Act 1981 . . . . . . . . . . . . . . . . . . .215n Kosrae State Code Title 11, Chapter 6 ss 603–04 . . . . . . . . . . . . . . . . . . . . . . . . . .246 FIJI Administration of Justice Act (Imp) 1956 . . . . . . . . . . . . . . . . . . . . .262 Agricultural Landlord and Tenant Act (Cap 270) . . . . .63, 63n, 128, 269 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 4(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 s 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n Bankruptcy Act (Cap 48) . . . . . . . . . . . . . . .170n s 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Bills of Exchange Act 1978 . . . . . . . . . . . . . .22n Bills of Sale Act (Cap 225) . . . . . . . . . . . . . .188n s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . .89n, 228n s 10 . . . . . . . . . . . . . . . . . . . . . . . . .210n, 222n Birds and Game Protection Act (Cap 170) . . . . . . . . . . . . . . . . . . . . . . .8n Burial and Cremation Act (Cap 117) . . . . . . . . . . . . . . . . . . . . .101n Charitable Trusts Act (Cap 67) . . . . . . . . . .114n Co-operative Societies Act (Cap 14) . . . . . . . . . . . . . . . . . . . . .118n, 176n Companies Act (Cap 247) . . . . . . . .116n, 170n, 176n, 220n, 229 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n s 114 . . . . . . . . . . . . . . . . . . . . . . . . .222n, 223 s 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223 Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . .211 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 40 . . . . . . . . . . . . . . . . . . . . . . . . .211n, 279n s 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .243n s 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 s 166(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 s 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Copyright Act 1999 . . . . . . . . . . . . . . . .6n, 215n s 66 . . . . . . . . . . . . . . . . . . . . . . . . .104n, 216n

xxiv

South Pacific Property Law

Credit Unions Act (Cap 251) . . . . . .118n, 176n Crop Liens Act (Cap 226) . . . . . . . . . .84n, 260n s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84n Crown Acquisition of Land Act (Amended 1970) (Cap 135) . . . . . . . . . .211n Crown Lands Act (Cap 132) . . . . . . . . . . . . . .8n s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n Customs Act (Cap 196) ss 197–98 . . . . . . . . . . . . . . . . . . . . . . . . .204n Deed of Cession 1874 cl 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35, 160 Dogs Act (Cap 168) s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275n ss 6–7 . . . . . . . . . . . . . . . . . . . . . . . . . . . .270n Estate and Gift Duties Act (Cap 203) . . . . . . . . . . . . . . . . . . . . . . . . . .202 Fair Trading Decree 1992 . . . . .21n, 188n, 273n High Court Rules 1988 Ord 113 . . . . . . . . . . . . . . . . . . . . . . . . . . .58n Hotels and Guest Houses Act (Cap 195) . . . . . . . . . . . . . . . . . . . . . . . . . .222 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n Indemnity, Guarantee and Bailment Ordinance (Cap 100) s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71n Inheritance (Family Provision) Act (Cap 61) . . . . . . . . . . . . . . . . . . . . . .201n Interpretation Act (Cap 7) . . . . . . . . . . . . . . .93n Land Transfer Act (Cap 131) . . . . .53, 95, 189n, 197n, 220n, 221n, 222n, 224n Pt V . . . . . . . . . . . . . . . . . . .155n, 225n, 228n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210n s 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n s 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91n s 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n s 63 . . . . . . . . . . . . . . . . . . . . . . . . . . .64n, 88n s 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n ss 77–92 . . . . . . . . . . . . . . . . . . . . . . . . . .166n Lands Claims Ordinance 1879 . . . . . . . . . .240n Limitation Act (Cap 35) . . . . . .55n, 168n, 267n Magistrates’ Courts Act (Cap 14) . . . . . . . . .237 Magistrates’ Courts Act (Cap 21) s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Marine Act 1986 (Cap 35) s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n s 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n

s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n ss 33–36 . . . . . . . . . . . . . . . . . . . . . . . . . .228n s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n s 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228 Marine Spaces Act (Cap 158A) . . . . . . . . . .144n Native Land (Amendment) Act 1959 . . . . .247 Native Land (Leases and Licences) Regulations 1985 . . . . . . . . . . . . . . . . . . .63n Native Land Ordinance 1880 . . . . . . . . .41, 240 s II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n Native Lands Ordinance 1892 . . . . . . . . . . . .41 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n Native Lands Ordinance 1907 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n Native Land Trust Act (Cap 134) . . . . . . . . . . . . .63n, 113, 120n, 141 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n s 51(1) . . . . . . . . . . . . . . . . . . . . . . .189n, 197n Native Land Trust Ordinance 1940 . . . . . . . . . . . . . .46, 113, 141 Native Lands Act (Cap 133) . . . . . . . . . . .46, 113, 141, 226, 229 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n ss 4–6 . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n s 7 . . . . . . . . . . . . . . . . . . . . . . . . . .247n, 252n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223n s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119n Native Lands (Amendment) (Appeals Tribunal) Act 1998 . . . . . . . . . .247 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 7A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Partnership Act (Cap 248) . . . . . . . . . . . . . . .112 Patents Act 1879 (Cap 239) . . . . . . . . .152n, 230 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216n s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230n Penal Code (Cap 17) . . . . . . . . . . . . . . . .75, 77n Chapter IV s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77n Div V Chapter XXVII . . . . . . . . . . . . . . . . . . .212n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n s 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75n s 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 259(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 s 259(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77

Table of Legislation

s 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 279(1)(c) . . . . . . . . . . . . . . . . . . . . . . . .282n s 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n ss 317–29 . . . . . . . . . . . . . . . . . . . . . . . . .213n s 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 s 342(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n s 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n Preservation of Objects of Archaeological and Palaeontological Interest Act (Cap 264) . . . . . . . . . . . . . . . . . . . . . .210 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210n Proceeds of Crime Act 1997 . . . . . . . . . . . .205n Property Law Act (Cap 130) . . . . . . . . .150, 192 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30n s 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191 Registration Act (Cap 224) . . . . . . . . . . . . . .210 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .210n Registration of Clubs Act (Cap 194) ss 2, 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n Registration of Deeds Act (Cap 224) . . . . . .219 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219n Rivers and Streams Act (Cap 136) . . . . . . . . .6n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Sale of Goods Act (Cap 230) . . . . . . . . .5n, 49n, 157n, 184n Div 10 . . . . . . . . . . . . . . . . . . . . . . . .22n, 84n Div 12 . . . . . . . . . . . . . . . . . . . . . . . .22n, 84n Pt IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186n s 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n ss 41–43 . . . . . . . . . . . . . . . . . . . . . . . . . .260n s 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n s 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n Sea Carriage of Goods Act (Cap 231) . . . . .74n Sea Carriage of Goods Ordinance 1926 . . . . . . . . . . . . . . . . . . . . .74n Sea Carriage of Goods Ordinance 1906 . . . . . . . . . . . . . . . . . . . . .74n Small Claims Tribunal Decree 1981 s 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n ss 8–9 . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n State Lands Act (Cap 132) . . . . . . . . . . . . . . . .47 Succession, Probate and Administration Act (Cap 60) . . . . . . . .175n Town and Country Planning Act (Cap 139) . . . . . . . . . . . . . . . . . . . . .127n s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128n

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Trade Marks Act (Cap 240) . . . . . . . . . . . . .215n s 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227 s 39 . . . . . . . . . . . . . . . . . . . . . . . . . . .225, 229 s 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229n Traffic Act (Cap 176) s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n Trespass of Animals Act (Cap 166) . . . . . .142n Unit Titles Act (Cap 274) . . . . . . . . . . . . . . . . .7n United Kingdom Designs Protection Act (Cap 242) . . . . . . . . . . . .216n Wills Act (Cap 59) . . . . . . . . . . . . . . . . . . . . .199n FRANCE Civil Code Art 587 . . . . . . . . . . . . . . . . . . . . . . . . . . .132n Art 2102 . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 GILBERT AND ELLICE ISLANDS Native Lands Ordinance 1957 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42 GRENADA Constitution 1976 . . . . . . . . . . . . . . . . . . .281 KIRIBATI Bills of Sale Ordinance (Cap 4) s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . .89n, 188n Carriage of Goods by Sea (Cap 7) . . . . . . . .74n Co-operative Societies Act (Cap 250) . . . . . . . . . . . . . . . . . . . .118n, 176n Companies Ordinance (Cap 10) . . . . . . . . .220n Companies Ordinance (Cap 10A) . . . . . . . . . . . . . .116n, 170n, 156n, 176n, 222n s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Constitution s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229n s 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .243n Copyright Act (Cap 16) . . . . . . . . . . . . . . . .215n Crimes Ordinance (Cap 67) s 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n Environmental Act 1999 . . . . . . . . . . . . . . . .145 Foreshore and Land Reclamation Act (Cap 35) . . . . . . . . . .8n, 97 Gilbert and Phoenix Islands Lands Code 1963 . . . . . . . . . . . . . . . . . .122n s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199

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Land Planning Act (Cap 48) . . . . . . . . . . . .127n s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128n Lands Code 1962 . . . . . . . . . . . . . . . . . . . . .122n Laws of Gilbert Islands 1977 Pt XXXVI . . . . . . . . . . . . . . . . . . . . . . . . . . .8n Laws of Kiribati Act 1989 . . . . . . . . . . . . . .168n Sched I . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 4(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176n Magistrates’ Courts Ordinance (Cap 52) . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .237 s 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n s 64(1) . . . . . . . . . . . . . . . . . . . . . . .189n, 197n s 64(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . .159n ss 75–76 . . . . . . . . . . . . . . . . . . . . . . . . . .245n s 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229 Native Lands Ordinance (Cap 61) . . . . . . . . . . . . . .42, 42n, 221n, 222, 225, 228, 229 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . .160n, 225n s 5 . . . . . . . . . . . . . . . . . . . . . . .64n, 86n, 158n s 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n s 10 . . . . . . . . . . . . . . . . . . . . . . . . .189n, 221n s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n Native Lands Commission Ordinance 1922 . . . . . . . . . . . . . . . . . . . .240n Neglected Lands Act (Cap 62) . . . . . . . . . .119n Neglected Lands Ordinance (Cap 62) . . . . . . . . . . . . . . . . . .8n, 119n, 279n Non–Native Land (Restriction on Alienation) Ordinance (Cap 63) . . . . . . . . . . . . . . . . . . . . . . . . . .189n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149n Penal Code (Cap 67) . . . . . . . . . . . . . . . . . . . .78n Pt IV s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n Pt XXVII . . . . . . . . . . . . . . . . . . . . . . . . . .212n s 250 . . . . . . . . . . . . . . . . . . . . . . . . .76n, 213n Registration of United Kingdom Patents Act (Cap 87) . . . . . . . . . .152n, 216n Registration of United Kingdom Trade Marks Act (Cap 88) . . . . . . . .6n, 215n Shipping Act 1990 . . . . . . . . . . . . . . . . . . . . .156n State Acquisitions of Land Ordinance (Cap 95B) . . . . .211n, 279n, 280n United Kingdom Designs Protection Ordinance (Cap 99) . . . . . . .216n Wreck and Salvage Act 1966 . . . . . . . . . . . . .69n

MARSHALL ISLANDS Consolidated Laws 1989 s 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n Constitution 1988 . . . . . . . . . . . . . . . . . . . . . .122 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122 Art VI s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245n s 4(5) . . . . . . . . . . . . . . . . . . . . . . . . . . .245n Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17n s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279n Criminal Code Pt III s 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 154 Title 31 . . . . . . . . . . . . . . . . . . . . . . . . . . .214n Judiciary Act 1983 s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Land Acquisition Act 1968 . . . . . . . . . . . . .211n Revised Code 1988 Vol 11, Title 23 Law of Sales . . . . . . . . . . . . . . .180n Pt V . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n, 23 NAURU Animals (Civil Liability) Act 1982 . . . . . . .142n Antiquities Ordinance 1935 . . . . . . . . . . . .147n Companies Act 1972 . . . . . . . . . . . . .116n, 220n Constitution 1968 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23n Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Corporations Act 1972 . . . . . . . . . . . .170n, 176n s 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Custom and Adopted Laws Act 1971 . . . . .215 s 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .205n s 3(1)(b) . . . . . . . . . . . . . . . .176n, 188n, 200n s 3(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . .176n Custom and Adopted Laws Act 1972 s 3(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . .184n Explosives Ordinance 1924–67 . . . . . . . . . .146n Fisheries Act 1997 . . . . . . . . . . . . . . . . . . . . .144n Judiciary Ordinance 1957–65 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Lands Act 1976 . . . . . . . . . . . . . . . . . . . . . . .280n s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n s 3(3) . . . . . . . . . . . . . . . . . .159n, 189n, 197n s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29n

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Lands Committee Ordinance 1956–63 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160n Laws Repeal and Adopting Ordinance 1922–36 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216n Native Cooperative Societies Ordinance 1935 . . . . . . . . . . . . . . . . . . . .230n Partnership Act 1976 . . . . . . . . . . . . . . . . . . .112 Patents Registration Act 1973 . . . . .152n, 216n Phosphate Royalties Trust Ordinance 1968 . . . . . . . . . . . . . . . . . . . .114n Succession, Probate and Administration Act 1976 . . . . . . . . . . . .175n s 46(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .114n Trade Marks Regulations Adoption Ordinance 1964 . . . . . . . . . .215n Wild Birds Preservation Ordinance 1937–1967 . . . . . . . . . . . . . . .143n NEW HEBRIDES Land Trust Board Regulation No 14 of 1973 . . . . . . . . . . . . . . . . . . . . .120n NIUE Constitution Art 37 . . . . . . . . . . . . . . . . . . . . . . .242n, 245n Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 55(2) . . . . . . . . . . . . . . . . . . . . . . . . . .243n Constitution Amendment (No 1) Act 1992 . . . . . . . . . . . . . . . . . . . .245n Dogs Registration Act 1966 . . . . . . . . . . . . .275n Land Ordinance 1969 . . . . . . . . . . . . . . . . . .220n s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . .225, 229 s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 s 17(3) . . . . . . . . . . . . . . . . . . . . . . .189n, 197n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n NEW ZEALAND Administration Act 1969 . . . . . . . . . . . . . . . .175 Antiquities Act 1975 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Bankruptcy Act 1908 . . . . . . . . . . . . . . . . . .170n s 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Carriage by Air Act 1967 . . . . . . . . . . . . .74, 74n Carriage of Goods Act 1940 . . . . . . . . . . . . .74n Carriage of Goods Act 1979 . . . . . . . . . . . . .74n Carriers Act 1948 . . . . . . . . . . . . . . . . . . . . . .74n Chattels Transfer Act 1924 . . . . . . . . .188, 210n Companies Act 1955 . . .116n, 170n, 176n, 220n s 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n

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Companies Act 1970–71 . . . . . . . . . . . . . . .220n Cook Islands Act 1915 s 354 . . . . . . . . . . . . . . . . . . . . . . . . . .36n, 41n ss 423–24 . . . . . . . . . . . . . . . . . . . . . . . . .159n s 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n ss 467–69 . . . . . . . . . . . . . . . . . . . . . . . . .158n s 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n s 623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175n s 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .188n s 627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n s 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n s 637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n s 638 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184n s 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n s 655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Cook Islands Amendment Act 1946 Pt IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119n Cook Islands (Incorporated Societies) Act 1908 . . . . . . . . . . . . . . . . .117n Copyright Act 1962 . . . . . . . . . . . . . . . . . . .215n Customs Act 1966 Pt XII . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n Designs Act 1953 . . . . . . . . . . . . . . . . . . . . . .216n Hire Purchase Act 1980 . . . . . . . . . . . . . . . .187n Incorporated Societies Act 1908 . . . . . . . . .176n Infants Act 1908 . . . . . . . . . . . . . . . . . . . . . .106n s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Judicature Act s 94A . . . . . . . . . . . . . . . . . . . . . . . . . . . .267n Law of Property Act 1952 . . . . . . . . . . . .97, 100 Pt V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100n s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40n s 28 . . . . . . . . . . . . . . . . . . . . . . . . .180n, 259n s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30n s 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91n s 49A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192 s 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100n s 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100n s 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86n s 107(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .268n s 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271n s 130 . . . . . . . . . . . . . . . . . . . . . . . . .156n, 191 Limitation Act 1950 . . . . . . . . . . . . . . . . . . . .168 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Maori Affairs Amendment Act 1967 . . . . .108n Niue Act 1915 s 684 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .188n Niue Act 1966 s 323 . . . . . . . . . . . . . . . . . . . . . . . . . .36n, 41n ss 411–12 . . . . . . . . . . . . . . . . . . . . . . . . .159n ss 432–34 . . . . . . . . . . . . . . . . . . . . . . . . .158n s 489 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n s 680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175n s 692 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n

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s 700 . . . . . . . . . . . . . . . . . . . . . . . .150n, 191n s 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184n s 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n s 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Niue Amendment Act 1968 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Niue Amendment Act (No 2) 1968 . . .29n, 89n s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n Niue (Incorporated Societies) Act 1908 . . . . . . . . . . . . . . . . .117n Partnership Act 1908 . . . . . . . . . . . . . . . . . . .112 Patents Act 1953 . . . . . . . . . . . . . . . . .152n, 216n Property Law Act 1950 . . . . . . . . . . . . . . . . . .150 Sale of Goods Act 1908 . . . . . . . . . .49, 82, 157n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n Samoa Act 1921 s 268 . . . . . . . . . . . . . . . . . . . . . . . . .37n, 162n Samoa Native Land and Titles Commission Ordinance 1924 . . . . . . . .240n Tokelau Amendment Act 1967 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41n s 25 . . . . . . . . . . . . . . . . . . . . . . . . .189n, 197n Tokelau Amendment Act 1976 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36n Tokelau Amendment Act 1986 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Tokelau (New Zealand Laws) Regulations 1969 reg 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . .184n Trade Marks Act 1953 . . . . . . . . . . . . . . . . .215n Treaty of Waitangi 1840 . . . . . . . . . . . . . . . . . .35 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36n Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 . . . . . . . . . . . . . . . . .35n Treaty of Waitangi (State Enterprises) Act 1988 . . . . . . . . . . . . . . . .35n PAPUA NEW GUINEA Bodies Corporate (Joint Tenancy) Act 1951 . . . . . . . . . . . . . . . . . .30n Companies Act (Cap 146) . . . . . . . .116n, 170n, 176n, 220n Div 5 Pt XII . . . . . . . . . . . . . . . . . . . . . . .118n, 176n s 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Constitution s 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Copyright and Neighbouring Rights Act 2000 . . . . . . . . . . . . . . . . . . . .215n Pt V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .216n

Crop Liens Act (Cap 226) . . . . . . . . . . . . . . .22n Customs Recognition Act (Cap 19) s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 5(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176n District Courts Act (Cap 40) s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Goods Act (Cap 251) . . . . . . . . . . . . . . . . . .184n Hire Purchase Act (Cap 252) . . . . . . .21n, 187n Insolvency Act (Cap 253) . . . . . . . . . . . . . .170n s 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Instruments Act (Cap 254) . . . . . . . . . . . . .188n Land Act 1962 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . .36n, 41n Land Act 1996 . . . . . . . . . . . . . . . . . . .189n, 197n s 69(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .189n s 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n s 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40n Land Disputes Settlement Act (Cap 45) ss 9–20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 ss 21–23 . . . . . . . . . . . . . . . . . . . . . . . . . .246n s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 ss 45–47 . . . . . . . . . . . . . . . . . . . . . . . . . .246n Land Groups Incorporation Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . .108n Land Registration Act 1961 . . . . . . .189n, 197n Land Registration Act (Cap 191) . . . . . . . . . . . . . . .221n, 222n, 224n s 33 . . . . . . . . . . . . . . . . . . . . . . . . .225n, 228n s 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n s 63 . . . . . . . . . . . . . . . . . . . . . . .64n, 87n, 88n Land (Tenure Conversion) Act 1963 . . . . . . . . . . . . . . . . . . . . . . . . . .159n Land Titles Commission Act 1962 ss 5–15 . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Lands Act 1996 s 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159n Merchant Shipping Act (Cap 242) s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Native Land Registration Act 1952 . . . . . .240n Partnership Act 1951 . . . . . . . . . . . . . . . . . . .112 Patents and Industrial Designs Act 2000 . . . . . . . . . . . . .152n, 216n Physical Planning Act 1989 . . . . . . .127n, 128n Sale of Goods Act (Cap 251) s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n Statute of Frauds and Limitation Act (Cap 330) . . . . . . . . . . . .168n Trade Marks Act (Cap 385) . . . . . . . . . . . . .215n s 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228n Village Courts Act (Cap 44) s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n

Table of Legislation

Wills, Probate and Administration Act (Cap 291) . .175n, 199n Pt VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n SAMOA Administration Act 1975 . . . . . . . . . . . . . . .175n Pt IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n s 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114n s 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114n Alienation of Customary Land Act 1965 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189n Alienation of Freehold Land Act 1972 . . .189n ss 4–6 . . . . . . . . . . . . . . . . . . . . . . . . . . . .149n s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29n Animals Ordinance 1960 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82n Arms Ordinance 1960 . . . . . . . . . . . . . . . . .146n Bills of Exchange Act 1976 . . . . . . . . . . . . . .22n Business Licences Act 1998 s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n Carriers Act (No 2) 1975 . . . . . . . . . . . . . . . .74n Charitable Trusts Act No 14 1965 . . . . . . . . . . . . . . . . . . . . . . . .114n Chattels Transfer Act 1975 . . . . . . . .188n, 210n Co-operative Societies Ordinance 1952 . . . . . . . . . . . . . .118n, 176n Companies Act 1955 . . . . . . . . . . . . .176n, 220n s 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Constitution Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 101 . . . . . . . . . . . . . . . . . . . . .37n, 42, 43n Art 102 . . . . . . . . . . . . . . . . . . . . . .189n, 197n Art 111(1) . . . . . . . . . . . . . . . . . . . . . . . . .176n s 102 . . . . . . . . . . . . . . . . . . . . . . . . . . .8n, 88n Copyright Act 1998 . . . . . . . . . . . .6, 104n, 215n s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 216n s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Credit Unions Ordinance 1960 . . . .118n, 176n Crimes Ordinance 1961 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n, 78n s 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n s 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n Customs Act 1977 Pt XII . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n District Courts Amendment Act 1992/93 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Dog Registration and Control Ordinance 1955 . . . . . . . . . . . . . .146n, 275n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226n

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Dog Registration and Control Ordinance (Amendment) No 28 1971 . . . . . . . . . . . . . . . . . . . . . . . .275n Fisheries Act 1988 . . . . . . . . . . . . . . . . . . . . .144n General Laws Ordinance 1931 s 23(21) . . . . . . . . . . . . . . . . . . . . . . . . . . .143n Health Ordinance 1959 . . . . . . . . . . . . . . . .127n Incorporated Societies Ordinance 1952 . . . . . . . . . . . . . .117n, 176n Infants Ordinance 1961 . . . . . . . . . . . . . . . .106n s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n Land and Environment Act 1989 . . . . . . . . .145 Land Registration Act 1992/93 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 16 . . . . . . . . . . . . . . . . . . . . . . . . . .224, 228n Land and Titles Act 1981 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224n ss 20–22 . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246n s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246n s 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 77 . . . . . . . . . . . . . . . . . . . . . . . . .246n, 252n Lands, Surveys and Environment Act 1989 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n, 8n Land, Surveys and Environment Act 1989 . . . . . . . . . . . . . . . .8n Limitation Act 1975 . . . . . . . . . .55n, 168n, 267n s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Partnership Act 1975 . . . . . . . . . . . . . . . . . . .112 Patents Act 1972 . . . . . . . . . . . . . . . . .152n, 216n Reprint of Statutes Act 1972 s 7 . . . . . . . . . . . . . . . . . . . . .150n, 191n, 195n Road Traffic Ordinance 1960 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n Sale of Goods Act 1975 . . . . .5n, 49n, 184n, 260 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n s 39 . . . . . . . . . . . . . . . . . . . . . . . . . .84n, 260n s 40 . . . . . . . . . . . . . . . . . . . . . . . . .180n, 260n s 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n s 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22n Shipping Act 1972 . . . . . . . . . . . . . . . . . .227, 229 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229n s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n Shipping Act 1998 . . . . . . . . . . . . . . . . . . . . .156n Taking of Land Act 1964 . . . . . . . . . .211n, 279n ss 52–53 . . . . . . . . . . . . . . . . . . . . . . . . . .280n Trade Marks Act 1972 . . . . . . . . . . . . . . . . .215n s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228n Village Fono Act 1990 . . . . . . . . . . . . . . .124, 234

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Water Act 1965 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6n Wills Act 1975 . . . . . . . . . . . . . . . . . . . . . . . .199n SOLOMON ISLANDS Bankruptcy Act (Cap 3) . . . . . . . . . . . . . . . .170n s 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Bills of Sale Act (Cap 174) . . . . . . . . . . . . . . .188 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . .210n, 222n s 8(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224n Charitable Trusts Act (Cap 55) . . . . . . . . . .114n Civil Aviation Act (Cap 47) . . . . . . . . . . . . . .74n Co-operative Societies Act (Cap 164) . . . . . . . . . . . . . . . .118n, 176n Companies Act (Cap 175) . . . .116n, 170n, 220n s 73 . . . . . . . . . . . . . . . . . . . . . . . . .156n, 191n s 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n Constitution 1978 . . . . . . . . . . . . . . . . . . . . . . .39 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39n s 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Copyright Act (Cap 138) . . . . . . . . . . . . . . .215n Credit Unions Act (Cap 165) . . . . . .118n, 176n Customary Land Records Act 1994 (Cap 132) . . . . . . . . . . . . . . . . . .219 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219n s 16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225 s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 17(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223 Customs and Excise Act (Cap 121) ss 220–21 . . . . . . . . . . . . . . . . . . . . . . . . .204n Customs Recognition Act 2000 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n s 8(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176n Firearms and Ammunition Act (Cap 80) . . . . . . . . . . . . . . . . . .74n, 146n Forest Resources and Timber Utilisation Act (Cap 40) . . . . . . . . .134, 135n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61n Forest and Timber Act (Amended) Pt IIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Interpretation Act (Cap 85) . . . . . . . . . . . . . .93n King’s Regulation 1914, revised 1950 (Cap 49) . . . . . . . . . . . . . .136n Land and Titles Act (Cap 56) s 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60n Land and Titles Act (Cap 93), revised edition 1961 . . . . . . . . . . . . . . . .136n Land and Titles Act (Cap 133) . . . .5n, 39, 40n, 136n, 189n, 197n, 220n, 222n, 224n, 227

Pt VIII . . . . . . . . . . . . .156n, 224n, 225n, 228 Pt XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5n, 92n s 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n s 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230n s 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n s 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n s 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n s 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268n s 143(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .190n s 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n s 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98n s 163 . . . . . . . . . . . . . . . . . . . . . . . . . .64n, 88n s 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n s 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n ss 224–27 . . . . . . . . . . . . . . . . . . . . . . . . .166n s 239 . . . . . . . . . . . . . . . . . . . . . . . .126n, 159n s 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244n s 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246n s 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244n Land and Titles (Amendment) Act 1964 . . . . . . . . . . . . .136n Land and Titles (Amendment) Act 1997 . . . . . . . . . . . . . .29n Land and Titles (Amendment) Ordinance 1977 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38n Land and Titles (General) Regulations 1969 Form 4 . . . . . . . . . . . . . . . . . . . . . .189n, 197n Land and Titles Ordinance 1959 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120n Land and Titles Ordinance (Cap 56), revised edition 1963 . . . . . . . . . . . . . . . .136n s 47(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60n Limitation Act (Cap 18) . . . . . .55n, 168n, 267n Local Courts Act (Cap 19) . . . . . . . . . . . . . . .238 ss 2–3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Local Courts Amendment Act 1985 . . . . . . .234 Magistrates’ Courts Act (Cap 20) . . . . . . . . .237 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Mines and Minerals Act (Cap 42) s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n Penal Code (Cap 26) . . . . . . . . . . . . . . . . . . . .77n s 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268n s 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 271(1)(c)(ii) . . . . . . . . . . . . . . . . . . . . . . .282 s 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n s 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n Registration of United Kingdom Patents (Cap 179) . . . . . . . . . . . . . . .6n, 152n Registration of United Kingdom Trade Marks (Cap 180) . . . . . . . . . .6n, 215n River Water Act (Cap 135) ss 9–12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97

Table of Legislation

Town and Country Planning Act 1979 . . . . . . . . . . . . . . . . .127n Traffic Act (Cap 131) s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n United Kingdom Designs (Protection) Act (Cap 181) . . . . . . .6n, 216n Wild Birds Protection Act (Cap 45) . . . . . . . .8n Wills, Probate and Administration Act (Cap 33) . . .175n, 200n Pt VII . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n TOKELAU Crimes Regulations 1975 s 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77n s 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77n Tokelau Amendment Act 1948 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n TONGA Bills of Exchange Act 1988 . . . . . . . . . . . . . .22n Birds and Fish Preservation Act (Cap 125) . . . . . . . . . . . . . . . . . . . . . . .8n Carriage of Goods by Sea (Cap 141) . . . . . .74n Civil Aviation Act (Cap 151) . . . . . . . . . . . . .74n Civil Law Act (Cap 15) s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n Civil Law Act (Cap 25) s 3 . . . . . . . . . . . . . . . . . . . .150n, 151n, 184n, 187n, 188n, 191, 195n, 201n s 4 . . . . . . . . . . . . . . .150n, 151n, 184n, 187n, 188n, 191, 195n, 201n Co-operative Societies Act (Cap 118) . . . . . . . . . . .118n, 176n, 230n Companies Act (Cap 27) . . . . . . . . . .116n, 170n Constitution 1875 . . . . . . . . . . . . . . . . . .8, 37, 40 Pt III s 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Arts 91–92 . . . . . . . . . . . . . . . . . . . . . . . .242n cl 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247n cl 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .243n cl 104 . . . . . . . . . . . . . . . . . . . .37, 158n, 162n cl 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40n cll 111–13 . . . . . . . . . . . . . . . . . . . . . . . . . .175 cl 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29n Constitution of Tonga (Amendment) Act 1990 . . . . . . . . . . . . .247n Consumer Protection Act 2000 . . . . . . . . . .273n Copyright Act (Cap 121) . . . . . . . . . . . .6n, 215n s 6(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . .216n

xxxi

Court of Appeal Act (Cap 6) . . . . . . . . . . . .242n s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247n Court of Appeal (Amendment) Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247n Credit Unions Act (Cap 107) . . . . . .118n, 176n Crimes Ordinance (Cap 18) s 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n Criminal Offences Act (Cap 18) s 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77n s 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n s 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 151(1) . . . . . . . . . . . . . . . . . . . . . . . . .14n, 69 s 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282n ss 178–91 . . . . . . . . . . . . . . . . . . . . . . . . .213n s 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n Customs and Excise Act (Cap 67) ss 216–17 . . . . . . . . . . . . . . . . . . . . . . . . .204n Dogs Act (Cap 150) . . . . . . . . . . . . . . . . . . . .275n Fisheries Act 1989 . . . . . . . . . . . . . . . . . . . . .144n Incorporated Societies Act (Cap 28) . . . . . . . . . . . . . . . . . . . . .117n, 176n Land Act (Cap 132) . . . . . . .11n, 40, 220n, 221n, 222, 226, 229, 230, 280n cl 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230 cl 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230 s 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40n ss 37–42 . . . . . . . . . . . . . . . . . . . . . . . . . . .40n s 41 . . . . . . . . . . . . . . . . . . . . . . . . . .40n, 175n s 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 s 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175n s 96 . . . . . . . . . . . . . . . . . . . . . . . . . . .64n, 86n s 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n s 101 . . . . . . . . . . . . . . . . . . . . . . . . . .64n, 89n s 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64n s 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156n s 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156n s 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156n s 116 . . . . . . . . . . . . . . . . . . . . . . . .210n, 222n ss 120–21 . . . . . . . . . . . . . . . . . . . . . . . . .226n s 121 . . . . . . . . . . . . . . . . . . . . . . . .210n, 222n s 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n s 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n s 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222n s 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156n ss 144–47 . . . . . . . . . . . . . . . . . . . . . . . . .246n s 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168n s 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Magistrates’ Court Act (Cap 11) ss 2–3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Minerals Act (Cap 133) s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n

xxxii

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Pounds and Animals Act (Cap 147) . . . . . .270 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . .143n, 270n Probate and Administration Act (Cap 16) . . . . . . . . . . . . . . . . . . . . .175n, 200n Public Health Act 1916 . . . . . . . . . . . . . . . .127n Registration of United Kingdom Trade Marks Act (Cap 120) . . . . . . . . . .215n Shipping Act 1986 ss 160–62 . . . . . . . . . . . . . . . . . . . . . . . . . .69n Supreme Court Act (Cap 10) . . . . . . . . . . . .55n Town Regulations (Cap 44) . . . . . . . .102n, 127 s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102n Traffic Act (Cap 156) s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n TUVALU Bills of Sale Act (Cap 57) . . . . . . . . . . . . . . .188n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n Co-operative Societies Act (Cap 64) . . . . . . . . . . . . . . . . . . . . .118n, 176n Companies and Business Registration Act (Cap 59) . . . . . . . . . . .116n Constitution Art 120 . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 134 . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 136 . . . . . . . . . . . . . . . . . . . . . . . . . . .243n s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Copyright Act (Cap 60) . . . . . . . . . . . . . . . .215n Crown Acquisitions of Land Act (Cap 24) . . . . . . . . . . . . . . . . .211n Dogs Act (Cap 46) s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .270n s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .270n Foreshore and Land Reclamation Act (Cap 26) . . . . . . . . . . . . .8n s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8n Interpretation and General Provisions Act (Cap 1A) . . . . . . . . . . . . .93n Island Courts Act (Cap 3) s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Laws of Tuvalu Act 1987 . . . . . . . . . . . . . . .168n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252n Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . . . .252n Sched I s 4(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176n Local Courts Act (Cap 3) . . . . . . . . . . . . . . . .238 Magistrates’ Courts Act (Cap 2) . . . . . . . . . .237 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Mineral Development Licensing Act (Cap 25) . . . . . . . . . . . . . . .7n s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n Native Lands Act (Cap 22) . . . . . . . . . . . . .221n, 222n, 225, 228

s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225n s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158n s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246n s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247n s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200n s 19(1) . . . . . . . . . . . . . . . . . . . . . . .189n, 197n s 19(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . .159n s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247n s 31 . . . . . . . . . . . . . . . . . . . . . . . . .190n, 221n s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n Native Lands Commission Ordinance 1922 . . . . . . . . . . . . . . . . . . . .240n Native Lands Ordinance (Cap 22) . . . . . . . .42n s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160n s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126n ss 25–27 . . . . . . . . . . . . . . . . . . . . . . . . . .244n s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245 s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245n Neglected Lands Ordinance (Cap 23) . . . . . . . . . . . . . . . . . . . . . . .8n, 119n Penal Code (Cap 8) Pt IV s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76n s 45 . . . . . . . . . . . . . . . . . . . . . . . . .268n, 276n s 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n s 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75n s 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n Pt XXXVI . . . . . . . . . . . . . . . . . . . . . . . . . . .8n Registration of UK Patents Act (Cap 61) . . . . . . . . . . . . . . . . . . .6n, 152n Registration of United Kingdom Trade Marks Ordinance (Cap 63) . . . . . . . . . . . . . . . . . . . . . . .6n, 215n Sale of Goods Act 1991 ss 39–47 . . . . . . . . . . . . . . . . . . . . . . . . . .180n Tuvalu Lands Code 1962 . . . . . . . . . . . . . . .122n s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201n United Kingdom Designs Protection Act (Cap 62) . . . . . . . . . . . . .216n Wildlife Conservation Act (Cap 47) . . . . . . .8n UNITED KINGDOM Administration of Estates Act 1925 . . . . . . .175 Administration of Justice Act 1956 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86n Administration of Justice Act 1970 s 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65n Bankruptcy Act 1914 . . . . . . . . . . . . . . . . . .170n s 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Bills of Sale Act 1878 . . . . . . . . . . . . . . . . . . . .188

Table of Legislation

Bills of Sale Act 1892 . . . . . . . . . . . . . . . . . . . .188 Bills of Sale Acts . . . . . . . . . . . . . . . . . . . . . . .188 Bodies Corporate (Joint Tenancy) Act 1899 . . . . . . . . . . . . . . . . . . . . . . . . . . .30n Carriers Act 1830 . . . . . . . . . . . . . . . . . . . . . .74n Common Law Procedure Act 1852 . . . . . .269n Consumer Credit Act 1974 . . . . . . . . . .71n, 187 Copyright Act 1709 . . . . . . . . . . . . . .153n, 214n Copyright Act 1842 . . . . . . . . . . . . . .153n, 214n Copyright Act 1911 . . . . . . . . . . . . . .154n, 215n Copyright Act 1956 . . . . . . . . . . . . . .154n, 215n Copyright (Fiji) Order 1961 . . . . . . .154n, 215n Copyright, Designs and Patents Act 1988 . . . . . . . . .154n, 215n, 216n Dramatic Copyright Act 1833 . . . . .153n, 214n Engravings Copyright Act 1734 . . .153n, 214n Factors Act 1899 . . . . . . . . . . . . . . . . . . . . . . .84n Family Law Reform Act 1969 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151n Fine Arts Copyright Act 1862 . . . . .154n, 214n Forfeiture Act 1870 . . . . . . . . . . . . . . . . . . . .204n Forfeiture Act 1982 . . . . . . . . . . . . . . . . . . . . .201 Forgery and Counterfeiting Act 1981 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .204n Gilbert and Ellice Islands Order 1915 . . .36, 42 cl III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36n High Court of the New Hebrides Regulation 1976 s 3 . . . . . . . . . . . . . . . . . . . . .151n, 175n, 201n Hire-Purchase Act 1954 . . . . . . . . . . . . . . . . .187 Hire-Purchase Act 1964 . . . . . . . . . . . . . . . . .187 Infants Relief Act 1874 . . . . . . . . . . . . .106n, 150 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150 Inheritance (Family Provision) Act 1938 . . . . . . . . . . . . . . . . . . . . . . . . . .201n Inheritance (Provision for Family and Dependants) Act 1975 . . . . . . . . . .201n Insolvency Act 1986 . . . . . . . . . . . . . . . . . . .170n s 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n s 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195n Judicature Acts 1873–75 . . . . . . . . . . . . . . . . . .5n Kiribati Independence Order 1979 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . .36n, 42n Land Registration Act 1925 . . . . . . . . . . . . . .54n s 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54n Larceny Act 1916 . . . . . . . . . . . . . .77n, 78, 212n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266n Law of Property Act 1925 . . . . . . . . . . . . . . .90n s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268n s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91n

xxxiii

s 1(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150n s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89n s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192 s 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155n s 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . .91n, 96 s 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65n s 136 . . . . . . . . . . . . . . . . . . . . . . . . .156n, 190 s 172 . . . . . . . . . . . . . . . . . . . . . . . . .158n, 194 Law of Property (Miscellaneous Provisions) Act 1989 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179n Lectures Copyright Act 1835 . . . . . .153n, 214n Limitation Act 1623 . . . . . . . . . . . . . . . . . . .167n Limitation Act 1939 . . . . . . . . . . . . . . . .55n, 168 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169n Limitation Act 1963 . . . . . . . . . . . . . . . . . . . .55n Limitation Act 1975 . . . . . . . . . . . . . . . . . . . .55n Limitation Act 1980 . . . . . . . . . . . . . . . . . . . .168 Limited Partnerships Act 1908 . . . . . . . . . . .112 Married Women’s Property Act 1882 . . . . .28n Mercantile Law Act 1908 . . . . . . . . . . . . . . . .74n Merchant Shipping Act 1894 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149n Minors’ Contracts Act 1987 . . . . . . .106n, 150n Partnership Act 1890 . . . . . . . . . . . . . . . . . . .112 Patents Act 1949 . . . . . . . . . . . . . . . . . . . . . .216n Patents Act 1977 . . . . . . . . . . . . . . . . .152n, 216n Patents, Designs and Trade Marks Act 1883 . . . . . . . . . . . . . . . . . . . .216n Pawnbrokers Act 1872 . . . . . . . . . . . . . . . . . .71n Pawnbrokers Act 1908 . . . . . . . . . . . . . . . . . .72n Prescription Act 1832 . . . . . . . . . . . .92n, 96, 166 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Prints Copyright Act 1774 . . . . . . . .153n, 214n Real Property Limitation Act 1874 . . . . . . . . . . . . . . . .167n Sale of Goods Act 1893 . . . . . . .5n, 48, 157, 184 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165n s 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Sale of Goods Act 1979 . . . . . . . . . . .5n, 48, 184 s 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180n Sculpture Copyright Act 1798 . . . . .153n, 214n Statute of Frauds 1677 . . . . . . . . . . . . . .155, 199 Statute of Quia Emptores 1290 . . . . . . . . . . .90n Statute of Westminster 1275 . . . . . . . . . . . . .92n Theft Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . .78 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266n Torts (Interference with Goods) Act 1977 . . . . . . . . . .272n, 283 s 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282n Town and Country Planning Act 1947 . . .127n Town and Country Planning Act 1963 . . .127n

xxxiv

South Pacific Property Law

Town and Country Planning Act 1971 . . . . . . . . . . . . . . . . .127n Trade Marks Act 1994 . . . . . . . . . . . .155n, 215n Trade Marks Registration Act 1875 . . . . . . . . . . . . . . . . . . . . .155n, 215n Trustee Act 1925 s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10n Western Pacific (Courts) Order 1961 . . . . . . . . . . . . . . . . . . . . . . . . .85n s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278n s 15 . . . . . . . . . . . . . . . . . . .150n, 154n, 168n, 175n, 184n, 188, 190n, 195n, 201n, 215n Wills Act 1837 . . . . . . . . . . . . . . . . .199, 200, 201 VANUATU Animals Act (UK) 1971 . . . . . . . . . . . . . . . .142n Burial Act (Cap 101) . . . . . . . . . . . . . . . . . . .101n (Cap 123) . . . . . . . . . . . . . . . . . . . . . . . . . . .5n Carriage of Goods by Sea (Cap 131) . . . . . .74n Civil Procedure Rules 2002 No 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . .238n Co-operative Societies Act (Cap 152) . . . . . . . . . . .118n, 176n, 227, 230n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227n Companies Act (Cap 191) . . . . . . . .116n, 170n, 176n, 220n s 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191n Constitution 1980 . . . . . . . . . . . . . . . . . . . . . . .17 Art 5(j) . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Arts 29–32 . . . . . . . . . . . . . . . . . . . . . . . .123n Art 45(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .267 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . .242n Art 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38n Arts 73–75 . . . . . . . . . . . . . . .29n, 158n, 159n Art 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126 Art 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Art 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . .190n Art 80 . . . . . . . . . . . . . . . . . . . . . . . .38n, 211n Art 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . .211n Art 95(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Art 95(3) . . . . . . . . . . . . . . . . . . . . . . . . . .176n s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17n s 78(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Control of Nocturnal Noise Act (Cap 40) . . . . . . . . . . . . . . . . . .12n, 146n Control and Registration of Dogs (Cap 64) . . . . . . . . . . . . . . . . . . . .12n Copyright Act 2000 . . . . . . . . . . . . . . . . . . .215n Courts Act (Cap 122) s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n Courts Regulation 1980 s 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .266n

Credit Unions Act 1989 . . . . . . . . . . .118n, 176n Criminal Procedure Code (Cap 136) s 108 . . . . . . . . . . . . . . . . . . . . . . . . . .266, 267 ss 213–17 . . . . . . . . . . . . . . . . . . . . . . . . . .276 Customary Land Tribunals Act 2001 . . . . . . . . . . . . . . . . . . . . .123n, 234, 248, 249, 250 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . .18n, 248n s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n s 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238 s 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250 s 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248n Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . .250 Dangerous Drugs Regulation (No 2) 1964 . . . . . . . . . . . . . . . . . . . . . . . .74n Dogs Act (Cap 150) s 6 . . . . . . . . . . . . . . . . . . . . . . . . . .143n, 270n Expropriation for Public Utility Act (Cap 36) . . . . . . . . . . . . . . . .279n Firearms Act (Cap 198) . . . . . . . . . . . . . . . .146n Fisheries Act (Cap 158) . . . . . . . . . . . . . . . .144n Forestry Rights Registration and Timber Harvest Guarantee Act No 28 2000 . . . . . . . . . . . . . . . . . . . . .98n Freehold Titles Act 1994 . . . . . . . . . . . . . . . . . .11 Interpretation Act (Cap 132) . . . . . . . . . . . . .93n Island Courts Act (Cap 167) . . . . . . . . . . . . .238 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241n s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245n Island Courts Amendment Act 1989 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245n Joint Regulation No 12 of 1939 . . . . . . . . . . .74n Land Leases Act (Cap 163) . . . . . . . . . .5n, 19n, 155n, 220n, 222n, 224n Pt IV . . . . . . . . . . . . .156n, 224n, 225n, 228n Pt VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228n s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92n s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . .64n, 88n s 51(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87n s 68(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . .100n Land Reform Act (Cap 123) . . . . . . .189n, 197n Pt V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119n Land Reform (Luganville Urban Land Corporation) Order No 118 of 1981 . . . . . . . . . . . . . . . . . . . .120n

Table of Legislation

Land Reform (Port Vila Land Corporation) Order No 30 of 1981 . . . . . . . . . . . . . . . . . . . . .120n Land Reform (Rural Land Corporation) Order No 14 of 1980 . . . .120n Lands Referee Act (Cap 148) s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .240n Limitation Act (Cap 18) . . . . . .55n, 168n, 267n Mines and Minerals Act (Cap 190) . . . . . . . . . . . . . . . . . . . . . . . . .144n s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n Motor Boats (Cap 57) National Cultural Council Act (Cap 186) . . . . . . . . . . . . . . . . . . . . .147n Native Lease Act s 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113n Partnership Act (Cap 92) . . . . . . . . . . . . . . . .112 Pt II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113n Penal Code (Cap 135) s 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212n s 122(3)(a)(iii) . . . . . . . . . . . . . . . . . . . . . .69n s 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213n s 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .214n Physical Planning Act (Cap 193) . . . . . . . .127n Sched 2 . . . . . . . . . . . . . . . . . . . . . . . . . . .128n Preservation of Sites and Objects of Interest Act (Cap 39) . . . . . . . . . . . . . .69n Provisional Appropriation Act (Expropriation of Public Utilities) (Cap 376) . . . . . . . . . . . . . . . . .211n

xxxv

Registration of Business Names Act (Cap 62) s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n Registration and Timber Harvest Guarantees Act (Cap 28) 2000 . . . . . . . . . . . . . . . . . . . . .135n Registration of United Kingdom Patents Act (Cap 80) . . . . . . . . . . . . . . . . .6n Registration of United Kingdom Trade Marks (Cap 81) . . . . . . . . . . . . . . . .6n Registration of United Kingdom Trade Marks (Cap 88) . . . . . . . . . . . . . . . . .215n Road Traffic (Control) Act (Cap 29) s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221n s 33 . . . . . . . . . . . . . . . . . . . . . . . . . .221n, 223 s 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106n Serious Offences (Confiscation of Proceeds) Act 1989 . . . . . . . . . . . . . .205n Shipping Act (Cap 53) . . . . . . . . . . . . . . . . .156n Strata Titles Act No 29 of 2000 . . . . . . . . . . . .7n s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95n Town and Country Planning Act (Cap 154) s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128n Wills Act (Cap 55) . . . . . . . . . . . . . . . . . . . . .200n

TABLE OF ABBREVIATIONS AG

Attorney-General

Art

Article, usually in a Constitution

ASHC

Pacli America Samoa Law Reports High Court

Cap

Chapter, in a consolidation of legislation

FLR

Fiji Law Reports

FJCA

Pacli Fiji Law Reports Court of Appeal

FJHC

Pacli Fiji Law Reports High Court

FSM

Federated States of Micronesia

IPS

Institute of Pacific Studies, University of the South Pacific, Fiji

JSPL

Journal of South Pacific Law

KICA

Pacli Kiribati Law Reports Court of Appeal

MLR

Melanesian Law Review

NZ

New Zealand

PNG

Papua New Guinea

SBHC

Pacli Solomon Island Law Reports High Court

SILR

Solomon Island Law Reports

SPLR

South Pacific Law Reports

Tonga LR

Tonga Law Reports

TOSC

Pacli Tonga Law Reports Supreme Court

UK

United Kingdom

USP

University of the South Pacific

Van LR

Vanuatu Law Reports

VUSC

Pacli Vanuatu Law Reports Supreme Court

VUCA

Pacli Vanuatu Law Reports Court of Appeal

WSLR

Western Samoa Law Reports

WSSC

Pacli Western Samoa Law Reports Supreme Court

GLOSSARY OF TERMS Aigi

Extended family in Samoa, membership of which gives rise to the right to apply for use and/or occupation of family land.

Allotment (Tax or Town)

Area of ground in Tonga to which all adult male Tongans are entitled.

Ariki (House of)

Collection of persons or high chiefs in the Cook Islands with a ceremonial and advisory role.

Big Man

Title given to a person who has earned respect and status in Melanesian countries.

Fono

Village council in Samoa.

Garden

Ground cleared for growing vegetables, often some way from the house.

Kava

Traditional drink prepared from the juice extracted from the kava plant (piper methysticum) mixed with water and used on ceremonial and social occasions, especially in Vanuatu. Also found in Fiji and Samoa.

Matai

Title-holder in Samoa, head of an extended family group.

Mataqali

Landowning kinship group in Fiji.

Mats

Woven from various natural materials such as pandanus, coconuts and vines.

Pig’s tusks/teeth

The curved incisor of a bush pig, valued according to its size, and the length and formation of its curved tusks.

Roko

Administrative officer for a Fijian province.

Sevusevu

A gift presented as homage in Fiji.

Shell money

Small circular pieces of a certain shell threaded on to strings and used as currency in the Solomon Islands.

Taboo

Special characteristic which attaches to things to make them sacred or prohibited.

Tamtam

Carved and hollowed out piece of wood, of various sizes, used as an instrument for dances or to summon people, especially in Vanuatu.

Tapa

Traditional cloth found particularly in Fiji and Samoa, made from the beaten bark of a species of mulberry tree.

Vakavanua

Informal, traditional system of leasing land in exchange for sevusevu and a share of the harvest, in Fiji (literally ‘the way of the land’).

Yaqona

The Fiji version of kava usually prepared from dried powdered kava root rather than the green root and mixed with a greater proportion of water than Vanuatu kava. Used on ceremonial and social occasions. Also found in Samoa.

INTRODUCTION This book is designed, as its title indicates, to provide for the reader a description of, and a commentary upon, the law of property as it exists in the South Pacific region.1 The book brings together information from a range of sources across a number of independent jurisdictions and with reference to a huge variety of different types of property and property interests. The region under consideration consists mostly of sea, but within this vast expanse of ocean are a number of island countries, from Papua New Guinea in the west to the Cook Islands in the east, and between them, Fiji, Kiribati, Nauru, Niue, Samoa, the Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu, all which have similar legal systems, since they all were at one time under the control of Britain or the former British colonies of Australia and New Zealand.2 The main focus of this book is the laws of property of these countries, although, from time to time, reference is made to the much larger neighbouring countries to the south – Australia and New Zealand, and also to the smaller neighbouring countries to the north – the Marshall Islands and the Federated States of Micronesia. The laws of property of the region are not, however, limited to the laws introduced by the colonial powers. They include customary laws, some of which existed long before contact with beachcombers, missionaries or sandalwood traders, together with post-independence national legislation, decisions of village or island courts and the jurisprudence of the highest courts of appeal. The property that is the subject of this book is property in its widest sense. In some parts of the South Pacific the term ‘property’ is often used to refer only to land, while in other parts of the South Pacific, the term is used to refer only to movable property. In this book, however, ‘property’ includes both movable and immovable property, and both corporeal and incorporeal property. This is so because the countries of the South Pacific region can be truly described as being between the developing and developed world, not only geographically but also economically, and especially in terms of property. At the heart of property interests lie the traditions, culture and social organisation of the past. Today, however, people are increasingly acquiring and seeking to acquire material wealth similar to that of consumers in developed countries: for example, televisions, cars and mobile telephones. Houses built using traditional materials and according to traditional designs are giving way to modern designs and modern building materials. Diets and occupations are changing and there is a movement towards more individualism. Nevertheless, people from the region still value traditional property, and fine mats, baskets, pigs’ tusks, whales’ teeth and shell money still have their place in the property arena. Moreover, the value of the cultural property of the region is only just beginning to be realised from a Western perspective, and there is a need to recognise and protect the property significance of oral histories, patterns and symbols, dances and skills which have been handed down from generation to generation. So it is that the property interests and concerns of the South Pacific region stretch from the distant past to the developments of the future.

1 2

This excludes those countries of the Pacific which are French territories, such as New Caledonia and French Polynesia. Vanuatu presents something of an exception as it was governed by both Britain and France under a Condominium Government. Historically there have, of course, been other colonial influences in the region, including France, Germany and the United States.

xl

South Pacific Property Law

The cultural, economic, political and sociological aspects of property are of course important, and underlie much of the law that has developed in these countries, as does the history of the region, and this will from time to time be acknowledged and discussed. However these aspects, interesting as they are, can only be offered here as part of the context of the law of the region. In order to understand the legal framework of the region it is important to have some grasp of the major legal sources, particularly as the laws that exist in these countries are of different kinds and derive from different sources.3 The written laws comprise the written constitutions, legislation and subsidiary legislation. In each country, the written constitution is the supreme law (except in Tokelau, which does not possess a written constitution). Because it is the supreme law, the written constitution overrides any other law that is inconsistent with it, at least to the extent of the inconsistency. Following in importance to the written constitution in the hierarchy of written laws are legislation and subsidiary legislation. These are of several kinds. First in order of time were the imperial laws. In all anglophone countries of the South Pacific there was an application to, or an adoption of, English statutes of general application, that is, statutes which are not confined, by their terms or their subject matter, to England.4 This general application of English legislation was stated to be only so far as was appropriate to the circumstances of the country, and ceased at different dates before independence.5 The exception is Tonga, where English statutes of general application still continue to be adopted. In addition, in most anglophone countries during their period of dependency, some specific British legislation and subordinate legislation was applied to, or adopted by, the dependent countries. This application of specific British legislation and subsidiary legislation ceased when the countries became independent. In addition to the introduction of British legislation and subsidiary legislation in all countries, those countries which were under the control of Australia (Nauru and Papua New Guinea) and New Zealand (the Cook Islands, Niue, Samoa and Tokelau) received an infusion of specific legislation and subsidiary legislation from Australia and New Zealand respectively until independence. After the Cook Islands and Niue attained self-governance, but not independence, New Zealand retained the power to legislate with the consent of their respective Parliaments. In 1982 that power was removed as regards the Cook Islands, but it still remains for Niue. Then there are the locally enacted written laws, that is, legislation enacted by the local legislature of the countries, first, during the period of dependency together with subsidiary legislation made in the country during that period, and then legislation enacted by the legislature of the country and subsidiary legislation made in the country since independence or self-government.

3 4 5

Readers seeking further and more detailed information on the legal systems of the region are advised to refer to Corrin Care, J, Newton, T and Paterson, D, Introduction to South Pacific Law, 1999, London: Cavendish Publishing. The label ‘anglophone’ is not used to suggest that English was the dominant or only language used in these countries. It was, however, the language of colonial administration. This date is sometimes referred to as the ‘cut-off date’.

Introduction

xli

Written law is not the only important source of law in respect of property. The unwritten laws of each island country comprise the rules of common law and equity and the rules of custom. The rules of common law and equity of England were applied to, or adopted by, all the island countries of the South Pacific during their period of dependency and they have been maintained since, subject to certain qualifications. First, the rules of common law and equity are stated not to be applicable to the determination of title to customary land in all island countries of the South Pacific. Also, in some countries (Kiribati, Nauru, Papua New Guinea, the Solomon Islands and Tuvalu), the rules of common law and equity are stated to be not applicable to certain specified matters. Secondly, the rules of common law and equity are stated to operate only so far as they are appropriate to the circumstances of the country, although this qualification has been called into play surprisingly rarely. Thirdly, the fact that all countries, except the Cook Islands, Kiribati (as regards the rights of Banabans), Niue and Tuvalu, have severed appeals to the Privy Council means that it is possible for them to develop the rules of common law and equity as they consider appropriate without being bound by decisions of the courts in England. This means that courts can range widely over other jurisdictions to seek assistance in the determination of novel or difficult matters. On some property matters, customary law will play an important role. In Kiribati, Nauru, Papua New Guinea, the Solomon Islands and Tuvalu, customary law is stated to be applicable to certain matters specified in the legislation, and to override rules of common law and equity that would otherwise apply to such matters. In Samoa and Vanuatu, customary law is stated to be part of the legal system, but the exact matters that are to be regulated by it, apart from customary land, have not been made clear, either by the written law or by decisions of courts. In other countries of the region, customary law is not part of the legal system, except in relation to customary land, and so is not applied by the courts, except where they are entitled under the law to exercise a discretion, having regard to the circumstances of the parties and taking custom into account as part of these circumstances. An important aspect of the laws of the region that should be noted is that while copies of legislation can generally be obtained, it is sometimes difficult to obtain recent legislation and it is especially difficult to obtain copies of judicial decisions, especially of lower courts. Consequently it may sometimes appear that there is very little material about certain matters from some countries. That does not necessarily mean that those matters do not arise or are not dealt with in those jurisdictions; it means only that it has not been possible to locate relevant materials. For this reason this book cannot purport to provide an exhaustive treatise of all aspects of property in all island countries of the South Pacific. What it endeavours to do is to provide examples and illustrations of most of those aspects and to enlighten the reader on the diversity of property found in the region and the breadth of the legal principles, which must accommodate anything from tribal ownership of an island to individual claims to a personal stereo, from the symbolic transfer of a pig to the intellectual rights to patent kava extraction. Finally, the authors would like to express the hope that this book will assist students and legal practitioners of island countries of the South Pacific in becoming more fully aware of the laws relating to property in their countries, and stimulate and encourage them to think more deeply about issues relating to such property with a view to resolving some of the difficulties and problems that are revealed in this study.

CHAPTER 1 WHAT IS PROPERTY LAW?

INTRODUCTION Property law determines, shapes and controls interests in property or proprietary interests. In island countries of the South Pacific, property law is influenced by ideas and structures introduced through the common law of England (which is the basis of the legal systems found in the jurisdictions of islands of the South Pacific being considered here), customary law, indigenous ideas relating to property, and international law. As with any legal system, those in the South Pacific region are also influenced by the local social and economic contexts of the law, especially the degree of industrialised and urban development in the jurisdiction under consideration and the characteristics of local geography and resources. In this chapter, a number of topics and ideas will be referred to which will be considered in greater detail elsewhere in this book.

DEFINING PROPERTY 1.1

PROPERTY AS THINGS

One approach to the study of property law is to regard it as the law relating to things. The justification for this is that the nature or characteristics of different things are regulated by different laws. For example, land and anything deemed to be land, such as houses attached to the land, or rights of way over the land, are governed by particular sets of rules which are different from the rules which apply to things which are movable, such as chattels or goods. The classification of things into different categories is a feature of all legal systems. The main categories in English common law are ‘real property’ (land) and ‘personal property’ (everything apart from land). Within both categories are things which have physical substance and are ‘corporeal’, and those which do not, which are ‘incorporeal’.1 So a house is corporeal but a right of way over land is incorporeal; similarly, a picture is corporeal but the right to royalties from a novel is incorporeal. If a thing cannot be classified then it may not be regarded as property, or may be incapable of being the subject matter of property interests. It is important to note that the types of things which are capable of being regarded as property change over time to reflect social, economic and legal developments. For example, in island countries of the South Pacific, prior to contact with Europeans, people had very little in the way of corporeal property other than land. Traders, whalers and planters all brought with them different forms of goods and chattels, and this process has continued so that today a great variety of things are found, including many new forms of property such as website domain names, air bands and logo designs. Human inventiveness continues to devise new things of economic value, and

1

Alternatively, the terms ‘tangible’ and ‘intangible’ may be used for things which are, respectively, corporeal or incorporeal.

2

South Pacific Property Law

as this happens the law responds by enlarging the legal framework to provide protective and remedial mechanisms. There are also some property and forms of interests in property that exist in the South Pacific region which may take on special significance because of their cultural or social context, with which readers from other societies may be unfamiliar. Some of these things may create challenges for Western constructions of property rights and do not fall neatly within recognised categories. For example, in many Melanesian countries, magic formulas for medicinal or similar purposes and custom dances were and are regarded as property by indigenous people, whereas more recent residents in the country who come from different cultural backgrounds would not so regard them. Similarly, chiefly titles are, in most island countries of the South Pacific, regarded as forms of property by indigenous people, whereas they would not commonly be so regarded by other people in other countries. The classification of things into different categories is a useful tool. In English common law, the distinction between different forms of property has its origins in the procedures which needed to be followed to claim any rights in relation to the thing, or to deny any liabilities. In particular, claims to rights relating to land were pursued differently from those to other forms of property. Legal and equitable rights were also treated differently, and in different courts, until the end of the 19th century. Although these procedural distinctions are now less significant than they were, partly because of the merger of the courts of law and equity, and because of greater recognition of many forms of property, the historical legacy is still relevant for many of the formalities for transfer of different types of property and for the remedies available when a property interest has been infringed. In island countries of the South Pacific, further distinctions are found where certain types of property, particularly land, are governed by customary law, and where they are governed by introduced law. Also, in some cases, especially in the region of the South Pacific, the nature of the property determines the forum for dispute resolution. This is particularly so in the case of land and titles, where specialist courts exist to which such matters must be referred.

1.2

PROPERTY AS RIGHTS

An alternative way of looking at property law is to focus on the relationship between people and things. The basis for this approach is that property law is really about claiming, resisting or exerting rights to things against other people.2 If there is no competition for things then there is no need for any legal framework. It is only when, for example, two people claim rights over the same property and a dispute arises that there is a need for a legal solution, unless they are to resort solely to self-help. Property law thus develops in response to competing claims to resources and the commercialisation of things. Property law confers rights on those claiming interests in a thing to seek a remedy against others who would infringe those rights in some way. Property law also develops to facilitate and enlarge the range of transactions that can

2

Thus the legal philosopher, Pollock, referring to land (although this could be applied to other types of property), declared that ‘what we call the law of property is in the first place the systematic expression of degrees of control, forms of use and enjoyment of land recognized and protected by law’: Jurisprudence and Legal Essays, 1961, London: Oxford University Press, p 93.

Chapter 1: What is Property Law?

3

take place regarding things. In this respect, property law brings together many areas of law such as contract, torts, company law, commercial law, the law of equity and trusts, criminal law and even constitutional law. It is also necessary to consider the application of the common law of England, principles of equity, introduced and regional legislation and customary law. One of the difficulties with the approach which looks at property as rights in the South Pacific region is that in English common law, the notion of property as rights is seen as the relationship between the individual – or legal person – and the thing. Property, in the sense of rights, is seen as ‘the right to exclusive ownership and control of a specified object’.3 Property law is therefore primarily concerned with private property. However, in the South Pacific region, individual rights are historically less common than communal rights.4 Consequently, any assertion by one person against another of rights to property may need to be treated differently. While individual rights are rarely absolute, this is even more likely to be the case where rights cannot be owned or claimed individually. This is not to say that individual rights to property are not recognised at all in island countries of the South Pacific. Indeed they are, and as the South Pacific region develops economically and lifestyles change, there is likely to be an increasing shift towards individual property ownership, particularly as regards goods and chattels.5 If property law is regarded as being concerned with property rights then the nature of the thing, or the subject matter of the right, is less important, although there may still be some procedural distinctions. Ownership of land and ownership of a car are both forms of ownership that will give rise to certain rights and liabilities. However, the nature of the property may determine certain formalities that have to be complied with for certain legal transactions and the nature of the legal interest will determine the extent to which rights can be enforced against others, transferred to others or acquired by others. The nature of the property or the type of interest may also, as indicated above, determine the forum for the enforcement of such rights. The possible rights that can be exercised over things range from absolute beneficial ownership, to temporary use or detention. To complicate matters, property rights may be those recognised in common law or equity and therefore legal or equitable, or – certainly in island countries of the South Pacific – they may also be determined by customary law. Some rights will be shaped and governed by statute – either introduced or national – but many rights will have been developed through case law. Some rights will have been developed entirely through custom and oral tradition, and there may be very little written evidence to support the existence of such rights. When considering property as rights, it is also important to bear in mind that property rights may be rights to the thing itself, or rights against people in regard to the thing. The former are known as real rights or rights in rem, the latter as personal rights or rights in personam.

3 4

5

Hepburn, S, Principles of Property Law, 1998, Sydney: Cavendish Publishing, p 1. These should not be taken as meaning communal rights in a communist sense. The communal property rights of the region are shared by defined groups – the clan, tribe, village or family. Public property is an introduced notion dependent on statehood, and therefore relatively new in the region. The pace of change is likely to be slower with land, and certainly individual ownership is less common at present in the case of land, but not unknown; eg in the state of Kosrae, Federated States of Micronesia, individual or nuclear family ownership of land is common.

4

South Pacific Property Law

In this book, as indicated above, the term ‘property’ will be used to mean the thing – corporeal or incorporeal – which is the subject of rights of ownership, possession, control and use. In doing so, it will be recognised that the thing that is property need not be a physical, corporeal or tangible object, but may be something that is intangible or incorporeal, and that the rights or interests may be of different kinds.

1.2.1 Rights in corporeal things Corporeal things – that is, things which have form and substance and are physical in the ordinary sense of the word – include land and personal property or ‘chattels’, more commonly referred to as goods.6 The category of personal property can be further divided into corporeal things – historically known as choses in possession because they were capable of physical possession, and choses in action, which are incorporeal interests which permit the holder of such an interest to seek the help of the court in enforcing the interest. For example, a debt, or more accurately the right to sue for payment of the money represented by the debt, is a property right, a chose in action. Incorporeal property is dealt with in the next section. The characteristic of ‘corporeal’ property therefore includes land and other property. Possession of corporeal movable property is manifest by physical control. In the case of land, possession or the right to come into possession will be evidenced by occupation, or the right to exclude others from occupation. The law distinguishes between rights to land and rights to other forms of corporeal property. In particular, historically an action to recover land lies against the land itself, while a right to recover personal property lies against the person who has wrongly interfered with the claimant’s property right. A personal action will usually – but not always – be a claim for damages or compensation.7 This apparent division as regards remedies is by no means clear-cut, as in some circumstances the right to claim the property will be defeated and the applicant will have to fall back on a personal remedy, such as an action in tort or contract. Moreover, in the case of both land and other tangible property equitable remedies may be sought, in which case, regardless of the nature of the property, their award is discretionary.8 Land as corporeal property includes things attached to the land, such as natural things, for example, trees and plants, and also man-made things, for example, houses, sheds, and fences. Indeed, some of the disputes over land relate to the very question of whether a thing is or is not attached to the land so as to become part of it.9 In the South Pacific region land may also be defined according to whether it is land held by the Crown or State, whether the land is held under customary tenure, or whether it is

6

7 8 9

The term ‘chattels’ is still encountered in the South Pacific region. See, eg, the case of Schoenderwoerd v Hunt 1994 Western Samoa [1994] WSSC 6 in which ‘chattels’ included a waterbed, a Dutch dresser (piece of furniture) and a box of tools. Similarly in the Fijian case of Ram Narayan and Another v Richard Hussain Shah [1979] WLR 1349 (PC), where a contract of sale related to land and chattels, in this case two bullocks, two ploughshares and a tractor. See Chapter 11, especially the discussion relating to detinue. See Chapter 11. See further Chapter 7.

Chapter 1: What is Property Law?

5

held under other forms of tenure.10 In some cases, the definition of land will vary, depending on how it is classified in the first place or depending on what legislation is applicable to it.11 Land also includes incorporeal rights relating to land, such as easements, profits and rents. Corporeal property other than land includes both natural produce which has been severed from the land, wild animals, fish and fowl which have been captured or domesticated, and things which have been manufactured either from natural materials or from man-made materials. Within this latter category are found ‘goods’ or ‘chattels’. These are movable things, which may or may not be commodities traded in the market place. Often these are governed by specific laws relating to their transfer, for example, sale of goods legislation.12 The advantage of movable corporeal property is that it is has physical attributes and can usually be transferred more easily than land, or property which is incorporeal or lacking in physical attributes.

1.2.2 Rights in incorporeal things In the English common law classification of things, rights in incorporeal things include incorporeal land rights, such as easements, and incorporeal personal property which falls under choses in action, mentioned previously. This is the right to bring an action or claim before a court in order to assert a claim to the property, or the value represented by the thing, for example, a debt and the right to sue for it.13 In island countries of the South Pacific such choses in action are similarly encountered. Incorporeal property also includes a species of property generally referred to as intellectual property. This is property that manifests itself in some way so that it may be perceived by the senses, such as hearing or seeing, but the real value lies in the intellectual ideas behind the manifestation. So, for example, a song or a tune is a species of intellectual property, and the person who wrote the words and music may claim a property right in these. At the same time the performer may claim a right in the performance. The commercial exploitation of intellectual ideas makes them valuable, whether the idea is a clever design for a logo, or the packaging of a soft drink, or the blueprint for a piece of machinery. This form of property is protected by legal devices such as copyright, the law of patents and the law of trade marks and designs. These laws are directed at protecting the right to be associated with the

10 Eg, in the Land and Titles Act Cap 133 (Solomon Islands), ‘customary land’ is defined as ‘any land … lawfully owned, used or occupied by a person or community in accordance with current customary usage’: s 2. ‘Land’ as a physical entity includes ‘land covered by water, all things growing on land and buildings and other things permanently fixed to land, but does not include any minerals (including oils and gases) or any substance in or under land which are of any kind ordinarily worked for removal by underground or surface working’. A similar definition can be found in the Land Leases Act Cap 163 (Vanuatu). 11 Eg, the definition of ‘land’ in Vanuatu is different in Cap 163 and Cap 123. 12 In island countries of the South Pacific region this may be the Sale of Goods Act 1893 (UK) or the Sale of Goods Act 1979 (UK), or specific local legislation such as the Sale of Goods Act 1975 (Samoa) or the Sale of Goods Act 1985 (Fiji). 13 The phrase ‘chose in action’ has reference to the historical label given to the formulas for bringing a claim before the courts of common law in England, the forms of action. These formulas were both prescriptive and restrictive and were gradually modified both by common law and equity to enable new claims to come before the courts. When the courts of common law and equity were fused under the Judicature Acts of 1873–75 the forms of action were abolished, but one still finds occasional reference to them.

6

South Pacific Property Law

property, to exploit it and to benefit – usually financially – from its exploitation. This area of the law is increasingly significant in developed countries. As a consequence legislation protecting intellectual property originating in other countries – notably the United Kingdom and New Zealand – is found in the South Pacific region, for example, statutes protecting United Kingdom trade marks and patents.14 Less developed is legislation directed at protecting the intellectual property which originates from island countries and cultures of the region itself, both in the Western sense of intellectual property and in the traditional or indigenous sense. There are therefore rights in incorporeal things that exist which are not well protected by the right to bring a claim in respect of them and so perhaps need their own classification. These rights include rights to medicinal knowledge, magic, skills in making traditional artefacts and clothing, song and oral history, methods of cultivation and food preparation and other forms of indigenous knowledge. There is a wealth of traditional culture and knowledge in the South Pacific region that does not easily fit into legal structures derived from Western cultures. Some attempts have been made in recent legislation in Fiji, Samoa, Tonga, and Vanuatu to encompass indigenous knowledge within the laws of intellectual property.15 For example, in Samoa under the Copyright Act 1998, there is protection of expressions of folklore in ss 29 and 30. However, this is an area of property law still requiring development.

1.3

WHAT RIGHTS ARE THERE?

When considering what rights there are in relation to property, it is evident that there is a broad range of rights, most of which are not absolute but are limited in some way. At one end of the spectrum there are things that cannot be regarded as property in a legal sense, because the law recognises no rights over them. Consequently the law affords no relief when the property is interfered with in some way. This absence of rights can be found in the case of dead human bodies, living wild animals and birds. Other things cannot be owned, but it may be possible to have rights to use them or to have access to them, such as running water, air and light. Some things can only be owned by abstract entities such as the State or the Crown, and not by persons. At the other end of the spectrum are the full rights of the owner over land or chattels. In between are rights that are limited in some way or which are only partial. These include certain rights to river banks and sea shores, lost property which is found, and minerals.16 Similarly one might include here rights of use or temporary enjoyment of property, custodial rights, and the rights of persons who are in possession of property but who are not the owners of the property. 14 Eg, Registration of UK Patents Cap 179, Registration of UK Trade Marks Cap 180 and UK Designs (Protection) Act Cap 181 (Solomon Islands); Registration of UK Patents Act Cap 80 and Registration of UK Trade Marks Cap 81 (Vanuatu); Registration of UK Trade Marks Ordinance Cap 63 and Registration of UK Patents Act Cap 61 (Tuvalu); Registration of UK Trade Marks Act Cap 88 (Kiribati). In the Cook Islands and Tokelau, New Zealand legislation to similar effect is in force. See further Chapter 9. 15 Eg, Copyright Act 1999 (Fiji), Copyright Act Cap 121 (Tonga). 16 Eg, running water cannot be owned but rights to use it may be owned or controlled. Eg, in Fiji the public have the right to use rivers, but these are owned by the State (formerly the Crown) under the Rivers and Streams Act Cap 136 (Fiji). In Samoa the public may have the right to use water for certain purposes but not others; eg, the right to use rivers, streams, waterfalls or lakes for the purposes of generating hydro-electricity or other power vests in the government: s 5 Water Act 1965 (Samoa).

Chapter 1: What is Property Law?

7

It is also important to bear in mind that property is capable of sustaining multiple rights which may exist in relation to the same property simultaneously or in turn. These may be multiples of the same type of right, or multiples of different rights. For example, where property is found, the finder may have a possessory right, while the true owner will still have rights of ownership. If the true owner cannot be found then the person on whose land the thing is found, or who exercises control over the land, may have a better right than the finder. If the finder is a trespasser then the fact that he or she has no right to be on the land may defeat any claim to the thing found even though the finder has possession.17 Similarly, with land it is possible for there to be custom owners or freeholders who hold the title to the land, while also having a lease over the land held by a leaseholder who in turn may sub-lease the land to the person in occupation. Not only is it possible to have multiple property rights, but property rights can also be divided both spatially and temporally. Thus there may be a succession of different rights at different times relating to the same property, or there may be a succession of similar rights at different times. Also, the same property may be divided spatially, so that a number of people have the same property interests at the same time in relation to the same property. While co-ownership is nothing new, some of the legal structures for dealing with multiple spatial ownership are relatively recent, such as the concept of strata-titles, or ‘flying freeholds’, whereby a number of titles may be held over the same land at the same time.18

1.3.1 Absence of rights The common law recognises that some property cannot be owned, although there may be rights in relation to its use or benefit in some way. For example, while running water cannot be owned, there may be restrictions on interfering with running water, and rights to extract some of this water may also be granted. Similarly there is no right to own air, but there may be a right to receive ventilation, or rights to space. The common law also holds that there is no right to own light, or a view, but a person may be able to acquire rights other than ownership in relation to light and there may also be controls as to the height and design of buildings owned by other people, so that light is not completely shut out or so that views are left unobstructed. Some things are incapable of being owned by ordinary individuals because in common law or under statute they are deemed to be the property of the Crown or of the State, regardless of who owns the land.19 Examples are gold, silver and other precious minerals.20 One of the controversies in the South Pacific region has been whether or not the original Crown claim to gold, silver and precious minerals includes such minerals as phosphate. This has been of particular concern and debate in 17 See further Chapters 3 and 7. 18 See Strata Titles Act 2000 (Vanuatu) and Unit Titles Act Cap 274 (Fiji). 19 Characteristic of such rights are those to mining, eg, s 2 Mines and Minerals Act Cap 42 (Solomon Islands); ss 3 and 4 Minerals Act Cap 133 (Tonga); s 2 Mines and Minerals Act Cap 190 (Vanuatu). Minerals may include oil. 20 The meaning of minerals may be broad; eg, in Samoa, minerals includes metals, clay, stone, sand, gravel, limestone and other valuable materials: s 2 Lands Surveys and Environment Act 1989. Restrictions on taking minerals may be modified by custom, eg, in Tuvalu the Mineral Development Licensing Act Cap 25 allows a Tuvaluan to take ‘in the manner which custom permits … minerals from which it has been customary to take such minerals’(s 3).

8

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Nauru.21 There has also been some debate in the region as to whether customary law claims to land include the right to minerals, in which case, where land is held under customary land tenure, the State or Crown should not be able to claim the minerals. Where minerals are not included within the common law exceptions then they are either owned by the person with title to the land, or a leaseholder or, in some cases, the person to whom an extracting licence has been granted. In common law the exclusive right of the Crown or the State to precious minerals also extends to the minting of coins and the fabrication of articles of precious metals without a licence.22 Under common law, wild animals and birds are incapable of being the subject matter of property rights until they are caught or killed. Certain animals, birds and fish, whether alive or dead, may be held to belong to the Crown or the State,23 either under custom or under statute.24 Certain land in island countries of the South Pacific is also claimed by the Crown or the State and is therefore closed to private ownership. In Tonga, all land belongs to the Crown by virtue of Tonga’s Constitution.25 In some places the Crown or State owns land up to the high water mark; elsewhere public land owned by the State includes the foreshores,26 soil under the water,27 and neglected land.28 There may also be provision for the State to own reclaimed land – a matter which is gradually becoming more important as demand for land grows.29 Not all incorporeal property will give rise to property rights. For example, the right to a personal reputation is not protected in property law but in the law of torts; however, the reputation of a business or commercial enterprise may give rise to certain property interests, such as the rights to the goodwill of the business. 30

21 For commentary, see online law journal published by Murdoch University, http:www.murdoch.edu.au/elaw/issues/v2n2/macsporr.txt. MacSporran, P, ‘Landownership and Control in Nauru’. 22 See, eg, provisions relating to forgery under the Penal Codes of Tuvalu (1978) and Kiribati (1977 Laws of the Gilbert Islands) Part XXXVI in each; s 342(4) of the Penal Code Cap 17 (Fiji), and ss 354 and 308 of the Crimes Act 1969 (Cook Islands) and s 358 of the Penal Code Cap 26 (Solomon Islands). 23 Eg, in the UK, swans and sturgeon (see Chapter 7). In the South Pacific region the right to hunt, capture, kill or eat certain types of animal, fish or birds – such as turtles – may be restricted to certain persons. See Chapter 6. 24 Increasingly, legislation intervenes to make it an offence to capture or kill certain species of flora and fauna, eg, Birds and Game Protection Act Cap 170 (Fiji); Wildlife Conservation Act Cap 47 (Tuvalu); Wild Birds Protection Act Cap 45 (Solomon Islands), Birds and Fish Preservation Act Cap 125 (Tonga). 25 Part 111, s 104. See also s 102 of the Constitution of Samoa. 26 Note that ‘foreshore’ need not be limited to seashore. In Samoa foreshore includes rivers, lakes and streams: Land, Surveys and Environment Act 1989. Elsewhere, however it is limited to seashore, as in Tuvalu: s 2, Foreshore and Land Reclamation Act Cap 26. The meaning of ‘foreshore’ is not without controversy in the region: see the Solomon Islands case of Allardyce v Laore [1990] SILR 174. 27 See, eg, Crown Lands Act Cap 132 (Fiji). 28 Eg, in Kiribati, under the Neglected Lands Ordinance Cap 62, and in Tuvalu under the Neglected Lands Ordinance Cap 23. 29 Eg, s 23 Crown Lands Cap 132 ( Fiji) which includes besides the foreshore and land under water, land raised and reclaimed from the sea. Both Tuvalu and Kiribati include reclaimed land in their respective legislation: Foreshore and Land Reclamation Act Cap 26 (Tuvalu) and Cap 35 (Kiribati). 30 See Chapter 6 and reference to the tort of passing off, and breach of confidence.

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Normally there is no right to own an appearance or ‘get up’, but sometimes this may be so distinctive that is should be protected; for example, where an individual’s persona is a marketable commodity, such as a pop singer or a footballer, then the law may recognise property rights in the image of that person. This is similar to the protection that the law gives to the packaging of well-known brands and the use of trade names.31 The question of property rights in body samples, such as skin tissue, blood samples and body cells, is an area of growing controversy. These body parts are the raw material of scientific developments which can lead to important discoveries and cures or treatment for some of the world’s major killer diseases, such as cancer. The samples may be of no value to the person from whose body they are taken, but the discoveries based on them may be of huge value to pharmaceutical companies. In the United States the question has arisen whether the person from whose body these samples are taken should have some kind of recognised property right either in the body parts, or in the end product developed in a laboratory.32 The answer there was that the donor had no property interests in the samples. In some island countries in the South Pacific region there are unique genetic groups, and approaches have been made by pharmaceutical companies to acquire donor tissue and samples.33 If the American line of reasoning is followed then these Pacific islanders may similarly have no rights to any benefits – financial or medicinal – derived from their body samples. Similar lack of rights to certain communal resources such as marine resources and medicinal plants currently puts island countries in a distinctly disadvantageous position against large pharmaceutical and other companies wanting to exploit such resources.34

1.3.2 Inchoate rights The word ‘inchoate’ means ‘begun but not completed’.35 Inchoate rights are those rights that exist but which have not yet matured or come into effect because some condition precedent has to be fulfilled before they do so. For example, one inchoate right is a maritime lien that relates to ships. The lien is perfected or becomes exercisable by proceedings in rem against the ship subject to the lien.36 Another form of inchoate right which is very important is the right of a mortgagee to come into possession of a building or land when the mortgagor has defaulted on the mortgage 31 See Chapter 9. 32 The leading common law case on this topic is the Californian case of Moore v Regents of the University of California (1988) 249 California Reports 494 (Court of Appeals); (1990) 271 California Reporter 146 (SC), where it was held by the Supreme Court of California, that a donor of blood had no patent rights in an anti-cancer drug developed through research on blood cells in the blood donated, on the basis that donors had no property rights in their body parts. 33 This has happened in Tonga and the Solomon Islands. 34 This has become evident with the extraction of kava lactones (the chemical substances of the kava plant root which are extracted by crushing, grinding or pounding) by processes known to Pacific islanders – especially in Vanuatu and Fiji – for centuries, and with the use of certain medicinal marine algae, both of which have been exploited commercially elsewhere, with no benefit going to the people from whom these skills and knowledge were acquired. 35 Jowitt’s Dictionary of English Law, 2nd edn, 1977, London: Sweet & Maxwell, p 55. 36 See Donald Pickering & Sons Enterprises Ltd and United Marine (South Pacific) Ltd v Karim’s Ltd, the Vessel Bainiuvaliku and the Vessel Senibiyan, Admiralty Action No 0002 of 1996, Fiji [1997] FJHC 20; (1997) 43 FLR 41. Note in particular the reference to Fry LJ in the English case of The Heinrich Bjorn (1885) 10 PD 44.

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repayment.37 The mortgagee has this right at the outset once the mortgage agreement is entered into, but is unlikely to exercise it until he wants possession in order to sell the property to redeem the debt. Other inchoate rights are those that arise in relation to land, when certain land rights are determined by birth. For example, in a patrilineal society, where land may pass to male heirs as soon as a boy is born, he potentially has the right to land. He will probably have to wait for his father, and perhaps even his grandfather or uncles, to die before he comes into his right. Even an illegitimate son will have an inchoate right to land provided his father is known, located and acknowledges the child. However, the right will not mature, or vest in the illegitimate son, until the father is known and located. Similarly, titles which are earned by merit rather than inherited may be inchoate. Thus a noble in Tonga passes on his title to his eldest son; but, in Samoa a person must earn the title of matai and be appointed to it – it cannot be claimed as a birthright. Nevertheless, to become a matai a person must still be born into an eligible family. Under the principles of common law and equity a child may be granted an interest in land or other property which is to mature, or vest, when the child reaches a certain age – usually the age of majority. Until the child reaches that age the right does not mature. Of course it might be the case that inchoate rights are never exercised, or never mature. For example, the son of a chief might die in childhood, or the mortgagor might keep up all the payments and eventually pay off the mortgage, or the shipowner who owes a shipbuilder for repairs may settle the debt. However, where an inchoate right does mature and the condition precedent is met, the right is as strong as any other right that comes into full effect as soon as it is created.

1.3.3 Determinable rights A determinable right to property is the converse of an inchoate right. It is fully created, but it may come to an end subsequently because some condition or event has occurred bringing it to an end – determining it. In English law such rights arise under protective trusts, where a beneficiary may have a right to the beneficial interest under the trust, provided that beneficiary does nothing to forfeit the entitlement, such as becoming bankrupt or trying to alienate the beneficial interest to creditors.38 Under the customary law of the South Pacific region a legitimate female child, in areas where land descends through the male line, will often be regarded as having a right to some land through her father, from her birth – although this is unlikely to be as much land as her brothers. If, however, she marries, she will normally be regarded as losing her right to such land. In its place she will acquire some rights to the land of her husband.39 In common law and equity, if a right to property is to be determined by a condition subsequent then that condition must be certain, otherwise the condition will be void.40 Conditions will also be void if they are contrary to public policy – for example, they infringe basic fundamental rights, such as freedom of religion or

37 38 39 40

On mortgage, see Chapter 4. See Re Leach [1912] 2 Ch 422 and s 33 Trustee Act 1925 (UK). See the discussion in the case of Noel v Toto [1995] VUSC 3. Clavering v Ellison (1859) 7 HL Cas 707, 11 ER 282.

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movement, 41 or they totally restrict alienation, 42 or they restrain marriage or encourage divorce, or interfere with parental duties. The consequences of a void condition depend on whether the gift or transfer was made subject to a condition subsequent or was a determinable interest. If the condition is void, and the interest is a determinable one, then the transfer of the property will fail and the property will revert to the transferor. If the transfer is subject to a condition subsequent and this is struck out, then the original transfer is not void and the donee or recipient of the property takes it free from the condition. To distinguish whether the interest is conditional or determinable, it is necessary to examine whether the intention was that the interest was never to be absolute. If this is the case then the interest is a determinable interest from the outset. In the case of a conditional interest however, the intention is that the interest is to be absolute, but the happening of a certain event will cut that interest short.43 Under statute, certain rights may also be determined. For example, under Vanuatu’s Freehold Titles Act 1994, if a non-indigenous person becomes the successor in title to the holder of a freehold granted under the Act, the interest in the land reverts to a leasehold and ceases to be a freehold. In Tonga, if the widow of an allotment holder remarries, her right to continue to occupy and use the allotment after her husband’s death immediately comes to an end.44

1.3.4 Limited or restricted rights A person may have limited or restricted rights in property due to a number of factors, which may operate separately or together. These limitations or restrictions may be determined by the nature of the property itself, or the capacity of the individual or the legal interest held. For example, owners of motor vehicles will be limited in their rights, in so far as their ownership must be registered, the motor vehicles may have to meet certain approved standards, third party insurance and road tax will have to be paid and the vehicles may only be used in a certain way on public roads, in the interests of public safety. Where the person claiming a property interest is a child then the law may deem it best that the child does not manage or control the property himself or herself, but that this is done by a more competent person, such as a trustee or guardian. This is particularly the case in respect of interests in land, but may also apply where the property is considered dangerous – for example, firearms. Certain legal structures will also impose restrictions on what can be done with property. For example, the director of a company is expected to manage the assets and business of 41 For this reason, although there are old English law authorities allowing gifts of property to determine if the recipient marries a certain person based on race, religion or status, it is submitted that the courts today would look less favourably on such conditions in countries where the right to freedom from discrimination and freedoms of religion and marriage are established. However, in English common law, where freedom of testation is a principle, the courts have upheld the right of a testator to impose a determining condition on the basis of change of religion – Blathway v Baron Crawley [1976] AC 397 (HL). 42 See Re Brown [1954] Ch 131, in which a father left property to his four sons but on condition that they did not transfer their share to anyone other than one of their own brothers. This condition was held to be void. 43 This is not always a very easy distinction to make, but certain words used in the grant of the interest may assist. Eg, if the word ‘unless’ is used, this may indicate a conditional gift, whereas use of the word ‘until’ will indicate a determinable interest. 44 Land Act, Cap 132 (Tonga).

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the company in the best interests of the shareholders; a carrier of goods is expected to look after them and not damage them; a trustee of a collection of cultural artefacts is expected to maintain and preserve the collection. Such expectations are given effect by controlling what people can do with certain types of property either by means of legislation, or by principles developed through the cases. As property interests become more complex, and policy considerations find their way into a growing body of legislation, the unrestricted freedom of the property owner or user to do what he or she likes with property is increasingly curtailed.45 In the case of land, common law principles of nuisance, trespass and the rule developed from nuisance in the case of Rylands v Fletcher46 have restricted certain types of conduct in respect of land by imposing liability when a recognised right has been infringed. Where the right infringed is not one that is recognised in law then the landowner can continue doing the activity complained of. This is a point well illustrated by the case of Victoria Park Racing v Taylor.47 Here, despite the best endeavours of counsel, the court could find no property right to protect the appellants’ conduct of race meetings from the simultaneous, live broadcast by radio of the respondents from a plot of neighbouring land which they were using with the permission of the owner. Consequently the respondents could not be restricted in their activities. No recognised right had been infringed and so there was no remedy available to the appellants, other than taking self-help measures such as raising their fences or repositioning their activities so that these could not be seen. Types or forms of land use may also be restricted by the need to comply with certain requirements. For example, in order to use premises as a shop, a trading licence may be required; similarly to operate a kava bar, garage or hotel. Often this will be regulated by legislation. The issuing of licences will usually be controlled by the public authority for the area – such as the town council – or by a centralised authority, such as a Department of Finance or Trade, and payment is generally required. There may be a limit on the number of such licences which are in issue and applicants may have to meet certain requirements, as may their premises. Similarly the use of customary land may depend on the permission of the village council or chief. Today, land use is increasingly controlled by considerations of town and country planning, development zoning and – although this is still fairly embryonic in island countries of the South Pacific – environmental and pollution controls.

1.3.5 Usufructuary rights Usufructuary rights are limited to the rights to use a property, which may be land or chattels, and to take the fruits or benefits from the property. In the case of land, this may be the right to cultivate the land or to harvest certain crops from the land. With chattels, usufructuary rights are often governed by contracts of loan, hire-purchase or 45 Eg, in Vanuatu one finds legislation relating to Motor Boats Cap 57, Nocturnal Noise Cap 40, and Control and Registration of Dogs Cap 64. 46 (1868) LR 3 HL 330. The principle which emerged from this case is that if an owner of land, by the non-natural use of land, allows something to escape from the land (such as water or noxious fumes) onto the land of another, then the owner of the land from which the escape is made is liable. 47 (1937) 58 CLR 479.

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lease. Usufructuary rights are usually limited in time, such as a set period of time or for a lifetime, but in customary law may be passed on to the holder’s heirs. There is some discussion as to whether the rights that indigenous people have to customary land should be regarded as only usufructuary rights, rather than coownership. This is because customary land can be regarded as belonging not to the current generation of the tribe or family, but also to past and future members of a tribe or family, so that the current members only have a usufructuary right to use the land while they are alive. Thus, in Papua New Guinea, it is said: individual members of the landowning groups only possess what is known as usufructuary rights or the right to use the land for various purposes consistent with the group’s socio-political and economic interests, as opposed to proprietary rights in land. The individual’s usufructuary rights are capable of being inherited by members of his family in perpetuity unless the right holder’s lineal or collateral descendants are extinct.48

The implication of regarding current members of a family or tribe as having only usufructuary rights in customary land is that they cannot transfer it by sale or gift, or as compensation or payment for wrongdoings, which has in fact frequently happened in other island countries of the South Pacific, especially in the past. It would also mean today that current holders of the customary land cannot create leases over the land, mortgage it or develop it in any way which might restrict its use or availability for future members of the family or clan. The other, more theoretical implication, if this view is adopted, is that other people who have usufructuary rights over the land in the more individual sense, have usufructuary rights over land already held under usufructuary rights. In this book it is not assumed that all rights to customary land are necessarily only usufructuary rights, nor is it assumed that such rights can only be held by a group. Usufructuary rights may be granted gratuitously or in return for payment of some sort. They are very common in island countries of the South Pacific, especially in relation to land including reefs, where usufructuary rights may entitle holders of such rights to collect shellfish and other marine resources. To some extent such rights may overlap with a further division of rights, discussed below: that of primary and secondary rights.49 One of the reasons for the prevalence of such rights in island countries of the South Pacific is the traditional principle that no one should be without land. This is a valuable aspect of land tenure in countries where social security or provision by the State is minimal and where people must support themselves. Usufructuary rights enable people without custom ownership of the land to do this. Nevertheless, such rights may also be claimed by those who are absent from the country, and who may hope, one day, to be able to return and use land, or to be able to pass on this right to their heirs so that the link with their home island is not lost. The existence of usufructuary rights can create some problems regarding the development of the land, especially if the consent of absentee usufructuary right holders is required.

48 Amankwah H, Mugambwa, J and Muroa, G, Land Law in Papua New Guinea, 2001, Sydney: Law Book Company, p 65. 49 For further discussion see The Hon Justice Bryan Beaumont, ‘Native (Traditional) title in Australia and the South Pacific: Some Reflections’ (1999) Australian Bar Review Vol 18. Also Paterson, D, ‘Some thoughts about Customary land’ (2001) 5 JSPL Working Paper, www.vanuatu.usp.ac.fj/journal splaw/working paper/paterson.

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1.3.6 Possessory rights These are rights that are based on the fact of possession, or the right to come into immediate possession of the property, whether it is land or other property.50 With land, possession manifests itself as the right to be in occupation. In the case of chattels, possession will usually be evident from physical control of the property. Possession and the right to possession are extremely important in property law not only as evidence of a claim to the property, but in order to found certain actions. For example, the right to bring an action in trespass to land is based on the right of possession rather than ownership.51 The exercise of possession by way of occupation over a long period of time may also ultimately confer ownership on the possessor.52 This idea of acquiring title by way of adverse possession has been raised in some jurisdictions of the South Pacific region, although not always approved, particularly where the occupation has been permissive.53 The idea of acquiring title by adverse possession is more favourably received in the case of freehold land – where the owner has absolute title to the land – than in the case of customary land.54 One of the difficulties encountered in the South Pacific region in this regard is that the idea of possession of land in the common law is based on exclusivity of possession entitling the holder of the possessory right to exercise it and to protect it against all other claimants. With land that is owned under customary land tenure, however, often possession is not exclusive to individuals but is held communally, and not just for the present holders but in trust for future holders. Where a person has possession of movable property to which he or she has no title, he or she may be able to claim ownership as the finder of the property, if no one with a stronger claim comes forward.55 However, in some jurisdictions the finder of property will be under a statutory obligation to hand the property over to the police.56 In the case of chattels it is not unusual for one person to have possessory rights over a thing while another remains owner. This happens where property is handed over to another either for safekeeping, or as a means of security or for a particular purpose – which will generally be determined by contract, such as a contract for the transport of goods, or a contract for the storage of furniture. Where possession is transferred in this way, the person in possession may acquire certain rights as regards the property, particularly in relation to third parties, or if the transferor defaults on one of the terms of the agreement. For example, if a person hands some shoes over to a shoe mender, the shoe mender has possession but has no right of ownership to the shoes. If the person does not turn up to collect the shoes and pay for them within a time stipulated either in the contract of repair or by way of a notice on the premises,

50 On possession, see Chapter 3. 51 This is a fairly common action in the region. See Tada v Usa [1996] SBHC 7; SMEC v Temeakamwaka Landowners [1998] KICA 4; and Kippion v Attorney General [1994] VUSC 1. 52 See further Chapter 7. 53 See, eg, the case of Liamatua v Mose [1998] ASHC 1. 54 In the Samoan case of Jennings v Onesemo [2001] WSCA 2, a claim for title based on adverse possession was upheld by the Court of Appeal, but the land was freehold land. In the case of Liamatua v Mose [1998] ASHC 1, a case from American Samoa heard by the High Court, Land and Titles Division, where the dispute involved customary land, it was doubtful whether acquisition of title by adverse possession over communal land could apply. 55 See further Chapters 2, 3 and 7. 56 See s 151(1) of the Criminal Offences Act, Cap 18 (Tonga).

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the shoe mender may then sell the shoes to defray any expenses.57 Similarly, where a person purchases an item such as a car or a television set by way of hire-purchase or the payment of instalments, the person paying has the right to take possession of the car or television set and enjoy it provided the instalments are paid. If they are not then the retailer has the right to take back the car or television. If the property in the possession of the non-owner is stolen by a third party then the non-owner has the right to try to get the property back. Many of these sorts of transactions are governed by the law of liens, pledge and bailment, which are discussed later.58 One very important possessory right is that of a bank or lending institution which has a charge or mortgage over property used as security for a loan. The major right of the bank or lending company (the mortgagee) is to claim possession of the property in the case of default. The exercise of this right, when the property secured is a house, or boat or other valuable asset, is a powerful weapon in the hands of lenders and its use is controlled by legislation as well as by principles of common law and equity.59 Not only is possession important to found an action, but it may in certain cases be the basis of a defence to a property offence. For example, a belief in a right of possession can be relevant in criminal law where a person is charged with larceny or theft. It is a defence in a number of jurisdictions of the South Pacific region to raise a ‘claim of right’. 60 As a person can only be charged with the theft of property belonging to another, he or she cannot be guilty of theft of his or her own property.

1.3.7 Full rights Full rights are those held by the owner of property who is entitled in law, equity and custom to all the powers and benefits that flow from the property. Thus the full owner can do what he or she likes with the property, can transfer it to others, or destroy it, without restrictions or limitations.61 Such rights rarely exist. Even if a person acquires a box of chocolates, there may be limits as to where that person can dump the wrappers. However it is more common to find full rights in respect of property other than land, especially in island countries of the South Pacific where freehold, the fullest form of landownership, hardly exists. Even with chattels, as indicated above, the exercise of rights in respect of things such as animals and vehicles may be restricted. Where a person is absolute owner of land, then certain rights will flow from this. Under common law the absolute owner of land has the right to lateral support for the land and the right not to be undermined so that the land collapses.62 In theory, a landowner also has the right to the air space above the land, although in practical terms this may have to be shared with overpassing aircraft, satellites and other space

57 58 59 60

See Chapters 4 and 7. See also Chapters 2, 3 and 4. See Chapters 3 and 4. This is also sometimes called ‘colour of right’. See, eg, the Samoan case of Police v Tipi Magasiva Malaitai [1994] WSSC 12, in which it was stated: ‘In English law the phrase “claim of right” is used instead of the phrase “colour of right” used in New Zealand law. The two, however, really mean the same thing.’ See further Chapter 11, Remedies. 61 See Chapter 2. 62 Bognuda v Upton & Shearer Ltd [1972] NZLR 741.

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uses.63 The owner of land also has the right to kill or catch any wild animal or bird on the land64 – unless the species is protected – and to receive water flowing from higher land, or to take water from rivers, wells and lakes on the land.65

1.3.8 Multiple rights Multiple rights can exist in several ways. Either one person can hold a number of rights in the same thing, or a number of people can hold similar rights in the same thing, or a number of people can hold different rights in the same thing. There may also be a number of rights over the same property at different times. These are dealt with below when the temporal division of rights is considered. In the case of the first, it is possible for one person, for example, to have both the possession and benefit of the property, but not ownership. Or, as in the case of a trust fund, to have the ownership – because legal title is vested in the trustee – and powers of management, but not the benefit. This latter lies with the beneficiary who is entitled in equity to benefit from the trust fund even if it is the trustee who decides on its investments and day-to-day management. Where a number of people hold the same rights in a thing at the same time then this may be a situation of co-owners or co-lessees – or whatever the interest enjoyed is. It is therefore possible to have co-owners of land, or co-tenants of a lease; for example, where a husband and wife take out a lease together they are referred to as joint tenants, or tenants in common. It is also possible to have a number of beneficiaries claiming against the same trust property: for example, where a parent dies and leaves property on trust ‘for all my children in equal shares’. In some situations, it is very common to have multiple owners. For example, the shares of a company will be owned by a number of shareholders. Each of these will have similar entitlements if they hold the same type of share, for example, to attend the annual general meeting of the company and to receive dividends on their shares. In the case of customary land tenure multiple rights are also very common, because land, and indeed sometimes other property such as canoes, cattle or traditional wealth such as mats or shell money, is owned by the family, clan or tribe rather than the individual. In such cases it will be difficult for any one individual to carry out transactions in respect of the property without the consent of all interested parties, unless he or she is given the power as a representative or trustee of the family, clan or tribe. As has been mentioned earlier, in Papua New Guinea it is considered that individual members of a family or tribe do not have co-ownership rights in customary land, but only usufructuary rights. The distinction is not merely theoretical; if the owners of customary land are regarded as having only usufructuary rights, and not joint rights of ownership, then they cannot transfer their land to others. Unfortunately the exact nature of rights of members of families or tribes to customary land does not seem to have been fully explored by the courts or the legislators.

63 Grigsby v Melville [1974] 1 WLR 80. See also Gray, K, ‘Property in Thin Air’ [1991] CLJ 252. Not all common law countries adopt this view; see , eg, Re The Queen in Right of Manitoba and Air Canada (1978) 86 DLR 3d 631. 64 Walden v Hensler (1987) 163 CLR 561. 65 Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339.

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Even where a member of a family or tribe, or several members, appear to represent the custom owners, certain transactions may be limited or restricted because of the multiplicity of rights involved. For example, the alienation of communal land may be very difficult or prohibited altogether, or limited to members of the same tribe or family, or to indigenous people of the country.66 There may also be a number of different rights over the same property at the same time. This is particularly the case with land, where it may be possible to find that one person or certain persons own the freehold title, another person has a leasehold interest over the land, another has an easement, another has a licence, and so on. This can also make alienation or transfer difficult. A much more modern notion of multiple rights arises in the broader context where it is held that property must be controlled or administered for the general good. This may be for the good of the State, or the region or even globally. This is especially the case with respect to the management of certain natural resources such as fish, but also arises in the context of the global environment. Increasingly the powerful nations of the world are entering into treaties and conventions which seek to control multiple rights over certain things, such as tuna fish in the Pacific, or the level of the ocean due to global warming or global climatic change. Sometimes consideration of these sorts of multiple rights means that the needs and voices of smaller nations are not heard or heeded by larger, more powerful ones. On a smaller scale, the idea of multiple rights may also be found in custom, where the preservation of crops or resources or the restriction of certain activities may be ordered by village councils or chiefs for the benefit of the village as a whole.

1.3.9 Chiefly rights Under this heading are included rights conferred on the holders as a result of their status within customary society. In some respects these rights echo the feudal rights found historically in Western societies, but many are unique to island countries of the South Pacific.67 Chiefly rights are particularly important with regard to customary land tenure, but may also arise in the context of rights to first fruits, rights to demand and receive payments of compensation or custom fines, and rights relating to the management and use of property. The rights of chiefs are recognised in customary law, the importance of which depends largely on the constitution and supporting legislation. For example, in Vanuatu the Constitution specifically provides that in the case of land, ‘the rules of custom shall form the basis of ownership and use of land’.68 However, chiefs do not always acquire land rights as a result of their status. What they will acquire is the right to be involved in dispute resolution and in some cases decisions relating to development or alienation of land. For example, under s 78(2) of the Vanuatu Constitution there is provision for the government to ‘arrange for the appropriate customary institutions or procedures to resolve disputes concerning the

66 See Chapters 2 and 8. 67 For an overview see Lindstrom, L and White, G, Chiefs and the State, 2002, Stanford: Stanford University Press. 68 S 24 the Constitution of the Republic of Vanuatu 1980. See also Art X Constitution of the Marshall Islands.

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ownership of custom land’. Legislation has been evolved to involve chiefs in this process.69 In countries such as Samoa, chiefly titles are themselves a form of property.70 Those who hold matai titles are appointed to the title both on merit and through eligibility by birth. Disputes regarding chiefly titles are heard by the Land and Titles Court, which is a separate court system. Similarly in Tonga, the Land Court hears disputes relating to titles and hereditary estates. In Tonga the chiefs form a distinct class and sit in the Parliament as a separate bloc; the title of chief cannot be taken away except by the King. In the Cook Islands the chiefs also form a separate political caucus, the House of Ariki,71 while in Fiji the chiefs sit in the Great Council of Chiefs.

1.3.10 Primary and secondary rights Reference to primary and secondary rights is found particularly in relation to land in the Solomon Islands.72 There is an overlap between these categories of rights and usufructuary or possessory rights. The categorisation of rights in this way arises because of the tradition of allowing others to come onto custom-owned land either to settle or to use the land in some way, often for several generations.73 Changes in land use and the financial attraction of granting leases over land, either for development or for exploitation such as logging, have led to conflicts between those who hold the title to land (the primary right holders), and those who are using or occupying the land (the secondary right holders).74 The primary right holders have the right to decide on the alienation of the land, for example, by the granting of leases or logging licences, but the courts have held that the rights of the secondary right holders cannot be ignored in this process because it is they who stand to lose the use or occupation of the land and are likely to be evicted. The resolution of this conflict has been to allow the secondary right holders to participate in the benefits of alienation – for example, by sharing in the moneys realised by logging royalties or lease rentals, but to share unequally, the primary right holders taking a greater share.

1.4

THE TEMPORAL DIVISION OF RIGHTS

It is quite possible for different rights over the same thing to exist either simultaneously or sequentially. For example, movable property may be pledged as security for a loan, whereby the pledgee (the person to whom the goods are pledged) takes possession of the goods. The pledgor parts with possession until the goods are redeemed by repayment of the moneys lent, but remains owner. During the pledge 69 See, eg, the role of chiefs in the appointment of tribunals under the Customary Land Tribunals Act 2001 (Vanuatu), s 8. 70 See Teichert, JB, ‘Resisting Temptation in the Garden of Paradise: Preserving the Role of Samoan Custom in the Law of American Samoa’ http://law.gonzaga.edu/borders/ samoa.htm. 71 Ariki Act 1966. 72 See, eg, the case of Kinisita v Ramolele [1996] SBHC 52. This was a decision of the High Court of the Solomon Islands in which Muria CJ used these terms. 73 A detailed discussion of the meaning and application of the terms is given in the Solomon Islands case of Kofana v Aute’e [1999] SBHC 92. 74 See Foale, S and Macintyre, M, ‘Dynamic and Flexible Aspects of Land and Marine Tenure at West Nggela: Implications for Marine Resource Management’, Oceania; September 2000.

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both the pledgor and the pledgee have interests in the property.75 It is also possible for a series of rights to exist in respect of the same property. For example, a person may have a life interest in property which will, on the interest-holder’s death, pass to others. This may happen where under a will a deceased person leaves the family home to ‘his wife for her life and then to their children to be held in equal shares’. The children have an interest at the date of the grant, but it is suspended in effect until the wife dies. The law provides a number of legal frameworks for the temporal division of rights, which will now be considered.

1.4.1 Lease A lease is a concept derived from the common law introduced into the South Pacific region. It is based on the law of contract but relates to property. The parties to the contract of lease are the lessor and the lessee, sometimes referred to as the landlord and tenant, in the case of residential leases of land. The contractual agreement transfers certain property rights from the lessor to the lessee, usually for a certain period of time and often for payment. Thus it is possible to enter into a contract of lease regarding a motor vehicle, or to enter a contract of lease regarding a house, or land. Under the lease the lessee will acquire the use and possession of the property and will also incur certain obligations, such as keeping the property in good repair. The lessee will also have certain rights as regards the property both against the lessor and third parties. The lessor does not part with all his or her rights but retains what is called a ‘reversionary’ interest in the property, so that when the period of lease comes to an end all the rights in the property will revert to the lessor. A lease is a useful way of using property to generate income. Increasingly, leases of land are being used throughout the region because of restrictions on the total alienation of land held under customary land tenure. With a lease, the residual or allodial title of land remains with the leaseholder, who may be an individual or a group of people. A lease may also have the advantage of allowing a person to acquire the use of property through staggered payments, rather than the transfer of a lump sum. In the case of land, leases are controlled by legislation and the principles of common law and equity. Whereas not all land held under customary or native title is registered, leases generally are unless they are for very short periods of time or are informal leases.76 The relevant statutes stipulate maximum time periods for which leases may be granted.77 Leases are dealt with in further detail in Chapters 3, 7 and 8.

1.4.2 Hire Hire is a means whereby a person may acquire the use and possession of property for a period of time. Ownership of the property does not change, and at the end of the period of hire the property goes back to the true owner. Arrangements of hire are usually governed by contracts of hire. Most common are those governing the hire of 75 Pledge is considered further in Chapter 3 and at 1.4.6 below. 76 Eg, a lease under two years need not be registered in the Solomon Islands, and may be oral, see Kuen v Pongi [1997] SBHC 4. 77 Eg, in Vanuatu this is 75 years: Land Leases Act Cap 163.

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chattels such as motor vehicles, boats and equipment. The advantage of acquiring property rights under a contract of hire is that the person to whom the property is hired has the benefit of use without capital expenditure. Thus, if a visitor is in a country for a short holiday, it makes more sense to hire a car than to buy one. Hire can also facilitate the distribution of property which people could not otherwise afford, for example, the hire of building equipment, machinery, lawn mowers or furniture. Usually the contract of hire will include terms relating to the use of the property, charges for insurance or loss or damage and stipulations about the duration of the hire, excesses to be paid and details as to who may use the property. Hire can also be used in conjunction with bailment (discussed below) to facilitate the acquisition of property by way of hire-purchase.78 Hire-purchase is intended only as a temporary temporal division of rights as the purchaser hopes to acquire both possession and ownership of the goods once all the instalments are paid.

1.4.3 Hire-purchase A hire-purchase agreement is a form of bailment under contract, whereby the owner of goods bails them to another – the hirer – for consideration, with the condition that the hirer will acquire property in the goods once an agreed sum is paid. It is a common way of acquiring expensive consumer goods such as cars, domestic appliances and household furniture. Usually there is a fixed time within which the sum must be paid and it is paid in instalments. Sometimes this arrangement is called a bailment with an option to purchase, or a conditional purchase agreement. In the first, the purchaser has the option to purchase, or alternatively the purchaser could return the goods at any time provided the cost of hire was paid up to that date. In the second, the purchaser has agreed to purchase the goods, even if there is a provision, as there usually is, that property shall not pass in the goods until the purchase price is completely paid. In both cases, ownership in the property is not transferred until full payment is made. Although there used to be very few restrictions on such agreements, today there is increasing awareness that consumers may be exploited by such agreements and therefore need legal protection. If the purchaser defaults on payments then the vendor, who retains title to the goods, may repossess the goods and recover money owed under the agreement, less sums already paid. The contract may also stipulate other sums, such as penalty payments or interest rates, which are payable. If the seller has no title to the goods in the first place then he cannot sue the purchaser who defaults on payment for the use and hire of the goods. A problem with hire-purchase agreements is who is to bear the loss when the purchaser passes the property to a third party before title to it has been acquired? The buyer is in possession of the goods and appears to the outside world to be the owner. However, the goods are not, in law, the possessor’s to transfer. As will be seen when bailment is studied more closely, the law has to balance the rights of the third party purchaser and those of the original owner of the goods.79 While hire-purchase arrangements are attractive to consumers, who would not otherwise be able to acquire such property, they can cause problems on both sides.

78 See also Chapter 7. 79 The Fiji case of Credit Corporation (Fiji) Ltd v Kennedy Hotel Ltd [1999] FJCA 13, illustrates this problem.

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The seller of goods under hire-purchase may find it is difficult either to pursue the payments owing, or to recover the property, while the credit purchaser may find that the total price paid – which will include interest – is higher than the price charged for the outright purchase of the same items. Also, a default, even if most of the price has been paid, will result in loss of the goods. Legislation on this aspect of property law is not yet well developed in the South Pacific region, although there is some protection in the Cook Islands, Fiji and Papua New Guinea.80 Elsewhere in the region parties must fall back on contract law and doctrines such as fraud, misrepresentation and undue influence.

1.4.4 Bailment Bailment is the temporary transfer of goods from the bailor to bailee. Bailment may be governed by the law of contract, if the relationship of bailment arises from contract, or by the law of torts if there is no contract. For a specified or unspecified period of time, the bailee is entrusted to look after the goods or chattels. A typical contract involving bailment is where an owner of goods bails them to a person who hires them under a lease agreement. However, bailment can arise where there is no privity of contract; for example, where goods are passed from the bailor to the bailee, who passes them on to a third party with the consent of the bailor, there is a relationship of bailment between the bailor and the third party. The person in possession of the goods must take care of them and compensate the bailor for their loss or damage. This is so even if the bailment is gratuitous.81 If there is a contract between the parties then the standard of care may be determined by that contract. At the end of the period of bailment, the bailee must return the goods to the bailor either on demand or at the end of a specified period. If the bailee refuses to do so then the bailee will be liable either in contract or in tort. The bailee may raise a defence if the goods have been stolen, lost, destroyed or damaged without any fault on the part of the bailee. If a third party has wrongfully deprived the bailee of the goods, the bailee, by virtue of the right to possession, may bring a claim based on interference with possession, or the right to possession under bailment. At the same time a bailor who has an immediate right to possession may sue in trespass, or bring an action for detinue or conversion against the third party.82

1.4.5 Lien A lien is a temporary right arising in common law and in equity, under which one person has a right over the property of another, either to retain that property or to have a charge over it until the claim against the true owner is met. Liens may be created over documentary incorporeal property such as documents of title, share certificates, bank deposits, insurance policies, and so on, as well as over more tangible

80 Hire Purchase Act 1986 (Cook Islands), Fair Trading Decree, 1992 (Fiji) and Hire Purchase Act Cap 252 (Papua New Guinea). 81 See the Tongan case of Mataele v Havili [1994] Tonga LR 73, where the appellant was held liable for the loss of a mat which she had been entrusted to sell for another, on the grounds that she was bailee of the mat. 82 Further on bailment, see Chapter 3.

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property such as cars, jewellery, and other chattels.83 The person entitled to the lien is the lienee, the person who has property subject to the lien is the lienor. Often liens arise in the case of debt, or where money is owed for services rendered. In some cases they depend on possession of certain property, in others possession is not necessary. To exercise such a lien at common law it was necessary that a debt was due and payable, and that the lienor actually had possession of the chattel, and had a right to possession – for example, by agreement or contract. If the lienor has possession of the property burdened by the lien, whether there is a contract of lien or not, then the lienor must take reasonable care of the property, and may not assign the lien. Once the obligation secured by the lien is discharged then the property, if it is in the possession of the lienor, must be returned to the lienee and the lien is at an end. In island countries of the South Pacific, besides liens introduced under the principles of common law and equity, a number of statutes now create statutory liens, for example, the right of the unpaid seller of goods to resell goods in the possession of the seller.84 In Fiji,85 and in Papua New Guinea,86 there is a special lien called a ‘crop lien’. Under this the lienee has a lien over crops produced by or on behalf of the lienor. The lienee does not obtain any interest in the land on which the crops are grown. However, the lien is not extinguished when the land is sold but continues as long as the crops are standing and the loan is unpaid. The lien can exist only over the crops planted by the lienor, so subsequent crops planted by a new owner are not bound by the lien. Such liens are usually for a limited period of time, determined by the nature of the crop. Liens are considered further in Chapter 4.

1.4.6 Pledge A pledge is a way of securing a loan or an enforceable obligation. Pledge applies in the case of movable property, and transfer of possession is required.87 The person to whom the property is pledged – the pledgee – has the right to utilise the property in the case of default of payment of the loan or the obligation owed, as well as the right to sue on the agreement. Usually utilisation will take the form of selling the property. This power of sale arises under common law and does not need a court order. Within the South Pacific region in certain circumstances the common law is supplemented by by statute, for example, sale of goods legislation.88 If the pledged property is sold for more than the debt owing then the pledgee must account for the additional money 83 See Chapter 4 for further information on liens. 84 See, eg, Part V of the Marshall Islands Revised Code 1988, Vol 11, Title 23, which provides for the buyer and seller’s lien in contracts of sale. 85 This is governed by the Crop Liens Act Cap 226 (Fiji). Crop liens have to be registered, and arise as security for debts or the payment of goods supplied: Sale of Goods Act (Fiji), Div 10 and 12. 86 Crop Liens Act Cap 226. 87 However, sometimes one finds the term ‘pledge’ being used when immovable property is promised as security for a loan: see the case of Tonga Development Bank v Carafa [2001] TOSC 39, where a home had been pledged. A pledge of land also seems possible in Fiji, where s13 of the Crown Lands Act, Cap 132 provides that the consent of the Director of Lands must be obtained before land can be pledged. 88 See, eg, ss 25, 46 and 58 of the Sale of Goods Act 1975 (Samoa) and ss 26, 47 and 60 of the Sale of Goods Act Cap 230 (Fiji). Provision relating to pledge is also found in legislation dealing with Bills of Exchange, for example, the Bills of Exchange Act 1988 (Tonga), 1976 (Samoa) and 1978 (Fiji).

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and hand it over to the pledgor. If the sale does not realise the full sum owed then there is still a right of the pledgee to sue for the balance. The law of pledge has developed through the cases of common law, especially during the 19th century, and it is probable that this is part of the law of island countries of the South Pacific in so far as such legal principles are not incompatible with local laws. Certainly the deprivation of property on the grounds of a pledge would seem to be lawful in the region.89 Pledge is considered further in Chapter 4.

CONCLUSION This introductory chapter demonstrates the great variety of possible interests that can exist in relation to different sorts of property and therefore, by implication, the potential areas for conflict between different interest holders. It is also evident that in the island countries of the South Pacific region there are many different legal mechanisms that will be encountered which facilitate the creation and recognition of property rights, and which also may be used to resolve conflicts between different right holders.

89 See, eg, under the Constitution of Nauru 1968, Art 8, which allows the deprivation of property in certain circumstances including pledge.

CHAPTER 2 OWNERSHIP

INTRODUCTION Ownership, at first glance, may seem to be a straightforward concept. Everyone uses the term in everyday language, and most people regard themselves as ‘owners’ of some property. In fact, as this chapter will demonstrate, ownership comes in many forms and is a complex and multi-faceted concept, particularly when considered in the legal or common law sense, in equity and in customary law. It is moreover a very abstract concept, unlike possession (which is dealt with in the next chapter), or even management and control, which are considered in Chapter 5. However, ownership is the most fundamental legal idea in property law, and so is considered first.

2.1

WHAT IS OWNERSHIP?

‘Ownership’ is very difficult to define with any precision. Like many words in English, it can be used in different senses, depending on the context. The verb ‘own’ originally derives from an Old English word, agnian or ahnian, which according to the Oxford English Dictionary meant ‘to make a thing one’s own; appropriate, take possession of; win, gain, to adopt as one’s own’. Later it acquired the more modern meaning of ‘to have or hold as one’s own, have belonging to one, be the proprietor of, possess’.1

2.1.1 Ownership of rights It is possible to speak of a person owning a right, or being vested with a right. Thus, Sir John Salmond, the noted New Zealand judge and legal philosopher, wrote in the early 20th century that the term ‘ownership’ can be used in two different senses: a narrow sense and a wide sense. In the wide sense, he stated, ownership meant possession of a right: Ownership in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right. Ownership, in this wide sense, extends to all classes of rights … and it applies not only to rights in the strict sense, but to liberties, powers, and immunities.2

Whilst conceptually it is possible to speak of ownership of a right, this does not explain what rights are vested, or what is the extent of a right that is vested. A right in relation to property may be quite limited as to what can be done and the length of time during which the right can be enjoyed, such as a right to use a bicycle for a day, a right to occupy a house for a month, a right to walk across land for a year, or a right to

1 2

The Oxford English Dictionary, Vol XI, 1989, Oxford: Oxford University Press, p 6. Williams, G, Salmond on Jurisprudence, 10th edn, 1947, London: Sweet & Maxwell, p 268.

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come onto land to gather nuts, or fruit or firewood for a lifetime. On the other hand, a right may be very extensive and very long-lasting, such as the right of the Crown in England to own all the land in the country forever, or the right of a person and the heirs and successors of that person to occupy land indefinitely or permanently. It is therefore not very useful to talk about ownership of a right. It is more helpful to talk about owning a thing. When he went on to talk about ownership of things, Sir John Salmond acknowledged this, saying: ‘this was the original, and still is the commonest, meaning of the word “ownership”’.3 It is this meaning of ownership with which this chapter is primarily concerned.

2.1.2 Ownership of things Two law dictionaries, Mozley and Whiteley’s Law Dictionary4 and Osborn’s Concise Law Dictionary,5 have defined the ownership of things as ‘the right to the exclusive enjoyment of a thing’. This definition, whilst stressing that the right of enjoyment of a thing is a feature of ownership, does not make clear for what period of time that right of exclusive enjoyment will last, nor does it take account of the fact that it is possible for persons to have a right of exclusive enjoyment of property for a limited time, for example, as a lessee, and this would certainly not be regarded as ownership. This definition also fails to take cognisance of the fact that there can be more than one owner of a thing, so that ownership does not necessarily produce a right of exclusive enjoyment of a thing. This dictionary definition is thus in some ways too wide, and yet in some ways too narrow, a description of the concept of ownership. More expansive is the definition provided by Jowitt’s Dictionary of English Law: ‘the most extensive right allowed by law to a person, of dealing with a thing to the exclusion of all other persons, or of all except one or more specified persons.’6 More elaborate, but also more helpful, is the definition provided by Words and Phrases Legally Defined: ‘ownership consists of innumerable rights over property, for example the rights of exclusive enjoyment, of destruction, alteration and alienation, and of maintaining and recovering possession of the property from all persons. Those rights are conceived not as separately existing, but as merged in one general right of ownership.’7 Some jurists have tried to equate the notion of ownership of things with the notion of dominium in Roman law. In the time of the Romans the term dominium was defined as jus utendi, fruendi et abutendi; in other words, the right to use, enjoy and abuse or destroy. Ownership was absolute power over a thing, or even a person, such as a slave, for the owner to do as he pleased with that thing or person. The famous English legal philosopher of the late 19th century, John Austin, described ownership in much the same terms, as ‘a right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration’.8 The difficulty about this definition is that ownership is not necessarily indefinite as regards user, because the owner may 3 4 5 6 7 8

Ibid, p 269. 11th edn, 1993, London: Butterworths, p 190. 8th edn, 1988, London: Sweet & Maxwell, p 290. 2nd edn, 1977, London: Sweet & Maxwell, p 1301. 3rd edn, 1989, London: Butterworths, p 304. Lectures on Jurisprudence, 3rd edn, 1869, London: Weidenfeld & Nicholson (reprint 1955), pp 208–09.

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have granted some interests to other people which restrict his or her use of that property. Ownership may also not be unrestricted in respect of disposition, because there may be some legal limits to the power of an owner to dispose of his or her property. Ownership is also not necessarily unlimited in duration, because it may be subject to some condition which will bring it to an end at a particular time. Sir John Salmond, when he turned to consider ownership of things – corporeal ownership as he called it – said: ‘In its full and normal compass, corporeal ownership is the right to the entirety of the lawful uses of a corporeal thing.’9 This definition qualifies the right of enjoyment or use of a thing by the term ‘lawful’. Ownership is the right to the fullest extent of uses of property which the law allows. This is expanded upon by Professor GW Keeton, writing later in the 20th century, who concluded that: ‘it seems best to define ownership as the ultimate right to the enjoyment of a thing, as fully as the State permits, when all prior rights in that thing vested in persons other than the one entitled to ultimate use, by way of incumbrance, have been exhausted.’10 These definitions make it clear that ownership is the right to the fullest extent of enjoyment of a thing that the law allows, but also make it clear that those rights may be limited by the law, and so are not necessarily unlimited. Thus, there can be seen to be complete or full ownership, that is, the full right to use and enjoy a thing, and restricted ownership, where other interests have been created in the property to detract from the full rights of enjoyment of the thing by the owner. This is probably as accurate and succinct a description of ownership in the English legal system as is possible, but stated as simply as that, it clearly does not give a very complete understanding of the concept of ownership as it has been worked out and developed in the law of England and the law of island countries of the South Pacific, because it does not describe the way in which the law may restrict the right of enjoyment and use of property.

2.1.3 Different concepts of ownership of property The basic difficulty in defining ownership adequately arises from the fact that the English legal system, and those of island countries of the South Pacific, have developed more than one concept of ownership of property. In the first place, the courts of common law and equity in England recognised that ownership may be by an individual or by a group of individuals, so that there may be co-ownership as well as individual ownership, and that there may be more than one kind of co-ownership. In the second place, the courts of common law have held that rights of ownership in property may be absolute and unconditional, or they may be conditional, and subject to conditions precedent11 and conditions subsequent.12 Thirdly, the courts of common law held that the King was owner of all the land in the kingdom, but that in respect of 9 Op cit, n 2, p 270. 10 Keeton, GW, The Elementary Principles of Jurisprudence, 2nd edn, 1949, London: Pitman, p 172. 11 A condition precedent is a condition that operates to determine the qualifications that a person must have to own property, and so operates to confer ownership of property – see later in the text, 2.3. 12 A condition subsequent is a condition that operates to determine when a person is no longer qualified to own property, and so operates to terminate a person’s ownership of property – see later in the text, 2.3.

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land granted by the King as inheritable estates the King’s powers were only nominal, so that in substance the grantees and their successors had substantive rights of ownership. (This concept of ownership of estates in property was applied by the courts only to land, not to movable property.)13 Fourthly, the Court of Chancery held that the rights of owners in property under the common law were subject to equitable interests in the property, which were sometimes so substantial as to amount to ownership, so that a dual system of ownership, common law or legal ownership and equitable ownership, could develop in respect of a particular property. Fifthly, the courts, both of common law and of equity, recognised a distinction between original ownership and derivative ownership, that is, whether the owner had an original title to the property or whether he derived that title from someone else. These concepts of ownership under English law were introduced into island countries of the South Pacific as part of the mass of rules of common law and equity that were applied to, or adopted by, those countries during their dependency on Britain, or on the British colonies – later Dominions – of Australia and New Zealand. Lastly, it should be emphasised, before exploring these kinds of ownership that exist in the laws of island countries of the South Pacific, that this chapter is concerned with ownership of property, not with the use of property. Therefore restrictions which are placed on the use of property by the principles of common law and equity, or by the written law, or by customary law – and these can be very extensive and substantial – will not be considered in this chapter, although these restrictions do, in fact, have a significant impact upon how extensively the rights of ownership in property can be exercised in practice.14

2.2

INDIVIDUAL OWNERSHIP AND CO-OWNERSHIP

The rules of common law and equity, and also the rules of customary law, in island countries of the South Pacific have recognised that property may be owned both individually and collectively, although not precisely in the same way.

2.2.1 Individual ownership Under the common law, property may be owned by an individual person, or it may be owned by a number of individual persons.15 A person in this context means a human being or an incorporated body of persons which has its own separate identity. In earlier times, the common law in England did not allow a foreigner to own land, or a married woman to own any movable property, but this has been changed by legislation.16 In island countries of the South Pacific there are no restrictions against women who are married owning property, although in many areas women, whether married or unmarried, cannot own customary land, because it descends through 13 The discussion of this aspect, which is quite lengthy, tends to cause this chapter to appear to concentrate more upon land, than upon movable property, although the other aspects discussed apply both to land and to movable property. 14 See further Chapters 5 and 6. 15 Individual ownership is termed ‘ownership in severalty’ in the old books, but that is a term which is not much used nowadays. 16 Eg, the Married Women’s Property Act 1882 (UK).

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males only. Contrariwise, there are some areas where men, whether married or unmarried, cannot own customary land, because it descends through females only. There are also restrictions against foreigners owning land – in all countries the ownership of customary land by foreigners is prohibited; in some countries, that is Nauru,17 Niue,18 the Solomon Islands,19 Tonga20 and Vanuatu,21 the ownership of any land by foreigners is prohibited, whilst in the other countries, for example, the Cook Islands, Fiji and Samoa, the ownership by foreigners of non-customary land is not prohibited, although in Samoa the approval of the Head of State is required.22 Customary land is, in accordance with the customary law in force in all island countries, usually owned by a kinship group, and is not owned individually, although there are some instances of individual ownership of land. The kinship group is in some areas traced through males, in some areas through females, and in some areas through both males and females, or through males or females at the choice of the individual.

2.2.2 Co-ownership Ownership of property by more than one person, usually called co-ownership, is permitted by the common law and also by customary law. There are two main forms of co-ownership of property recognised by common law nowadays in England23 and in island countries of the South Pacific: joint ownership and ownership in common.24 Both forms of co-ownership provided under common law are similar, in that no coowner has an exclusive right against fellow co-owners to any particular part of the property. A co-owner cannot say, ‘this piece of land is mine’ or ‘these company shares are mine’. Until there is a partition or severance, either by agreement or as provided by law, no co-owner can claim any particular part of the property. However, the common law does allow a co-owner to transfer his or her interest in the property whilst alive, although the effect of this in the case of joint ownership will be to convert the transferee into a tenant in common with the other joint tenants. What is transferred is still, however, an undivided interest in the property, and does not confer rights to any particular property. On the other hand, the form of co-ownership recognised by customary law does not recognise the right of one co-owner to transfer his or her interest whilst alive. These three different forms of co-ownership will now be considered in more detail.

17 18 19 20 21 22 23

S 7 Lands Act 1976 (Nauru). Niue Amendment Act (No 2) 1968 (NZ). Land and Titles (Amendment) Act 1997 (SI). Clause 194, Constitution of Tonga. Arts 73–75, Constitution of Vanuatu. S 6 Alienation of Freehold Land Act 1972 (Samoa). For further discussion in England as regards land, see Megarry, R and Wade, HWR, The Law of Real Property, 6th edn, 2000, London: Stevens, pp 475–530. 24 Two other forms of co-ownership originally recognised by the common law are no longer in existence in England and have not appeared in island countries of the South Pacific, and so will not be considered: co-parcenary, which was common ownership in undivided shares held by two or more female co-heiresses, when there was an intestacy as to land and no male heir; and tenancy by entireties, which occurred when property was conveyed to a husband and wife jointly, and neither was held able to transfer his or her interest to anyone else whilst the marriage lasted.

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2.2.2.1 Joint ownership This form of co-ownership, sometimes called joint tenancy, provides all co-owners with an equal share to the whole property, but of course an undivided share. The special feature of joint ownership is that at death, the share of each owner does not descend to that person’s heirs or successors, like the rest of his or her property, but is shared amongst the surviving joint owners, so that the last surviving joint owner takes all. This right of accretion or of accumulation, or jus accrescendi as it is sometimes called, is peculiar to joint ownership, and is the reason why courts will normally assume that joint co-ownership is not intended to be created. This right of survivorship is also the reason why the common law did not accept that an incorporated body could be a joint owner, because an incorporated body by its very nature never dies. This rule was abrogated by legislation in England in 1899,25 and has been abrogated by legislation in many island countries in the South Pacific.26

2.2.2.2 Ownership in common The other main form of co-ownership recognised by the common law is called tenancy in common, or ownership in common. Under this system, the co-owners are not regarded as owning the whole property in equal shares, but are regarded as owning only an undivided share, which is not necessarily an equal share but may be more, or may be less, than the other owners in common, according to the intentions of the parties. Unlike joint ownership, there is no right of accretion or accumulation amongst the owners in common, and the share of each owner in common upon the death of that owner in common descends to his or her heirs and successors. So, an owner in common is virtually the owner of a separate share of the property, except that it has not been physically divided or separated. This was the kind of ownership that the Court of Appeal of Fiji held had been recorded by the Native Land Commissioner as the ownership of the Namulomulo mataqali in the case of Native Land Trust Board v Maikeli Nagata.27

2.2.2.3 Customary co-ownership Co-ownership of customary land is recognised in all island countries of the South Pacific, but, as the Court of Appeal pointed out in Native Land Trust Board v Maikeli Nagata (above), the form of co-ownership of land recognised under custom is not exactly the kind of co-ownership of land that is recognised by the common law or equity. The joint ownership of common law allows for the last survivor of the original joint owners to succeed to the property, whereas customary co-ownership allows for the descendants, male or female, of the original co-owners to succeed. Further, as indicated earlier, the common law and equity allow for a co-owner, both a joint owner

25 Bodies Corporate (Joint Tenancy) Act 1899 (UK), which appears to be an English statute of general application in force in Kiribati, the Solomon Islands, Tonga, Tuvalu and Vanuatu. 26 Eg, s 26 Property Law Act, Cap 130 (Fiji); Bodies Corporate (Joint Tenancy) Act 1951 (PNG); s 32 Property Law Act 1952 (NZ), which is in force in the Cook Islands, Niue and Samoa. 27 (1993) 39 FLR 148. This case is discussed in some detail in the next section of this chapter, 2.3.1.

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and an owner in common, to transfer his or her interest in the property whilst alive. However, this is not normally possible under most customary laws of the South Pacific – no individual member of a landowning group is regarded as having the right to transfer his or her interest in the customary land whilst alive. So, the co-ownership of land under customary law of island countries of the South Pacific is a different kind of co-ownership from that recognised by the common law.

2.3

UNCONDITIONAL OWNERSHIP AND CONDITIONAL OWNERSHIP

Rights of ownership of property, like other rights to property, may be either unconditional or conditional. Sometimes the terms ‘absolute’ and ‘contingent’ are used to describe this same categorisation, but the term ‘absolute’ is also sometimes used to mean ‘full or complete’, as discussed in the next section of this chapter. Whether or not rights of ownership are subject to a condition, or to conditions, will depend on the words and the conduct of the parties involved against the background of the circumstances of the case. Conditions, like all terms of a transaction, may be expressly stated by the parties, or they may be implied from the words and conduct of the parties and the circumstances in which the transaction occurred. Conditions relating to rights to property may be conditions precedent, or conditions subsequent. If the effect of a condition is to impose qualifications with which a person must comply in order to acquire rights to property, or to place restrictions on the persons who may acquire rights to property, then it is a condition precedent. For example, a father may give some land to his son, to take effect when the son reaches 21 years of age, or when the son divorces his wife, or if the son ceases to be a Roman Catholic. Conditions of this kind, which precede the acquisition of the rights of ownership, are conditions precedent. A condition may also operate to terminate ownership of property. Thus, a mother may give a daughter some valuable jewellery, but stipulate that the daughter must return the jewellery, or give the jewellery to her sister, if she marries without the approval of her mother, or if she becomes a Seventh Day Adventist or Jehovah’s Witness. Conditions of this kind, which operate to terminate an interest in property, are described as conditions subsequent or sometimes, more technically, as defeasance clauses, since they defeat the interest in property.28 It is sometimes difficult to determine whether a condition is a condition precedent or a condition subsequent. Thus, in Re Lowry’s Will Trusts,29 a testator had provided in his will that at a particular time a fund of money should be divided equally amongst certain named charities. After this provision the testator then stated that if at that particular time any of the charities should have ceased to exist as an independent charity, the fund was to be divided equally among the remaining charities. Was this, as at first sight appeared, a condition subsequent, or a condition precedent? Cross J

28 Because these conditions serve to defeat a person’s ownership of property, they are, in the older books, called defeasance provisions. 29 [1967] Ch 48.

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held that the condition was one which prescribed the qualifications of a charity to receive the gift, and therefore was a condition precedent and not a condition subsequent.30

2.3.1 Differing standards of certainty for conditions precedent and conditions subsequent The distinction between conditions precedent and conditions subsequent is important, because the courts have held that different tests of certainty are to be applied to them in order for them to be regarded as valid. If the condition is a condition precedent, a much lower test of certainty is to be applied than if the condition is a condition subsequent. If the condition is a condition subsequent, ‘that condition must be such that the court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’.31 This test, which has been approved both by the House of Lords in Clayton v Ramsden32 and by the Privy Council in Sifton v Sifton,33 is stated to be justified because the condition operates to remove rights of property from a person, and that person should be able to know very clearly in what circumstances his or her rights will come to an end, so that he or she can know what to do to avoid that happening. On this basis, the House of Lords held in Clayton v Ramsden that a clause in a will which stated that a legacy of property to the daughter of the testator should cease and determine if she were to marry a man who was ‘not of Jewish parentage and of the Jewish faith’ was void for uncertainty. On the other hand, if a condition is a condition precedent, it is sufficient if a claimant to property can show that he or she, at least, is within the condition, even if it is not possible to determine the exact extent and perimeter of the condition. Thus, in Re Selby’s Will Trusts,34 a testator stated in his will, after making certain legacies, that no beneficiary who shall have married ‘out of the Jewish faith’ shall take any interest under the will. The High Court held that this was a condition precedent and was not void for uncertainty, because, although there would be difficulty in defining the exact boundaries of the term ‘of the Jewish faith’, nevertheless ‘this is a sufficiently defined concept to make it clear that in many instances the court would have no difficulty in saying one way or the other whether a particular person was or was not of the Jewish faith’.35 The contrast between this case and the earlier decision of the House of Lords in Clayton v Ramsden (above), where the same phrase ‘of the Jewish faith’ was involved, strikingly demonstrates the difference of approach of the courts to conditions precedent, as distinct from conditions subsequent. These decisions in England, although not yet discussed in any reported decisions of courts in island countries of the South Pacific, must surely be of significance, especially with regard to customary land. In the past, when customary land did not have a commercial value, and populations were small, it was quite common for 30 For other cases involving this point, see also Re Tuck’s Settlement Trusts [1978] Ch 49, and Re Tepper’s Will Trusts [1967] 1 Ch 358. 31 Lord Cranworth in Clavering v Ellison (1859) 7 HLC 707, 725; 11 ER 282, 289. 32 [1943] AC 320. 33 [1938] AC 156. 34 [1966] 1 WLR 43. 35 [1966] 1 WLR 43, 50; for another instance, see Re Allen, Deceased [1953] Ch 810.

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indigenous landowners to give full and permanent rights of enjoyment of land, amounting to rights of ownership of land, to groups or individuals, but subject to conditions, which would be regarded as conditions subsequent by courts today, conditions such as that the grantees must show respect to the chiefs and people who granted the land, that the grantees must supply first-fruits of produce to the grantors, that the grantees must not allow others to come and occupy the land, that the grantees must continue to occupy the land themselves, and that breach of any of these conditions would terminate the ownership of the grantees. The Fiji case of Native Land Trust Board v Maikeli Nagata36 provides a good example of rights of ownership of customary land that were made subject to a condition subsequent. Some time before 1874, a landowning group in Fiji, the Nalagi mataqali, gave a large area of their land to some mataqali from a neighbouring tribe who had come and, with the permission of the landowners, settled on their land. The Native Land Commissioner recorded in 1896 that: [T]he above land has been given by the Nalagi mataqali … to the several mataqali resident in the town of Namulomulo for their use and occupation … as Owners-inCommon whilst they continue to reside thereon, but the land is subject to reversion to the Nalagi mataqali should such occupation at any time cease.

The Court of Appeal held that the mataqali resident in Namulomulo were owners of the land, subject, however, to the condition that they continued to occupy the land. This condition had not been breached by the Namulomulo mataqali because they were still in occupation, so they were still entitled to ownership of the land and could therefore claim royalties for gravel extracted from the land. The above case involving the Namulomulo mataqali concerned customary land in Fiji which was held to be owned subject to a condition, but ownership of customary land subject to a condition subsequent is a phenomenon that is by no means restricted to Fiji, and is to be found in most island countries of the South Pacific; no doubt, as the population pressure on lands intensifies, and as the commercial potential and value of customary land increases, more instances and additional illustrations of conditional ownership of customary land will emerge.

2.4

PREROGATIVE OWNERSHIP OF LAND BY CROWN OR STATE AND SUBSTANTIVE OWNERSHIP OF LAND BY ESTATE HOLDERS AND CUSTOMARY LANDOWNERS

In most, but not all, island countries of the South Pacific there has been introduced a fundamental principle with regard to the ownership of land – that it is all owned by the Crown or the State. However, in most of the countries in which this principle was introduced, it has subsequently been modified by legislation which reduces significantly the extent of that ownership, and confers on others substantive ownership of land. This rather complicated story will now be recounted in more detail.

36 (1993) 39 FLR 148.

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2.4.1 Prerogative ownership by the Crown of all land in British colonies When, during the 19th and early 20th centuries, Britain acquired colonies in the South Pacific, some by cession – the Cook Islands, Fiji, the Gilbert and Ellice Islands, and Niue – some by settlement – New South Wales and other colonies in Australia – two by annexation – British Guinea (later called Papua) and Tokelau – and one (New Zealand) by a combination of both cession and settlement, the courts of the colonies held that the British Crown had acquired ownership of all the land in the colony. The Supreme Court of Fiji in Caldwell v Mongston,37 the Supreme Court of New South Wales in Attorney-General (NSW) v Brown,38 the High Court of Australia in Williams v Attorney-General (NSW), 39 the Supreme Court of New Zealand in The Queen v Symonds40 and in Wi Parata v Bishop of Wellington,41 and the Central Court of Papua in Geita Sebea v Territory of Papua42 all held that the King or Queen of England became owner of all the land in the respective colonies at the time they became British colonies. These courts were faithfully applying a fundamental principle of common law that had become firmly established in England well before the 19th century: that the Crown was the owner of all the land in the kingdom. This was a principle of feudal land tenure that William I and his Norman successors brought with them from Europe after the Norman Conquest of England in 1066, and it was firmly asserted by the King’s courts over the centuries.43 It was this fundamental principle of the common law in England that the courts in the British colonies in the South Pacific faithfully followed and applied in the cases referred to earlier, holding that the British Crown owned all the land in the kingdom. This pre-eminent ownership is often today described as radical or ultimate title.44 The basis upon which the principles of common law were considered to be introduced into colonies of settlement, such as the colonies in Australia and the colony of New Zealand, was the assumption that all the principles of the common law and equity of England were carried into the settlement by the British settlers, except those

37 (1908) 2 FLR 1. This was confirmed many years later by the High Court of Fiji in Tokyo Corporation v Mago Island Ltd and Borron (1982) 38 FLR 28. 38 (1847) Legge 312. 39 (1913) 156 CLR 404. 40 (1847) NZPCC 387. 41 (1877) Jur (NS) 72. These two decisions were confirmed many years later by the New Zealand Court of Appeal in Re the Ninety Mile Beach [1963] NZLR 461. 42 (1941) 67 CLR 544. This was later confirmed by the High Court of Australia in Administration of Papua New Guinea v Guba [1973] PNGLR 603, (1972–73) CLR 353. 43 The effect of this doctrine in England has been described by the authoritative legal historians, Pollock and Maitland, thus: Every acre of land of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus: Z tenet terram illam de … domine Rege [Z holds his land from the lord King]. … The person whom we call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. Pollock, F and Maitland, FW, A History of English Law, 2nd edn, 1895, reprinted 1952, Vol 1, CUP, pp 232–35. 44 For further discussion, see Chapter 7.

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principles which were clearly not appropriate to the circumstances of the colony.45 An argument might have been raised in the colonies in Australia and New Zealand as to whether ownership of all the land by the British Crown was appropriate in a colony where indigenous inhabitants already claimed ownership of land. However, such an argument was not adopted in New South Wales, which originally encompassed the whole of the east coast of Australia, because it was believed to be virtually unoccupied, ‘a tract of territory practically unoccupied, without settled inhabitants and without settled law’, as the Privy Council described it in Cooper v Stuart.46 When, later in the 20th century, it was recognised by the High Court of Australia in Mabo v Queensland47 that this perception of Australia as an unoccupied country, a terra nullius, was mistaken, the High Court held that it was too late for the courts themselves to make any change to the doctrine that the Crown had ownership of all the land in Australia. In New Zealand, which clearly was occupied by Maori tribes, the argument did not succeed because it was believed that their state of civilisation was such as not to be able to provide an adequate substitute for the allodial ownership of the Crown. The view that the Crown was the owner of all the land in New Zealand was confirmed in 1963 by the Court of Appeal in Re the Ninety Mile Beach,48 and it has not been re-examined by the courts since then, although legislation has been passed which has allowed for some amelioration of its effects.49 In colonies that were acquired by cession, such as Fiji, the Gilbert and Ellice Islands and New Zealand, it had been held by courts in England before the 19th century that the existing laws and the existing rights of property of the inhabitants at the time of cession were assumed to remain, until the Crown or the legislature of the colony decided to the contrary.50 This might have been considered an argument against the automatic acquisition of prerogative ownership by the Crown in the colonies of cession, especially since the treaties of cession of Fiji and New Zealand (the Deed of Cession of Fiji, 1874,51 and the Treaty of Waitangi, 1840)52 respectively contained express provisions recognising the existing rights to land of the indigenous 45 Blackstone, Commentaries on the Laws of England, Bk 1, Ch 4, 2001, London: Cavendish Publishing, p 107; Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045; Cooper v Stuart (1889) 14 App Cas 286; Samnut v Strickland [1938] AC 678. 46 (1889) 14 App Cas 286, 291. 47 (1992) 175 CLR 1. 48 [1963] NZLR 461. 49 See, eg, Treaty of Waitangi (State Enterprises) Act 1988; Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. 50 Attorney-General of Southern Nigeria v John Holt and Company Ltd [1915] AC 599; Amodu Tijani v Secretary, Southern Nigeria [1921] AC 399; Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667; Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876. 51 Cl 4 of the Deed of Cession of Fiji, 10 October 1874 stated: ‘That the absolute proprietorship of all lands not shown to be now alienated so as to have become bona fide the property of Europeans or other foreigners or not now in the actual use and occupation of some chief or tribe or not actually required for the probable future support and maintenance of some chief or tribe shall be and is hereby declared to be vested in Her said Majesty, her heirs and successors.’ 52 Article the Second of the Treaty of Waitangi, 6 February 1840, provided: ‘Her Majesty the Queen of England confirms and guarantees to the Chiefs and tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the Proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.’

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inhabitants, Fijian and Maori. However, it was not so regarded by the Supreme Court of Fiji, nor by the Supreme Court of New Zealand, to the extent that that colony was regarded as acquired by cession. In Fiji, the ownership of all land by the British Crown did not become an issue for the Fijian landowners because the Crown used its powers to protect and preserve Fijian ownership of land, but in New Zealand, the powers of the Crown and of the legislature were used drastically to reduce Maori ownership of land.

2.4.2 Modification of prerogative ownership by legislation In some British colonies in the South Pacific, however, the legislature intervened to modify, but not totally remove, the principle of English common law that had been held to exist in those countries. In the colonies of the Cook Islands,53 Niue54 and Tokelau,55 which were attached to the British colony, later Dominion, of New Zealand, the Parliament of New Zealand recognised Crown ownership of all land, but this was subject to an exception in favour of land held in fee simple, and subject also to existing customary rights to land. In the Gilbert and Ellice Islands,56 which were acquired as a British colony in 1915,57 the common law principle of prerogative ownership by the Crown of all the land in the country applied, but the Gilbert and Ellice Islands Order 1915 (UK) made it clear that indigenous rights could not be adversely affected by any ordinances made by the High Commissioner. When the two groups of islands separated and achieved independence as Kiribati, formerly the Gilbert Islands, in 1979, and Tuvalu, formerly the Ellice Islands, in 1978, the Queen remained Head of State of Tuvalu, but Kiribati became a republic, which was expressly stated to succeed to all the property and assets of the Queen in that country.58 In Papua New Guinea,59

53 S 354 Cook Islands Act 1915 (NZ), which is still in force, provides: ‘All land in the Cook Islands, except land which by this Act or before the commencement thereof is or has been vested in any person for an estate in fee simple, is hereby declared to be vested in His Majesty, subject, however to all rights lawfully held therein by any person at the commencement of this Act, whether by virtue of native custom and usage or otherwise howsoever.’ 54 S 323 Niue Act 1966 (NZ) provides: ‘All land in Niue, except land which by this Act or before the commencement thereof is or has been vested in any person for an estate in fee simple, is hereby declared to be vested in Her Majesty, subject, however, to all rights lawfully held therein by any person at the commencement of this Act, whether by virtue of Niuean custom or otherwise however.’ 55 S 20 Tokelau Amendment Act 1976 (NZ) provides: ‘… all land in Tokelau … is hereby declared to be vested in the Crown as the trustee of the beneficial owners thereof, and shall be held by the Crown subject to the customary title, and all such land is hereby declared to be Tokelauan land accordingly …’ 56 Cl VIII Gilbert and Ellice Islands Order 1915 provided: ‘… the High Commissioner may … by Ordinance, provide … generally for the peace, order and good government of the Colony, and all persons therein … Provided as follows:- (1) That nothing in any such Ordinance … shall take away or affect any rights secured to any natives in the colony by any treaties or agreements made on behalf or with the sanction of Her late Majesty Queen Victoria, His late Majesty King Edward the Seventh, or His Majesty … (3) That the High Commissioner, in making Ordinances, shall respect any native laws and customs by which the civil relations of any native chiefs, tribes, or populations … are now regulated …’ 57 The Gilbert and Ellice Islands had previously been a British protectorate since 1893. 58 S 8 Kiribati Independence Order 1979 (UK). 59 S 7 Land Act 1962 (PNG) provides that ‘All land in Papua New Guinea, other than customary land, is the property of the State, subject to any estates, rights, titles or interests from time to time in force under any law in force in Papua New Guinea or part of Papua New Guinea’.

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the common law principle of ownership of all land by the Crown was recognised by the legislature, but subject to an exception in respect of customary land.

2.4.3 Application of Crown ownership of land to countries not British colonies The principle of prerogative ownership by the Crown of all the land in England and in overseas British colonies was also followed and adopted in two island countries in the South Pacific that were not British colonies: Samoa and Tonga. In Samoa, which was not a British colony but was a League of Nations mandate and then a United Nations trusteeship territory administered by the British colony, later Dominion, of New Zealand, the common law principle that all land was owned by the Crown was maintained by s 268 of the Samoa Act 1921 (NZ), but subject to the recognition of estates in fee simple and land held under Samoan custom.60 Since independence in 1962, this principle has been maintained, but the British Crown has been replaced by the State of Samoa, and there has been recognition of estates in fee simple and of customary land. Article 101 of the Constitution provides that all land in Samoa is customary land or freehold land, which is ‘held from Samoa’, and public land which is ‘vested in Samoa’.61 In Tonga, which also was not a British colony, the English principle of ownership of all land by the Crown was adopted by King Tupou I and his adviser and physician, the English missionary, Rev Shirley Baker, who together drafted the Constitution of 1875,62 which is still in force. This Constitution provides that all the land is the property of the King. It makes no mention of estates in fee simple or of customary land, neither of which survived the Constitution. There is, however, recognition in the Constitution of inheritable estates of nobles, although these are not estates in fee simple. So it can be seen that in many island countries of the South Pacific, the common law principle of the prerogative right of the British Crown, or its successor, the State, to own all the land in the country has been adopted. However, in most, that is, the Cook Islands, Fiji, Kiribati, Niue, Papua New Guinea, Samoa, Tokelau and Tuvalu,

60 S 268 Samoa Act 1921 (NZ) provided: ‘(1) All land in Samoa is Crown land, or European land, or Native land. (2) “Crown land” means land vested in the crown free from Native title and from any estate in fee-simple. (3) “European land” means land held from the Crown for an estate in fee-simple. (4) “Native land” means land vested in the Crown but held by Samoans by Native title, and not by grant from the Crown. (5) “Native title” means title to land in accordance with the customs and usages of the Samoan race.’ 61 Art 101 Constitution of Samoa provides: ‘(1) All land in Samoa is customary land, freehold land, or public land. (2) Customary land means land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage. (3) Freehold land means land held from Samoa for an estate if fee simple. (4) Public land means land vested in Samoa being land that is free from customary title and from estate in fee simple.’ 62 Cl 104 Constitution of Tonga 1875 provides: ‘All the land is the property of the King and he may at his pleasure grant to the nobles and titular chiefs or matabules one or more estates to become their hereditary estates.’

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this principle has been modified by the written law so as to recognise title to land held in fee simple and to customary land.

2.4.4 Countries where prerogative ownership of land by the Crown not introduced In three island countries that were not colonies of Britain, German New Guinea (later called New Guinea), Nauru and New Hebrides (later called Vanuatu), it is clear that the common law principle of prerogative ownership of all land by the Crown was never part of their law. In New Guinea, which, as a former German colony, was a League of Nations mandate and United Nations trusteeship administered by Australia, it was held that the British Crown had no prerogative ownership of the land in the territory63 and that, as a consequence, ‘… in the territory of New Guinea customary ownership of land by native groups was and is now recognised as a legally enforceable right’.64 Nauru, also formerly a German colony, then a League of Nations mandate and United Nations trusteeship, was administered by Australia until independence in 1968. However, unlike New Zealand with regard to Samoa, Australia did not introduce into Nauru the principle that all land was owned by the British Crown. In Vanuatu, which, as New Hebrides, was a joint sphere of influence of Britain and France from 1906 until independence in 1980, neither of the two condominium powers made any claim to ownership of the land; since independence, Vanuatu’s Constitution has provided that land can be owned only by indigenous custom owners and the government.65 In the British Solomon Islands, which were a protectorate, not a colony, of Britain from 1893 until achieving independence as the Solomon Islands in 1978, the position as to the prerogative ownership of all land in the protectorate by the British Crown was rather unclear. The original official view in England in the 19th century was that in a protectorate, the protecting government had power only over its own subjects and over the foreign relations of the protected country. This, however, was not the view of other European countries, especially France and Germany, which took a much wider view of the powers of the protecting country in a protectorate, virtually equating them with those in a colony.66 The exact legal powers that Britain had with regard to the land in the Solomon Islands in the early 20th century became a matter of some uncertainty and controversy. It is clear that some estates in fee simple were granted on behalf of the Crown, but then were abolished by legislation in 1977,67 but the claim of the protectorate administration to the ownership of ‘waste lands’ was fiercely resisted

63 Gaya Nomgui and Others v Administration of the Territory of Papua and New Guinea (Re Lae Administration Land) [1974] PNGLR 349. 64 Ibid, 388. 65 The Constitution of Vanuatu provides in Art 73 that: ‘All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants’, and in Art 80, ‘Notwithstanding Articles 73 and 74 the Government may own land acquired by it in the public interest’. 66 For further discussion, see Roberts-Wray, K, Commonwealth and Colonial Law, 1966, London: Stevens, pp 114–16. 67 S 6 Land and Titles (Amendment) Ordinance 1977.

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by Solomon Islanders, and eventually had to be abandoned.68 As late as 1959, the Special Lands Commissioner, Colin Allan (later Sir Colin Allan and Governor of the Protectorate), recommended that the advice of the Colonial Office be obtained to provide ‘a definition of the implications and limitations of the Crown’s supreme title in the Protectorate’.69 There is nothing in the Land and Titles Act,70 which was enacted in 1969, or in the Constitution, which was enacted in 1978 to provide for the independence of the Solomon Islands, that states, or even indicates, that the Crown or the State is the owner of all the land in the country. In fact, the Constitution indicated the reverse, because it expressly provides that only Solomon Islanders, and such others as are designated by Parliament, can have perpetual interest in land.71 This tends to suggest that, whatever may have been the correct legal position whilst the country was a protectorate, certainly now there is no right of the Crown or the State to ownership of all the land in the Solomon Islands. The position with regard to ultimate ownership of land by the Crown or the State may be summarised as follows. In Fiji and Tonga, as in Australia and New Zealand, all the land in the country is regarded as owned by the Crown or the State. In the Cook Islands, Kiribati, Niue, Papua New Guinea, Samoa, Tokelau and Tuvalu, all the land is owned by the Crown or the State, but subject to, or excepting, estates in fee simple and customary land. On the other hand, in Nauru, the Solomon Islands and Vanuatu, there is no principle that all the land in the country is owned by the Crown or the State.

2.4.5 Substantive ownership of land by estate holders and custom landowners As indicated above, in all countries of the South Pacific, except Nauru, the Solomon Islands and Vanuatu, all the land in the country was in strict law originally owned by the Crown or the State. This occurred in countries that were British colonies by virtue of the introduction there of the common law principle that all land in the kingdom is owned by the Crown. In countries that were not British colonies, it occurred because of the adoption in those countries of that principle of common law. However, the application of that common law principle has been modified by legislation in many countries so as to allow recognition of the owners of estates in fee simple and the custom owners of customary land. These modifications will now be discussed in more detail.

68 See Ruthven, D, ‘Land Legislation from the Protectorate to Independence’, in Land In Solomon Islands, 1979, Suva: IPS, pp 242–44. 69 Report of the Special Lands Commission on Customary Land Tenure in the British Solomon Islands Protectorate, Colin H Allan, 1957, Honiara, South Pacific High Commission, pp 63–64. 70 Cap 133. 71 S 110 Constitution of Solomon Islands provides: ‘The right to hold or acquire a perpetual interest in land shall vest in any person who is a Solomon Islander and only in such person or persons as may be prescribed by Parliament.’

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2.4.5.1 Estates in fee simple In all island countries that were British colonies, that is, the Cook Islands, Fiji, the Gilbert and Ellice Islands, Niue and Tokelau, as well as in the British colonies in Australia and New Zealand, estates in fee simple were issued on behalf of the British Crown to persons willing to pay for them. In the New Zealand administered territory of Samoa and in the British protectorate of the Solomon Islands, estates in fee simple were also issued. Originally, estates in fee simple were regarded by the King’s courts in England as only estates in land, not ownership in land, and subject to forfeiture by the King.72 However, by the 19th century, all feudal obligations to the King by estate holders had disappeared or been abolished, and forfeiture had also been abolished, so that the fee simple conferred substantive ownership of land, and the holders of estates in fee simple were regarded as owners of the land that they technically held in fee.73 Accordingly, when estates in fee simple were granted in island countries of the South Pacific, they were regarded as amounting to substantive ownership of land. Indeed, in some countries, as mentioned earlier – the Cook Islands, Niue and Tokelau – estates in fee simple were excluded by legislation from the ownership of the Crown. In those other island countries where estates in fee simple are still within the ownership of the Crown or the State – Fiji, Kiribati, Papua New Guinea, Samoa and Tuvalu – they can nowadays be regarded as conferring substantive ownership on the holders, in the same way as in England. The same cannot be said in respect of the hereditary estates of nobles in Tonga. As mentioned earlier, the Constitution of Tonga provides that the King is owner of all the land in the kingdom, but it also authorises him to make grants of land to nobles as their hereditary estates. The Constitution74 and the Land Act75 prescribe the rules of succession for inheritable estates, and the Land Act provides also that inheritable estates cannot be held by a person who has been convicted of a felony and who has not been pardoned, nor can they be held by a person who has been certified as insane. If a legitimate heir to an inheritable estate, as prescribed by the Land Act, does not exist, then the Act provides for the estate to revert to the Crown.76 Clearly, the grounds for forfeiture of a hereditary estate of a noble are so limited that one might view them as constituting substantive ownership. However, the Land Act is scrupulous in referring throughout to the interests in land granted by the King to the nobles as only estates, and to the nobles as only holders of estates, and not as owners, so it is probably premature to regard them as forms of ownership of land in Tonga.

72 In England, the courts also recognised estates in fee tail, the succession to which was restricted to certain specified categories of persons. Governors of British colonies in the South Pacific were normally not authorised to make grants of estates in fee tail, and such estates have been specifically abolished by legislation in Fiji, by s 14, Property Law Act, Cap 130; in the Cook Islands, Niue, Samoa and Tokelau by s 16, Property Law Act, 1952 (NZ); and in Papua New Guinea by s 167, Land Act 1996 (PNG). In the Solomon Islands, the Land and Titles Act, Cap 133 does not authorise such estates. 73 See the comment of Pollock and Maitland, referred to above. 74 Cl 111, Constitution of Tonga. 75 Ss 30 and 41 Land Act, Cap 132. 76 Ss 37–42 Land Act, Cap 132.

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2.4.5.2 Customary land in the Cook Islands, Fiji, Kiribati, Niue, Papua New Guinea, Samoa, Tokelau and Tuvalu As indicated above, in most island countries of the South Pacific that have inherited or have adopted the common law principle that the British Crown or its successor, the State, is the owner of all the land in the country, modifications have been made by legislation to protect the title of indigenous owners of customary land. In one country, Papua New Guinea, customary land has been excluded by legislation from the ownership of the Crown.77 In the Cook Islands,78 Niue79 and Tokelau, 80 although customary land has not been excluded from the ultimate ownership of the Crown or the State, nevertheless, legislation has made it clear that the ultimate ownership of the Crown is subject to the ownership rights of indigenous owners of customary land. As regards Fiji, the early Native Lands Ordinances made it clear that Fijian ownership was equated with an estate in fee simple. The Native Lands Ordinances 1880 and 1892 provided that: ‘… all Courts of justice shall give effect to native rights in as full and ample a manner as if the lands were held by such native owners in fee simple upon grant from the Crown.’81 In 1907, that provision was repealed and replaced by a provision that was less explicit: ‘Native lands shall be held by native Fijians according to native customs as evidenced by usage and tradition.’82 This provision, which still remains, has been accompanied by references in the legislation to ‘native owners’,83 and to this day the Fijians who hold native land according to Fijian customs are always referred to as ‘landowners’, not holders or occupiers of land.

77 S 7 Land Act 1962 states: ‘All land in Papua New Guinea other than customary land is the property of the State subject to any estates, rights, titles or interests from time to time in force under any law in force in Papua New Guinea.’ 78 S 354 Cook Islands Act 1915 (NZ) expressly states that: ‘All land in the Cook Islands, except land which by this Act or before the commencement thereof is or has been vested in any person for an estate in fee simple, is hereby declared to be vested in His Majesty, subject, however to all rights lawfully held therein by any person at the commencement of this Act, whether by virtue of native custom and usage or otherwise howsoever.’ 79 S 323 Niue Act 1966 (NZ) expressly states that: ‘All land in Niue, except land which by this Act or before the commencement thereof is or has been vested in any person for an estate in fee simple, is hereby declared to be vested in Her Majesty, subject, however, to all rights lawfully held therein by any person at the commencement of this Act, whether by virtue of Niuean custom or otherwise howsoever.’ S 21 Niue Amendment Act (No 2) 1968 (NZ) provides further: ‘All land in Niue which at the commencement of this Act is held by Niueans in accordance with Niuean custom is hereby vested in the Crown as the trustee of owners thereof, and shall be held by the Crown subject to Niuean custom, and all such land is hereby declared to be Niuean land accordingly, but shall remain subject to any right which may have been lawfully acquired in respect thereof before the commencement of this Act otherwise than in accordance with Niuean custom.’ 80 S 20 Tokelau Amendment Act 1967 (NZ) expressly provides that: ‘Subject to the provisions of this part of this Act, all land in Tokelau (not being land to which subsection (2) of section 18 or section 21 of this Act applies) is hereby declared to be vested in the Crown as the trustee of the beneficial owners thereof, and shall be held by the Crown subject to the customary title, and all such land is called Tokelauan land accordingly, but shall remain subject to any rights which may have been lawfully acquired in respect thereof before the passing of this Act otherwise than in accordance with the customs and usages of the Tokelauan inhabitants of Tokelau.’ 81 S II Native Lands Ordinance 1880; s 3 Native Lands Ordinance 1892. 82 S 2 Native Lands Ordinance 1907; see now s 4 Native Lands Act, Cap 133. 83 S 2 Native Land Act, Cap 133.

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Therefore, although the current legislation does not expressly state that customary land is excluded from the ownership of all land by the Crown, now the State,84 as in Papua New Guinea, or that the ownership of land by the State is subject to the customary rights of indigenous Fijians, as in the Cook Islands, Niue and Tokelau, nevertheless, the indigenous owners of native land in Fiji must be regarded as having substantive ownership of that land. As discussed earlier, the Gilbert and Ellice Islands Order 1915 (UK), which provided for the acquisition of the Gilbert and Ellice Islands as a colony, expressly stated that all ordinances made by the High Commissioner of the Western Pacific for the government of the colony must respect the rights of the indigenous inhabitants.85 A Native Lands Ordinance was enacted in 1957 which established a Native Lands Commission with authority to determine the ownership of land by indigenous inhabitants, in accordance with customary usage, and to produce a register of ownership which was stated to be, with some minor exceptions, ‘indefeasible’.86 When the two groups of islands separated and achieved independence as Kiribati, formerly the Gilbert Islands, in 1979, and Tuvalu, formerly the Ellice Islands, in 1978, the 1979 Ordinance remained part of the law of each country, so it is clear that, although the Republic of Kiribati, which succeeded to the rights of the Queen when the Gilbert Islands became a republic at independence,87 and the Queen in respect of Tuvalu have the ultimate ownership of land, this is subject to the rights of indigenous owners of customary land who have the substantive ownership of that land. In Samoa, the Constitution provides that customary land is ‘land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage’.88 Samoan custom regards land as appurtenant to, or attached to, a customary title, so that the holder of the title is the owner of the land, but the land is regarded as beneficially owned by all the members of the kinship group, or aiga, of which the holder of the customary title, or matai, is the head or chief.89 The fact that the State holds only ultimate ownership in the land, and that the aiga holds

84 After Fiji became the Republic of Fiji in 1978, s 166(1) of the Constitution of 1990 provided that all property previously vested in Her Majesty was vested in the State. Most of the sections of this Constitution, including s 166, were repealed by s 195 of the Constitution Amendment Act 1997, which established the Republic of Fiji Islands; however, the amended constitution does not appear to make any express provision for the succession by the Republic of the Fiji Islands to the property of the Republic of Fiji. 85 See n 56 above. 86 S 4 Native Lands Ordinance 1957. 87 S 8 Kiribati Independence Order 1979 (UK). 88 Art 101, Constitution of Samoa. 89 The tenure of customary land in Samoa is described by Powles, G, in South Pacific Island Legal Systems, 1993, Hawaii University Press, p 419, as follows: ‘In customary law terms, an interest in customary land is held by an individual through the aiga of which he is a member. Membership of the group, which might include several nuclear families, is determined by heredity, relationship by marriage, and personal service to the group and to the matai. Thus, land is vested beneficially in that group of family members who are for the time being living and working on it, or contributing to it, and who are serving the pule, or authority, of the chiefly title to which the land pertains. Land is regarded as appurtenant to the title of the matai of the family, who is responsible for administering the title on behalf of the family.’

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substantive ownership, is emphasised by the use of the term ‘holds from’, as distinct from ‘vested in’, which is the term used in respect of public land.90 It is clear that the Crown or the State has ultimate ownership of all island countries in the South Pacific, except Nauru, the Solomon Islands and Vanuatu, but that estates in fee simple are excluded from that ownership in the Cook Islands, Niue and Tokelau, and that customary land is excluded from that ownership in Papua New Guinea. However, except in Tonga, that ultimate ownership of the Crown or the State is subject to estates in fee simple and title to customary land, when not expressly excluded, so that the holders of estates and the owners of customary land may properly be regarded as having substantive ownership of their land.

2.5

LEGAL OWNERSHIP AND EQUITABLE OWNERSHIP OF PROPERTY

The English legal system, unlike other European legal systems, recognises that there can be both legal and equitable ownership of the same property. Legal ownership is the ownership provided by the common law or the written law, such as the Constitution, legislation or subsidiary legislation, whereas equitable ownership is that ownership which was recognised by the Court of Chancery, in earlier times, and by the Chancery Division of the High Court more recently. Equitable ownership is sometimes described as beneficial ownership to indicate that it provides the substantive benefits of ownership.91 The principles of equity of the Court of Chancery in England were introduced, along with the principles of the courts of common law of England, into island countries of the South Pacific during the period that they were colonies or dependencies of Britain, or administered by the British colonies, later Dominions, of Australia and New Zealand, or, in the case of Tonga, were adopted by it as part of its legal system. These principles of equity included the principle of equitable or beneficial ownership. Equitable ownership of property is created by the courts when they consider that a person has a sufficient equitable interest in the property to support rights of ownership. This equitable interest may arise from the terms of a trust, or a situation of fiduciary relationship, or from equitable estoppel.

90 Art 101 Constitution of Samoa provides: ‘(1) All land in Samoa is customary land, freehold land, or public land. (2) Customary land means land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage. (3) Freehold land means land held from Samoa for an estate in fee simple. (4) Public land means land vested in Samoa being land that is free from customary title and from estate in fee simple.’ 91 The notion that there can be two owners of the same property is a concept which the courts of common law in England did not accept, and so, as discussed earlier, they developed the concept of estates in land subject to the prerogative ownership of all land by the Crown. The concept of equitable ownership, or beneficial ownership, was evolved by the Court of Chancery in England as part of the principles of equity developed by the Lord Chancellors to make the rules of the common law more fair and equitable.

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2.5.1 Express trust In England, there is a line of authority, of which Baker v Archer-Shee92 and Archer-Shee v Garland93 are the most prominent examples, in which the courts have held that if an express trust is created, the beneficiary of that trust is to be regarded as the beneficial or equitable owner of the property, at least where there is only one beneficiary and the property of the trust is fixed and identifiable. The courts in England have also held that the beneficiaries of an express trust have a beneficial interest in the property of the trust that enables them to trace and follow it if it has been transferred by a trustee in breach of the terms of the trust, at least until it reaches a person who gives something of value for it and is unaware of the breach of the trust – a person who is described as a bona fide purchaser for value.94 This principle was applied by the National Court of Papua New Guinea in Pung Nimp v Rumants.95 The directors of a company which owned a large plantation in Papua New Guinea held their shares in the company subject to an express trust in favour of the lines or clans of custom owners who had originally owned the land on which the plantation was located. Some of the directors sold their shares in the company to another company, in breach of the terms of their trust with their clans. The National Court held that those clans were the equitable or beneficial owners of the shares in the plantation company held in trust for them, and they could trace those shares when they were sold in breach of trust to the other company. Since the directors of the other company were aware that the shares were held in trust, and that there was some opposition to their sale, that company was not a bona fide purchaser without knowledge of the breach of trust, and so the shares that they acquired were declared to be subject to the beneficial interest of the clans of custom owners. On the other hand, there are some cases, such as Schalit v Joseph Nadler Ltd,96 in which courts in England have emphasised that the beneficiary of an express trust does not have full rights of ownership of the trust property and some of those rights remain with the trustee. Probably the most famous, and certainly the longest-running, litigation in the South Pacific in which reliance was placed upon an express trust involved the cases brought before the Chancery Division of the High Court in England by some of the custom owners of the land on Banaba, or Ocean Island: Tito v Waddell (No 2).97 The plaintiffs in this case, whose lands had been very heavily exploited for phosphate from 1900 until the 1970s, relied upon statements in agreements and in ordinances that royalties payable in respect of the phosphate were to be held ‘for the benefit of’ or ‘in trust’ by the Phosphate Commissioners or the Crown for Banaban landowners, and argued that these indicated that a trust had been created for the landowners. The High Court, however, held that terms such as ‘for the benefit of’ or ‘trust’ do not necessarily indicate a trust that is enforceable by the courts. These terms may indicate a moral duty, a social or political obligation only, and in the circumstances of that case that was

92 93 94 95 96 97

[1927] AC 844. [1931] AC 212. Re Diplock: Wintle v Diplock [1948] Ch 465. See also Chapter 11. [1987] PNGLR 96. [1933] 2 KB 79. [1977] 1 Ch 106.

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what, in the view of Megarry J, those words meant. So, no express trust that was justiciable by the court was held to exist.

2.5.2 Constructive trust The form of trust giving rise to equitable ownership that most frequently has come before the courts in the South Pacific is not an express trust but a constructive trust. A constructive trust is a trust that has not been expressly stated by people but is one that is imposed, or created, by the court in order to give effect to principles of fairness and equity.98 The main situation in which this has been done in the South Pacific is where a person has contributed to the financing of a home or movable property which is in the legal ownership of another person. For example, in Shamshul Nisha v Abdul Munif,99 the High Court of Fiji held that a mother who had contributed financially to a family home registered in the name of her son ‘is entitled to a beneficial interest in half-share of the property’.100 The circumstances of this case can be contrasted with the circumstances before the Supreme Court of Samoa in Betty Elisara v Mataese Elisara and Neti Kerisoma,101 where the Supreme Court concluded that ‘this is not a case for equity to intervene and impose a constructive trust giving the wife an interest in the matrimonial home’.102 Another important situation where the courts in the South Pacific island countries have held that a constructive trust should be imposed is where money has fraudulently been acquired from a person by deceit and lies. The money is then held to be impressed with a constructive trust, so that anybody receiving that money, knowing that it had been deceitfully obtained, is liable to return it to the person from whom it was obtained.103 Thus, in Barrett and Sinclair v McCormack,104 the Court of Appeal of Vanuatu held that a company which sold shares in another company to an investor, when it knew the shares were completely worthless, held the money it had received from the investor on a constructive trust for return to the investor. It also held that a firm of accountants, which had assisted in this operation, was also liable to pay this amount to the investor.

2.5.3 Estoppel Another situation where it has been held that an equitable interest amounting to equitable ownership can arise is where the legal owner of property, especially land, has allowed another person to expend much time and expense in improving the property in the belief that the property belonged, or would belong, to that person. It has been held that the legal owner is then in equity estopped, or prevented, from

98 99 100 101 102 103

See also Chapters 7 and 11. (1999) 45 FLR 246. Ibid, 251. [1994] WSSC 13. Ibid, 32. Neste Oy v Lloyds Bank [1983] 2 Lloyd’s Rep 658; Re Goldcorp Exchange Ltd [1995] AC 74; Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 699. See further Chapter 11. 104 Barrett and Sinclair v McCormack [1998] VUSC 63.

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denying that the person is entitled to own that property. The person who has expended the time and money then has an equitable interest which can amount to equitable ownership, which can be enforced against the legal owner.105 Thus, in Dillwyn v Llewellyn,106 decided in 1862, the Court of Appeal in Chancery in England held that when a father stated that he would give a particular piece of land to his son for a house, and the son went ahead and built a house on that land with the knowledge and encouragement of his father, the son had an equitable interest in the land which entitled him to receive a conveyance of that land from the executor of the father’s estate, when the father died before conveying the land to his son. The principle of this decision was endorsed later in the century by the House of Lords in Ramsden v Dyson107 and by the Privy Council in Plimmer v Mayor etc of Wellington.108 The courts have emphasised that an equitable interest arising in these circumstances does not necessarily give rise to equitable ownership of land. The circumstances may be such as to give rise to a lesser right. In OG Sanft and Sons v Tonga Tourist and Development Co Ltd,109 the Privy Council of Tonga held that an equitable right to the grant of a sub-lease right of the land was appropriate. In Veikune v To’a110 and in Motuliki v Namoa, Motuliki and Minister of Lands,111 the Supreme Court of Tonga held that the holders of allotments in Tonga were barred from removing occupiers whom they had allowed to build on part of their allotments. In Bruce Duncan Lawlor v Timoci Duaibe,112 the Supreme Court of Fiji held that the appropriate remedy in such circumstances was an order that the owner of freehold land was barred from removing an occupier from part of that land during the lifetime of the occupier, but not that the occupiers should be given title to the land. Moreover, once the person who was allowed to spend money on the land has died, his successor cannot make any successful claim to the land: Fasi v Fifita.113 The courts of the South Pacific region have also made it clear that an equitable title cannot be established if to do so is inconsistent with the terms of legislation. Rules of equity, like rules of common law, are subject to the written law, and cannot override the written law. So, in Chalmers v Pardoe,114 the Privy Council held that it could not hold that a man had acquired an equitable interest in Fijian land leased by a friend who had allowed him to build a house on part of the land. This was because the arrangement between the two men amounted to a dealing in the land, and the Native Land Trust Ordinance prohibited any dealing in Fijian land without the consent of the Native Land Trust Board, which had not been obtained. For the same reason, the High Court of Fiji held in Mani Lal v Satya Nand115 that no equitable interest could be acquired by a man who had built a building on Crown land which had been leased,

105 For further discussion, see Megarry, R and Wade, W, The Law of Real Property, 6th ed, 2000, London: Sweet & Maxwell, pp 727–51. 106 [1861–73] All ER Rep 384. 107 (1866) LR 1 HL 129. 108 (1884) 9 App Cas 699. 109 [1981–88] Tonga LR 26. 110 [1981–88] Tonga LR 138. 111 [1981–88] Tonga LR 141. 112 (1976) 22 FLR 134. 113 [1996] Tonga LR 66. 114 [1963] 1 WLR 677. 115 (1994) 40 FLR 94.

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because no consent had been obtained from the Director of Lands as required by the State Lands Act.116 To conclude, rights of equitable or beneficial ownership can be created by the courts over property that is in the legal ownership of another person. These rights can flow from express terms of the persons involved, or they may be held to flow from circumstances and conduct which is such that it would be unfair or inequitable to deny that a person has equitable ownership of the property.

2.6

ORIGINAL OWNERSHIP AND DERIVATIVE OWNERSHIP

The distinction between original ownership and derivative ownership has been developed in order to identify and distinguish the source of ownership of property. Original ownership is ownership that is not derived from any other person. In relation to land, it is sometimes described as allodial ownership.117 Derivative ownership, on the other hand, is derived from, or obtained from, another person. The importance of the distinction is that in the case of original ownership, there is no one to restrict the rights of ownership. On the other hand, in the case of derivative ownership, the person from whom the ownership is derived may have placed some restrictions on the enjoyment of the rights of ownership. Also, there is the possibility that the person who grants the rights of ownership may, in law, have no right, or only a restricted right, to do so, with the result that the rights of derivative ownership are deficient in some respect, or even non-existent. A person who makes a piece of furniture or a boat, or who weaves a mat or sews a dress, will – at least if the materials belong to that person – be regarded as the original owner of the thing that he or she has produced.118 If that person decides to give or sell that thing to another person, that other person will acquire a derived ownership of that thing. If the person who made the thing and then gave it away or sold it, had stolen the materials that were used to make it, had previously agreed to sell it to someone else, or had insisted that the transferee must perform some obligations in return for the thing, there would be some question as to the extent of the derived ownership obtained by the transferee. In very early times, before European contact with island countries of the South Pacific, probably most movable property was owned originally. Although it seems that there was some barter and exchange of movable goods in island countries, it is likely that this was very limited before the advent of Europeans. As regards land, how much of it was owned originally or allodially by indigenous chiefs and/or commoners, and how much of it was owned derivatively from indigenous chiefs, is very difficult now to establish. In the Polynesian countries of the Cook Islands, Samoa and Tonga, in the Micronesian islands of Kiribati and Nauru, and in the Melanesian

116 Cap 132. 117 The word ‘allodial’ is derived from a medieval Latin form of a Germanic compound word which meant all property: see The Oxford English Dictionary, 1989, Vol I, Oxford: Clarendon Press, p 340, where allodium is defined as: ‘An estate held in absolute ownership without service or acknowledgment of any superior, especially among the early Teutonic peoples, opposed to feudalism or feud.’ 118 See Chapter 7.

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island of Fiji, there were powerful chiefs who were able to control the lives and actions of their followers to such an extent that much of the land may have been owned by them allodially, but derivatively by their followers. Alternatively, it may be that the land was mostly owned allodially by commoners, but the powers of social control exerted by chiefs may have given an appearance of derivative ownership which was not supported in custom. As island countries fell under the control of European governments, the powers of the chiefs were reduced, and consequently so were their opportunities for interfering with the ownership of property of their followers. However, as discussed earlier in this chapter,119 there was a new development. In all countries, except Nauru, the British Solomon Islands Protectorate and New Hebrides, the ownership of all land was claimed by the British Crown, or, in Tonga, by the King of Tonga. It was the British Crown or the King of Tonga who asserted original ownership of all the land in the kingdom, with the consequence that land owned by indigenous inhabitants, and land held in estates in fee simple, was held derivatively. This did not happen in all island countries, however, and as has been seen, in Nauru, the Solomon Islands and Vanuatu land was not owned by the Crown or the State, and in Papua New Guinea in 1962 customary land was excluded by legislation from ownership by the Crown or the State, so that in those four countries one can say that customary land is owned allodially by the custom owners. The arrival of Europeans also greatly increased the extent to which land and movable property came to be owned derivatively. European traders, merchants and storekeepers greatly increased the opportunities for the purchase of movable goods, and for the acquisition, thereby, of derivative ownership of goods. Instead of a person relying on what he or she had created with his or her own hands, there was from then onwards greater opportunity to acquire a much wider range of goods from a store or a trader, and thereby to acquire derivative ownership of movable goods. The significance of movable property being held derivatively is well illustrated by the decision of the Supreme Court of Samoa in Westbrook v Esera and Su’a.120 In that case, a Samoan businessman in Hawaii, who owned two motor vehicles, asked a friend in Hawaii who was returning to Samoa to take the two vehicles with him to give to the businessman’s cousin to establish a rental car business in Samoa. The friend, instead, after reaching Samoa with the vehicles, sold one of them to a neighbour and pocketed the proceeds for himself. The businessman then sued the neighbour for recovery of the vehicle, and the Supreme Court held that since the friend had not owned the vehicle that he had sold, he could not transfer ownership of that vehicle to the neighbour. Since the neighbour had not received ownership of the vehicle, despite having paid $18,000 for it, he was obliged to restore it to the original owner. This central feature of derivative ownership is sometimes referred to by the Latin maxim nemo dat quod non habet: no one can give what he does not have. The legislature in the United Kingdom intervened by way of the Sale of Goods Act, 1893 (UK) to endorse this fundamental principle of derivative ownership, but also to provide some exceptions to it, and this was replaced by the Sale of Goods Act 1979. Some island countries of the South Pacific, such as Tonga and Vanuatu, have

119 See section 2.4 earlier in this chapter. 120 [2002] WSSC 4.

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relied upon the British legislation, whilst others, such as the Cook Islands and Niue, have relied upon the New Zealand Sale of Goods Act 1908. Fiji121 and Samoa,122 however, have enacted their own legislation, though heavily modelled on the British legislation.

CONCLUSION This chapter has considered many different facets of ownership, starting from the original description of ownership as being the fullest extent of enjoyment of property that the law allows. It is evident that there are, in island countries of the South Pacific, several different categories of ownership: individual ownership and co-ownership; unconditional ownership and conditional ownership; ultimate ownership and substantive ownership; legal ownership and equitable ownership; and original and derivative ownership. Within each category, there are different aspects of the concept of ownership as it is understood in those legal systems.

121 Sale of Goods Act 1979 (Fiji). 122 Sale of Goods Act 1975 (Samoa). This Act was fully discussed by the Supreme Court in Westbrook v Esera and Su’a (above).

CHAPTER 3 POSSESSION AND OCCUPATION

INTRODUCTION Possession can mean the effective physical or manual control or occupation of property evidenced by some outward act, and it can also mean the right to possession, which is recognised and protected by law. The right to possession is a right which flows from ownership. A person who is the owner of property has the right to possession of that property. However, possession is not dependent on ownership, and thus one finds that a person may have possession but not ownership. Possession is both a physical, factual state of affairs – sometimes described as de facto possession – and a legal notion – described as de jure possession. The two can exist together, but may also be found separately. The person in possession may claim a ‘possessory title’ (in other words, the right to ownership based on possession),1 but this may be defeated by another person claiming a stronger right (a proprietary title – in other words, the claim of ownership). It follows that an owner may retain a right to possession, even if not in actual possession. Legal possession requires the intention to possess, together with a degree of control or occupation which is sufficient to exclude strangers from the property. Often the nature of possession will depend on the nature of the property. Some property is easy to exercise physical control over, whereas with other property this is less easily done. In the case of land, possession will overlap with occupation, and often whether or not a person in possession is also in occupation will depend on the circumstances and the context of the enquiry.2 It is evident therefore that possession of property is very important in property law, especially where rights to a thing are determined by the ability to exercise control over it and to defend these rights against others. Where there are no written records of rights, or such records are not public, physical possession is the most obvious manifestation of the right to property. As has been indicated in Chapter 1, possession may be misleading, in so far as the person in possession of property may not have full rights to the thing, or even any rights at all if that person is a thief. The possession may be temporary and the rights of the possessor limited, for example in the case of a carrier of goods or a custodian of property such as a bailee. Nevertheless, there is much to support the contention that ‘possession is nine-tenths of the law’. If a person in possession or occupation is able to show that he or she has the right to exclusive possession or occupation then that person’s position will be strengthened even further. Even in these circumstances, however, it may be that the person entitled to exclusive possession or occupation is so entitled only for a limited period of time, or

1

2

As in the case of Hannah v Peel [1945] 1 KB 509, where the person in possession of a brooch was a ‘finder’ (see below). As the true owner did not come forward the court granted possessory title to the finder. This can also happen with land, where acquisition of possessory title is recognised by the operation of prescription and the concept of ‘adverse possession’ – considered below, and in Chapter 7. Eg, whether a person is in occupation or not may be significant for tax authorities or rating departments. Here, occupation will usually mean more than possession and may require evidence of permanent residency or regular occupancy. See The Queen v St Pancras Assessment Committee (1877) 2 QBD 581.

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for so long as certain circumstances prevail. For example, a tenant under a lease will be entitled to exclusive possession of the leased premises until the termination of the lease, or a person having a possessory lien over a chattel will be entitled to retain possession only for as long as the debt secured by the lien is outstanding. A person not in possession will have to show that he or she has a better right than the person who is in possession. So, for example, a person who finds a gold ring will have it in his or her possession. However, if the true owner comes along then, provided he or she can establish the ownership claimed, the true owner has a stronger claim. 3 In law, possession is a question of both fact (control over the property) and intention (to exclude others). This mental element is important legally, because a number of people can be in factual possession of property but each may have a different intention regarding that possession. For example, a person who borrows a pen has a different intention from one who steals it, although outwardly both may appear to have similar possession.

3.1

POSSESSION OF LAND

Possession of land will usually be made manifest by the occupation of the land, or by the right to come into possession or occupation of the land. However, it is frequently the case in the South Pacific region that a number of people may have the right to possess the land, either at the same time or sequentially.4 This is partly as a result of the communal ownership of land held under customary land tenure, but also because historically, strangers or remote kin were permitted to settle on land in cases of war, famine or natural disaster.5 In some cases such settlement was temporary, but in others it continued over a number of generations. When introduced concepts of possession are applied, this can create some difficulties: in customary law, possession of land may not be intended to be exclusive, because of traditions of allowing a number of groups to have the right to possession at different times, or at the same time for different purposes. For example, as indicated in Chapter 1, primary right holders of customary land in the Solomon Islands will have the right to come into possession, or indeed to be in possession of land, but so will secondary right holders who may be occupying the land permanently or using it regularly. In customary law in the Pacific region, different claims to possession may coexist, whereas in common law, possession or occupation of land will often be accompanied by the intention that such possession should be exclusive. The right either to be in possession or to come into possession, whether exclusive or not, may confer certain powers on the possessor as regards the use and exploitation of the land, and may entitle the possessor to certain remedies against other parties usurping or infringing rights to the land. A test of whether a person has rights of possession may therefore be whether that person has the right to bring a remedial action based on possession. For example, a possessory interest may confer the right to

3 4 5

Others may also have a stronger claim, such as the person who has control over the land. See Stevens, J, ‘Finders Weepers – Landowners Keepers’ (1996) 60 Conveyancer and Property Law Journal 216. See Chapter 1. See Chapter 2.

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bring an action in damages for trespass.6 However, sometimes possession will not confer any rights at all and a court may hold that the occupants, even where they have used the land, have not acquired any rights in the land. Under custom, possession or use of land does not in itself necessarily convey any rights in the land.7 Conversely, the use – with or without occupation – of land may be sufficient to support a claim to land, either by itself or if it is combined with elements of estoppel, such as detrimental reliance. For example, in Fiji a person in possession of land who is not the owner bears the onus of proving that he has a right to possession effective against the owner.8 In certain cases brought under the Land Transfer Act, equity will support such a claim where proprietary estoppel is established,9 although the remedy may well be an award of compensation for moneys expended, rather than a grant of possession or title. In common law and in custom it is possible for a number of persons simultaneously to have the right to possession of the land. In the case of co-owners in common law, they will all have a right of possession. Indeed the right to possession is one of the essential characteristics for a joint tenancy – which also requires unity of title, interest and time, as well as unity of possession. Possession, but not the other unities, is essential for a tenancy in common. This is not a problem as long as the coowners or tenants are prepared to coexist peaceably. It becomes a problem when one wants to remain in possession and the other or others do not. Any tenant seeking to sell or transfer his or her share in the property is better placed to do so if he or she can offer vacant possession. The only solution, therefore, is either for one co-owner or owners to buy out the departing co-owner or for the property to be sold and the proceeds divided.10 In the island countries of the region where communal ownership is common, especially as regards customary land tenure, it is not uncommon for some of the co-owners to be absent from the land, so they will not all be in possession at the same time. Nevertheless, any attempts to alienate or transfer the land – for example, by creating a lease over it – will usually require the consent of those in actual possession and those not in possession but with a right to possession. This can create serious obstacles for land development in countries with a high proportion of absentee landowners, such as the Cook Islands.11

6

As in Allison v Benjamin v Kosrae State [1988] FMKSC 2, where, although it could not be established that the plaintiff was owner of the land, it was held that the plaintiff had a sufficient possessory interest to sue for damage to trees caused by the construction of a road. Compare, however, the case of Tada v Usa [1996] SBHC 7, in which the court held that the plaintiff could not sue for trespass and conversion because it could not be established that the plaintiff had an immediate and exclusive right of possession to the land sufficient for the action. 7 See, eg, the Solomon Islands case of Buga v Ganifiri [1982] SILR 119 and the Vanuatu case of Manie v Kilman [1988] VUSC 9; [1980–94] 2 Van LR 343. 8 Under the Land Transfer Act Cap 131 (Fiji). 9 See the dictum of Judge Pathik in the case of Hakim Mohammed v Mohammed Nasir (1994) 40 FLR 145 at 148. This was a case in which the court was not persuaded that proprietary estoppel arose. 10 See Bull v Bull [1955] 1 QB 234. Alternatively, the parties may agree to compensation: Nausori Meat Co Ltd v Fiji Electric Ltd (1983) 29 FLR 49. 11 See further on this problem Chapter 5.

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3.1.1 Actual occupation Occupation of land means living or being ordinarily resident on the land, if the land is residential, or being in possession of the land so as to be able to cultivate it or use it in some way. By its nature, it is impossible physically to possess land, so the term ‘occupation’ is used. For example, where, in referring to a lease, the court asks if a person has ‘exclusive possession’ of the leased land or premises, what is meant is whether the person claiming such possession has the right to exclude others from coming onto the land or premises. Actual occupation by the person entitled to be in occupation presents few problems. The factual and legal position will coincide. Thus a tenant holding under a lease will be entitled to be in occupation of the leased premises for the duration of the lease, provided there is no breach of the terms of the lease. Similarly an owner of land is entitled to be in actual occupation of the land owned, provided the exercise of this right does not infringe the rights of others – for example, the owner who leases land holds only a reversionary interest in the land and cannot come into occupation or enjoy actual occupation while the tenant is in occupation. Occasionally the question arises as to whether a person is or is not in actual occupation. English courts have held that the words have no special meaning. ‘Actual occupation’ is a question of fact and degree. It requires some permanence and continuity, but temporary absences are permitted. An interesting issue that has arisen in English law is whether a spouse who is not a proprietor of the land is in ‘actual occupation’ in his or her own right, or merely adjunct to the actual occupation of the proprietor spouse whose name is on the title.12 Although in English law the courts no longer presume that a wife is in occupation only by virtue of her right as a spouse, and are ready to recognise that she too may have a proprietary interest in the property, in the South Pacific region, where women’s rights are generally less advanced, especially in the context of property rights, it is possible that the courts would find that a wife had no rights separate from those of her husband – especially in the context of land acquired under customary law. The other issue that can arise is whether the person in actual occupation is indeed the person entitled to be in actual occupation. It can occur that the person in actual occupation is not entitled to be in such occupation, a state of affairs which may become apparent only when another person claims to be the person entitled to occupation. This arises in cases where no consent has been given to the actual occupation – as in the case of squatters or trespassers – or where consent has been given and then is withdrawn. The dispute will then be between the person in actual occupation and the person claiming the right to come into occupation or possession. This can give rise to a number of different claims such as writs for possession of land, for forfeiture of leases or foreclosure of mortgages.13 Alternatively the claimant to rightful occupation may attempt self-help and re-enter the land and eject the trespasser. The status and rights of different categories of persons who are in occupation but whose right to be so is challenged are considered

12 Bird v Syme-Thompson [1979] 1 WLR 440. The issue is probably one which can be confined to the specific provisions of the Land Registration Act 1925 (UK), which confers on a person in actual occupation having certain interests in the land, the right to an overriding interest under s 70, which is an interest in land which binds purchasers even if they have no notice of it. A leading case on this issue is Williams and Glyn’s Bank Ltd v Boland [1981] AC 487. 13 See Chapter 4 on Special Interests and Chapter 11 on Remedies.

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below. First, the interest of those who have a right to be in possession but are not in occupation will be considered.

3.1.2 Non-occupation and rights of possession There are several circumstances in which a person may have the right of possession to land but is not in occupation. The first is where the actual owner has this right but is not exercising it – for example, the absentee landowner. A second is where an owner has transferred the right of possession to another who is not in occupation but may exercise this right in certain circumstances. Typically, this latter situation arises where a mortgage is granted over land, and is dealt with below. A third is where the owner of land retains a right of possession, as in the case of a reversionary interest under a lease, but is not in occupation during the life of the lease. The first situation is especially relevant in common law and raises the spectre of an occupier acquiring title to land by way of possession against the title of the owner. Here, the true owner of land has the right to come into possession of land but ‘sleeps’ on his or her rights. In such circumstances there is the danger that an owner may lose his title to land through the adverse possession of another, through failure to take steps to protect this interest after a period of time (known as the ‘limitation period’).14 The issue of adverse possession has arisen in a number of jurisdictions of the region. For example, in Kosrae State in the Federated States of Micronesia, the court explained that adverse possession is a doctrine under which a person can acquire ownership of land if he, without the owner’s permission, uses the land openly, in a way in which others are aware of the use,15 exclusively, continuously and under a claim of right, and the owner does not challenge such action until after the statutory period of limitation has run.16 A party claiming property rights based on adverse possession must demonstrate that he or she came onto land with the intent of taking complete and exclusive control of the property, and using the land in such a way as to deny the owner a claim to title.17 It should be noted that while it is possible for a person initially to acquire land in customary law through being the first person, or a descendant of the first person, to occupy the land, this is distinguishable from adverse possession, where the claim is 14 Once this period has expired the plaintiff will be barred from bringing an action. Different limitation periods apply for different actions. Eg, under the Limitation Act Cap 35 (Fiji) the period is 6 years for a simple contract, 12 years for a contract made by deed – as in the case of a sale of land. Similar provisions are found in the Limitation Act 1991 (Vanuatu). The Limitation Act Cap 18 (Solomon Islands) specifies 6 years for a simple contract but does not specify a particular period for contracts by deed, nor does the Supreme Court Act Cap 10 (Tonga). See also Limitation Act 1975 (Western Samoa) and the Limitations Acts 1939, 1963 and 1975 (UK) – applicable in those island countries of the South Pacific region where no other legislation is in place. For further discussion of limitations see Chapter 7. 15 The term ‘notoriously’ is sometimes used, and means that there is nothing secretive about the use but rather that it is public knowledge. 16 Ludwig Tilfas v Heirs of Alik Luke (Civil Action No 80–93) 1998 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Micronesia_cases. In this case it was held that it is a general principle that members of a family may not acquire possession against each other in the absence of clear, positive, and continued disclaimer and disavowal of title. In the Federated States of Micronesia, adverse possession must continue unabated for 20 years in order for the doctrine of adverse possession to be applicable in a land case: Etpison v Perman, 1 FSM Intrm 405 (Pon 1984) (unreported) www.vanuatu.usp.ac.fj/ paclawmat/Micronesia_cases. 17 Acquisition by way of adverse possession is covered in more detail in Chapter 7.

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based on possession which is set up against the claim to title of another. Resistance to this type of possession is illustrated in the case of Tufele Liamatua v Mose.18 In this case it was held that actual occupation for 30 years did not amount to adverse possession, because the defendant had permission to occupy the land. The court held that: ‘[E]ven if it can be said that the defendant held actual occupation of the land for some forty years, that does not constitute adverse possession. Evidence establishes that her occupation and indeed her possession of the land was permissive and allowable under the warranty of trust.’ Often, customary licences of land, which imply permission even if no express agreements were made, will defeat a claim for adverse possession. Within the South Pacific region, where an owner is absent, it is not unusual for relatives to be allowed or encouraged to occupy and use the land so that the claim is kept alive. This can lead to family disputes, especially if, after a considerable period of time, the absentee landowner returns and seeks to assert rights of occupation. In common law an owner may ‘sleep on his rights’ if he fails to complain about the occupation by another, or fails to take steps to evict the occupier. However, in the South Pacific region it has been held that failure to complain should not be construed adversely against the landowner, as it is not culturally expected that complaints would be made.19 Where a claim of adverse possession does not succeed, the owner retains a right to come into possession of the land at any time, however long a period has passed in which he has not done so. Indeed, even in those jurisdictions where acquisition of title to land by adverse possession is recognised, an owner may defeat such a claim by exercising his right to come into possession at any time during the limitation period.

3.1.3 Non-consensual possession Non-consensual possession is where a person or persons comes or come into possession without any permission or agreement. This may occur inadvertently, as where a person wanders off the public highway or path to cross private land, or it may occur intentionally where the person knows he or she has no permission to be on the land and proceeds to enter anyway. Such a person may intend to be there for a very brief period of time – for example, while taking a short-cut across a farm – or may intend to remain on the property for a while or indefinitely. While the law does not ignore the temporary trespasser, the more serious concern is with the person who comes onto the land intending to remain there.

3.1.3.1 Trespassers and squatters Both trespassers and squatters are those who come onto land without having any rights in the land. A trespasser will be one who comes onto the land or remains on land without permission, in contrast to a licensee, who is a person who has permission to be on the land or in the premises. A squatter:

18 [1998] SPLR 41; [1998] ASHC 1. 19 Buga v Ganifiri [1982] SILR 119, cited with approval in the Vanuatu case of Bue Manie Kenneth Kaltabang v Sato Kilman [1988] VUSC 9; [1980–94] 2 Van LR 343.

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… is one who, without any colour of right, enters an unoccupied house or land, intending to stay there as long as he can. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law.20

A licensee whose licence or permission is cancelled or revoked becomes a trespasser. A squatter, on the other hand, comes onto the land without the owner’s knowledge, and takes up residence on the land. Thus, a trespasser may also be a squatter, but not all trespassers will be squatters, because they have no intention to remain on the land. The law relating to trespassers and squatters is largely founded on the principles of common law. The distinction between trespassers, squatters and licensees is not always very clear, particularly in custom, where strangers may be allowed on the land for various periods of time, or may be permitted to squat on the land but not acquire any rights to it. Thus, at least in custom, a squatter may come onto land originally with permission, or at least toleration. However, once attempts are made to terminate the occupation of the land by a squatter, that person becomes effectively a trespasser.21 Squatter settlements in island countries of the South Pacific are found increasingly around the urban areas of the region, and squatting on the land of others, often members of a related clan, is quite common. While matters remain amicable the term ‘squatter’ does not necessarily have the pejorative meaning attributed to it in English common law, in so far as permissive squatting is not uncommon, especially on land held under customary tenure. In peri-urban areas, such squatters may pay ground rents or other tariffs to the custom landowners or their agents, or to leaseholders of the land.22 In the case of private or State land, the attitude may be different, especially where squatter occupation impinges on the use or development of land. For example, in the case of The State v Director of Lands ex p Charan,23 an ex parte application was brought on behalf of a number of applicants in occupation of Crown land, who held that they had been given oral assurances that their occupation of the land would be formalised and recognised on the sub-division of the land. The court could find no written evidence to support their claim that they were entitled to the grant of Crown licences, and indeed found that the onus of removing and relocating the squatters had been laid on the grantee of the lease – Blue Metal Supplies Ltd – at the time the lease was granted. Although the squatters had been on the land for 20 years, it was not suggested that they had acquired any title on the basis of adverse possession. The court found that, at best, the squatters were either bare licensees or tenants at will, whose rights to be on the land could be revoked at any time. The applicants acknowledged themselves to be squatters, but claimed that they were on the land with

20 Per Lord Denning MR in McPhail v Persons Unknown [1973] Ch 447. 21 See, eg, the case of Attorney General v Hardeo Shandil (1974) 20 FLR 93 in which the defendant had moved onto land without payment of rent. The Crown was entitled to a writ of possession and the ejectment of the squatter. 22 The ‘squatter’ label is sometimes conveniently used to avoid supplying such areas with basic amenities and utilities. Also the tenure of such occupants is extremely precarious: such structures may have to be removed at short notice or are liable to be bulldozed, which in turn leads to low standard housing. This type of housing is particularly vulnerable to natural disasters in the region, eg, earthquakes, fire, flood and cyclones. 23 [1998] FJHC 110.

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the knowledge and verbal consent of the lands officers, although this seems to have been denied by the relevant government department. By contrast, in the case of Baiju v Jai Kumar,24 where the defendant had occupied land for 30 years when the plaintiff sought to bring an order of possession against him, the court found that the relief sought was not applicable because it was only ‘effectively applied with regard to eviction of squatters or trespassers’.25 The court found that the facts indicated that the defendant was a licensee. The common law has little tolerance for squatters, and where a person in possession is determined to be a squatter, even if the case is appealed, an order of vacant possession may be executed or enforced against him or her.26 On the other hand, if there is doubt as to whether an occupier is a squatter or trespasser then a summary procedure to evict him or her may not be appropriate.27 It is possible in certain circumstances for a person who is initially a squatter to acquire a more secure right of possession. For example, in Fiji, under s 4(1) of the Agricultural Landlord and Tenant Act, bona fide farmers are entitled to be protected in their possession of land. A ‘squatter’ farmer may apply under ss 4 and 5 of the Agricultural Landlord and Tenant Act (ALTA) Cap 270 for a ‘tenancy’ or right to remain in possession of the land. The relevant parts of ss 4 and 5 are as follows: 4(1) Where a person is in occupation of, and is cultivating, an agricultural holding and such occupation and cultivation has continued before or after 29 December 1967 for a period of not less than 3 years and the landlord has taken no steps to evict him, the onus shall be on the landlord to prove that such occupation was without his consent and, if the landlord fails to satisfy such onus of proof, a tenancy shall be presumed to exist under the provisions of this Act: ... (2) Where payment in money or in kind to a landlord by a person occupying any of the land of such landlord is proved, such payment shall, in the absence of proof to the contrary, be presumed to be rent. 5(1) him as such may apply to a tribunal for a declaration that he is a tenant and, if the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land: Provided that rent shall only be recoverable where the tribunal is satisfied that it is just and reasonable so to order. (Substituted by [Act No] 35 of 1976, s 3.)

24 Baiju v Kumar [1999] FJHC 19, [1999] FJHC 20, (1999) 45 FLR 74. 25 The plaintiff was seeking summary relief under Ord 113 of the High Court Rules, which provides that: Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order. 26 Bhagat v Chandra [1995] FJCA 14. 27 This was the case in Baiju v Jai Kumar (1999) 45 FLR 74, where the court was not satisfied that the defendant was either a trespasser or squatter and so the summary procedure available under Ord 113 of the High Court Rules 1988 of Fiji, was not available to the plaintiff.

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One of the problems which occurs in the region is that, while the original occupants of land may be there under licences or leases, members of their extended family gradually join them, often without the permission of the landowner. These later occupants come to be regarded as squatters, and the only way to stop this situation is to evict all the occupants. Alternatively, one family member may allow others onto his land without complaint initially, but then there is a family rift.28 These informal arrangements occur regularly in rural areas using customary land, but as land pressure increases, especially in urban areas, it can create conflicts which end in litigation. This happened in the Federated States of Micronesia case of Carlos Etscheit Soap Company, Inc., Yvetee Etscheit Adams and Renee Etscheit Varner v Pensure Epina and Others.29 Here, the plaintiffs sought injunctive relief against the defendants, pending the outcome of litigation. Permission to occupy land had originally been granted to two of the defendants, but gradually their family had joined them on the land, erecting buildings and planting permanent crops, until there were 14 members of the family on the land. In considering whether injunctive relief was appropriate, the court took into account the public policy argument advanced by the plaintiffs, based on the premise that ‘the public interest lies in the Court, the police and the governmental system as a whole taking strong measures to prevent squatter activity’. The injunction was granted. Pressure on land in urban and peri-urban areas is a very real contemporary issue, sometimes aggravated by the interference of political elements. For example, it is unfortunate but true that in parts of the region, squatting may be encouraged, either directly or indirectly, in order to bring political party voters into certain areas.30 Squatting can also lead to social disturbance when customary landowners or the State (if the squatters are on public land) exert their rights to regain possession of the land, often destroying the houses and gardens of squatters in the process.

3.1.4 Consensual possession Consensual possession can take many forms, from the informal lending of an object, to the formal creation of a lease or mortgage. In some cases the consent to possession may be conditional, for example on the price being paid, or may be suspended, for example under a mortgage where a right to come into possession is granted at the outset of the mortgage contract but is intended to come into effect only if there is a default on the mortgage. Some of the more common forms of consensual possession are considered below.

3.1.4.1 Licences A licence is the grant of permission to do something, otherwise prohibited, either gratuitously or for consideration. Licences may be granted in relation to all sorts of property. Thus a person may be granted a licence to come and pick fruit from a tree, to

28 As in the case of Baiju v Jai Kumar (above). 29 Civil Action No 1997-064 (8 FSM Intrm. 155 (Pon. 1997) (unreported)) www.vanuatu. usp.ac.fj/paclawmat/Micronesia_cases. 30 Comment on this issue can be found in the reports of the Ombudsman in Vanuatu, www.vanuatu.usp.ac.fj/ombudsman/vanuatu.

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fish in a private dam, to take photographs of custom dances, to sell alcohol, or to be in possession of firearms, explosives or poisons. In the case of land, the granting of informal rights to occupy land is common. In some cases it is accommodated within the formal lease system, or at least recognised as running parallel with it.31 Licences may also be used to avoid formal leases and claim to be based in customary law. This is particularly the case in Fiji, where ‘vakavanua’ titles are granted both in accordance with custom and to overcome some of the problems associated with leases, such as the fixing of rental values by the Native Lands Trust Board and also the deduction of the Board’s 25% administration fee.32 In particular this informal system allows the parties to the agreement to negotiate their own terms without going through the Native Lands Trust Board and to secure greater returns directly to the custom owners of the land. With land there is some overlap between licences, informal leases, customary grants of use or occupation and tenancies at will. Often the courts will be engaged in trying to decide what rights, if any, have been acquired.33 One of the most common areas of difficulty lies in distinguishing a licence from a lease. The general principles distinguishing these two forms of grant are those to be found in the common law. The essential characteristics of a lease are that it will be for a certain period of time, usually at a rent, and will confer exclusive possession on the grantee;34 whereas a licence may be indeterminate in duration, will not necessarily confer exclusive possession, and may or may not be for consideration. In many common law countries, this distinction is important because of protective legislation relating to tenants’ rights under leases – such as payment of a fair rent – and the obligations of landlords. However, in many island countries of the South Pacific little protection is afforded to lessees, especially those holding periodic tenancies.35 Often the tenant and the licensee may be treated similarly. However, it is also possible for a licensee holding a valid licence over land to assert those rights against a subsequent lessee. The action available to the licensee cannot be for the land itself, because a licence confers only a personal right, not a real right, but there will be an action for damages. This line of reasoning finds application in the case of Native Land Trust Board v Phul Kuar and Another,36 where a grazing licence existed at the time a lease was granted. The court held that, although there could not be an implied covenant for quiet enjoyment in a licence (these are only implied in leases), there was an implied term of quiet enjoyment, and that the licensee who had the sole rights of occupation and enjoyment of the land was entitled to damages for infringement of those rights.

31 Eg, in the Solomon Islands, the Commissioner of Lands may grant licences of public land – Land and Titles Ordinance, Cap 56, revised edition 1963, s 47(2). 32 The advantages and disadvantages of this system are discussed by Sharma, S, ‘The Control and Protection of Native Lands in Fiji’, Working Paper No 6 (1999) 3 Journal of South Pacific Law, www.vanuatu.usp.ac.fj/journalsplaw/working papers/sharma1.html. 33 As in the Samoan case of Faafulu v Su [2000] WSSC 17, where ultimately the judge could find neither a lease nor a licence, despite the occupants of the land claiming to have been granted the right to occupy and cultivate the land in question either in custom in return for various services rendered to the community and church, or by way of family arrangements, or by way of an informal lease. 34 See below, 3.1.4.2. 35 Eg, where a person rents premises from week to week or month to month. 36 (1973) 19 FLR 55.

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A licence, unlike a lease, is freely revocable and, once it is revoked, the former licensee becomes a trespasser.37 However, revocation of a contractual licence, in breach of either express or implied terms of reasonable notice, may give rise to an action for damages. Where a licence has been granted in circumstances in which it would be inequitable for the grantor to revoke the licence, the grantor may be estopped from doing so and be required to give effect to the expectation raised.38 It is also possible within the region for the grant of certain forms of licence effectively to confer rights over land, such as the right to go onto the land and take things from it, even though the licence rights themselves do not relate to land. In particular this is found in the case of logging licences.39 The extent of the rights conferred under such legislation was considered in the case of Sekovolomo v Eagon Resources Development Company Ltd, where it was held that the legislation ‘recognises that a licence validly issued, however issued, under the said Act, can convey no right or authority (in the land) whatsoever’.40 The court went on to state that the grant of the licence ‘does not guarantee title to the land, or confer any rights to log against the true landowners. It confers no immunity from civil suits for trespass and conversion taken out by the true landowner.’ One of the problems that can arise with logging licences is that if the person conferring the licence is not the true owner then the licensee has no defence to a charge of trespass by the true owner. This illustrates the precarious position of a licensee.

3.1.4.2 Leases and tenants As has been indicated above, a licence can be a rather insecure right to be in occupation of land. A lease confers a much stronger right than a licence. The parties to a lease may be referred to as landlord and tenant, or lessor and lessee. The terminology used depends on the nature of the grant or contract of lease. In the case of a periodic tenancy, for example a monthly or yearly periodic tenancy, the landlord remains in evidence. With fixed-term leases, especially if they are for long periods of time, although the landlord or grantor of the lease retains the reversionary interest in the land and may still have certain rights and obligations relating to the land during the lease, if the lease is for several decades the landlord is likely to be less evident. The leaseholder is likely to have greater freedom in the use of the leased land or premises. Whether the lease is for a fixed term or a period of time, the lease will confer on the leaseholder or tenant the right of exclusive possession.41 Indeed this is one of the defining characteristics of a lease.42 Possession in this respect equates with control. Thus the tenant must have the right to exclude all others from the premises during the term of the lease – including the landlord, subject to any covenants allowing the 37 See Ao v Leota and the Bishop and President of the Church of Latter Day Saints (1970–79) WSLR 202, and also Ram Manohar v Lalu Chaudhary (1967) 13 FLR 33. 38 See Bakoto v Obed [1999] VUSC 43, where the plaintiff was estopped and ordered to convey the land to the defendants under a proper registered lease. 39 See the Forest Resources and Timber Utilisation Act, Cap 40, s 5 (Solomon Islands). 40 [1999] SBHC 115. 41 Wright v Stavert (1860) 2 El & El 721, 121 ER 270, Radiach v Smith (1959) 101 CLR 209, Hull v Parsons [1961] NZLR 465. 42 Street v Mountford [1985] AC 809. The other essentials are: certainty as to duration of the lease, that the premises are sufficiently defined, and that the proper formalities have been observed as necessary.

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landlord to enter to inspect the premises or to effect repairs. A licensee may have exclusive occupation, but will not have exclusive possession, because he or she will not have overall control of the premises.43 Much of the common law case law surrounding leases is concerned with whether exclusive possession is conferred or not. The reason for this is that whereas tenants under a lease have certain rights and protections, those under less secure arrangements, such as licensees, are more vulnerable. Landlords seeking to evade the duties and obligations imposed upon them by legislation may seek to argue for licences, whereas tenants prefer to establish leases. In the region, where there is limited legislative protection of tenants, these concerns are not so apparent. However, common law cases provide some useful guidelines as to when possession will be exclusive. First, if the landlord or his representative has unrestricted access to the premises used by the occupier, for example in a hostel, hotel or retirement home, this will not be a lease. Secondly, although the language used in any agreement will be considered to determine the intention of the parties,44 regardless of the words used in any document, the court looks at the factual situation.45 Where persons sharing premises have separate agreements made at the same time and for the same duration then the arrangement may be construed as being one of lease, whereas where persons sharing premises have separate agreements made at different times which are not mutually interdependent then they may be held not to be joint tenants but co-licensees.46 In a lease there is an implied covenant for ‘quiet enjoyment’ for the duration of the lease. This is intrinsic to the idea of exclusive possession. What is meant is that the tenant or leaseholder should be allowed to enjoy possession without the claim of adverse rights over the land, either by the landlord or anyone claiming under him.47 If, however, rights which prove to be adverse to the tenant have been granted prior to the commencement of the lease then it seems that the exercise of these will not be a breach of this covenant.48 The converse of this right is that there is an implied covenant in all leases that when the lease ends, the tenant will yield up possession to the landlord. This sounds quite straightforward, but in the region this has become a difficult issue and promises to remain an area of uncertainty for some time. In particular, the question of rights to remain in possession of land have become acute in Fiji in recent years, especially with regard to agricultural tenancies. The reason for this is that Indians and other nonnative Fijians, who represent a large percentage of the population of Fiji, are not entitled to hold customary land and are therefore dependent on freehold land, of which there is very little,49 or leasehold land.50 Leasehold, especially agricultural leasehold, was facilitated under the Agricultural Landlord and Tenant Act 1976 and 43 Thus a guest in a hotel room will have exclusive occupation during the period of his or her stay, but not control over the premises. 44 See Melanesian Mission Trust Board v AMP [1977] 1 NZLR 391 (PC). 45 This is where words such as ‘licence’ or statements that ‘this is not a tenancy agreement’ may be used to avoid the legal obligations of a landlord. See Faccini v Bryson (1952) 1 TLR 1386. 46 See the case of Antoniades v Villiers [1990] 1 AC 417. 47 Hudson v Cripps [1896] 1 Ch 265. 48 Celsteel v Alton House Holdings Ltd (No 2) [1987] 1 WLR 291. 49 About 9% of land in Fiji is freehold. 50 Only native Fijians can hold native land. Native Fijians represent about 50% of the current population, with Indo-Fijians making up 46% and other groups – Chinese, European and other Pacific Islanders – holding the balance.

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the earlier legislation, the Agricultural Landlord and Tenant Ordinance 1967.51 However, these leases, which were for fixed terms, started to come to an end in 1997 and will continue to do so over the next few years. In many cases the Indian farmers leasing the land had settled on the land, built homes and settled their families on the land. If they are evicted they become landless and the government is faced either with resettling them, or dealing with increasing numbers of squatters, or sitting tenants. Fijian landowners are in some cases reluctant to renew leases either because they want to farm the land themselves, or because the return from the land is diminished by the substantial percentage of income first claimed by the Native Lands Trust Board which administers the leases, and then by the three levels of chiefs: the vanua, yavusa and mataqali.52 Where a lease comes to an end, the former tenants or lessees may be unwilling to move off the land. Problems relating to sitting tenants or tenants who remain on the land once the lease expires are not limited to Fiji but may occur anywhere where a tenant is allowed to remain in possession of the land as a ‘tenant at will’ or a ‘tenant at sufferance’. For example, if a landlord continues to accept rent after the termination or expiry of the lease, the tenant may be regarded as a ‘tenant at will’, or there may be an implied renewal of the lease. Whereas the tenant at will is in a precarious position and can be evicted at any time, because the tenancy at will can be freely terminated by either party, the implied renewal of a lease can raise more difficulty, especially if subsequently the landlord seeks to deny any such renewal. The sitting tenant may try to raise an estoppel against the landlord on the grounds that the landlord has encouraged the sitting tenant to act detrimentally in some way – for example by continuing to cultivate the land, or expending money on crops or buildings. If this happens and the court finds that it would be inequitable to evict the sitting tenant then the landlord may have to remedy the situation, for example by paying compensation, or even by granting a proper lease.53 It is usually desirable from both parties’ perspective to have some kind of formality in the renewal and termination of leases.

3.1.5 Possession and mortgage As has been mentioned in Chapter 1, a mortgage is a particular form of security which transfers certain interests in the property of a borrower to a lender or other person to whom the borrower owes an obligation. Unlike a lien, a mortgage gives the mortgagee (the lender) the right to sell or deal with the property, even if the property passes into the hands of a third party. It is not therefore – unlike a common law lien – just a passive right. Also, unlike an equitable lien (which is implied in equity), a

51 Under the Agricultural Landlord and Tenant Act Cap 270, leases are of fixed term and cannot be renewed. Under the Native Land Trust Act Cap 134 (which replaced the Native Trust Ordinance 1940), leases can be renewed. The difficulties arise largely in respect of the ALTA leases. See further Sharma, S, ‘The Control and Protection of Native Lands in Fiji’ Working Paper No 6 (1999) 3 JSPL www.vanuatu.usp.ac.fj/journal_splaw. 52 This is 25% of the rental – Native Land (Leases and Licences) Regulations of 1985. The remaining 75% is divided so that the Head of tribes get 3.75%; the Head or Chiefs of the Yavusa get 7.75%, the Head of the Mataqali 11.25% and Fijians who hold no title 52.5%. While the numbers in the first three categories are fixed and cannot expand, the number in the last category is not fixed and expands every time a new Fijian is registered. 53 See, eg, the Vanuatu case of Bakoto v Obed [1999] VUSC 43.

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mortgage arises in contract.54 A mortgage is also distinguishable from a pledge – discussed later in this chapter – in as much as in the case of pledge the borrower or pledgor retains ownership of the property pledged but parts with possession, while the mortgagor remains in possession of the property mortgaged but in some mortgages transfers ownership to the mortgagee.55 Indeed, in some legal systems a mortgage is seen as a conveyance of the property to the mortgagee, with the mortgagor having the right to redeem the property vested in the mortgagor on fulfilment of the obligations secured by the mortgage. In many of the island countries of the South Pacific, however, a mortgage is a security charge on the property.56 A charge is not tied to a right of redemption and is not a conveyance of the property from the charger to the chargee. A charge – which will usually have to be registered to be effective – gives the chargee certain rights over the property secured by the loan. Invariably the chargee will be regarded as a secured creditor and treated more favourably than other creditors who are not so secured. For the purposes of this chapter, the most important aspect of a mortgage is the mortgagee’s right of possession regarding mortgaged property. In those countries where a legal mortgage is a conveyance of a legal estate, the mortgagee, as holder of the legal estate or interest, has a right to possession of the mortgaged property. The right to possession arises as soon as the mortgage is entered into and is not, in law, dependent on any default of the mortgagor.57 If the mortgagee chooses to exercise his right of possession then the mortgagor becomes a trespasser. Clearly this right of the mortgagee is fairly draconian, and both statute58 and equity59 have intervened to try to balance the right of possession of the mortgagee against the right of secure tenure of the mortgagor. Whereas common law tends to focus on the property interest of the mortgagee, and the right to take possession of the land on default, equity looks at the security aspect of the mortgage transaction. So if the loan is repaid, the mortgagor should not lose the property mortgaged. In the early days of mortgage, borrowers were often in very weak bargaining positions compared to lenders, and the latter could impose very onerous terms on borrowers. Today there is greater protection for borrowers, and not only are there various procedural hurdles which must be met, but also greater use is made of standard form contracts of mortgage, such as those used by banks and building societies, which often contain express terms restricting the mortgagee’s right of possession: for example, that the mortgagee cannot exercise this right unless and until there is a default in the mortgage repayments. On the other hand, the mortgagor’s right to allow anyone else possession of the land, for example,

54 Liens are considered further in Chapter 4. 55 Eg, s 96 Land Act Cap 132 (Tonga), s 5 Native Lands Act Cap 61 (Kiribati). 56 Eg, s 163 Lands and Titles Act Cap 133 (Solomon Islands), s 63 Lands Transfer Act Cap 131 (Fiji), s 63 Land Registration Act Cap 191 (Papua New Guinea) and s 51 Land Leases Act Cap 163 (Vanuatu). 57 Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317. 58 Eg, in Tonga the Minister must approve of the grant of a mortgage over a hereditary estate and before this can be done, full details of the mortgage must be given – ss 101 and 102 Land Act Cap 132. In Kiribati under the Native Lands Act Cap 61, s 5 provides that title to land acquired by way of security cannot become absolute until ‘the transferor or assignor of that land shall have forfeited or lost the equity of redemption of his title to that land …’. 59 Equity intervenes by recognising the ‘equity of redemption’, whereby if the mortgage is paid off, the mortgagor has the right to redeem the property. This modifies the rigour of the contractual date for foreclosure on the loan. See further Chapter 4.

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under a lease or sub-lease, may be curtailed by the mortgage agreement, or at least be subject to the consent of the mortgagee, or regulated by statute.60 If the lease is created with the authority of the mortgagee, or is one created prior to the mortgage and the mortgagee had notice of it, then the mortgagee’s right of possession is suspended for the duration of the lease.61 If there is no lease then the mortgagee (subject to any restriction mentioned above) can go into possession, even if the date for the redemption of the loan has not passed and there is no default. In practice the exercise of this right will be unlikely, for a number of reasons. The first is statutory control, the second the onerous liability to account for all dealings with the property imposed by equity on the mortgagee who goes into possession62 and, thirdly, the mortgagee cannot exercise a power of sale over the property until the mortgagor is in default, and there is little point in going into possession except to exercise a power of sale. The reality is, therefore, that the mortgagee’s right of possession usually remains dormant until there is default. Its existence, however, is a very powerful weapon in the hands of the mortgagee. In the case of an equitable mortgage it is less certain whether the mortgagee has an absolute right to possession. It can be argued that, as equity looks on that as done which ought to be done, then a right of possession is conferred on an equitable mortgagee.63 However, there is authority to suggest that this is not the case,64 although the equitable mortgagee is not really disadvantaged as he or she can still apply to court for an order of possession. It should be noted that, whether the mortgage is legal or equitable, a court may still exercise its equitable discretion to stay an order of possession, particularly if the court is persuaded that the mortgagor’s financial difficulties can be overcome.65 Where a mortgage operates as a charge rather than a conveyance, the holder of the charge has rights to the property – including possession – only if the debt is not discharged. There is no right of foreclosure with a charge. Mortgages that operate as security charges require registration in the South Pacific region, and therefore will be binding on third party purchasers if the borrower defaults. Where for some reason a charge does not comply with necessary formalities then it will be equitable rather than legal.66

3.1.6 Possession of land and the law of torts In many situations, the fact of possession may mean that the possessor has legal standing to bring an action to defend his claim. This is particularly important in the

60 See, eg, s 99 Law of Property Act 1925 (UK). 61 However the mortgagee will be entitled to come into possession of any rents or income from the lease. 62 This includes not only liability for all rents and profits, but for the physical state of the property and its proper management. See White v City of London Brewery Co (1889) 42 Ch D 237. 63 This line of reasoning is due to the influence of the case of Walsh v Lonsdale (1882) 21 Ch D 9, discussed in Chapter 7. 64 Ladup Ltd v Williams & Glyn’s Bank Plc [1985] 1 WLR 851. 65 There is a need to balance the prejudice to the mortgagee with that of the right to redeem of the mortgagor. In the UK, legislation also affords the mortgagor rights to seek the exercise of the court’s discretion in this area under the Administration of Justice Act 1970, s 36. 66 See further Chapter 7.

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case of trespass, which is dependent on possession rather than ownership,67 but may also be relevant where the possessor sues for damages. For example, in the case of Allison Benjamin v Kosrae State,68 the plaintiff’s possessory interest in land was sufficient to confer legal standing to bring an action for damages caused when a road was built across the land. Although the plaintiff could not establish title to the property as owner, the court found that he had – at the very least – a possessory interest. He had not given permission to the State to enter the property to build the road, or to destroy the trees in doing so. He had a viable interest in pursuing a claim for damages. In the case of Fifita v Fie’eiki (No 2),69 the plaintiff was not in possession of the land but had the right to enter into possession. This gave the plaintiff the right to claim compensation for the wrongful interference with possession of land and damages for mesne profits, even though there was no actual damage caused by the trespass of the defendant.70 Conversely, where there is insufficient evidence of a right to possession, a remedy may be denied. This happened in the case of Jerry Tada v Siriako Usa,71 where a claim for trespass and conversion failed because it was dependent on the plaintiff establishing either a right of ownership, which included the right to possession, or a right to possession – even if not the owner. The plaintiff was unable sufficiently to convince the court that he had an immediate and exclusive right to possession of the land. This case also illustrates that a right to bring a claim in tort may be important for establishing a right other than possession, namely ownership. Here, it was held that the right to sue for trespass may in turn establish a claim for ownership. A person who fails in a claim based on trespass is therefore unlikely to be able to establish ownership of land.

3.2

POSSESSION OF CHATTELS

As has been indicated in Chapter 1, chattels are personal property having physical form and substance. Possession of chattels will usually be apparent by a person having physical control either of the chattels, or of a symbol of the chattel(s) or thing, such as the ignition key for a car. The means by which a person comes into possession of chattels may occur in a number of ways. A person may come into possession by acquiring the chattels from another, for example by gift or purchase, by finding the chattels, or by creating them.72 Usually, but not always, the person in possession will be aware of the possession, although such possession may not always be welcome, because often possession brings with it certain responsibilities, obligations and liabilities. For example, a person left in possession of a friend’s dog will be responsible for that dog, and liable as its

67 Winfield and Jolowicz on Tort, 9th edn, London: Sweet & Maxwell, p 306, cited with approval in the case of Pwate v Konihaka [1996] SBHC 60. 68 KSC Civil Action No 19-85 [1988] FMKSC 2. 69 Civil Case 788 [1995] Tonga LR 187. 70 For mesne profits see Chapter 4. 71 Tada v Usa [1996] SBHC 7. 72 Different forms of acquisition are dealt with in Chapter 7. Note that possession may be unconscious, as where stolen goods or drugs are planted on a person, or hidden in premises belonging to that person without their knowledge.

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‘keeper’ if it injures anyone or damages the neighbour’s property, even though the possessor is not the owner. Where a person is in possession of certain types of property without knowledge, such possession may still attract legal consequences, for example, where drugs are ‘planted’ on a boat or in a person’s luggage, or stolen goods are found in their house. A number of different means whereby a person may be in possession of chattels will now be considered.

3.2.1 Finders The law relating to the rights of finders in the Pacific island countries appears to follow that of the common law as developed through case law, although there are no reported regional cases.73 The main principles are that the finder who is in possession of the property has a good claim to the property until a person with a stronger claim appears. In all cases the true owner, if he or she comes forward, will have a stronger claim. In cases where the property is found in the ground of another, or attached in some way to a building which is itself attached to the land, then the landowner will have a stronger right to the property than the finder, on the principle that the owner of land owns down to the depths of the earth and up to the heavens and therefore owns anything deemed to be attached to the land. Where the found property is not attached but is merely on land or premises belonging to another then the courts have refined the tests to be applied to determine who has the stronger claim, by examining the question of control exercised by the person having possession of the location on which the property is found. Because this is an area of law which has been developed essentially through case law, some consideration of these cases is helpful to an understanding of the topic. In Armory v Delamirie,74 a claim in trover was brought against a goldsmith who removed the jewels from a setting which had been found and brought to the goldsmith by a chimney sweep.75 The court decided in favour of the chimney sweep on the grounds that he had a stronger right as finder to the chattel than the goldsmith. Had the true owner come forward then the title of the true owner would have been stronger. In this case the dispute was not between the owner of the land or premises on which the thing was found. In many cases, however, it is. As has been stated previously, the general principle is that the owner of the land owns everything attached to the soil which is deemed to be part of the land. The owner of the land will, therefore, enjoy a better title to found property than the finder. For example, Donaldson LJ in Parker v British Airways commented that ‘an occupier of land has rights superior to those of a finder over chattels in or attached to that land’.76 However, in Parker the court went on to distinguish between objects found ‘in’ the land, that is attached to the land, and those found ‘on’ the land. In Parker, a bracelet had been found on the floor of the executive lounge of British Airways. British

73 In cases such as Armory v Delamirie (1722) 1 Stra 505, 93 ER 664; Elwes v Brigg Gas Company (1886) 33 Ch D 562; South Staffordshire Water Company v Sharman [1896] 2 QB 44; City of London Corporation and Others v Appleyard and Another [1963] 1 WLR 982; Parker v British Airways [1982] 2 QB 1004; Tamworth Industries Ltd v Attorney General [1991] 3 NZLR 616 and Waverley Borough Council v Fletcher [1996] QB 664. 74 (1722) 1 Stra 505, 93 ER 664. 75 Trover is a remedy associated with conversion. See Chapter 11. 76 [1982] 2 QB 1004 at 1017.

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Airways were the occupiers of the premises, but were unable to assert better title to the bracelet than the finder because they had not exercised sufficient control over the lounge. This case can be contrasted with that of South Staffordshire Water Co v Sharman,77 where the plaintiffs, demanding the handing over of rings which had been found, were the fee simple owners of the land and had de facto control over the pool in which the rings were found. The finder had also been in the employment of the plaintiffs at the time of the find, and undertaking work supervised by the plaintiffs. The decision seems to establish the principle that the landowner does not automatically enjoy possession of property found on the surface merely by virtue of ownership of that surface. The ownership must be manifested by some control, or an intention to control the building and the things which may be in or on it. This seems to be the basis of the court’s decision in the case of Bridges v Hawkesworth,78 in which a bundle of notes was found on the floor of a shop, and the finder was held to have a better title to them than the shopkeeper, who never had them in his custody or control, despite the fact that the notes were found on the floor of his premises. In the case of Waverley Borough Council v Fletcher,79 Fletcher had unearthed a brooch with his metal detector while using it in a public park owned by the Council. Clearly he was the finder, but the brooch had been ‘in’ – rather than ‘on’ – the land of the Council. At first instance the court did not approve of this distinction. The Court of Appeal, however, did make such a conceptual distinction. As a result it held that the owner or lawful possessor of the land – in this case the Council – had a better title to the brooch, which had been found in or attached to the land, than the finder did. The distinction between ‘in’ and ‘on’ the land has also been made in the New Zealand case of Tamworth Industries Ltd v Attorney General of New Zealand.80 In this case the found property was cash in a cardboard box, which had been hidden beneath the floorboards of a disused building. The police had found this and a large quantity of cannabis. Proceedings for criminal charges were brought against the director the company (Tamworth) which had leased the property for some years. The criminal conviction was set aside on appeal and the director acquitted. The true owner of the money was never found. Some years later Tamworth Industries commenced proceedings claiming the money on the basis of its rights as occupier of the building in which it was found. The court held that although the police had the right to take the money and cannabis as a potential exhibit at the time of finding it, they had no greater right than a finder who had taken property into his care and control. The occupier of the building had a superior right to property found in or on that building, provided the occupier had manifested an intention to exercise control over the building, and the things in it, prior to the finding. The court was satisfied that Tamworth was the occupier of the building, because it had continued to pay rent after the expiry of the formal lease, farmed the land at the time of the police raid and had access to the land and buildings. However, as occupier, there was no evidence that Tamworth had manifested an intention to exercise control over the lost property, a criterion adopted with approval from Donaldson LJ in the case of Parker.

77 78 79 80

[1896] 2 QB 44. (1851) 21 LJQB 75. [1995] 3 WLR 722. [1991] 3 NZLR 616.

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It is important to note that in some jurisdictions there is a statutory obligation to hand in ‘finds’. For example, s 151(1) of the Criminal Offences Act (Cap 18) Tonga states: Every person who takes possession of anything which appears to be of some value and to have been lost by another person shall within 24 hours after taking possession of it deliver it to the owner if he be known and where the owner is unknown the thing so found shall be delivered to the district officer or town officer of the town in which the finder is residing or to the police. Any person failing to obey the provisions of this subsection shall be liable to imprisonment for any period not exceeding 3 months.

Similarly, under s 122(3)(a)(iii) of the Vanuatu Penal Code Cap 135, the definition of theft states: The word ‘takes’ includes obtaining control – (iii) by finding, whether or not at the time of finding the finder believes that the owner can be discovered by taking reasonable steps.

It should be noted that in English common law, where the property found is treasure – that is, objects containing a substantial amount of gold or silver, which have been hidden in the ground (not just lost) – and no owner is found, then they go to the Crown by way of prerogative right. It is probable that this is part of the law of the South Pacific region, by way of general principles of common law and equity. In New Zealand there is an interesting provision in the Antiquities Act 1975 in respect of ownership of Maori and pre-European artefacts, including those ‘brought to New Zealand by an ancestor of any such inhabitant (Maori or other pre-European inhabitant) … prior to 1902’.81 Such artefacts are the property of the Crown, unless ownership can be established or the proper persons to have custody of the artefact can be established.82 In the South Pacific region finds may be of ancient artefacts – such as pottery – or from shipwrecks. Some specific legislation exists to protect ancient sites and cultural treasures; however, the New Zealand Act might provide a useful model, should legislatures seek to protect these objects further.83 It should be noted, in an area of sea and treacherous coastlines, that finding is distinguishable from salvage, provision for which will often come under statute, for example, in Kiribati84 and Tonga.85

3.2.2 Bailees, lienees and pledgees ‘Bailment’ is ‘a possessory relationship by which the bailor transfers possession of a chattel to a bailee’.86 Bailment, pledge and possessory liens all involve the transfer of possession from the owner of property to someone who is not the owner but by virtue of possession acquires certain interests, rights and obligations.87 The advantages of possession in these cases is that the person in possession, the bailee, lienee or pledgee, 81 82 83 84 85

S 2 Antiquities Act 1975 (NZ). Eg, by the Maori Land Court. Eg, in Vanuatu the Preservation of Sites and Objects of Interest Act Cap 39. Wreck and Salvage Act 1966. Shipping Act 1986, ss 160–162. For application of this Act, see Clark v Pikokivaka & Others, Civil Case No 90/93 [1993] Tonga LR 50. 86 Bridge, J, Personal Property Law, 1996, London: Blackstone Press, p 26. 87 See also Chapter 4 and Chapters 7 and 8.

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has physical control of the property. In the case of bailment and pledge if there is no transfer of possession there is no bailment or pledge.88 In the case of liens, some liens depend on possession, others do not. In this chapter, the focus will be on bailment and pledge, which is a form of bailment. Liens are dealt with in Chapter 4.

3.2.2.1 Bailment Bailment may be for an indefinite period of time, in which case the bailor can at any time ask for the goods to be returned, or it may be for a certain or fixed period of time, in which case if the bailor asks for the goods back before the determining event or the expiry of the period, the bailee may resist the claim. Bailment may be used for a number of purposes. In a leading English case, six types of bailment were identified: deposit of the chattel to the bailee for the benefit of the bailor, for example safekeeping; a gratuitous loan for the benefit of the bailee, such as the loan of a lawnmower; the hire of a chattel for which the bailee paid, for example car hire; the pledge of chattels for security for a loan;89 delivery effected to enable the bailee to perform a service paid for by the bailor, such as transporting goods; and lastly, delivery of a thing to the bailee for carrying out a task for which the bailee is not paid.90 If the bailment is at will then the chattels can be transferred back at any time on the demand of the bailor. However, often bailment is a contractual arrangement and may last either for a stipulated period or until certain conditions are met. An example is where bailment is used in conjunction with a hire-purchase agreement.91 Title to the chattels or goods remains with the bailor/seller of the goods, but possession passes to the purchaser/bailee. In this type of bailment it is not intended that the goods be returned to the bailor, except in the case of default of payment. However, title to the goods will not pass until all the payments are made. If there is a default in payments then the bailor may reclaim the goods from the bailee/hire-purchaser.92 If the rights and obligations of the bailor and bailee are not established by contract then the law of tort may apply. For a regional example of the latter, see the Tongan case of Mataele v Havili,93 referred to previously, in which it was clearly stated that where the appellant took possession of the respondent’s fine mat and agreed to sell it, this was a case of bailment and there was a duty to preserve the mat. Loss of the mat made the bailee liable to the respondent. Because possession is essential for bailment, in common law the bailee was liable for loss of or damage to the property.94 Because of the liability faced by the bailee, the bailee could bring an action against third parties who had possession of the thing 88 For the significance of this in the case of bail, see Ashby v Tolhurst [1937] 2 KB 242. 89 See pledge or pawn, dealt with in Chapters 1 and 4. 90 Coggs v Bernard (1703) 2 Ld Raym 909, 92 ER 107, per Lord Holt. The bailment in this case fell under the final, sixth category and involved the moving of casks of brandy from one cellar to another without payment. 91 On the use of hire-purchase as a way of acquiring property, see Chapter 7. 92 Credit sales or hire-purchase contracts are increasingly regulated by statute in order to prevent unfair or oppressive bargains. 93 Civil Appeal No 258/94 [1994] Tonga LR 73. 94 So, eg, in the case of Lone (Tagaloa) v Kalati (Tusi Auali’itia) [1970–79] WSLR 284, where a car was bailed for repairs and these were not carried out nor was the car returned, the bailee was liable for damages for breach of bailment based on the value of the car, the spares supplied for its repair and the costs of loss of use for six months.

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because the bailee was entitled to possession. The degree of tortious liability – which could be altered by contract – was determined at common law by the category into which the bailment fell. Liability for even slight negligence would be incurred in situations where the bailee benefited from the bailment; for example, a gratuitous loan or hire of the chattel by the bailee. In the case of pledge, the bailee would only be liable for ordinary negligence and not at all for slight negligence, whereas in the case of a bailment which did not benefit the bailee at all but did benefit the bailor, the bailee would be liable only in the case of gross negligence.95 With the development of a common duty of care in the tort of negligence following the landmark case of Donoghue v Stevenson,96 the application of special rules as to liability for damage to goods in the possession of bailees has diminished in importance. Also, the bailee’s duty of care may be provided for in statute.97 However, one major important aspect remains. A bailee bears the onus of proving that despite reasonable care being taken of the chattel the harm occurred.98 If the bailee has deviated in any way from the arrangements of bailment, this will be a difficult burden of proof to discharge.99 Also, if the bailee refuses to return the goods or chattels bailed at the end of the bailment then the bailee becomes the insurer of the goods and will be liable for any loss or damage, whether reasonable care was taken or not.100

3.2.2.2 Pledge A pledge (or pawn, as it is sometimes known) is an arrangement whereby goods or other personal property are transferred to a lender in return for a loan.101 The goods or chattels are security for the loan and are in the lender’s possession. The lender (the pledgee/pawnee) retains possession until repayment of the loan, although ownership of the goods remains with the borrower (the pledgor/pawnor).102 Pledge only applies to personal property which must be capable of delivery, and there must be actual or constructive delivery of the property, so that the pledgee has possession or a right to

95 The exception, where strict liability would apply, was in the case of carriers. 96 [1932] AC 562. 97 See, eg, s 30 Indemnity, Guarantee and Bailment Ordinance Cap 100 (Fiji), applied in the case of Ali Hussain v Puran (1965) 11 FLR 210. 98 This was applied in the Tongan case of Polynesian Airlines Ltd v Moin [1981–1988] Tonga LR 61, in which it was held that the bailee must show that the loss occurred without any neglect, default or misconduct on the part of the bailee. In this case the bailee failed to discharge this onus and was held liable for the loss of furniture caused by fire. 99 Eg, in the case of James Morrison & Co, v Shaw, Savill and Albion Co [1916] 2 KB 783, a ship of the defendant’s shipping line, travelling from New Zealand to England changed route and went via France, and was sunk with the loss of its cargo of New Zealand wool. The bailee was held liable because the shipping line had deviated from its normal route and was in breach of contract. 100 Mitchell v Ealing London Borough Council [1979] 1 QB 1. 101 In common law the terms were interchangeable. In the UK the Consumer Credit Act 1974 introduced a clear distinction and also repealed the Pawnbrokers Act 1872. 102 A pawn or pledge is different from mortgage in so far as mortgage is by way of assignment and possession is not essential. There is also no right to foreclose on the loan or a right of redemption. It is also different from a lien because the pledgee/pawnee acquires a special interest or property right in the property not merely a right to detain the property pending payment of a debt – as is the case with a lien. Also a lien cannot be transferred to a third party, whereas a pledge can.

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come into possession.103 If there is no actual or constructive delivery of the thing then there is no pledge.104 Pledge does not arise automatically but by way of contract. Under the contract the pledgee has the right to retain the property and, if necessary, to sell it if the money is not repaid when due.105 The pledgor has the right to reclaim the property on payment of the debt. If the pledgee transfers the property to another then the third party holds subject to the right of the pledgor unless the contract of pledge has come to an end. The pledgor retains ownership of the property and can deal with it as owner, so the pledgor, for example, could sell the property to another although it will be burdened by the pledge. The buyer could then redeem the property by paying off the sum owed. With pledge, as with other transactions, the principle of nemo dat quod non habet applies: a person cannot pledge property which he or she does not own. The pledgee can acquire no better title than the pledgor.106 The advantage of pledge as a transaction conferring security is that it is simple to create: all that is needed is the intention that the goods should be held under a pledge and transfer – which can be constructive – or possession. A pledge can be used as security for money owed or other obligations, and these may be present or future. Moreover, the exercise of the pledge is also simple, being based on physical control, and in many cases the pledge does not need to be registered. It is selfevident, which is an advantage as regards third parties. In some jurisdictions pledges are more often encountered with respect to documents than goods. Here the pledge needs to be reinforced by a charge against the property evidenced by the document – the documentary intangible. For example, a bill of lading may be pledged, but the value of the pledge lies in the goods covered by the bill of lading rather than the bill itself. In some cases possession of the document will not be sufficient to confer rights on the possessor. For example, possession of a share certificate does not mean that the possessor has a right to the dividends. To have this right the possessor must be registered as the shareholder. Therefore not all documents will be effective as pledges, if security over the value of the property is needed. Traditionally, pledge of documentary intangibles has occurred in money markets, for example, pledges of negotiable instruments and bills of exchanges. However, with electronic banking and financing it is questionable whether there is sufficient possession to constitute pledge. In the South Pacific region, pledges of goods may be more familiar than pledges of documentary intangibles. However, although such a pledge is simple and cheap, it is not always very convenient. So, for example, a pledge of goods needed to produce income is not an ideal way of financing a business, nor the pledge of goods which are

103 Eg, the title deeds of a house may be handed over, or the keys to a warehouse in which goods are stored. 104 Alatini v LDS Church [1990] Tonga LR 1. 105 The right to sell only arises when the date for payment is past. Under the Pawnbrokers Act 1908 (UK), statutory time limits were set – three months for the sale of clothing and six months in the case of other property. Until the moment of sale, the pledgor still has a right to redeem the property. 106 For further discussion of this principle see Chapters 7 and 8.

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perishable or likely to incur costs while pledged, such as animals or livestock. Where the potential pledgor needs to retain possession of the goods to use them, other forms of security are more suitable, such as a mortgage or charge.

3.2.3 Carriers A carrier is a legal or natural person who undertakes to carry the chattels of another from one place to another by some form of transport. A ‘common’ carrier is one who will offer this service to anyone. Examples of common carriers would be railways, shipping companies or general transport companies. Sometimes such carriers will carry anything, but often they will be specialist carriers, such as livestock carriers, or parcel carriers. Many carriers are not common carriers but only transport chattels under special contracts and therefore select their customers, for example furniture removal companies. The rights and liabilities of such carriers will be determined by the terms of the contract, and often such contracts will have liability or risk exclusion clauses, be linked to compulsory insurance for goods, and impose strict time limits for the bringing of complaints as regards damages. The liabilities of a common carrier, on the other hand, are determined by common law. As such, the common carrier is liable for all harm which befalls the goods being carried, unless the harm is caused by an act of God – that is, natural causes – or enemy action, or where the harm is caused by some inherent vice of the goods to themselves, for example fruit rotting or animals biting each other. The carrier’s liability continues from the moment the goods are delivered to him to the moment he delivers them to their destination, or, if they are not to be delivered, until a reasonable time after they reach their destination. The common carrier has certain implied duties. If the carrier is to be a common carrier then the carrier must accept goods from anyone who tenders them and is willing to pay the carriage price, unless the carrier has no space, or the goods are of the type not usually carried, or the goods would place the carrier at risk.107 The carrier must charge a reasonable price for the carriage, which may or may not be regulated by statute. The carrier must transport the goods without delay, and although a carrier need not take the shortest route, the route should be either the usual one or the most reasonable one. Liability will be incurred for any delay due to the carrier’s negligence, but if it is caused by factors beyond the carrier’s control, such as the state of the roads, then the carrier will not be liable for the delay. If the carrier is not a common carrier but is acting under a special contract then such a carrier will still be expected to take reasonable care of the goods being carried and to transport them without unreasonable delay.108 Often such contracts will indicate where the risk for loss, damage or delay lies. Where a contract exempts a carrier from certain liability this may extend to the carrier’s agents or servants.109 Often today such contracts are standard form contracts. Carriers also tend to be

107 Clarke v West Ham Corporation [1909] 2 KB 858. 108 See, eg, Betham Brothers Enterprises Ltd v Big Save Timbers Ltd [1994] WSSC 8, a Samoan case in which a counterclaim for negligence on the part of a carrier using refrigerated containers for taro was unsuccessfully raised to claim damages for spoiled taro. 109 This is known as a Himalaya clause and can exempt, eg, the stevedores of carriers – Rabaul Stevedores Ltd & Another v Seeto and Another (1985) LRC (Comm) 383, Papua New Guinea.

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subject to a range of regulating legislation such as licensing and safety requirements.110 In particular in the region, carriage by sea is governed by statute.111 It should be noted that a carrier will have a lien over goods being carried if there is payment due.112 If the goods have to be stored pending payment of carriage costs then the carrier has a duty to take reasonable care of the goods or property. If the contract of carriage indicated that the goods were to be collected then the carrier can put them in suitable premises for storage and the cost must be borne by the person who contracted for carriage, or the person who is to collect the goods. Under legislation, a carrier who has a lien over such goods will have the power to sell them and reclaim his expenses after a statutory period and the giving of notice. Usually such goods will be sold at public auction. If the goods are likely to perish or to become a nuisance then the carrier can sell them or dispose of them. If such goods are sold then the carrier can deduct any expenses incurred, but must return any surplus to the consignee. Carriage by air and international carriage by sea are governed by international law113 as well as by internal regulation.114 Carriage between the islands of one country, whether by air or sea, is not international carriage, but some regional countries are deemed to be part of the territory of another country. For example, the Cook Islands, Niue and Tokelau are deemed to be part of New Zealand under the Carriage by Air Act 1967 (NZ).

3.2.4 Criminal possession of goods or chattels Criminal possession of goods or chattels occurs where a person has obtained movable property through fraud, theft or deceit, or where possession of certain things is contrary to statute. For example, possession of certain drugs, poisons and firearms is strictly controlled by statute, and even if possession is allowed in certain circumstances, non-compliance with the regulations will make the possession unlawful.115 In other cases possession itself may be unlawful, as with prohibited drugs,116 pornography or even articles of sorcery.117 Usually such prohibitions will reflect social welfare and public policy concerns. So while the possession of alcohol 110 See Carriers Act 1830 (UK), Mercantile Law Act 1908 (UK), Carriers Act 1948 (NZ) (which applies in Niue), Carriage of Goods Act 1940 (NZ), Carriage of Goods Act 1979 (NZ), Carriers Act 1975 (Samoa), and the Carriers by Air Act 1967 (NZ) which also applies in Niue. 111 See, eg, Carriage of Goods by Sea Cap 131 (Vanuatu); Carriage of Goods by Sea Cap 141 (Tonga), Sea Carriage of Goods Ordinance 1906, replaced by Ordinance 1926 and now Cap 231 (Fiji); Carriage of Goods by Sea Cap 7 (Kiribati). 112 For liens see Chapters 1 and 4. 113 International air carriage is governed by the Warsaw Convention 1929, its protocols, and amendments under the Guadalajara Convention 1961. International carriage by sea is governed by the Hague-Visby Rules 1924 as amended by subsequent protocols in 1968 and 1979. 114 Eg, Civil Aviation Act Cap 47 (Solomon Islands) and the Civil Aviation Act Cap 151 (Tonga). 115 See, eg, the Firearms and Ammunition Act Cap 80 (Solomon Islands), applied in the case of R v Tadakusu [1999] SBHC 108 and 111. 116 See the Vanuatu Dangerous Drugs Regulation (No 2) 1964 and the case of Public Prosecutor v Leslie Galt and Others [1980–1994] 1 Van LR 158, concerning possession of cannabis, and the Joint Regulation No 12 of 1939 concerning possession of heroin in Vanuatu, considered in Dovan v Public Prosecutor [1980–1994] 1 Van LR 400. 117 Eg, s 183 of the Tuvalu Penal Code of 1978 makes it an offence to be in possession of any article associated with harmful magic.

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may be forbidden in some countries, it will be permitted in others, subject perhaps to the location of possession and the age of the possessor. It should also be noted that possession of certain objects in conjunction with other criminal behaviour can change the nature of the charge. For example, in the case of Sivaro v The State, possession of a cane knife led to charges of robbery with violence, rather than just robbery.118 In some cases it will be important to ascertain whether mere physical possession is sufficient, or whether some additional element is required. In Fiji, s 342 of the Penal Code Cap 11 created an offence of obtaining property by false pretences. In the case of Mohammed & Others v R, the court had to decide if mere possession was sufficient or whether the word ‘obtains’ meant obtained ownership in the property. In the courts of Australia and New Zealand a different construction from that used in English courts has been placed on the word. For example, the New Zealand Court of Appeal has held: … that there is no reason in principle why a person should not be convicted of the offence of obtaining goods by false pretences where he secures the physical possession of the goods, though not their ownership, even though the same act may constitute both theft by fraud and obtaining by false pretences.119

In the Australian case of R v Arnold it was held that if the accused person had obtained bodily possession of the article concerned then he did obtain ‘the property’ in it in the sense meant by the statute.120 However, in Mohammed and Others v R, the Court of Appeal of Fiji felt constrained (somewhat reluctantly) to follow English law in this matter as the Penal Code of Fiji (as elsewhere in the region) was modelled on English common law.121 Thus ‘obtained’ did not mean only physical possession or control, but should be understood to mean obtained rights of ownership. The accused was not therefore guilty of obtaining by false pretences. He was, however, guilty of the alternative charge of larceny.122 It should also be noted that although penal codes in the region are generally modelled on English common law, it would be open to most courts of the region to follow the Australian and New Zealand interpretation of ‘obtains’ rather than the English one. Criminal possession may be based on strict liability – the fact of possession itself is sufficient regardless of intention – or it may have to be accompanied by the requisite animus, or mental element. This was considered in the Vanuatu case of Public Prosecutor v Galt,123 where the court referred to the dictum of Lord Wilberforce in Warner v Metropolitan Police Commissioner. Lord Wilberforce indicated that the court had to decide:

118 Sivaro v The State [1998] FJCA 16. 119 In R v Miller [1955] NZLR 1038 at 1047, citing with approval the view of Salmond, J in R v Cox [1923] NZLR 596 at 607. 120 (1883) 4 NSWR (L) 347. 121 R v Ball [1951] 2 KB 109 at 111, where Lord Goddard said: ‘There is no doubt that “obtains” means obtain the property and not merely possession, and the obtaining must not for this purpose be under such circumstances as to amount to larceny.’ 122 S 176 Penal Code provides that: ‘When a person is charged with obtaining anything capable of being stolen by false pretences with intent to defraud, and it is proved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it.’ 123 [1980–1994] 1 Van LR 158.

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… whether in the circumstances the accused should be held to have possession of the substance rather than mere control. In order to decide between these two, the jury should, in my opinion, be invited to consider all the circumstances – to use again the words of Pollock and Wrights (Possession in the Common Law (1888) p 119). The ‘modes or events’ by which the custody commences and the legal incident in which it is held. By these I mean relating them to typical situations, that they must consider the manner and circumstances in which the substance or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it, his legal relation to the substance or package (including his right of access to it). On such matters as these (not exhaustively stated) they must make the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, or knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessary that he should know the nature of the substance.124

From this, it can be seen that it is sufficient for an accused to intend to possess the objects in possession. It is not necessary for the accused to intend to possess any specific type of objects. So, for example, it would be sufficient to intend to possess a package, without intending to possess heroin, even though the package was found to contain heroin. It is important therefore, in deciding whether or not possession is criminal, to have regard to the actual wording of the relevant criminal law provisions and the interpretation which may have been given to any key words used within those provisions.

3.2.4.1 Theft and the colour of right In common law, theft is the taking of something with the intention of depriving the rightful owner of the thing permanently and converting it to one’s own or another’s use without the consent of the owner. Property capable of being stolen need not be animate. In Tonga, for example, things capable of being stolen include both animate and inanimate things, provided they are movable or capable of being made movable,125 while in Kiribati, any inanimate thing of value is capable of being stolen as well as domestic animals and animals which, while not naturally domestic, have been tamed or captured, even if, at the time of their theft, they have escaped. Land or things attached to land are not capable of being stolen unless the owner of the land has severed such things from the land and abandoned possession of them.126 However, in the Cook Islands it would seem that things attached to the soil may be stolen, if their removal therefrom is solely for the purpose of carrying them away.127 It should also be noted that in some jurisdictions, electricity is also capable of being stolen.128 124 125 126 127

[1969] 2 AC 256. S 144 Cap 18. A similar definition is found in Samoa, s 85 Crimes Ordinance 1961. S 250 Cap 67. S 239 Crimes Act 1969 (Cook Islands): ‘Every inanimate thing whatsoever, and every thing growing out of the earth, which is the property of any person, and either is or may be made movable, is capable of being stolen as soon as it becomes movable, although it is made movable in order to steal it.’ 128 See, eg, s 240 Crimes Act 1969 (Cook Islands) and s 260 Marshall Islands Consolidated Laws 1989, Title 31 ‘Crimes and Punishments’.

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In the region theft is often covered by the old-fashioned term ‘larceny’. An example of a definition of larceny can be found in the Fiji Penal Code, s 259, which states: (1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner. (2) (a) The expression ‘takes’ includes obtaining the possession— (i) by any trick; (ii by intimidation; (iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or (iv) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps. (b) The expression ‘carries away’ includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached. (c) The expression ‘owner’ includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.129

For theft, therefore, it is evident that the property must be something which is capable of being stolen – and this varies through the region; there must be possession or ‘taking’; and there must be the necessary intention. It should also be noted in the above example that taking will be theft only if there is no ‘claim of right’. In most of the jurisdictions of the region this defence of ‘colour of right’ or ‘claim of right’ is recognised.130 This defence is based on the idea that a person is asserting rights to possession of certain property in the honest, if mistaken, belief that he or she has a right to do so. The defence can be found in the old English law Larceny Acts,131 and is found in a number of the Penal Codes of the region, for example in Tonga, Cap 18, s 143, which states: ‘Theft is the dishonest taking without any colour of right of anything which by section 144 is declared capable of being stolen.’132 In other countries, for example Tokelau, there is no colour of right defence in the definition of theft.133

129 Compare this with s 242(2) of the Crimes Act 1969 (Cook Islands), which provides that in certain circumstances taking possession will not amount to theft. 130 Eg, s 143 Cap 18 (Tonga); s 8 Part IV Cap 8 (Tuvalu); s 8 Chapter IV Cap 17 (Fiji); s 8 Part IV Cap 67 (Kiribati). 131 Notably the Larceny Act of 1916. 132 See also Penal Code Cap 26 (Solomon Islands), Penal Code Cap 17 (Fiji), Penal Code Cap 18 (Tuvalu), Penal Code Cap 67 (Kiribati). 133 Ss 188 and 189 Crimes Regulations 1975.

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The basis of the claim is that ownership or a belief in ownership confers rights against others to claim property when control or possession of it has been lost or transferred. If an accused can establish a claim of right he or she may be acquitted. This is an exception to the general rule that ‘ignorance of the law is no excuse’. An example can be found in the case of Ilena Bernhard.134 In this case the accused had been charged with demanding money with menaces, with the intent to steal under the Larceny Act 1916 (UK). The victim was her ex-lover, who had promised to pay her a monthly sum of money for 12 months. Defaulting after the fourth instalment, he returned to England. She followed him and threatened to expose him to his wife and the press if he did not keep his word. She claimed that she believed she was entitled to the sums promised. The Court of Criminal Appeal held that a ‘claim of right’ did not have to be founded correctly in law, but that: … a person has a claim of right within the meaning of the section if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.

A case in which this claim failed was that of R v Turner (No 2).135 Here the accused had taken his car to a garage to be repaired, and then removed it from the parking area outside the garage at night, using his spare key. He was charged under the Theft Act 1968 (UK). His defence was that he believed he had a right to take his own property, and that the garage was not in possession or control of the car. The car was being purchased under a hire-purchase agreement, so the accused was not in fact or law the legal owner of the car. His defence failed on the ground that he was fully aware that he was not the owner of the car, having entered into a hire-purchase agreement, so could not be honest in his belief, and his conviction was upheld. A regional case in which this defence was raised was that of Police v Tipi Magasiva Malaitai.136 In this case the accused was charged with the theft of certain cattle from his employer. He claimed that these cattle were his, and that he had ownership in the beasts, which had been taken in exchange for horses given by him to his employer. The court had to decide if the cattle were his or not. If they were then he could not have stolen them. Even if they were not, but he believed that they were, although he might be charged with stealing them, he could raise the defence of claim of right. The court found that this common law defence formed part of the law of Western Samoa.137 There was some doubt as to whether the cattle were actually the cattle of the accused; nevertheless, the court was satisfied that even if property in the beasts had not passed to the accused, his defence of claim of right succeeded because he honestly (although possibly mistakenly) believed he was taking his own three cows.

134 135 136 137

[1938] 2 KB 264. [1971] 1 WLR 901. [1994] WSSC 12. S 9 of the Crimes Ordinance 1961 preserves ‘all rules and principles of the common law which render any circumstances justification or excuse for any offence unless they have been altered or are inconsistent with any enactment.’

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The concept of ‘colour of right’ is also raised where a person is in occupation of land and this is challenged as being unlawful.138 This was raised, for example, in the case of Hussain Sahib v Native Land Trust Board,139 where the Court of Appeal upheld a finding that the appellant and his family were in possession of land ‘without any colour of right’. In the context of possession of land, what is meant is proof of a right to possession – the onus of which lies on the occupier.

3.2.5 Contractual possession A person may be in possession of chattels as a result of contractual arrangements between the owner of the chattels and the possessor. Such possession may overlap with the possession of carriers, bailment, liens or pledge. For example, a garage may be in possession of a car for the purposes of repair, or a dry cleaning firm may be in possession of a coat for dry cleaning. Often the consequences of possession of property belonging to others will be regulated by the terms of the contract; for example, a contract may exclude any liability for damage caused to the property while on the premises, or may stipulate that if property is not removed at a certain time it may be impounded or sold to defray expenses. Similarly, a contract may stipulate who is to bear the risk of damage or loss. These types of contractual arrangements will be governed by the law of contract and any relevant considerations as to implied terms and unfair terms.140 Sometimes the party in a stronger bargaining position will seek to exclude liability when in fact the common law will hold that person liable in the case of negligence or breach of contract. Alternatively, some statutes will impose liability whether the possessor wishes it or not. Whether a contracting party is in possession of the chattels or is merely a custodian is not always clear and will depend on the construction of the contract, the circumstances and the intention of the parties. However, even a custodian of property will be expected to take care of it and not wilfully damage it.

3.3

POSSESSION OF INCORPOREAL PROPERTY

Incorporeal property represents a right to bring a claim in respect of something – a chose in action – which itself has no physical form. Therefore, where property is intangible it is impossible to have actual possession of the property interest, although one may have possession of something which is symbolic of that interest, for example a share certificate representing a share, or a savings book representing a bank account. Sometimes possession of documentary intangibles will be valuable even though the document has no intrinsic value itself, because possession may signify control over the intangible property right. For example, a cheque which is freely negotiable may be ‘payable to bearer’, in which case the person who has it in his or her possession is the bearer and can claim the sum indicated on the cheque. Similarly, some shares are

138 See 3.1.3.1 above with reference to squatters. 139 Sahib v Native Land Trust Board [1997] FJHC 39. 140 See, eg, the case of Hunt v Australasian United Steam Navigations Company Ltd (1919) 2 FLR 72, affirmed on appeal to the Privy Council [1921] 2 AC 351, which involved the carriage by sea of bananas. One of the implied terms held to be applicable was the seaworthy condition of the vessel before going to sea with the cargo.

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‘bearer shares’ so that the person who has possession of the share certificate can claim to be entitled to the share dividends. Because possession can confer this type of power, often documentary intangibles do not confer any power on the person in possession unless further steps are taken, for example, shares may have to be transferred, the register changed and a new certificate issued. Other incorporeal property may have to be assigned in writing or by the use of formal documents. Often with incorporeal property it is not unusual for there to be difficulties in ascertaining who exactly is entitled to the property, particularly if evidentiary documents have been lost, forged, or do not exist. For this reason it is increasingly common to use the process of registration to establish title to such property.141 A final interesting area to consider in the case of possession and incorporeal property is where money is deposited in a bank. The relationship between a bank and a depositor is one of creditor and debtor. However, where money is deposited, even if it is coins, the depositor will not expect to get back the exact same coinage, so the transaction is not one of bailment. More often money is deposited in the form of notes, cheques and bank drafts – often electronically today. Bank notes are regarded as chattels and therefore capable of possession,142 whereas other forms of money will be documentary intangibles and, like other incorporeal property, incapable of possession.

CONCLUSION Whether possession manifests itself as occupation of land or physical control of chattels, it is evident from the above that there are many different legal consequences of possession, and that possession may be the outward manifestation of a range of property interests, some of which will be in competition with each other. The law therefore has to determine the nature of the possession and the rights or obligations it creates, and then to determine which interests shall prevail over others. Sometimes possession by itself will be insufficient to amount to conclusive evidence of rights, and further steps, such as registration or formal documents of title, will be needed.

141 See Chapter 9. 142 Bridge, M, Personal Property Law, 2nd edn, London: Blackstone Press, p 6.

CHAPTER 4 SPECIAL INTERESTS IN PROPERTY

INTRODUCTION This chapter considers property interests that a person may have in relation to the property of another person. Such property may be (and often is) land, especially in the case of easements, covenants and mortgages, but can also be personal property, which may be corporeal or incorporeal things, especially in the case of liens. Importantly these interests are in themselves property, and may be transferred to others by way of assignment and can be considered as assets or debts, depending on the nature of the obligation and legal standing of the person. For example, a mortgage is a debt owed by the mortgagor, but is a credit or an asset as regards the mortgagee. The benefit may be assigned to another person, or the debt may be imposed on another person. Similarly, a landowner who has the right, under an easement, to cross a neighbour’s land, has a benefit which can be passed on to any person to whom he transfers the land. Some of these interests are held individually, but often they involve a number of people, sometimes with competing claims to the same property. The legal framework therefore has to determine not only the nature of these interests and how they can be acquired and transferred, but also how the rights of different claimants are balanced against each other and conflicts resolved. A number of these interests have been introduced into island countries of the South Pacific from the common law. Many of these have ancient historical origins, some dating back to feudal times. Some have been adapted to meet the needs of the South Pacific region (for example, liens over crops), while others have shown themselves to be incompatible with certain features of the legal context of the South Pacific region (for example, mortgages against communally owned land).1 Some of these interests are unique to the region and derive from custom and long-held traditions.

4.1

LIENS AND MORTGAGES

4.1.1 Liens A lien is a right to retain possession of property, or to claim possession of property as security, until an obligation – usually a debt – is met. Liens may be exercised over all forms of personal property, including ships, documents, and even crops growing on land. Recognition of a lien will mean that the owner of property is restricted in what can be done with that property until the lien is removed, for example by the debt being paid. 1

Banks are often reluctant to lend against the security of communally owned land, ie, land held under customary tenure, because of issues relating to plurality of owners, potential conflicts as to who is entitled to negotiate the mortgage or who is responsible for repayments, and low resale value of the land in the case of mortgage default when there are disputes among the communal owners, uncertainty as to boundaries, or competing claims to certain rights over the land between neighbours.

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There are liens recognised under common law, equity and under statute. For example, the owner of land that suffers from trespassing cattle may have a lien over the cattle until damages are paid.2 The person who holds the lien is called the lienee, and the lienor is the person who has property which is subject to the lien. Historically, in common law the lien was the right of certain persons following particular professions to retain possession of the property of another until a debt was paid. For example, a repairer had a lien over goods repaired, an innkeeper had a lien over the luggage of a guest, a carrier had a lien over goods.3 These liens are still recognised, although they may either be complemented by statutory provisions, or incorporated expressly into contracts of service. A lien in these circumstances is passive rather than active and is based on the right to retain possession until payment is made.4 In common law, a lien is dependent on possession. Such a lien may be a general lien (the right to retain property not related to a specific debt), or a particular lien (which will be in relation to particular property). In common law, therefore, there must be a debt due and the property must be in the possession of the lienee. If retaining possession of the property until the debt is paid costs the lienee something – for example, keeping cattle or horses – the cost cannot be claimed, because retention of the property is for the lienee’s benefit, not that of the lienor. At common law, unless altered by contract, there is only a right of possession – or to retain possession – not a right of sale, although an order of sale might be granted over perishable goods. Today a right of sale may be conferred by statute, such as the Sale of Goods Act 1908 (NZ), where the lienee who is an unpaid vendor, for example, will have the right to sell the property to a third party. A common law lien would come to an end if possession was lost, by waiver, by satisfaction of the debt, where there is a contractual term to this effect, or conduct of some kind which is inconsistent with the continuation of the lien. An equitable lien is not dependent on possession but arises in circumstances where the principles of equity so provide. The effect of such a lien is that the person to whom it is granted may claim a charge against certain property, which can then be enforced by the sale of that property. One of the earliest forms of such a lien was the unpaid vendor’s lien, which arose where a seller of land had a lien over the land until the payment of the purchase money.5 An equitable lien is a right in rem entitling the holder of the lien to call on the property to meet an obligation. Such property may be land or personal property, including money. In order to enforce an equitable lien there must be recourse to the courts, and if there has been undue delay then the enforcement may be barred – either under statute or in equity – by the elapse of time. The difficulty with equitable liens is that it is not always clear when these will arise.

2 3 4

5

S 8 Animals Ordinance 1960, Samoa. Common law liens may be general, as in the case of solicitors, bankers, brokers and warehousemen, or particular, as in the case of carriers, innkeepers, sellers of goods or persons who have effected repairs on property such as shoe menders. Eg, in the case of Great Eastern Railway Company v Lord’s Trustee [1909] AC 109, a case of debt, the House of Lords upheld a claim by a railway, which transported the respondent’s coal, to a lien over the coal either when it was being transported or when it was stored at the railway depot. The vendor’s lien is equally applicable to the sale of personal estate – see Re Stucley, Stucley v Kekewich [1906] 1 Ch 67, which concerned the sale of the reversionary interest in a trust fund.

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Being equitable, the lien is found to exist in order to do justice between the parties.6 Thus it will arise because of the relationship of the parties or the conduct of one of them. It can arise impliedly unless express provisions to the contrary are evident: for example, if a contract contains a retention of title clause. Situations in which such a lien may arise are: between solicitor and client, where the client instructs the solicitor to act for him and the solicitor has property of the client – such as damages awarded in litigation – which can be used for payment of fees; or a trustee and beneficiary, where the trustee has a lien over trust property for reimbursement of costs.7 The more usual equitable liens, such as the vendor ’s lien or purchaser ’s lien, now find expression in statute. In the case of goods, however, equitable liens may be useful where a contract is not for the sale of goods but the supply of services, materials and labour. For example, in the case of Swainston v Clay8 the plaintiff negotiated a contract between a ship buyer and a firm of ship builders. The plaintiff advanced certain moneys towards the costs of building the ship. Subsequently a further agreement was entered into whereby the plaintiff agreed to purchase the hull of the ship, the moneys advanced being regarded as part payment for this. The ship builders then went bankrupt and the issue was whether the plaintiff had a lien over the partly-built ship. The court upheld the claim to a lien over the ship for the moneys paid in advance. Deane J, in the Australian case of Hewett v Court,9 suggested certain guidelines regarding the circumstances in which an equitable lien might arise. These were: where there is actual or potential indebtedness owed by the owner of the property to another who has incurred some financial loss relating to the property or in expectation of acquiring the property; the property is ascertainable and relevant to the performance of the obligations; it would be inequitable to allow the owner of the property to dispose of the property without either the consent of the person entitled to the lien or the discharge of the indebtedness. Equitable liens have found application in island countries of the South Pacific, sometimes in association with estoppel. For example, in the Privy Council decision of Chalmers v Pardoe10 from Fiji, it was held that a person, other than the owner of land, who was encouraged by the owner to expend money on the land, was entitled to an equitable lien for the money expended. In the Samoan case of Meredith v Pa’u it was held that this meant not only money expended but also labour or money and labour.11 There is some unfortunate confusion of terminology relating to equitable liens, charges and constructive trusts. An equitable charge arises by way of intention of the parties, whereas an equitable lien arises by operation of equity. Unlike a constructive trust, an equitable lien does not confer title to the property itself but a right to seek payment of a debt from the proceeds of sale of the property. Similarly, an equitable lien is not the same as a mortgage as it cannot be enforced by foreclosure. 6

Sometimes such a lien will be imposed where there is a case of equitable estoppel, eg, where a person is encouraged to expend money on property in the belief that he or she will acquire an interest in it – see, eg, Morris v Morris (1982) 1 NSWLR 61. The lien may then give rise to an equitable charge on the property for the repayment of moneys. This is useful when there is not sufficient evidence to give rise to a constructive trust – see Chapter 7 and 11. 7 Other examples may be where a partner has a lien over partnership assets to meet obligations under the dissolution of the partnership, or a liquidator over assets being administered under liquidation. 8 (1863) 4 Giff 187, 66 ER 672. 9 (1983) 149 CLR 639. 10 [1963] 1 WLR 1612. 11 [1994] WSSC 7.

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Statutory liens arise under legislation such as the Sale of Goods Act,12 the Factors’ Act,13 and the Crop Liens Act.14 For example, the unpaid seller of goods has a right to hold on to the goods until paid in full – provided of course that it is not a credit sale or hire-purchase arrangement. The rights of the unpaid seller may also be exercised by any agent or carrier employed in the unpaid seller’s business.15 The Crop Liens Act in Fiji enables a farmer to use crops as security for a loan.16 Contrary to the common law principles relating to crops on the land – which deem such crops to be part of the land – a crop lien regards such crops as severable from the land, and the lien itself will survive the transfer of the land to a third party. Such a lien will be registered and exists as a charge over the crops, the sale price of which on harvest will be required to meet the borrower’s obligations to the bank or other lender. During the lien the lienee acquires the right to possession of the crops.17 The lienee acquires no interest in the land as such, nor in subsequent crops planted by a new owner.18 Although pragmatic in terms of regional needs, banks are in fact rather reluctant to secure loans with crop liens, owing to the variables involved and the high risk factor in an area where anything from cyclones to drought can destroy a crop. The operation of such liens was considered in the case of Wati v Nand and Others.19 In this case the plaintiff had executed a number of crop liens. The land on which the crops stood was subsequently sold and the question arose as to the status of the liens and the rights of the lienees. The court clearly held that the lien is not extinguished by the sale of the land and that a lien is neither a profit à prendre nor an encumbrance on the land; a third party acquiring the land takes the land subject to the lien, provided the lien is registered. In Fiji the lien expires either on repayment of the loan or by the effluxion of time, which is set as five years after its creation.20 An interesting example of a statutory lien was raised in the Vanuatu case of Luthier v Kam, where the plaintiff held that Art 2102 of the French Civil Code, which was effective under Art 95(2) of the Constitution of Vanuatu, gave the landlord of leased property a lien over furniture, goods and movables in the case of default of rent. The

12 Such as s 39 of the Sale of Goods Act (Samoa) and Divisions 10 and 12 of the Sale of Goods Act Cap 230 (Fiji). 13 Eg, the Factors Act 1899 (UK) considered in the Fiji case of Credit Corporation (Fiji) Ltd v Kennedy Hotel Ltd [1999] FJCA 13. In the absence of specific legislation in the region it can be argued that either the English Act applies as a statute of general application, or the principles of common law and equity apply, as the principles of a mercantile agent or factor’s lien were well established in case law prior to the Act – see Godin v London Assurance Co (1758) 1 Burr 489, 97 ER 419. 14 Cap 226 (Fiji). 15 See further Chapter 7. 16 Crop Liens Act Cap 226 (Fiji). The Act stipulates which crops may be subject to these liens. The list may be expanded by the Minister. 17 S 3(2). Under s 5 the lienee may enter into possession in the case of default, and has the right to cultivate, harvest, carry away and sell the crop. 18 A personal action for debt or breach of contract would still be available to the lienee, however. 19 Wati v Nand [1997] FJHC 180 & 181; (1997) 43 FLR 289. 20 It would seem that such a lien may be assigned, see Patel v Badal (1943) 3 FLR 322.

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court found not only that the French law was applicable, but also that the lien made the plaintiff a secured creditor.21 Another form of lien found in the South Pacific region, although not unique to it at all, is the maritime lien. This form of lien is particularly useful in a region where ships can move from one jurisdiction to another with relative ease, leaving behind them unpaid bills (and sometimes unpaid crew) in ports of call. Historically, actions against ships and claims in matters related to ships – whether they were registered in the jurisdiction of the court or not – were matters of admiralty jurisdiction, for which there were special courts of admiralty in England. Today, the supreme courts of island countries of the South Pacific generally have this jurisdiction, which may cover not only ships but also aircraft.22 Admiralty jurisdiction includes consideration of personal actions and property actions; however, it is not always clear in the region whether this extends to the enforcement of liens. For example, in the case of Federal Business Development Bank v SS Thorfinn, Seaward Holdings Ltd and Seaward Holdings (Micronesia) Ltd,23 it was held by the Supreme Court of the Federated States of Micronesia that the court did not have jurisdiction to enforce mortgages secured over the ship. It was not disputed that the Supreme Court had admiralty jurisdiction, but it was argued that, following the United States, on which this jurisdiction was modelled, the range of maritime liens to which this applied was limited and did not extend to ships’ mortgages.24 Although legislation in other jurisdictions had been passed which enlarged admiralty jurisdiction in order to provide security for financiers of the shipping industry, it was held that similar policy considerations did not apply in the Federated States of Micronesia. There was no comparable shipping industry which required admiralty protection, and it was inappropriate to select parts of statutes from elsewhere to develop the common law of the Federated States of Micronesia. The case went to appeal, with the focus being not on a lien but on a ship’s mortgage. The appeal court suggested first that the American line of reasoning that had been raised in argument: (1) was shaped by unique historical factors not relevant to the FSM; (2) was widely and persuasively criticized by commentators; and (3) was not specifically recognized or even alluded to by the framers of the FSM Constitution.

The court reached the decision that the (FSM) Court had jurisdiction over ‘all cases which are maritime in nature’, which included ships’ mortgages.25 This is a broader approach than that found in Fiji, for example, where it has been held that there are

21 Civil Case No 98 of 1983 [1980–94] 1 Van LR 116. French law in force at the time of independence remains a valid source of law in so far as it has not been repealed or replaced and is not inconsistent with the laws of the country. French sources of law are rarely argued in front of the courts today owing to the lack of lawyers familiar with French Law. 22 See, eg, the Western Pacific (Courts) Order in Council 1961, Order 31, which conferred admiralty jurisdictions on those courts falling under the order. 23 Civil Action No 1989-1016 (unreported) www.vanuatu.usp.ac.fj/paclawmat/ Micronesia_cases. 24 This line of reasoning was traced back to an 1854 case: Bogart v The John Jay 58 US (17 How) 399. 25 [1989] FMKSC 8; [1990] FMKSC 20, Appeal Case No T2-1989. The case has an interesting review of the conflicting approaches to maritime and admiralty law in common law jurisdictions and some pertinent comments regarding the needs of the South Pacific.

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limited categories of claim which give rise to a lien.26 These are: salvage, collision, seaman’s wages, bottomry,27 master’s wages and master’s disbursements. Once a lien is found then there is a right to arrest the ship, or a sister ship of the same shipping company.28 The exercise of the lien therefore provides the way to a remedy in certain circumstances.29 The advantage for the holder of the lien is that it attaches to the ship regardless of who is the owner or who has possession of the ship.30 Although a maritime lien may not always be available,31 legislation may confer jurisdiction to permit a court to issue warrants of arrest against ships.32 One of the issues that arises with liens is whether they take priority over other charges, or place a creditor in a preferential position. Clearly, where a creditor has a lien then he or she will be preferred over unsecured creditors; however, where the lien is registrable and has not been registered, but other charges have been registered, then the lien ranks below such registered charges.33 This may particularly be a problem with equitable liens where there is not possession and where a bona fide purchaser will take the property subject to the lien free of that lien if the purchaser has no notice of the lien’s existence.

4.1.2 Mortgages As has been indicated in Chapters 1 and 3, a mortgage is a device for using land or goods as security for the advancement of money. The money raised by the mortgage is often used for the initial purchase of the land or goods. At the outset a mortgage was the outright transfer of title from the borrower to the lender,34 or the grant of a lease over the property in favour of the lender. Title would be restored to the borrower only on the repayment of the loan. The borrower is called the mortgagor; the lender, the mortgagee. Historically, the common law favoured the lender. For example, if repayment was even a day late, the mortgagor would lose the land. In some countries a mortgage is still regarded by the law as a conveyance of an interest in land;35 26 See Donald Pickering and Sons Enterprises Ltd v Karim’s Ltd [1997] FJHC 20. 27 As indicated in Chapter 1, ‘bottomry’ is the cost incurred in fitting out the ship with necessaries so that it can go to sea. The term refers to the claim made by the supplier to the hull and keel of the ship if the costs are not paid. 28 This principle flows from the dictum of Sir John Jervis in the English case of Harmer v Bell (1850) 83 RR 43 at 55: ‘a maritime lien is the foundation of the proceedings in rem’ (13 ER 884). 29 See Chapter 11. 30 An unsecured creditor may apply for an action in rem but the ship will have to be in the possession of the debtor. Such an action is available under Admiralty jurisdiction and was used in the case of The Cella (1888) 13 PD 82. Often the issue is what is the Admiralty jurisdiction of the high courts of islands countries of the South Pacific? 31 Eg, in the Fiji case of Wasawasa Fisheries Ltd v Karim’s Ltd No 1 [1998] FJHC 20, the ship had been arrested under powers conferred under the Administration of Justice Act 1956, s 1, however, the circumstances as revealed in the case made it debatable as to whether or not there was a lien over the ship. 32 For a review of maritime liens and other related actions see the Fiji case of The Captain and Crew of the Vessel MV Voseleai v The Owners of the Ship MV Voseleai [1994] FJHC 4. 33 See, eg, the case of Re Welsh Irish Ferries Ltd [1986] 1 Ch 471. 34 See, eg, the provisions in the Land Act Cap 132 (Tonga), s 96, which states that a mortgage ‘shall mean a transfer of land as security for a debt effected as provided in this Act’. In the case of a mortgage over a lease, the mortgage is regarded as an assignment of the lease. See also Niue where s 76 Law of Property Act 1952 (NZ) applies. 35 Eg, s 96 Land Act Cap 132 (Tonga) and s 5 Native Lands Act Cap 61 (Kiribati).

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elsewhere it operates as a security or charge over land, and is still referred to as a mortgage, but title is no longer transferred outright.36 The effect of a mortgage where it operates as a conveyance of land or transfer of other property, is to transfer ownership of that land or property to the lender while possession remains with the borrower. A mortgage, whether by way or conveyance or a charge, is an enforceable security and may be used for goods or land. It is also possible to have a mortgage over present and future property. This is not uncommon with company assets, when it is known as a ‘floating charge’.37 In the case of land, a mortgage may be over freehold or leasehold land. A mortgage confers considerable rights on the mortgagee (the lender), the most important being the right of the mortgagee to come into possession of the mortgaged property on the default by the mortgagor of the terms of the mortgage. Where a mortgagor defaults on the repayments of the loan the mortgagee has the right to foreclose on the loan. Nowadays some of the potential harshness of the common law of mortgage has been modified by the intervention of equity. For example, under common law, where the mortgagor paid off the mortgage debt but the mortgagee held title to the land, there was no right, on the part of the mortgagor, to redeem the property. Equity intervened in two respects. First, to imply a term into the contract of mortgage that the mortgagee will convey the mortgaged property back to the mortgagor once the mortgage debt is paid and, secondly, the mortgagor has a right to redeem the property, provided the loan is discharged, even if the contractual date of repayment has passed.38 This is known as the ‘equitable right to redeem’, which could come into effect only once the legal date had passed.39 Also, equity will not allow a contract of loan which impedes this right to redeem the property to be enforced.40 Nor will equity allow the mortgagee to claim more than the sum owed under the loan plus approved rates of interest. To balance this more liberal approach, the mortgagee may apply to the court to ‘foreclose’ the loan and thereby bring the equitable right to an end.41

36 See, eg, the provisions of s 3 of the Land Transfer Act Cap 131(Fiji), which states: ‘A mortgage registered in accordance with this Act shall have effect as a security, but shall not operate as a transfer of the land, or of the estate or interest therein, charged.’ See also s 63 Land Registration Act Cap 191 (Papua New Guinea) and s 51(3) of the Land Leases Act Cap 163 (Vanuatu). 37 See, eg, Re Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284 in which the requirements for a ‘floating charge’ are set out. 38 Salt v Marquess of Northampton [1982] AC 1. So as not to totally defeat the mortgagee’s right to foreclose on the mortgage loan – once the date for payment was past – and retain the land rather than the debt, equity allowed the mortgagee to apply to the court for foreclosure – Carter v Wake (1877) 4 Ch D 605. 39 In some jurisdictions reference to this is incorporated into statute; see, eg, s 5(3) Native Lands Act Cap 61 (Kiribati) which states: Title to land acquired by the National Loans Board as security for moneys lent for the development of that land shall not be or become absolute until the transferor or assignor of that land shall have forfeited or lost the equity of redemption of his title to that land at the time of acquisition by the National Loans Board whose title shall also be voidable if an equity of redemption, however described, is not reserved at the time of acquisition. 40 Equity will not allow the contract to impose ‘clogs’ or ‘fetters’ on the mortgagor’s equity of redemption, however, the mortgagee may draw up a mortgage so as to confer on himself a collateral advantage provided this is not unconscionable or repressive – Santley v Wilde [1899] 2 Ch 474. In some jurisdictions of the South Pacific region, legislation will seek to ensure fair bargaining; elsewhere the operation of equity will still be needed. 41 See, eg, provision under s 73 of the Land Transfer Act Cap 131 (Fiji), which allows for an application for foreclosure if the default continues for six months.

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During the mortgage the mortgagor has an interest in land known as the ‘equity of redemption’. This is a property right that can be transferred to others like any other property right. It arises at the moment that the mortgage is made. It includes the equitable right to redeem the property free from the mortgage, but also the right to deal with any part of the property unaffected by the mortgage, in any lawful way. In island countries of the South Pacific, a mortgage is generally made by way of a deed registered as a charge against the property.42 If a mortgage is not registered then it may be unprotected against other claimants. Once the mortgage is paid off, the register should be altered to reflect that fact. Also, if registration is one of the formalities for a legal mortgage and the mortgage is not properly registered, the mortgage will not be legal, but may still be equitable if there is sufficient evidence in writing, part performance or deposit of the title deeds with the mortgagee. It is legally possible to have more than one mortgage registered against the same property. The mortgage that is registered first takes priority over subsequent mortgages. It is usual practice for the mortgagee also to take custody of the documents of title relating to the property, as an additional safeguard against the mortgagor seeking to deal with the property without the knowledge of the mortgagee. It is very difficult to secure a mortgage against custom-owned land, not only because of the difficulty of establishing who is to be the mortgagor – because of the communal nature of ownership of much customary land – but also because of the effect foreclosure would have on the land. The mortgagee has the right to take possession of the land and sell it. This would alienate the land from the custom owners. Where the mortgagee is a bank it is likely that the bank is not regarded as an indigenous or ‘native’ person, and this may mean that the bank cannot own the land. The bank must therefore find a buyer, and it is not always either an easy or a financially attractive proposition for strangers to take over customary land, especially where there are hostile debtors – the former mortgagors – in the area. There is also the difficulty in many parts of the South Pacific region that land held under customary land tenure is not registered, and boundaries may be uncertain.43 Thus registering a mortgage against the land presents certain practical difficulties. It is much more common, therefore, to find mortgages being used in the case of freehold or, predominantly, leasehold land. Indeed there may be the temptation to create leases over customary land in order to raise finance, either for the development of the land itself or for other projects requiring an injection of cash. In some jurisdictions, such as Samoa, mortgages over customary land are simply prohibited.44 Elsewhere where ‘alienation’ includes mortgage, such alienation may be permitted only to the State or Crown, or to indigenous people, or the power to mortgage land may be severely

42 See, eg, s 163 Land and Titles Act Cap 133 (Solomon Islands), s 63 Lands Transfer Act Cap 131 (Fiji), s 51 Land Leases Act (Vanuatu), and s 63 Land Registration Act Cap 191 (Papua New Guinea). On Papua New Guinea see also Amankwah, HA, Mugambwa, JT and Muroa, G, Land Law in Papua New Guinea, 2001, Sydney: LBC Information Services, pp 173–93. 43 For comment on some of the difficulties in the context of Papua New Guinea, see Hulme, D, ‘Credit, Land Registration and Development: Implications of the Lease-Leaseback System’ (1983) 1 Melanesian Law Journal 91. 44 In Samoa, where the Constitution states that no alienation of customary land is permitted ‘whether by way of sale, mortgage or otherwise howsoever’ – s 102.

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restricted.45 Where mortgages over land held under customary land tenure are permitted, then the consent of the appropriate Minister may be required.46 This may also be the case with other forms of tenure. For example, in the case of allotments in Tonga – which are granted to every male Tongan over 16 – a mortgage may be taken over an allotment, provided the Minister has approved it.47 Similarly, with the approval of the Minister, the holder of an hereditary estate may grant a mortgage over it.48 As indicated, mortgages may be legal or equitable. A legal mortgage of land must be by deed. A legal mortgage of a person’s legal interest in property other than land may be in writing or oral. Where a person has only an equitable interest in the property then the mortgage must be equitable. If a person mortgages an equitable interest then that must be in writing. Where a mortgage of chattels is required by legislation to be in writing, for example, under legislation relating to bills of sale, it may also require registration.49 A mortgage may also be equitable where a legal mortgage is attempted but fails for some reason – often because of non-compliance with formalities.50 An equitable mortgage will also arise (unless legislation provides otherwise) by the deposit of the title deeds to the property coupled with the intention that the depositee should hold these as security for the mortgage.51 Legal mortgages will take priority over equitable mortgages,52 and equitable mortgages will be ranked according to which was created first or which was registered first, if registration is a requirement for enforcement of the mortgage. A mortgage is discharged by the payment of moneys secured by the mortgage, the sale of the mortgaged property under the mortgagee’s powers of sale, by foreclosure, or by merger of the mortgagor and mortgagee.53

45 Eg, in Niue, ‘alienation’ includes mortgage under the Niue Amendment Act 1968, No 2, Act 132 of 1968 (NZ) and alienation is prohibited except to the State – ss 2, 24. Similarly in Tokelau, s 22 of the Tokelau Amendment Act 194, provides that any alienation, including a mortgage to anyone other than the Crown or a Tokelauan, is prohibited. 46 In the Marshall Islands approval must be given by the traditional chiefs, the Iroijlaplap, Iroikedrik, Alap and the Senior Dri Jerbal of the land – Art X, s 1, Constitution of the Marshall Islands. 47 S 100 Land Act Cap 132. The mortgage may not be for more than 30 years and must be for improvements to the allotment. It is notable that a widow, who has the right to remain on her deceased husband’s allotment for her lifetime, may not take out a mortgage. 48 S 101 Land Act Cap 132. Hereditary estates are part of the feudal land-holding structure of Tonga under which all land is vested in the King who in turn makes grants of land to a limited number of hereditary nobles. The rest of the Tongan populace are commoners dependent on grants of land in the form of tax and town allotments, which can by law only be granted to male Tongans, and which for the last two decades have been unable to be granted due to lack of available land. 49 See, eg, s 7 Bills of Sale Act Cap 225 (Fiji), s 5 Bills of Sale Ordinance Cap 4 (Kiribati) and s 5 Bills of Sale Act Cap 57 (Tuvalu). 50 This is based on the equitable maxim that ‘equity looks on that as done which ought to be done’, however, the transaction will normally have to be in writing or evidenced by writing or there will have to be part performance – see, eg, in English law, s 40 Law of Property Act 1925 (UK). 51 This form of mortgage is discussed in the Tongan case of Alatini v LDS Church [1990] Tonga LR 1 at 4. 52 See Northern Counties of England Fire Insurance Company v Whipp (1884) 16 Ch D 482. 53 On mortgage see also Chapter 8 on Alienation of Property.

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MESNE PROFITS AND PROFITS À PRENDRE

Mesne profits and profits à prendre are benefits which may be taken from the land either by the owner of the land, or by the person in possession of the land who is not the owner, or by others who are not in possession of the land but have the right to come onto the land to take benefits. These interests may be legal and therefore binding on subsequent owners of the land.

4.2.1 Mesne profits Mesne profits refer to land. Originally these referred to the rents or services owed by a tenant to the person who had granted him the use of the land.54 Today in the English legal system the principle prevails that land is held directly from the Crown,55 so that each successor in title steps into the shoes of the grantor of that title.56 Although the concept of mesne lords has long disappeared, the idea of mesne profits survives and represents a right of an owner of land to claim for the value of the use and occupation of land when he has been wrongfully denied these benefits – usually by a trespasser.57 The notion of mesne profits was introduced into island countries of the South Pacific through the common law, and claims for these are found in the region and are discussed further under remedies, in Chapter 11.

4.2.2 Profits à prendre These are also rights relating to land, and refer to the right to take something from the land of another, for example, timber, gravel or natural produce. In island countries of the South Pacific, equivalent rights have long existed as customary grants of usufruct or as secondary rights, which owners of land may grant either in perpetuity or for certain periods of time to others, for example, the right to come onto land to collect fallen coconuts, to take firewood or to cut building materials. In common law and in custom it is not necessary for the holders of the profits to have land themselves. Even if they do have land, the profit need not be of any benefit to the land.58 It is therefore a

54 The term and the rights it represents are feudal in origin and go back to the hierarchical structure of land holding introduced in England in the mid-12th century. The pattern of land holding rested on the foundation that title to all land was vested in the King, who in turn granted tenure of the land to his nobles in return for their loyalty and support as well as their services. They in turn granted tenures to others – again in return for loyalty, support and services. Gradually services such as military services or the provision of food, equipment and animals such as cattle and horses, changed into the payment of money – rents. Those who granted tenures to others were called ‘mesne lords’ and were entitled to ‘mesne profits’. 55 For further discussion of this concept see Chapter 7. 56 This process began in 1290 in England with the passing of the statute of Quia Emptores and continued through to 1925 when a number of major land reforms were introduced in the Law of Property Act 1925 (UK). 57 In some cases it is not immediately apparent that the defendant is a trespasser but becomes one once an order of possession or a writ of ejectment is sought by the owner and the occupant does not leave the land. 58 If it does benefit the land then it is called a ‘profit appurtenant’ and must satisfy the same criteria as an easement – see below. If it is not for the benefit of land then it is referred to as a ‘profit in gross’ and may be unlimited in terms of the grant so that the grantee or holder of the profit may exclude the landowner from enjoying the subject matter of the profit. Eg, the holder of the profit may take all the fish or all the game.

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personal profit to the holder.59 In common law, the right of a profit à prendre is an incorporeal right and attaches to the burdened land. The consequence of this is that if the land is transferred to another, the burden of the profit passes to the new title holder. In common law, in order for something to be a profit à prendre, the thing to be taken must be capable of ownership. Thus, although wild animals are not owned, they can be owned once captured or killed. So, a right to hunt or fish can be granted as a profit à prendre; however, the right to take running water cannot be a profit, as running water is incapable of being owned, so, for example, the right to take animals to drink at a stream on someone else’s land would be a licence, not a profit. A profit may be held exclusively by one person, or may be held in common by a number of persons. If the profit is held by one person exclusively, this is known as a ‘several profit’. If it is held by a number together it is a ‘profit in common’. The more usual profits found in English common law are those of pasture, estover (the right to collect fuel for fires), piscary (the right to catch and take away fish), venery (hunting), auceptary (fowling – the right to take birds), shooting, and the right to take profits from the soil – such as sand, gravel, coal or minerals (other than those owned by the Crown). In common law a profit could not be held by a fluctuating body of people because, first, such a body was regarded as not being capable of being a grantee and, secondly, there was a danger that the extent of the profit would be unknown and possibly uncontrollable, so that the owner of the land might be left with nothing – which would undermine the very concept of ownership of land. In island countries of the South Pacific, however, it is not unusual to find rights which appear to be similar to profits persisting over a long time and being exercised by a body of people openly as a right. This is not the only difficulty with the concept of profits à prendre as applied in island countries of the South Pacific. In English law, profits à prendre are legal interests in land, provided they are held for a period of time equivalent to one of the two legal estates recognised since 1925 (that is, indefinitely as in the case of freehold, or for a certain period of years as required under a leasehold) and are created by statute, deed or by prescription.60 Grants of profits à prendre not meeting these criteria can only be equitable. The usual way of creating profits à prendre in English common law is either by way of statute, 61 by an express grant 62 or reservation in a deed, 63 or by

59 This is distinguishable from an easement where there is a requirement – at least in common law – that for a private easement to exist, it must benefit another parcel of land – the dominant tenement (see 4.3). 60 S 1(2) Law of Property Act 1925 (UK). 61 Primarily s 62 of the Law of Property Act 1925 (UK), which includes in a conveyance all rights and privileges attaching to land, even if the details of these are not express. The effect of this section can be to elevate precarious or equitable rights to legal rights. To avoid the effect of s 62 any contrary intention must be expressly stated at the time of conveyance. See also s 47 of the Law of Property Act 1952 (NZ). 62 See, eg, s 49 Land Transfer Act Cap 131 (Fiji). 63 A reservation is where the owner of land reserves certain rights on the transfer of any land or part thereof to another. Prior to 1925 this was done by way of excepting certain rights from the grant of land.

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prescription.64 Under the Prescription Act 1832 (UK), profits can be acquired after either 30 years’ or 60 years’ uninterrupted enjoyment.65 The different time periods refer to slightly different circumstances. In the first instance the right claimed cannot be defeated solely by the fact that there is proof that the profit commenced after ‘time immemorial’ (1189). The longer period confers an absolute and indefeasible right on the claimant, provided there is no interruption. There is reference to profits in the legislation of the region,66 and a number of the profits mentioned above are similar to interests found over land held under customary land tenure, which represents about 80% of the land holding in island countries of the South Pacific. However, land tenure under customary law does not conform with common law criteria for profits à prendre, and so these customary rights are probably better described as usufructuary or secondary rights. Nevertheless, the concept of profits is useful in the South Pacific region in circumstances where leases are granted over customary land, because it is possible to reserve certain rights to the customary landowners for the duration of the lease.67 A profit will be brought to an end either where there is unity of ownership of the land subject to the profit and the possession of the profit,68 by statute,69 by express release in a deed, impliedly by abandonment, surrender or alteration of the land which makes it impossible to exercise the right to the profit,70 or other evidence that implies an intention to terminate the right. It is also possible to vary a profit provided the consent of all those involved is obtained.71 Where a profit is infringed, for example, the right to pasture animals is prevented by fencing, then the remedy will be abatement – which is a self-help remedy72 – or by bringing an action for damages or an injunction, or both. Because the holder of a profit à prendre has an interest in possession, the holder may bring an action against the grantor of the profit, or a successor in title, or a third party.73 Potentially this is a very useful action where the enjoyment of the profit has been infringed by, for example, pollution by a third party, and one that could be applied to effect in the South Pacific

64 Rights can be acquired over a period of time. The relevant period of time depends on whether one is claiming prescription under common law, which in theory means ‘from time immemorial’ (or at least from 1189, according to the Statute of Westminster 1, 1275, or more recently 20 years (Darling v Clue (1864) 4 F & F 329)); under the doctrine of ‘lost modern grant’ – Dalton v Angus & Co (1881) 6 App Cas 740 – whereby it is presumed that the right was granted sometime after 1189 but before the claim under consideration, but the grant has been lost; or under statute, for example, the Prescription Act 1832 (UK). For further discussion on acquisition via prescription see Chapter 7. 65 S 1. 66 See, eg, ss 2 and 181 Land and Titles Act Cap 133 (Solomon Islands) and s 17 Land Leases Act Cap 163 (Vanuatu). 67 See, eg, s 181 Land and Titles Act Cap 133 (Solomon Islands). 68 Eg, if a holder of a right to hunt over the land of another then buys the land, the right to hunt becomes an ordinary right of ownership. 69 Eg, where minerals or the right to mine are claimed by the State. 70 Eg, by building over pasture land, clearing trees or filling in a fish pond. 71 See, eg, s 52 of the Land Transfer Act Cap 131 (Fiji). 72 See Chapter 11. 73 Nichols v Ely Beet Sugar Factory Ltd (No 1) [1931] 2 Ch 84.

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region, especially where traditional profits may be threatened by more modern developments in land use.

4.3

EASEMENTS

An easement is a right held by one person over the land of another.74 Such rights are incorporeal property rights and attach to the land just as profits attach to the land.75 In most instances, if the land is sold or transferred to a third party, the new owner takes the land subject to the easement. The need for easements increases the greater the pressure on land and resources. The benefits of rights of way and rights to light, air and water all become more important when an increasing number of people start to occupy a limited area and when different and sometimes competing uses of land develop. Easements are regarded as being part of the land or encumbrances on the land.76 In order for an easement to arise, certain criteria must be satisfied.77 First, an easement requires two parcels or plots of land. The term used for these in English common law is ‘tenement’. One of these is called the ‘dominant tenement’. This is the piece of land that benefits from the easement. The other piece of land is referred to as the ‘servient tenement’. This piece of land bears the burden of the easement. For example, a right of way may be an easement. If there is a right of way to B’s land across A’s land, then B’s land benefits, and is the dominant tenement, while A’s land bears the burden of the right of way and is the servient tenement. These two parcels of land need not be side by side, but must be sufficiently close to one another for there to be a relationship of benefit and burden. Secondly, the two parcels of land must be owned or occupied by different people.78 Thirdly, the easement must benefit the land in some way and not merely be for the personal convenience or benefit of an individual owner or occupier of the land. Lastly, the easement claimed must be a right that is capable of being recognised as an easement. Because the existence of an easement can have serious consequences for both parcels of land, the law has always adopted a cautious approach to what rights it will recognise as easements. Usually, in order to claim an easement, it must be shown that it is the type of right which has been previously recognised by the courts – although new rights are from time to time acknowledged.79 There must also be a capable grantor and grantee of the easement 74 An easement is different from natural rights, which are protected by the law of the tort of nuisance, and restrictive covenants. 75 The property interest is a ‘real right’ and therefore enforceable against the world as a legal right but it is invisible, hence ‘incorporeal’. Easements are sometimes referred to by the very old-fashioned terminology ‘incorporeal hereditaments’. 76 Throughout the South Pacific region immovable property, ie, land, includes easements. See, eg, the Interpretation and General Provisions Acts: Cap 7 (Fiji); Cap 85 (Solomon Islands); Cap 1A (Tuvalu); Cap 132 (Vanuatu). 77 The leading English case in which these were summed up – although they had been developed some time before – was Re Ellenborough Park [1956] Ch 131. 78 It is not possible for a person to have an easement over their own land, but if the land is leased to another then there would be separation of ownership and occupation, for the tenant would be in possession and occupation and the landlord the owner – Borman v Griffith [1930] 1 Ch 493. 79 The most usual easements are rights of way and rights to light, to water and to support. It has been held that there is no easement to a view – Brown v Flower [1911] 1 Ch 219; nor to protection from the weather by an adjacent building – Phipps v Pears [1956] Ch 131.

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and the easement must be certain, that is, it must not be vague or ill-defined. In common law a fluctuating body of persons is not capable of being the grantee of an easement; however, it seems that they may acquire a quasi-easement.80 These rights – which may be regarded as common law customary rights – do not require those enjoying the right to have their own parcels of land as dominant tenements. They are exercisable by members of a community – for example, a village or parish. As such, they offer a useful model for island countries of the South Pacific. If the type of right claimed is so excessive as to exclude the owner of the servient tenement from exercising rights over the land then the right cannot be an easement.81 Similarly, if the enjoyment of the easement requires expenditure by the servient tenement, it will not be an easement. 82 Where one or more of the essential characteristics of an easement is missing then the right will not be an easement but may be a licence, or a profit à prendre or a covenant. An easement may be created in a number of different ways. First, it may arise by way of a grant by the servient landowner to the dominant landowner.83 Such a grant may be express, for example in a deed, or arise impliedly.84 Secondly, an easement may arise by way of reservation when land is developed. For example, in island countries of the South Pacific, where land under customary ownership is leased, a right of way across it may be reserved by the custom owners granting the lease, so that they can still access vegetable gardens, or reefs or burial sites. An easement created by reservation must usually be done expressly, and may require registration to be effective.85 However, where the easement arises by necessity – as with a right of way for land-locked land, drainage or lateral support of land – it may arise impliedly. Thirdly, an easement may arise under prescription and, fourthly, by way of statute.86 Easements may be legal or equitable. In order to be legal they must be created by deed, by statute or by prescription and exist for a period of time which is equivalent either to a freehold estate – quite rare in island countries of the South Pacific – or a leasehold estate.87 It is possible that the grant of an easement will be indefinite, just as the grant of freehold will continue as long as there are successors in title. This matter has been considered in the Federated States of Micronesia, where the Constitution prohibits indefinite grants of land; however, the court has held that the purpose of the

80 Eg, the right of local worshippers to use a path across a farmer’s fields to get to a church – Brocklebank v Thompson [1903] 2 Ch 344. 81 Copeland v Greenhalf [1952] Ch 194. 82 The only exception to this may be an obligation to fence land to keep cattle out – Lawrence v Jenkins (1873) LR 8 QB 274. Today this would be more likely to be a positive covenant. 83 Indeed there is a presumption in law that any right that exists as an easement is capable of being granted by deed, even if in fact it has arisen in other ways, such as long usage over a period of time. The legal fiction is that such an easement was once granted, but the details of the grant have been lost. 84 Eg, if this is the common intention of the parties but not expressed in the conveyance. If the easement is to be implied in favour of the grantor – by way of reservation – the burden of proof is on the grantor. It is easier to imply an easement in favour of the grantee. 85 Nandan v Datt [1984] FJCA 1. 86 For a case summarising and reviewing these forms of creating an easement see Fongs Holding Ltd v Hariman Ltd [1996] FJHC 71. 87 Maximum periods of time for leases are determined by statute and vary from country to country within the South Pacific region.

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constitutional provision was to prevent indefinite grants of land under lease, not to prohibit easements which may be valid for an indefinite period.88 Rights created under statute are increasingly common in island countries of the South Pacific, especially as access to utilities increases and as land is developed in different ways.89 In some jurisdictions, compliance with certain statutory formalities will be necessary for an easement to be legal. For example, under the Land Transfer Act, Fiji, an easement must be registered in order to be legal. Thus where an encumbrance is not noted on the register, the person acquiring land which is claimed to be burdened by an easement takes free of that encumbrance.90 However, where the easement is not legal due to some non-compliance with formalities, it may nevertheless be held to be an equitable easement. This was approved in the Fijian case of Fongs Holding Ltd v Hariman Ltd and Suva City Council,91 in which Justice Fatiaki cited the case of Ba Town Council v Becharbhai Holdings Ltd, in which Holland JA stated: In Fiji as in New Zealand an easement over land under the Land Transfer Act can only be created by easement certificate procedure under Section 159 or by way of formal memorandum of transfer, however, a registered proprietor can create an equitable easement in favour of another or others as was demonstrated in Carpet Import Co Ltd v Beat & Co Ltd [1927] NZLR 37.92

Although it may be necessary to protect an easement by registration, where the register is silent about an easement, the court may still uphold the easement if it appears that the registered entry was made fraudulently in order to defeat a claim to an easement.93 Easements may also be acquired by prescription.94 In order to arise in this way the easement must have been exercised without permission or grant, without force and without secrecy (in other words, openly) for the requisite period of time.95 Where the easement arises as a result of permission or licence, this form of acquisition will not apply.96 Similarly, if the period of time established by statute for prescription is not complied with the easement will not be acquired. The enjoyment of the easement must also be continuous, although this does not mean that the easement must have been used every day, provided it has been used regularly rather than merely

88 Nena v Kosrae State, Civil Action No 18–85 [1988] FMKSC 3. The decision was given by Chief Justice Skilling in 1990 and refers to s 5 of Article XIII of the Constitution. 89 See, eg, the Strata Titles Act No 29 of 2000 (Vanuatu), ss 6 and 8. 90 See, eg, Prince Vyas Lakshman & Veena Devi Lakshman v The Trustees of Sanatan Dharam and Others (1989) 35 FLR 164 (upheld on appeal in part (1992) 38 FLR 42). 91 Fongs Holdings Ltd v Hariman and Suva City Council [1996] FJHC 71. 92 Civil Appeal No 112 of 1985 (unreported) Court of Appeal at p 6. 93 This was found to be the case in Ram Nandan v Shiu Datt [1984] FJCA 1, where land locked land had been registered without mention of the access to the land. 94 This has been challenged in the South Pacific region on the grounds that the grant of an indefinite interest in land is contrary to custom or constitutional provisions. In the case of Nena v Kosrae State, Civil Action No 18-85 [1988] FMKSC 3, it was held that the mischief contemplated in the Constitution related to leases not easements, and that it was possibly to have indefinite use of an easement – ie, equivalent to a grant in fee simple in English common law. 95 See n 63. 96 See Palik v Kosrae State Civil Action No 17-90 [1991] FMKSC 2.

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occasionally. There is a presumption that the person exercising the easement is doing so as a result of a lost grant, either from long user – which in English common law dated back to 1189 – or lost modern grant – or 20 years’ use. It is therefore presumed that the person benefiting from the easement does so ‘as of right’, and that the servient tenement has not opposed this. In the South Pacific region, the acquisition of easements by prescription has some significance. Although it may not be possible to apply the common law idea of past grant going back to 1189, because a presumption of long user can be defeated if it can be shown that a particular user could not possibly have been exercised or enjoyed at all times since 1189 (for example, because there has been unity of the two required tenements in that time), the idea of lost modern grant – which recognises the difficulty of proving user dating back to 1189 – could apply. Under the lost modern grant doctrine it is only necessary to claim that there has been a grant – now lost – at some time after 1189 but at least 20 years ago. This common law doctrine of prescriptive acquisition would seem to have survived legislation such as the Prescription Act 1832 (UK), so that even if it is argued that title to land cannot be acquired by prescription, rights to easements may be so acquired.97 In common law it is possible for easements to arise in situations where one plot of land becomes subdivided and a right which had been enjoyed by the owner of the unified plot becomes an easement on subdivision. This is known as the rule in Wheeldon v Burrows.98 The principle is that the grantee will acquire a right to what had previously been a ‘quasi-easement’, provided such a right was exercised continuously and apparently, or was reasonably necessary to the enjoyment of the land, and the right had been exercised by the grantor – prior to the grant – for the benefit of the land which was now granted.99 Often this type of easement will arise when the grantor retains part of the land and sells off a part by way of subdivision. Here, the vendor of the land may expressly reserve a right over the sold land. The principle can also apply where the land is conveyed to two new owners. The types of easements that may arise in this way could be rights of way, easements of parking or storage, easements of light or support. Rights that were not easements may become easements under s 62 of the Law of Property Act 1925 (UK). This legislation – which may be regarded as a law of general application, except where provided otherwise – elevates ‘liberties … privileges, easements, rights and advantages’ into rights in land which are transferred to the purchaser on conveyance of the land, provided they were enjoyed by the grantor prior to the conveyance and are capable of being the subject of an easement.100 Similar

97 See further Chapter 7 on Acquisition of Property. 98 (1879) 12 Ch D 31. The principles established in this case are part of the law of the region as being the principles of common law and equity in force at independence – except in so far as these may be incompatible with the context or custom of any particular country or overtaken by national legislation – see Introduction. 99 The term ‘quasi-easements’ is used because such rights were incapable of being full easements due to the lack of two separate parcels of land until sub-division. The sort of rights that might be included under this rule would be rights of drainage across land, rights of light, rights of support, or a right of way or a track which had been used to access that part of the land. 100 The criterion of an easement, that it must capable of being granted, must be met. Also, there should be no contrary intention in the conveyance. If certain rights are conveyed in error then the equitable remedy of rectification of the contract may be applied.

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provision is found in the Law of Property Act 1952, New Zealand, which applies in the Cook Islands and Samoa.101 An easement will end either when the two parcels of land are merged, or the owner and occupier of both tenements becomes one; by release under a deed, by statute or impliedly, whereby the dominant owner releases the servient tenement from the burden of the easement; or by abandonment, for example, non-user over a long period of time, evidence of intention to abandon the right, or altering the dominant tenement so that the right can no longer be used or is no longer applicable. For example, an easement of right of way by necessity may no longer be necessary if a new road is made.102 However, the courts, at least in England, appear to be reluctant to hold that an easement has ended due to frustration, change of circumstance, or even non-user over a long period of time. Another form of easement that is encountered in the South Pacific region is that of public easements. In common law these arise either by dedication and grant, or under statute. In island countries of the South Pacific they are more likely to arise under custom or statute. For example, public access to riverbanks is conferred under s 3 of the Rivers and Streams Act,103 public rights of water navigation and fishing are provided for in Kiribati,104 and public rights of way and easements of water in the Solomon Islands.105

4.4

COVENANTS

Covenants are binding agreements relating to the use and enjoyment of property.106 They are agreements or undertakings to do or not to do something in respect of land.107 As with easements, covenants confer both benefits and burdens. Often, however, the benefit and burden may be shared by a number of people. For example, a covenant that restricts the lighting of fires to burn rubbish imposed on property owners by the local council or government body will inhibit certain types of use of property but also permit everyone to enjoy a smoke-free environment. Covenants may be agreed between individuals, or be imposed as a condition of planning permission and development.108 In the latter case they are not really the result of agreement, as they are decided and imposed by a controlling authority and there is no choice as to whether or not to be bound by them. Although covenants are a feature of introduced law, imposed controls are found in custom, whereby a chief or village council may impose restrictions on levels of noise or, pollution, or the types of use or cultivation which are permissible, and even in some cases the style or size of buildings which 101 102 103 104 105

See s 47 Law of Property Act 1952 (NZ). See, eg, Ellison v Vukicevic (1986) 7 NSWLR 104. Cap 136 (Fiji). Foreshore and Land Reclamation Act Cap 35. Rights of way under the Land and Titles Act Cap 133, Part XVI and water rights under the River Water Act, Cap 135, ss 9–12. 106 See Chapter 6. 107 Chow v Hutaiwao [1997] SBHC 53. 108 Covenants are therefore essentially contractual in origin, although where they are imposed by local planning authorities this may not be immediately apparent. As incorporeal rights covenants can become property rights if they attach to the land – as easements do – and consequently bind third parties, ie, successors in title to the original parties to the covenant.

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may be constructed. Covenants are used extensively in the case of leases, and it is here that they are most likely to be found in island countries of the South Pacific. Leasehold covenants may be unique to the individual contract of lease, may arise under legislation relating to leases,109 or may be implied by the common law, such as covenants to pay the rent, to be allowed quiet enjoyment of the property and to give up possession when required to do so – such as at the end of the lease. Other common leasehold covenants will relate to sub-letting, maintenance and repairs, use and nuisance, access for servicing utilities or for effecting repairs. Examples of statutory covenants can be found in Papua New Guinea, where the Land Registration Act provides that in a lease, covenants to pay the rent and any payable rents and taxes will be implied into the lease against the lessee, as will the covenant that the lessee will keep the premises in ‘a good and tenantable repair’.110 Usually covenants are restrictive in effect, so the benefit to the covenantee lies in the non-activity of the covenantor.111 Occasionally, however, they may be positive, such as a covenant to keep a fence in a state of repair.112 Most of the statute law in island countries of the South Pacific relating to land recognises covenants and imposes little restriction on their creation. The only exceptions may be where the holder of a mortgage, lease or other encumbrance on the land has no notice of a covenant coming into effect after the lease or mortgage has been granted.113 At common law, the main difficulty with covenants has been whether they are binding on successors in title, as these persons are not privy to the original agreement, which is based in contract and therefore creates only personal rights and obligations. Different approaches are taken depending on whether the issue in question relates to the benefit or the burden of the lease and whether the land is leasehold or freehold. In the case of freehold land, the founding principle is that a positive covenant cannot bind anyone except the original parties to it. With restrictive covenants it must first be established that they ‘touch and concern the land’, that is, as with easements, the covenant is for the benefit of the land itself and not just the covenantee. A typical freehold covenant would be not to build more than a specified number of houses on the land, or to use the premises only for residential purposes. The benefit or burden of

109 See, eg, the schedule of covenants to the Short Term Crop Leases Act 1966 (Cook Islands); the Agricultural Landlord and Tenant Act 1967 (Fiji) (s 9(1)); and the Forestry Rights Registration and Timber Harvest Guarantee Act No 28, 2000 (Vanuatu) – which specifically ousts common law and makes all covenants granted in relation to timber rights binding on successors in title. 110 S 51 of the Land Registration Act Cap 191. S 50 also implies into a lease certain powers of the lessor, such as the right of re-entry to inspect the property, and the right to re-enter and take possession of the property if rent is in arrears for six months or more or notices to repair have not been complied with. See similarly ss 147 and 148 of the Land and Titles Act Cap 133 (Solomon Islands) which also imply certain agreements into a lease. 111 The person who makes the promise is the covenantor. The person to whom the promise is made is the covenantee. As the benefits and burdens are often mutual this is not always a very important distinction. For example, a covenant to pay rent benefits the landlord, but it also benefits the tenant who, as long as rent is paid, is entitled to quiet – ie, uninterrupted – enjoyment of the premises. 112 The distinction is not hugely significant as such a covenant could be expressed positively – to keep the fence in repair – or negatively – not to let the fence fall into disrepair. 113 See, eg, s 47 of the Land Transfer Act Fiji Cap 131.

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the covenant can bind successors only if it ‘runs with the land’.114 In order to do that, the covenant has to become a real right, rather than just a personal right. In the case of freehold land, common law and equity had different rules for both the benefit and the burden. In common law the benefit will always run with the land and therefore benefit successors in title, provided that the covenant touches and concerns the land (that is, it relates to the mode of occupation or use of the land), and that at the date of its creation it was intended that the benefit run with the land, and that at the date of the covenant the covenantee had a legal estate in land to be benefited and the successor in title has the same legal estate as the original covenantee (that is, leasehold or freehold). In equity, the answer is that the benefit will run with the land if it touches and concerns the land and does so by virtue of one of the methods laid down by equity. These are: annexation (expressly, impliedly or by statute – whereby the benefit is clearly attached to a particular piece of land); assignment – whereby the benefit is not attached to the land but assigned to a person, the successor in title; under a building scheme – whereby each purchaser is bound by covenants imposed by the original covenantee, often the developer.115 As there are two sides to a covenant, the benefit without the converse burden will be of little use; however, because it is a burden which has originated in contract, there are difficulties which need to be overcome. In common law, as indicated, the burden of a positive covenant cannot run with a freehold estate. There are some exceptions to this rule, but generally the problem is avoided by making covenants negative rather than positive, or granting a lease. Where the covenant is negative or restrictive – which is more common – then the burden may run in law by using a variety of devices. These include the creation of a chain of covenants whereby a purchaser undertakes to indemnify the vendor for any liability incurred as a result of breach of covenant – here the original covenantor remains liable under the original covenant but can sue the successor in title (the purchaser) for any damages. An alternative is the incorporation of a legal rent charge into the conveyance.116 This makes the owner (the new purchaser) liable to pay a sum of money – usually annually – towards repair or service of the building or land to the original covenantor to cover possible expenses.117 It is also possible to include the reservation of a right of entry by the vendor if the purchaser breaches the covenant; or to create a lease, in which case the burden will run provided there is privity of estate. In equity the burden of a restrictive covenant may run with the land, provided that the covenant is a negative one (in substance, not just words) and that there is a

114 The leading common law case on this is Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500. This case held that while there need not be land capable of being burdened there did have to be land capable of bearing the benefit. 115 These covenants are similar for all purchasers of property covered by the building scheme – eg, restrictions on house colours or fencing of front gardens. These restrictions are mutually enforceable between the purchasers of properties covered by the scheme. See the cases of Re Wembley Park Estate Co Ltd Transfer [1968] Ch 491, and Re Spike & Rocca Group Ltd (1980) 107 DLR (3rd) 62. 116 The original parties to the covenant will always remain liable even if they transfer their respective interests to others. 117 These used to be found extensively in English law but many have now been commuted into one lump sum payment. The difficulty is that over a period of time the value of the rent charge diminishes until it become more expensive to administer than it is worth. Annual rent charges are found in leases in the South Pacific Region.

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dominant and servient tenement,118 and that the covenantee (or a predecessor in title) owned land benefited by the covenant at the time the covenant was made and that there was the intention that the covenant should run with the servient land.119 In the case of freehold land, it is therefore possible for the benefit to pass at common law and the burden in equity. With leaseholds, the rules are simpler than in the case of freehold estates. Consequently, it is very common to find both positive and restrictive or negative covenants in leases. These will include covenants to pay the rent, to keep the premises in a good condition, not to sub-let and not to use the premises for certain purposes.120 The parties to the original covenant are bound in contract. In the case of a lease the original parties are the lessor (landlord) and lessee (tenant). The lessor, who may hold the freehold estate or customary title to the land, will retain a reversionary interest in the property.121 Even on assignment of the lease, the original tenant remains liable for the obligations under the lease as long as the period of the lease. This original tenant can in turn sue the assignee because there is an implied indemnity clause under every assignment of lease. Similarly, the original lessor is liable for any breaches perpetrated by him and any assignees. Subsequent landlords and tenants have a relationship based on privity of estate provided they stand in the relationship of landlord and tenant, even though there is no direct privity of contract between them regarding the original covenants. This privity of estate will be based on either the assignment of the lease, or the assignment of the fee simple in reversion (which is the name given to the landlord’s reversionary interest under a lease). In the South Pacific region the dilemma of whether covenants bind successors in title has been removed by statute in some jurisdictions. For example, the Property Law Act of 1952 (NZ), which is applicable in Niue, the Cook Islands and Samoa, states clearly that both the benefit and the burden of a covenant are ‘deemed to be made with the covenantee (covenantor) and his successors in title and the persons deriving title under him or them’.122 A covenant may be altered or extinguished by agreement. Where this is done and the covenant has been registered then the register will have to be altered so as to reflect the change. Usually this will be by way of a notice, or by a memorandum of agreement filed on the register.

118 This means that both the covenantor and the covenantee must have an estate in land and the covenant must be of benefit to one (the dominant) and a burden to the other (servient). 119 The source of these rules is the case of Tulk v Moxhay (1848) 2 Ph 774, 41 ER 1143. 120 Unlike easements the list of possible covenants is not limited and so covenants can be used quite creatively, eg, covenants can be used to maintain the character of an area, eg, by prohibiting noise after a certain time, or requiring tenants to keep the lawns cut. 121 When the period of the lease comes to an end or the lease is terminated for some reason the land reverts to the freeholder or custom owner. In some cases the original grantor of the lease may be the State or its representative such as a Minister. 122 Ss 63 and 64, Part V of the Act. See also s 68(4) of the Land Leases Act Cap 163 (Vanuatu).

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BURIAL RIGHTS

In island countries of the South Pacific, particularly in customary law, links with the ancestors remain important, not only for purposes of oral history but to establish links to land and family sites. Consequently, burial rights, that is, the burial of the corpse, probably have greater significance than in the Western world where people today often move far from the burial sites of their ancestors and indeed will have little need to establish evidence of where their ancestors are buried in order to substantiate land claims.123 In the South Pacific region, however, this remains significant and a number of features are notable: for example, the transport of bodies from the place of death back to the home island of the deceased or, in the case of women, the land of the husband;124 the burial of the dead close to the family house – notably in countries such as Samoa;125 the gifting of property at death – especially traditional property – from mourners to the members of the bereaved family and from the family to mourners;126 the observance of strict social formalities and taboos; the involvement of the extended family and wider community in burial rituals and observances, especially the preparation of food. It should also be noted that in some jurisdictions of island countries of the South Pacific, taking responsibility for the burial rites and expenses will entitle that person to certain property rights,127 or justify a death bed gift.128 Conversely, neglect or refusal to perform the necessary rites or ceremonies may justify the forfeiture or loss of land or title rights. Increasingly, burial rights are being controlled by statute and sites are being set aside for burial, so that burial in unlicensed sites becomes an offence.129 This is particularly the case in urban areas, where population density, land scarcity and public health considerations have led to tighter controls over burial.130 Families may still have responsibilities for the maintenance of burial sites either under custom or by

123 For an indication of the evidential importance of burial sites in the context of land claims see the Solomon Islands case of Buga v Ganifiri [1982] SILR 119. 124 This may be particularly important where a large percentage of the population is living abroad, for example, Cook Islanders are often sent back to the Cook Islands for burial, or indeed return to the Cook Islands at the end of their lives. 125 Visitors to Samoa may be surprised to see tombs constructed very close to the house and sometimes even integrated into the main structure of the house. The resting places of the dead are very much part of the family property and may be used for drying clothes on, sunbathing, or playing. 126 Such gifts include fine mats and tapa cloth as well as foodstuffs for the mourning period, during which many relatives and mourners will need to be fed. 127 Eg, in the Vanuatu case of Esau v Tokon [2002] VUSC 34, the plaintiffs claimed land belonging to the deceased on the basis of an oral agreement by the deceased during his lifetime and the consideration given by the plaintiffs that they had incurred the funeral expenses of the deceased as part of the deal. They sought an order of specific performance to convey the land to them. However, as the deceased died intestate and as the contract relating to land was not in writing, the land passed according to the laws of intestate succession. 128 This is the case in Fiji, and in Kiribati where, although there are strict limitations on the disposition of property by gift, gifts for nursing the deceased in his or her last illness are permitted. 129 See, eg, the Burial and Cremation Act Cap 117 (Fiji). In the Cook Islands burial at sea is prohibited under the Births and Deaths Registration Act 1973 unless authorised in writing by a coroner – s 31. 130 Cap 101 Burial Act (Vanuatu).

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statute.131 Urban dwellers may also choose to send their dead back to their island or place of origin, rather than use municipal burial grounds.

4.6

RITUAL OR SYMBOLIC RIGHTS AND TABOOS

Ritual or symbolic rights include many types of traditional rights to property found in island countries of the South Pacific. Many of these are poorly documented and much information is oral and hearsay. Such rights range from rights to knowledge – such as that held by ‘clevers’ in Fiji, or medicine doctors in Vanuatu, who can perform tricks, foretell signs, practise black magic or make good and bad medicine from natural sources – to the rights of a bride’s parents to receive bride price for their daughter and their obligation to provide her and her new husband with certain gifts. Also included are the rights to wear certain costumes, to participate in certain activities or ceremonies, and the rights to impose ‘taboos’ or sanctions on the use or enjoyment of certain property. These rights are still important in island countries of the South Pacific but rarely have any commercial value in a Western sense, although this is changing in the case of some of the intellectual property of the region. These types of rights are particularly important in the context of social organisation and may determine status, for example, that of a chief or wizard. Holders of certain rights may in turn exert rights or power over other property. For example, a chief may have the right to first fruits, or to impose ‘taboos’ on certain fishing grounds, or to the labour of his people to build him a home. A person who is wise about traditional medicine can sell that medicine, while a person who knows how to weave fine mats can exchange these for other property. Some ritual or symbolic rights are held in high esteem, and for this reason they are valued and sometimes fought over both within and outside the courts. Of particular importance are titles such as that of matai in Samoa, ‘Big Men’ in the Solomon Islands and chiefs elsewhere. In Samoa the matai title holder will be entitled to control the use and distribution of land for his family or village and also be entitled to vote as a matai. Similarly, in Tonga, claims of noble birth entitle a person to succeed to hereditary estates and lift him out of the status of being a commoner. Elsewhere, such as Fiji, the Solomon Islands and Vanuatu, the title of chief or Big Man will confer the right to sit in certain councils and determine the outcome of disputes as well as receive material benefits. Sometimes this customary right and expectation that certain persons will benefit materially from their position can be abused, especially with the use of land for money, and it is increasingly common to hear complaints that chiefs or Big Men are lining their own pockets with the rewards of logging contracts, tourist leases or extraction licences. Ordinary people who do not have titles may have certain crafts or skills which only they can exercise. For example, not everyone will be permitted to beat tam tams or to carve canoes. Certain people may have special knowledge or skills which are secret or taboo. This is especially true of traditional healers and those who can communicate with the ancestors, or do magic. Even everyday tasks may be surrounded by rights, rituals and customs, for example, childbirth and death, the preparation and serving of food, the arrangement of seating or the wearing of certain

131 Eg, in Tonga, the Town Regulations Cap 44 imposes a duty on ‘every member of the family’ to keep the village cemetery weeded and tidy. Failure to do so attracts a penalty – s 16.

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items of clothing or ornamentation. Most important rites of passage are accompanied by ritual acts and the exchange or giving of property. Often this property has great importance. For example, the validity of a marriage, and even the social status of a bride, is determined by the bride price which is given, whether this is in cash, in shell money – in the Solomon Islands – or by food and other goods.132 The legitimacy of a child may not be determined so much by its registered date of birth as by whether it has been recognised by the giving of gifts or the payment of child price, which allow it to be recognised as a member of the family and therefore entitled to land. Similarly, the adoption of a child may be accompanied by the transfer of property, and this in turn may determine whether the child is fully adopted or only partially adopted – which again may be significant in the case of land claims.133 Another dimension of property which may be difficult for the Western mind to grasp is the importance of restrictions placed upon apparently ordinary items by the addition of ‘taboos’. Once a thing or place becomes taboo it acquires its own significance and is treated in a special way.134 Thus a part of the forest or shore may be declared taboo. This will immediately mean that strangers cannot trespass there, and indeed only a very limited number of people may go there. It may be taboo to touch certain things, harvest certain food, fish or animals, or conduct oneself in a certain way.135 The reasons for the status or label are very varied. Taboo may be used to control natural resources and prevent depletion of these, it may be associated with certain rites of passage – birth, circumcision, menstruation, marriage, death – or to signify the importance of someone or something, not necessarily simply in the present but with links to the past and perhaps the future. Thus, it is fairly common to find ‘taboos’ surrounding original housing sites, or places where it is believed ancestors came from – who may or may not have human origins. Some ‘taboos’ will be permanent, some temporary, some seasonal. Some may be indicated outwardly by certain signs,136 some may not be apparent at all. Breach of ‘taboos’, even today, can result in punishment, usually in the form of custom fines and compensation.137 To an outsider such things as ritual or symbolic rights and ‘taboos’ may not immediately appear to be property; however, all these things have a value, and wrongful use, appropriation or lack of respect for these can cause outrage or lead to conflict. This is increasingly a problem with the commercialisation of custom and the

132 See To’ofilu v Oimae [1997] SBHC 33, Re Thesia Maip N958 1991 (unreported) Papua New Guinea www.vanuatu.usp.ac.fj/paclawmat/PNG_cases, and Re the Constitution of the Republic of Vanuatu, The Infant Vorongo [1984] VUCA 1. 133 See the consideration of full and partial adoption in the Vanuatu case of Manie v Kilman [1988] VUSC 9; [1994] Van LR 343. 134 In the Solomon Islands the term is used, eg, to describe ‘shell money’. These small circular pieces of shell strung on cords are important for brideprice, the payment of compensation and as an insurance policy for times of need. The value of shell money lies not in the time or skill it takes to tool these small pieces of shell but in their traditional use, which remains current today. See, eg, an article by Jack Metta in the National, Papua New Guinea, 14 July 2000, discussing a proposal by the Deputy Governor of East New Britain to standardise and facilitate the use of taboo – shell money. 135 In Melanesian countries the word taboo is used very early on with children to mean ‘Don’t’, as in ‘Don’t touch it’ or ‘Don’t do it’; ‘It is prohibited’. 136 Eg, by certain leaves, plant material, sticks, stones or a combination of these. 137 In the past, breaches could result in death, especially if the taboo was strong, eg, spying on a traditional healer. In some cases the taboo will work its own punishment, eg, subsequent sickness or ill luck will be attributable to breach of a taboo.

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exploitation of customary or indigenous property for the tourist and other markets.138 Current intellectual property right legislation in the South Pacific region does little to protect indigenous knowledge, custom and tradition, not least because it is largely modelled on Western concepts of individual – as opposed to communal – ownership, originality – rather than tradition passed down over generations – and a market economy.139 In cultures where people may have few material possessions, customary status and the manifestations of that status are an important part of the whole person. A person is not just judged by his possessions but also by his social status.140 In island countries of the South Pacific things are not just what they seem but what they are deemed to be.

CONCLUSION The interests described in this chapter are incorporeal property rights, some of which are recognised solely in custom and others of which have been introduced under the common law. Often these interests overlap with other property interests, for example, the right to a lien over chattels may secure the payment of a debt, while the right to a profit à prendre will entitle the holder to acquire other property interests in the thing taken, for example, the sand or gravel. The right to claim many of these property interests may, in turn, facilitate access to other forms of property, or be dependent on having other property rights. For example, an owner of communally-owned land may not have access to a mortgage, while the owner of a registered lease will be better placed to secure a mortgage and thus to develop the land. Often, therefore, there is an interrelationship between the special interests covered in this chapter and other interests in property.

138 Eg, a range of traditional designs are already exploited commercially, such as tapa designs from Fiji, sand drawing designs from Vanuatu, or pipe music from the Solomon Islands. The problem is not unique to the South Pacific region. Aborigines had to fight to prevent their sacred drawings appearing on tea towels and tee-shirts. See Ellison, DA, ‘Unauthorised Reproduction of Traditional Aboriginal Art’ (1994) UNSW Law Review 327, Bulun Bulun v R & T Textiles Ltd [1998] FCA 1082, Golvan, C, ‘Aboriginal Art and the Protection of Indigenous Cultural Rights’ (1992) 2 Aboriginal Law Bulletin 5. 139 Some efforts have been made in recent years to draft more appropriate legislation and there are some provisions in the Copyright Act (No 11) 1999 (Fiji) and in the Copyright Act 1998 (Samoa). Countries of the South Pacific region are aware of the need and the lack of protection. See, eg, SYMPOSIUM The Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands 1999, Noumea, New Caledonia, UNESCO, and WIPO 1999 Roundtable on Intellectual Property and Traditional Knowledge, Noumea, New Caledonia. 140 In most – but not all – customary contexts, women hold an inferior status to men and as a result in some traditional parts of the South Pacific region are held in little esteem and afforded little respect. Exceptions occur in the case of women chiefs (more so in the past than now), healers or traditional medicine experts, and spiritualists.

CHAPTER 5 MANAGEMENT OF PROPERTY

INTRODUCTION The word ‘manage’ is used in the English language to mean ‘organise or regulate or be in charge of’.1 So the term ‘management’, in relation to property, is used to describe the way in which property is organised, or regulated or controlled. The management of property involves two aspects: the persons or bodies who manage the property; and the uses which are made of that property. Each of these aspects of management will be considered in turn – the various kinds or categories that there are, and their respective advantages and disadvantages.

5.1

PERSONS OR LEGAL ENTITIES WHO CAN MANAGE PROPERTIES

The owners of property are clearly the most logical persons to manage that property, making the decisions and taking the actions that are needed to use the property as they wish. The property belongs to them and they are the persons most likely to know how that property can best be used for their own benefit, or for that of those whom they wish to benefit from the property. The legal systems of all island countries of the South Pacific allow the owners of most kinds of property to manage that property. There are, however, some factors that may complicate this. First is the factor of multiple owners. If there is more than one owner of property, as there usually is, for example, with regard to customary land, some legal mechanism will have to be established to regulate how the owners are to make and carry out their decisions. This becomes particularly important if some or all of the owners are living away from the property, or away from each other, so that it becomes more difficult for the owners to discuss matters with each other, and also makes it more likely that they will become out of touch and out of sentiment with those who remain on the property. This is particularly a problem in countries like the Cook Islands, Fiji, Niue, Samoa, Tokelau and Tonga, where many landowners have left the country, permanently or semi-permanently, and are residing elsewhere. Secondly, the owner or owners may wish to have the assistance of other people to help to manage their property. It may be that the owners do not have sufficient time, or physical strength, or mental capacity or knowledge, or financial resources to look after the property properly by themselves. For this reason, the laws of most island countries of the South Pacific provide legal methods whereby the owners may obtain assistance for the management of their property, when they wish. A third factor that has to be considered is the public interest. It may not be in the interests of the owners (if they are not the managers), or of their neighbours or the country as a whole, for the persons who manage property to have unlimited powers

1

The Oxford Dictionary of Current English, 1984, Oxford: Oxford University Press, p 445.

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to use the property as they wish. It may be that the owners of certain kinds of property should not be allowed to manage that property by themselves, or at all, and it may be in the public interest that certain uses of property should not be undertaken by those who are entitled to manage it. For this reason, laws enable other people to assist with the management of property, either in conjunction with the owners, or in place of the owners, or laws require that certain uses of property are not undertaken.

5.1.1 Owners as the managers of property It may be assumed that in most instances the management of property will be carried out by the owners of that property; however, this assumes that the owners have sufficient mental capacity and experience to be able to form correct judgments about the use of property. The common law insisted that a person was not of sound judgment until he or she had reached the age of 21 years. Accordingly, all contracts and arrangements made by a person under that age, except for contracts for necessary goods and services, and beneficial contracts of apprenticeship or employment, were not binding upon a person under 21 years, unless he or she ratified and confirmed them within a reasonable time of reaching 21 years.2 This position has been endorsed, with some modifications, by legislation, both in England3 and in island countries of the South Pacific.4 The rules of equity held that a transaction by a person who was so mentally unstable or intoxicated as not to understand what he or she was doing, would not be enforced against that person, at least if the other party to the transaction was aware of the insanity or intoxication.5 In many countries of the South Pacific the written law has imposed restrictions upon the persons who may own land. In all countries, customary land can be owned only by indigenous people. However, except in the Solomon Islands, Tonga and Vanuatu, fee simple estates in land can be owned by foreigners, subject to government approval, and in all countries leases and licences of land can be held by foreigners, subject to government approval. Also there are some kinds of property that the written law requires that a person, even if the owner of the property, cannot use unless he or she has a certain degree of competence or experience. These requirements are usually introduced in the public interest to secure the safety of the individual owner, or the neighbours, or the public more generally. A very obvious example is the use of motor vehicles. In all island countries of the South Pacific there is legislation which prohibits the driving of motor vehicles unless the driver possesses a current driving licence, which may be issued only if a person has demonstrated adequate competence in driving and adequate knowledge of the rules of the road.6 On the other hand, however, there are no legislative or other legal requirements as to the qualifications for farming which an individual owner of land must have before he or 2 3 4

5 6

See Halsbury’s Laws of England, 4th edn, 1990, Vol 5(2), para 612. Infants Relief Act 1874 (UK); Minors’ Contracts Act 1987 (UK). Infants Ordinance 1961 (Samoa); Infants Relief Act 1874 (UK), which, as an English statute of general application, is in force in Fiji, Kiribati, Solomon Islands, Tuvalu and Vanuatu; Minors’ Contracts Act 1987 (UK), which as an English statute of general application, is in force in Tonga; Infants Act 1908 (NZ) which is in force in the Cook Islands and Niue. Hart v O’Connor [1985] AC 1000. Eg, s 25 Traffic Act, Cap 176 (Fiji); s 27 Road Traffic Ordinance 1960 (Samoa); s 20 Traffic Act, Cap 131 (Solomon Islands); s 15 Traffic Act, Cap 156 (Tonga); s 42 Road Traffic Control Act, Cap 29 (Vanuatu).

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she starts farming that land, or for any qualifications for financial investment which a person must have before he or she starts to invest his or her life’s savings in an advertised promotion.

5.1.1.1 Multiple owners If only one person is the owner of property there clearly is no need for the law to establish any procedures to enable that person to make decisions as to what is to be done with that property. The individual owner just thinks and makes his or her own decision. Some properties may have more than one owner. As discussed in Chapter 2, multiple owners, or co-owners as they are more usually called, may be joint owners, or owners in common or customary co-owners.7 This is especially so with regard to customary land, but it may occur with any kind of property. The number of people who are the owners of the property may vary tremendously. There is usually no restriction under customary law, common law or written law as to the number of people who may be co-owners of property. Thus, the co-owners of property may be two or three, or 20 or 30, or 200 or 300, or 2,000 or 3,000. Also, there is usually no restriction on where a co-owner of customary land may reside. So, a co-owner may reside near to the property of which he or she is a co-owner, or far away from it. Especially in the Polynesian countries of the Cook Islands, Niue, Samoa, Tokelau and Tonga, and also in Fiji, there are likely to be co-owners of customary land, as well as of other property, residing in some overseas country – particularly Australia, New Zealand and the United States of America.8 Clearly the law must provide some processes or procedures to regulate the way in which co-owners are to make decisions, otherwise the situation will be chaotic, with some owners wanting one thing to be done, the others wanting another thing to be done. The solution provided by the common law and equity is very straightforward: all co-owners have to agree – unanimity is essential to deal with the property as a whole, whether the owners are joint owners or owners in common. It is not necessary that they are all present together at the same time place and time, but they must all indicate their agreement. Customary laws in island countries of the South Pacific also normally require unanimity, and nothing can be done with land or other property that is held in customary co-ownership unless all the custom owners agree. Whilst this requirement of unanimity ensures that nothing is changed unless all the co-owners agree, the requirement of unanimity can present serious problems if some of the owners are unable, or unwilling, to participate in a decision about the management of the property. In such a case, either a decision is made without full participation of all owners, and so is likely to be challenged later by those who did not participate, or no decision can be made, and so nothing can be done with the property. Even if all the co-owners can participate in the decision-making, there is a risk that the weaker members of the group, the young, the old, and those lacking self-confidence to express their views, may be overruled by the stronger members. Conversely, there is

7 8

See Chapter 2, section 2.2.2. It is estimated that there are approximately three times as many Cook Islanders, nine times as many Niueans, and five times as many Tokelauans living in New Zealand as in their home countries.

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the danger that an obstinate small minority may quite unreasonably refuse to agree with the majority. There is also a danger that a decision that is reached by a large number of people may be rather confused and unclear, and so open later to several different interpretations. For all of these reasons, it may be preferable to modify the very straightforward approach adopted by customary law, common law and equity. Legislation may be desirable to provide some means of dealing with the situation where some co-owners cannot be located, or cannot, or do not, participate in the decision-making. It may also be desirable to enact legislation to allow decisions to be taken by a majority, provided there is adequate protection of the minority. Two different approaches have been adopted by legislatures in island countries of the South Pacific to deal with these issues. One approach, which has been adopted with regard to co-owners of customary land in the Cook Islands, is enactment of legislation to regulate the procedures to be used by co-owners when making decisions about the use of property. Part II of the Land (Facilitation of Dealings) Act 1970 of the Cook Islands, provides quite elaborate rules for regulating the giving of notice to co-owners, the convening of meetings of coowners, the use of proxy votes, the chairing of meetings of co-owners, the quorum for such meetings, the majority required to make decisions, and the ratification of such decisions by the High Court, either absolutely or subject to conditions. Another approach, which has been adopted with regard to customary land in the Cook Islands, 9 Papua New Guinea, 10 and also in New Zealand, 11 is to enact legislation to provide for the incorporation of co-owners of property into a corporate entity, which has its own rules and procedures for the making of decisions. The advantage of this method is that it can not only regulate decision-making by all the owners, but it can also provide for a small management committee to be established to look after the day-to-day aspects of the use of property. Although this method was at one time hailed as providing a viable and reliable means of management for coowners of customary land, it is clear now that it is open to increasing criticism; one commentator has described it as ‘a flawed mechanism’.12

5.1.2 Other legal mechanisms for the management of property It may be that owners of property, whether individual owners or multiple owners, are not able to manage their property personally. There may be some things that owners cannot do without assistance from other people. If property is small and uncomplicated, as is the case with most kinds of movable property, the owners of the property will usually be able to manage it themselves without the help of others, even if there is only one owner. However, there may be occasions, as when the owner goes away, or is sick, when the owner will need some help from others to look after the property. This is especially so if the property is physically large, like an apartment building, or a farm or a store, or is complicated, like a radio transmitter or a computer,

9 10 11 12

Part I, Land (Facilitation of Dealings) Act 1970 (Cook Islands). Land Groups Incorporation Act 1974 (PNG). Maori Affairs Amendment Act 1967 (NZ). Lea, D, ‘Incorporated land groups: part of the problem or part of the solution’, Pacific Economic Bulletin, Vol 17, No 1, pp 79–90.

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or like a number of shares in different companies. Even when there is more than one owner, the owners between them may not have all the resources, physical, mental and financial, that are necessary properly to manage the use of the property. Frequently, owners of property find that they need some assistance from other people who have the time, abilities or money that the owners lack in order to look after the property properly. Moreover the co-owners of property may wish to establish a legal entity to assist them to manage the property together. The legal systems of all island countries of the South Pacific therefore make provision to enable owners to obtain assistance from others to manage their property.

5.1.2.1 Agents One of the most common methods of obtaining assistance from others in island countries of the South Pacific is by way of the appointment of an agent.13 The function of an agent is to act on behalf of another person, who is called the principal. The identity of the principal may be disclosed by the principal or agent when dealing with a third person, or it may not be disclosed to that person, who may think that he or she is dealing only with the agent. In relation to the management of property, the function of an agent is to act on behalf of the owner of the property to assist in the management of that property. The great advantage about agency as a mechanism for the management of property is its flexibility. An agency can be established quite informally by one person agreeing to act for another person. It can also be created to operate with regard to any range of activities with regard to property. It can be established to give a person full powers over a property, or only very limited powers. It can be established to enable a person who has superior technical knowledge, or commercial expertise or business connections to assist the principal, or it may be used to enable a person to perform the most simple and straightforward of tasks on behalf of a principal who does not have the time to do so. It can be designed to last for one day or for 10 years. It is particularly useful where there is a number of co-owners of the property, because it enables one or two people to act on behalf of a large number. Thus, in Pauliasi Natiri v Viliame Rakuli,14 the president and secretary of an unincorporated association of Fijian cane growers were held able to act on behalf of the cane growers to make a contract for the purchase of materials from a merchant to build some houses, and to assign the proceeds of their cane crop to the merchant as payment for the materials. Normally, a person can act as the agent of another person only if that other person has appointed the person to act as his or her agent. However, the courts have held that a person may be estopped or prevented from denying that a person is his or her agent, if he or she has led people to believe that that person is appointed to act on his or her behalf. This is sometimes described as ‘holding out’ that a person is an agent, and the agency is described as an agency by estoppel, or an agency of apparent or ostensible authority.15 This becomes particularly significant when an agent, or an employee who has been employed as an agent, has been dismissed. It may be necessary then that some notice is given to those with whom the principal has had dealings to inform 13 The word ‘agent’ is derived from the Latin word agere, meaning to do or to act. 14 (1972) 18 FLR 75. 15 See Halsbury’s Laws of England, 4th edn, 1990, Vol I(2), para 29.

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them that the authority to act as an agent has come to an end. If, however, the employer has never held out the former employee as his or her agent then no notice is necessary, as in JV Kapadia & Co v Suva Motors Ltd,16 where a former employee used the order forms of his former employer to order some tyres from a motor company. The Supreme Court of Fiji held that there was no agency by estoppel, because, although no notice had been given of the termination of the employee, the employer had never allowed the employee during his period of employment to act for it in purchasing goods from the motor company. The issue of agency by estoppel was also raised in Reef Shipping Co Ltd v Prime Minister of Tonga.17 In this case, it was argued that the fact that the Government of Tonga guaranteed the performance of a contract by a company was a holding out by the Government of authority for the company to extend the guarantee to cover an extension of the contract which was negotiated by the company. The Privy Council of Tonga did not accept this argument. An agent cannot assume all powers of the owner of property – only such powers as the owner confers, either expressly or by implication from words and/or conduct, or as the law allows. One of the widest forms of agency is that provided for the leveki maungafaoa (family guardian) in respect of customary land in Niue. Section 15 of the Land Ordinance 1969 of Niue states that the leveki maungafaoa ‘shall have power to control the occupation and use of the land in accordance with Niuean custom and shall have power to alienate the land in accordance with … this Ordinance’. In Kiribati18 and Tuvalu,19 caretakers of customary land are authorised by the customary law, which has been recorded in the Land Codes of those countries, to be appointed by an absentee landowner ‘to take charge of his property for him’. The customary law of other island countries also often authorises the appointment of a caretaker of land, by a custom owner who is absent, or too sick or too feeble to look after it. Other agents may be appointed with much more limited powers. Thus, an authority for a person to collect a cheque and deliver it to the principal was held not to include an authority to cash that cheque and use the cash for the personal benefit of the agent: Dayaram Sharma v Northern Hotels Ltd.20 Again, an authority to deliver two vehicles to a relative was held not to authorise the sale of one of those vehicles and the pocketing of the proceeds by the agent.21 The extent of the authority of a land agent has given rise to some discussion and controversy. In Josateki Seru v Ramesh Pala,22 it was held by the Supreme Court of Fiji that a document entitled ‘Authority to Sell’, signed and given by the owner of a house and land to a land agent, did not confer authority upon the land agent to enter into a contract to sell the property. Consequently, the owner was not bound by a contract signed by the agent with a client, and could not be required to sell the property to the client. The limits upon the authority of a land agent were further emphasised by the National Court of Papua New Guinea in Toplis & Harding Pty Ltd v Dadi Toka and Grandsen.23 The court held

16 17 18 19 20 21 22 23

(1974) 20 FLR 32. [1981–88] Tonga LR 7. S 1 Kiribati Land Code, 1962. S 1 Tuvalu Lands Code, 1962. (1968) 14 FLR 157. Westbrook v Esera and Su’a [2002] WSSC 4. (1989) 35 FLR 25. [1982] PNGLR 321.

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that a land agent who received money from a client to hold as a deposit to secure a tenancy when a house became ready for habitation, was not authorised to pay that money to the owner of the house until the house was ready and the tenancy granted. One interesting, but difficult, aspect of agency is the extent to which an agent can take advantage of a provision in his or her favour which is contained in a contract made by the principal with a third party, to which the agent is not a party. Since the agent is not a party to the contract, he or she is, in accordance with normal principles of privity of contract, not bound by, or able to benefit from, such a provision, even though the contract clearly contemplates the existence of the agent. In 1974, however, the Privy Council held that once an agent starts to perform the work contemplated by the contract, the agent can take advantage of a provision in a contract made by the principal of the agent which is clearly designed to benefit the agent.24 This opinion was affirmed by the Privy Council in 1980,25 and it has been followed both in Papua New Guinea and in Tonga. In Rabaul Stevedores Ltd v Seeto,26 the National Court of Papua New Guinea held that this principle enabled a stevedoring company, which was acting as agent for a shipping company to unload and store the cargo from the company’s ship, to claim the benefit of a clause in the contract between the shipping company and the consignor of the cargo exempting the shipping company, its subcontractors, servants and agents from liability. In Cable and Wireless plc v Mataele,27 the Supreme Court of Tonga applied this principle to enable an international telephone company to sue for charges for international telephone calls which it had made as agent for the Tonga Telecommunications Commission. The calls had been made under a contract with a telephones subscriber in Tonga to provide telephone services. Agency has the advantage that the arrangement can be easily made, does not require any official approval, and enables owners of property to define the matters with which the agent can deal on their behalf, the scope and extent of the agent’s authority, and the period of time during which the agent can act for the owners. Decisions and actions of the agent within the terms of the agency contract are binding on the owners, but decisions and actions outside those terms are not. Owners can thereby be relieved to the extent that they wish of making decisions about, and taking action for, the use of their property, but they can still give directions, as much as they wish, as to how the property is to be used. There are, however, disadvantages and dangers to agency. One danger is that the agent may make unwise or corrupt decisions with regard to the matters entrusted to him or her, and may cause losses to the principal. The principal may find that the agent has not acted within the terms of the authority, and departed with money that should have been delivered to the principal, as in Dayaram Sharma v Northern Hotels Ltd and Westbrook v Esera and Su’a.28 A second disadvantage is that the people with whom the agent deals will normally not be aware of the limits to the authority of the agent, and may believe that the agent has a greater authority than the owners have in fact provided, so they may enter into transactions with the agent that are not binding on the owners, as in JV Kapadia & Co v Suva Motors Ltd and Josateki Seru v Ramesh

24 25 26 27 28

New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154. Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd [1081] 1 WLR 138. [1985] LRC (Comm) 383. [1989] Tonga LR 79. See nn 20 and 21.

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Pala.29 Thirdly, agents themselves may find that they are personally liable where they have not disclosed that they were acting on behalf of a principal, as in Toplis & Harding Pty Ltd v Dadi Toka and Grandsen.30

5.1.2.2 Partnerships The courts of common law of England recognised that there could be advantages for a group of people to join together for the purpose of doing business, and they called such a group a partnership, or a firm. Each partner was considered by the common law to be an agent for the other partners in the ordinary business of the partnership, so that each partner could benefit from the actions of the other partners and, at the same time, be subject to liability incurred by the other partners. The courts did not accept that the partnership or firm had any separate identity of its own, unlike a company, and so a partner was liable to the full extent for the actions of the other partners. Often a partnership is expressly established by a group of people who want to work together as partners, and they draw up a document that records their partnership agreement. But the courts have held that they will hold that such a relationship exists even if the parties do not expressly say so. Thus, in Berking v Betham, the High Court of Samoa held that when a group of people in Samoa worked together to promote boxing contests as a profit-making enterprise, they were a partnership, even though they did not use that word or think of themselves as partners.31 The court also held that when one of the group died, that brought that partnership to an end; but when the surviving members continued to work together to provide further boxing contests, a new partnership was created. Since partnerships can be held to exist not only when the parties expressly agree to form a partnership, but also when people are carrying on business together, other than as a company or a body incorporated by legislation, it is likely that there are many more partnerships in legal existence in island countries of the South Pacific than is appreciated, either by the public or by the partners themselves. The fact that there are very few reported cases on partnership in these countries suggests either that many people do not realise that the arrangement that they have with others to carry on some business activity is a partnership and regulated by statutory provisions, or else that any difficulties arising out of such arrangements are resolved outside the courts. The common law rules about partnership were codified in England in the Partnership Act 1890, and that Act has been relied upon by some island countries in the South Pacific,32 or copied in the legislation enacted by other island countries.33 In 1908, the British Parliament enacted the Limited Partnerships Act, which authorised ‘limited partnerships’. This enabled a person to be a ‘sleeping partner’ – to supply 29 30 31 32

See nn 16 and 22. See n 23. [1960–69] WSLR 1. As an English statute of general application in operation before 1962, it is presumably in force in Kiribati, Solomon Islands, Tonga, and Tuvalu. 33 It was copied by the Partnership Act 1908 (NZ), which is in force in Cook Islands, Niue, and Tokelau, and it also formed the basis of the Partnership Act, Cap 248 (Fiji), Partnership Act 1976 (Nauru), Partnership Act 1951 (PNG), Partnership Act 1975 (Samoa) and Partnership Act, Cap 92 (Vanuatu).

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finance, but not to take part in the daily affairs of the firm. This kind of partnership has not proved very popular in the United Kingdom, and the legislation has been copied in only a few countries in the South Pacific.34 The advantage of a partnership as a legal mechanism for the management of property is that such an arrangement can easily be made – no special formalities are required, and no official approval is required – the functions of the various partners can be readily defined, and owners of property can continue to be associated with the management of the property to the extent that they wish. The disadvantage of a partnership is that one partner may make unwise or corrupt decisions about the management of the property, and since the actions of each partner taken in a partnership enterprise bind the other partners, all partners will be liable for the debts incurred by any partner. Also, as with agency agreements, another disadvantage of a partnership is that the people who deal with a member of a partnership may not know what activities are within the ordinary business of the partnership, and so binding on all partners, and what activities are not so authorised and so are not binding. Consequently, those people may enter into transactions with a partner which are not binding on the other members of the partnership

5.1.2.3 Trusts The rules of equity, which, together with the rules of common law, have been introduced into all island countries of the South Pacific, empower the establishment of trusts as a mechanism for managing land. If a trust is established, the person who holds the property on trust, called the trustee, is required to deal with the property in accordance with the terms of the trust. One of the most obvious examples in the region of the use of the trust to manage land is in the case of native land in Fiji. Under the Native Lands Trust Act,35 all native land held by native Fijian custom owners is managed and controlled by the Native Lands Trust Board. Anyone who is registered as a native Fijian is entitled to benefit from the land by receiving a share of the income generated from the land, which is managed by the Board. It is the Board that determines whether land shall be leased and for how much. The custom owners as beneficiaries have little control over the land. Elsewhere in the region there are smaller scale trusts. For example, in Vanuatu there are a number of trust companies and trustee committees managing urban and peri-urban land for custom owners.36 Unfortunately there are no specific statutes at present that control these bodies, and although the general principles of common law and especially equity should apply, all too often both trustees and beneficiaries are unaware of these and consequently trustees may not manage the trust property properly.37 There is also the problem that the administration of the land may not vest directly in the trust board – which may

34 Part II, Partnership Act, Cap 92 (Vanuatu). 35 Native Lands Trust Act, Cap 134 (Fiji). 36 It is in these areas that land held under customary land tenure can most easily be leased and generates the greatest annual rental income, because the land can be zoned for residential or commercial use. 37 Eg, under s 89 of the Native Lease Act (Vanuatu), persons acquiring land in a fiduciary capacity are required to be registered as trustees.

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simply handle revenues generated from the land – so that custom owners may be denied a voice in the development of land.38 As in other common law jurisdictions, trusts are also used in the case where a minor or infant succeeds to property,39 in the case of charities,40 or to manage property where there is a number of intended beneficiaries.41 Trusts can also be used for a wide variety of property, including incorporeal property such as pension funds and savings schemes, as well as the assets of clubs and societies and churches.42 An interesting development of the trust concept in the region is where there is a combined initiative between the government and local communities. An example of this latter can be found with the Falekaupule Trust in Tuvalu. This is a trust set up by the government of Tuvalu and the communities of several islands to manage a joint fund for the benefit of island communities. The money has been provided by an aid donor, the government and the communities themselves. The aim behind the trust is to encourage the development of the communities and their human resources, as well as to encourage revenue-producing activities. Properly run, and provided the duties and obligations of trusts are well understood and the rights of beneficiaries are clear, trusts offer a useful vehicle for the management of beneficial interests. The administration of property for the benefit of others, including future generations, is nothing new to societies in the Pacific island countries. However, shifts to cash economies and diversification of possible means of generating such cash can lead to what, by Western values, may be seen as an abuse of fiduciary roles (although in custom this may be viewed quite differently).43 If the trustee fails to carry out the terms of the trust, the court can order the trustee to comply with the terms of the trust and to account for his management of the trust property. A court can also order that any person who has acquired trust property, either as a gift or with knowledge that it was disposed of in breach of trust, must return that property to the beneficiaries, if it can be traced and identified.44 Thus, in Pung Nimp v Rumants,45 the National Court of Papua New Guinea held that shares in a plantation-owning company, that were held by directors on trust for the members of their respective lines or clans, but which had been sold by the directors in breach of that trust to another company which was aware of the breach of trust, must be held by that other company on trust for the members of the various lines or clans.

38 A case in point in Vanuatu is that of Tretham Construction Ltd v Malas [1996] VUSC 1. Here custom title to the land was in dispute and so the Minister of Lands was managing the land. Leases were granted to developers despite attempts by custom claimants to stop this. 39 See, eg, s 46(1) Succession, Probate and Administration Act 1976 (Nauru); ss 44 and 45 Administration Act 1975 (Samoa). 40 See, eg, the Charitable Trusts Act, Cap 55 (Solomon Islands); the Charitable Trusts Act 1965 (Samoa); the Charitable Trusts Act, Cap 67 (Fiji). 41 Eg, the Nauru Phosphate Royalties Trust Ordinance 1968. 42 For further information on trusts in the region see Hughes, R, Trust Law in the South Pacific, 1999, Suva: Institute of Applied Legal Studies. 43 The rights of chiefs, eg, to first fruits, or for those who win disputes to demand ‘pay-back’ is part of the custom and culture of many Pacific islands and may not necessarily be perceived as bribes, or profits wrongfully received in breach of trust. 44 See Chapter 11. 45 [1987] PNGLR 96.

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The advantage of a trust is that an arrangement for a trust can be relatively easily made, either in writing or by spoken words; it does not require official approval, or official registration. A trust also enables the owners of property to hand over to the trustees, to the extent that they wish, the making of decisions and the taking of action with regard to the management of that property. The disadvantage of a trust is that the trustees may make unwise or corrupt decisions as to how the property is to be used, and may cause losses to the beneficial owners. Also, as with partners and agents, outside people dealing with the trustees may not know that the persons they are dealing with are trustees, or what the terms of the trust are.

5.1.2.4 Corporate bodies A disadvantage shared by all three legal mechanisms for managing property discussed above, is that they depend upon the continued existence and capacity of the persons who are the agents, the partners and the trustees. If any of those persons die then the arrangement of agency, of partnership and of trust, recognised by the common law, will come to an end – although in the case of a trust the court may intervene to appoint a trustee to prevent the trust from failing. It is for this reason that other methods have been explored to establish a legal entity that will have a more permanent existence. The courts of common law recognised early on that a group of people, and also the holders of certain offices, such as kings and bishops, could be established as a corporate body or corporation, which would continue to exist until it was disestablished. Originally such corporate bodies could only be established by the King under his prerogative powers of government, but later the courts accepted that Parliament could establish such bodies by legislation. The main forms of corporate bodies will now be discussed.

Chartered corporations The royal courts of common law in England allowed that the King of England had the prerogative power to incorporate a group of people into a corporation that would last forever. A corporation created by the King was considered by the royal courts to have all the powers of an individual person,46 but if it did anything that was inconsistent with the terms of the instrument of incorporation, the King could take proceedings to cancel the instrument of incorporation. Royal corporations, which are often called chartered corporations because the instrument of incorporation was normally a royal charter signed by the King, were in earlier times often used for the establishment of trading corporations, such as the East India Company and the Hudson Bay Company. Nowadays they are used mainly for the establishment of educational and cultural organisations. Such a corporation has an identity of its own, separate from that of its members. A corporation established by royal charter is obviously only possible in countries where the British Crown is still recognised as head of State; in the South Pacific, these are the Cook Islands, Niue, Papua New Guinea, the Solomon Islands and Tuvalu. Even in those countries, the prerogative powers of the Crown are rarely utilised

46 Sutton’s Hospital Case (1612) 10 Co Rep 23a; 77 ER 960; Pharmaceutical Society of Great Britain v Dickinson [1970] AC 403.

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nowadays to establish corporations.47 This is partly because the exercise of the prerogative powers of the Crown, even when done on the advice of ministers of government of the countries concerned, involves the Queen and British officials, and this may give the appearance of involvement in the domestic affairs of those countries, which is inappropriate now that the countries are politically independent of Britain. The neglect of the prerogative powers of the Crown to create corporations is also partly due to the fact that the statutory law of island countries of the South Pacific provides alternative means for creating legal corporations. All countries of the South Pacific have legislation that authorises the creation of corporations called companies, and some countries have legislation that authorises the creation of other incorporated organisations of people.

Companies All island countries of the South Pacific have legislation that provides for the incorporation of companies.48 A company is a corporation or corporate body which is created for business and commercial purposes, and nowadays, as mentioned earlier, they are usually established by legislation, not royal charter. A corporation that is established by legislation is considered by the courts to have legal authority to do only those things that are authorised by its documents of incorporation. A company is no exception to this rule, so any actions taken by a company which are outside its instruments of incorporation – usually termed memorandum of association – are regarded by the courts as unauthorised and void.49 A company consists of a number of shareholders, who have paid for their shares and obtain financial returns from the activities of the company in proportion to their shareholding. Like all corporations, a company is regarded as having a legal identity quite separate from its shareholders.50 Companies are authorised to limit their liability to the extent of their shareholding. The activities of the company are determined and controlled by a board of directors, which is appointed by, and dismissible by, the shareholders, and the directors are required to report to the shareholders each year. The directors may appoint a managing director, chief executive officer and other officers. They may form committees, and they may employ staff to help carry out the activities of the company. Shareholders of most companies can sell their shares freely, and other people can buy the shares that are for sale, but there is provision in the legislation for the establishment of private companies in which the transferability of the shares may be limited. A company thus provides a convenient and flexible structure by which to manage property. In small or family companies, those owners of property who wish to contribute to the management of the company can do so as directors of the company, 47 The University of the South Pacific is virtually the only corporation in island countries of the South Pacific which has been created by the Crown under its prerogative powers. 48 Companies Act 1955 (NZ) which is in force in Cook Islands, Niue and Tokelau; Companies Act, Cap 247 (Fiji); Companies Ordinance, Cap 10A (Kiribati); Companies Act 1972 (Nauru); Companies Act, Cap 146 (PNG); Companies Act, Cap 175 (Solomon Islands); Companies Act, Cap 27 (Tonga); Companies and Business Registration Act, Cap 59 (Tuvalu); Companies Act, Cap 191 (Vanuatu). 49 Ashbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653; Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246; Precision Dippings Ltd v Precision Dippings Marketing Ltd [1986] Ch 447. 50 Salomon v Salomon & Co Ltd [1897] AC 22; Lee v Lee’s Air Farming Ltd [1961] AC 420.

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or as staff of the company, whilst those who do not wish to do so can remain as ordinary shareholders. Moreover, any shareholders can, if they wish, sell or give away their shareholding, and interests in the property, to someone else. There are, however, some disadvantages about a company as a means of managing property. In the first place, the incorporation of a company requires some special documents to be prepared and signed, and also requires official approval and the payment of fees, and this will normally require the services of a lawyer and an accountant. Also, annual returns must be made to the registrar of companies containing basic information about the directors and shareholders of the company and the assets and liabilities of the company. This information is available for inspection by the public. A company may be a rather expensive vehicle for managing property, which can be justified only if the property is sufficiently large and complicated. A further disadvantage and danger about a company, as with agency, partnership and trust, is that the people who are entrusted with the powers of management may make decisions about the use of the property which are unwise or corrupt, and this may not be discovered by the shareholders until great losses have been made which the shareholders will have to make good to the extent of their shareholding. The recent and well-publicised massive company frauds which have been perpetrated by directors of companies in the United States of America paint a grim warning picture of the way in which directors of companies can manipulate the assets of companies to their own advantage, without the ordinary shareholders being aware of what has happened until it is too late to save their investments. Because the shares of a company are freely transferable, persons who are making a valuable contribution to the activities of the company can easily sell their shares and leave; and conversely, people who may not make a valuable contribution to the company can buy shares and become members and directors of the company, and then divert the property of the company to their own ends. Lastly, another disadvantage about a company, as with a partnership and a trust, is that the terms of the documents of incorporation, which set out the powers and the limits on the powers of the company and of the directors, may not be known to members of the public who deal with the company and the directors. Members of the public may find out only too late that the arrangement that they have made with the officers of a company is not legally binding on the company, and that they will suffer serious financial loss as a result.

Incorporated associations Some island countries in the South Pacific have enacted legislation that provides for the incorporation of various associations of people, which can be used as a legal means for the management of property: co-operative societies, credit unions and incorporated societies. The first two, which are derived from the friendly societies and the industrial and provident societies that developed in England in the 19th century, are more common, and allow for groups of people to be incorporated with a view to making a pecuniary gain or financial reward. The third type of incorporated association, the incorporated society, which is to be found in only a few countries,51 51 Cook Islands (Incorporated Societies Act 1908 (NZ)), Niue (Incorporated Societies Act 1908 (NZ)), Samoa (Incorporated Societies Ordinance 1952) and Tonga (Incorporated Societies Act, Cap 28).

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does not allow for the making of financial gain, and so is more used for cultural, professional, religious and social activities rather than the management of property, and for that reason will not be discussed further in this context. Co-operative societies are provided for in Fiji,52 Kiribati,53 Papua New Guinea,54 Samoa,55 the Solomon Islands,56 Tonga,57 Tuvalu58 and Vanuatu.59 A group of at least five people may obtain registration as a co-operative society, and upon registration the co-operative society becomes a corporation with its own separate legal entity. The purpose of such a society is to enable the members to work together in accordance with co-operative principles. This normally involves the members in buying and/or selling produce – agricultural, pastoral, or handicrafts – through the co-operative and taking a share of the profits from the transactions of the co-operative at the end of each financial year. Co-operative societies have had a rather chequered history in South Pacific island countries. Before independence they were hailed as particularly appropriate to Melanesian countries, with their close and largely egalitarian cultural traditions, and co-operatives were much encouraged by Britain in the New Hebrides as a means of fostering indigenous commercial development.60 Since independence, co-operative societies seem to have suffered a decline in viability and in popularity. Whether this is due to greater individualistic tendencies amongst indigenous people, or to strong competition from other business enterprises, or to inherent weaknesses in the structure and/or operation of co-operatives, is difficult at this stage to determine due to the lack of published enquiry and research. In very recent times there has been an increased interest in co-operatives from aid donors, who see co-operatives, and also credit unions, as being a useful method of directing aid funds to people at the ‘grass roots’. Credit unions, which are provided for in Fiji,61 Samoa,62 the Solomon Islands,63 Tonga64 and Vanuatu65 are more specifically designed to act as small savings and lending institutions. They are controlled by a board of directors, elected by and dismissible by the members of the union, and each year a general meeting of members must be held. The day-to-day administration of the affairs of the union is carried out by a secretary and treasurer, who are appointed by the board of directors, but not from amongst their number. Members make deposits of money, and these funds can be loaned for provident or productive purposes only. Usually the legislation requires that

52 53 54 55 56 57 58 59 60 61 62 63 64 65

Co-operative Societies Act, Cap 14 (Fiji). Co-operative Societies Act, Cap 250 (Kiribati). Div 5, Part XII, Companies Act, Cap 146 (Papua New Guinea). Co-operative Societies Ordinance 1952 (Samoa). Co-operative Societies Act, Cap 164 (Solomon Islands). Co-operative Societies Act, Cap 118 (Tonga). Co-operative Societies Act, Cap 64 (Tuvalu). Co-operative Societies Act, Cap 152 (Vanuatu). Bresnihan, B and Woodward, K (eds), Tufala Gavman, 2002, Suva: USP, pp 49, 63, 89, 165, 242, 246, 254, 342, 346–48, 372–73, 402, 404, 406, 408, 444, 479, 487. Credit Unions Act, Cap 251 (Fiji). Credit Unions Ordinance 1960 (Samoa). Credit Unions Act, Cap 165 (Solomon Islands). Credit Unions Act, Cap 107 (Tonga). Credit Unions Act 1989 (Vanuatu).

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loans can be made only with the approval of a credit committee appointed by the members. Credit unions provide a means whereby people who do not have ready access to commercial banks, or who wish to avoid some of the requirements of commercial banks, can obtain funds to manage and develop property. Their success depends, however, upon the amount of funds that they can attract from their members, and also upon the competence, diligence and honesty of the directors, the credit committee and the officers. Until now, credit unions have not played a very significant role in the management of property in island countries of the South Pacific, but, as with cooperatives, increased interest is now being shown in credit unions by funding agencies as a means of providing funding more directly to small operators, and avoiding the misdirection of funds that can occur if funding is directed through government channels. The disadvantages of any incorporated association are that the members of the executive or management committee of the association may make unwise or corrupt decisions about what should be done with the property that is being managed and, as a result, the members may lose their contributions or shares. There is also the disadvantage that, like all corporations established by legislation, the purposes for which an incorporated association can operate are limited by its documents of incorporation, and it is not bound by anything done outside those purposes, but these limits may not be known to those who deal with the association.

5.1.3 Ministers and departments of government So far, the types of organisation for the management of property have been considered as if it were a question that affected and involved only the owners of the property and those people whom they choose to have join them in the management of the property. There is, however, another factor to be considered: the interests of the community or the country, that is, the public interest. There may be situations where the public interest is considered by government to require that the management of property be taken out of the hands of the owners and the people chosen by the owners, and placed in the hands of the government or an agency established by government. In some island countries of the South Pacific, legislation has been enacted to authorise a government minister or department to take over the management of the property from the owners. In the countries of the Cook Islands, Fiji, Kiribati, Tuvalu and Vanuatu, legislation has been passed that enables the Minister of Lands to take over the management of customary land. In the Cook Islands this can be done if a majority of the owners agree.66 In the case of Fiji,67 Kiribati68 and Tuvalu,69 this can be done when the land has been left neglected. In Vanuatu, the Minister of Lands is authorised to manage customary land when the ownership of the land is in dispute.70

66 67 68 69 70

Pt IV, Cook Islands Amendment Act 1946 (NZ). S 20 Native Lands Act, Cap 133. Neglected Lands Ordinance, Cap 62. Neglected Lands Act, Cap 23. Pt V, Land Reform Act, Cap 123.

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The advantage of enabling a government minister or department to manage customary land is that it can lead to a freeing up of the land for development which is not being undertaken by the owners. The minister or department is able to lease the land for others to use, and this development will be to the advantage of the developers and also, probably, to the country as a whole. The disadvantage is that the people who are using the property may construct expensive buildings or other structures on the land, or may mortgage the land as security for loans, so that it may be very difficult for the owners to reacquire their land. Also, because a minister is a member of a political party, and because government departments are under the control of ministers, there is the danger that the management of the land, and the proceeds of that management, will be influenced by political considerations.

5.1.3.1 Semi-governmental corporations One alternative method that has been adopted in island countries of the South Pacific to enable the government to exercise some control over the management of property, without too complete or direct an influence from politicians, is the semi-governmental corporation. Such corporations are often called statutory corporations, but that description, whilst indicating the source of its power, does not indicate the nature of the body in the way that the term semi-governmental corporation does. A semigovernmental corporation is established by legislation and given powers and duties which are to be exercised by the staff of the corporation, subject to control by a board of directors or managers. The members of the board are usually appointed by a minister of government. The corporation is also usually required to comply with directions from the minister on matters of general policy, but the day-to-day administration of the affairs of the corporation is carried out by the staff and board, free of political control and influence. In some island countries of the South Pacific, semi-governmental corporations have been established to take over the management of customary land. In Fiji, a semigovernmental corporation, called the Native Land Trust Board, was established in 1940 for this purpose, and this still exists today.71 In the British Solomon Islands Protectorate72 and in the New Hebrides,73 also, land trust boards were established, but these were abolished at the time that the countries became independent. Shortly after the New Hebrides became independent as Vanuatu, corporations were established to manage land in the two municipal areas of Port Vila74 and Luganville,75 and also to manage rural land,76 but all three were short-lived.77 71 Native Land Trust Board Act, Cap 134; see also Kamikamica, J and Davey T, ‘Trust on trial – the development of the customary land trust concept in Fiji’ in Ghai Y (ed), Law, Politics and Government in the Pacific Island States, 1988, Suva: IPS, pp 285–304; and Volovola M, ‘The Native Land Trust Board of Fiji’ in Customary Land Tenure and Sustainable Development: Complementarity or Conflict?, 1995, Noumea: SPC, pp 47–54. 72 S 9 Land and Titles Ordinance 1959. 73 Land Trust Board Regulation, No 14 of 1973; see also Stober, W, ‘The Land Trust Board’ in Larmour, P (ed), Land Tenure in Vanuatu, 1984, Suva: IPS, pp 34–46. 74 Land Reform (Port Vila Land Corporation) Order No 30 of 1981. 75 Land Reform (Luganville Urban Land Corporation) Order No 118 of 1981. 76 Land Reform (Rural Land Corporation) Order No 14 of 1980. 77 The two urban land corporations were abolished in 1988, amidst allegations of mismanagement and excessive expense. The rural lands corporation seems hardly to have operated.

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The advantages of a statutory corporation as a means of managing property are that, because the members of the board of the corporation are appointed by government, and it can be required to observe the policy of government, the corporation will adopt management policies and practices that are consistent with the policies of government, and have the support of government. A statutory corporation can also receive funding from government, staff and staff training from government sources. The disadvantage of a statutory corporation is that, as a result of appointments to the board of directors, and as a result of ministerial directives, its policy and administration may be too close to government, and not sufficiently close to, or accountable to, the owners of the property. Conversely, the corporation may become too independent of government and may come into conflict with government over policy or finances, and this may hamper its operations. Also, the operations of a statutory corporation may be so extensive and complicated that inefficiencies, delays and high overhead expenses may develop, which prevent it providing an economical and efficient management service for the owners of the property, and/or for government.78

5.2

KINDS OF USES OF PROPERTY

The second main issue that needs to be considered apart from the question of who is entitled to make decisions and take action with regard to the management of property, is what kinds of uses the managers are able to take into account in the management of property. There is an overlap here between the enjoyment and use of the property by those beneficially entitled to the enjoyment or use – covered in Chapter 6 – and the activities of managers in managing the property. Restrictions or controls imposed on managers will also have an impact of the kinds of use or enjoyment which owners or those beneficially entitled to the property may have. This topic also overlaps with that of Chapter 9, which looks at the way in which property rights are protected. Sometimes this protection will be by way of restricting or controlling what can be done with certain property. In principle, the kinds of uses to which a property may be put fall into two main categories: unrestricted use, so that the managers have complete freedom of choice as to what they do with the property; and restricted use, so that some limits are placed upon the way in which the property can be used. Each of these will be considered in turn.

5.2.1 Unrestricted freedom of management of property Theoretically, the management of property may be completely unrestricted. The managers – who may be the owners or may be some other persons, as discussed in the preceding sections – decide what is to be done with the property: how, when and by whom it is to be used and enjoyed; and how, when and by whom it is to be altered or modified.

78 See, eg, Fiji Times, 8 September 1998, 6 March 1999 and 7 March 1999.

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The advantage of this form of management is that it gives full freedom of choice to the managers to use the property to the utmost extent that they wish. They can decide for themselves how they will use it in a way that will confer the utmost benefit to them or to others. Since they are the managers of the property it can be assumed that they will know best what to do with the property. The disadvantage, of course, of unrestricted powers of management of property is that the use of property that may be decided on by the managers, may cause disadvantage or detriment to the owners (if they are not the managers), to the family of the managers or owners, to the people nearby, or to the public generally. For this reason, the rules of custom, but more especially the rules of common law and equity, and the provisions of written law, place restrictions on the management of most forms of property in all island countries of the South Pacific. These will be discussed in more detail shortly, but the effect of these laws is that nowadays in island countries of the South Pacific it is not possible to find property that is not subject to some restriction as to its use. It is not a question now of whether there are restrictions on the use of property, but more a question of what form those restrictions take, and how extensive they are.

5.2.2 Restricted management of property As indicated previously, the legal systems of all island countries of the South Pacific contain restrictions upon the way in which managers of property, who, as described earlier in this chapter, may or may not be the owners of the property, use that property. Some of these restrictions relating to use are considered here, others are considered further in Chapter 6.

5.2.2.1 Customary rules In most South Pacific island countries, customary rules play some part in controlling the use of property, both in requiring what shall be done with property and in requiring what shall not be done with property. Customary rules are usually unwritten, but there are some countries where customary rules have been recorded in writing, at least with regard to land, as in Kiribati,79 Tuvalu80 and in some islands of Vanuatu.81 In some island countries, the control of chiefs and village councils used to be considerably stronger than it is today. For example, in the Marshall Islands in preEuropean times a limited number of paramount chiefs controlled all the land and reefs and inland water. Although these high-ranking chiefs – the Iroij-laplap – no longer wield the power they once had, their consent is still required for any alienation or disposition of land under the Constitution of the Marshall Islands. The Constitution also recognises the traditional role of the Iroij-laplap in Art 111 with the creation of the Council of the Iroij. This Council reviews the actions of the legislative assembly in relation to land tenure, traditional practices or custom law and can make recommendations. Similarly in the Cook Islands, the present power of chiefs is 79 Kiribati Lands Code, 1962. 80 Tuvalu Lands Code, 1962. 81 Niko Le Tan, ‘Tanna Island Kastom Law’, unpublished paper, Tanna Council of Chiefs, 1994.

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considerably less than it was in the past, partly because of problems of absenteeism; nevertheless, the attainment of a chiefly title remains important in order to sit in the constitutional assembly of chiefs, the House of Ariki.82 Today in the Cook Islands, the nobles of the House of Ariki have an advisory role.83 Similarly, in Vanuatu chiefs have the potential to recommend rules regarding customary land, as there is provision for this in the Constitution via the Malvatamauri.84 However, to date this body has not been very productive or been allowed to play a very effective rule in this regard. Elsewhere, chiefs and others at the top of the traditional hierarchy remain an important factor. In Tonga, the heads of noble families make up over half of the legislative assembly.85 In Samoa, matai have a separate electoral list, and chiefs in Fiji sit on the Great Council of Chiefs. Given that land plays a crucial role in development politics, the power of chiefs remains important at a national level. It is also important at a local level, where invariably chiefs or village elders will be called on to arbitrate disputes, or to broker negotiations relating to land or other property. In some cases this role of the chiefs or village council is formalised;86 for example, in Vanuatu there are initiatives to involve chiefs in more structured roles relating to land, notably through their participation in the newly formed Customary Land Tribunals.87 In Tonga, the King is the paramount chief and has the greatest power. However, the hereditary nobles, of whom there are 16, also have considerable power over land as they hold hereditary estates which can in turn be leased or allocated as allotments to commoners. In Samoa, matais, or heads of families, also have considerable control of land, especially as regards the use of family land (aiga). It is the matai who determines the proportions of land to be allotted to each family head and who can build where or cultivate which land. The matai will also have the task of redistributing land which has been abandoned or neglected by absentee members of the family, and of reallocating land on the return of family members.88 In Fiji, where there is a very clear system of paramount and other chiefs, chiefs, according to their rank, benefit most from income generated from the land administered by the Native Lands Trust Board. Chiefs and the role of chiefs remain politically important in Fiji, and as control of land is at the bottom of much of Fiji’s recent unrest, the significance of this chiefly elite is unlikely to diminish in the near future.89 In Vanuatu, the power of individual chiefs varies considerably from one area to another.90 It is not unusual to find chiefs owning less land than some of their

82 This was created under the 1966 House of Ariki Act and the Constitution of the Cook Islands. 83 The House of Ariki consists of up to 14 arikis (chiefs) appointed by the Queen's Representative. Its function is to consider any matters regarding the welfare of the people of the Cook Islands which are submitted to it by Parliament, and to express its opinion and make recommendations to Parliament. It has no legislative power. Constitution of the Cook Islands, Arts 8–11. 84 Constitution of Vanuatu, Arts 29–32. 85 Of the 30 seats, 12 are reserved for cabinet ministers sitting ex officio, nine for nobles selected by the country's 33 nobles, and nine elected by popular vote. As ministers may also be nobles, this makes the nobles a powerful lobby. 86 See further Chapter 11. 87 Established under the Customary Lands Tribunal Act 2001. 88 See, eg, Talili v Satele Momosea [1988] SPLR 2 American Samoa 4. 89 For one view, see Fraenkel, J, ‘The Clash of Dynasties and Rise of Demagogues; Fiji's Tauri Vakaukauwa’ (2000) 35 Journal of Pacific History 295. 90 Refer to Bolton, L, ‘Chief Willie Bongmatur Maldo and the Role of Chiefs in Vanuatu’ (1998) 33 Journal of Pacific History 179.

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neighbours. However, in areas where there are people wanting to lease land – especially in the peri-urban areas, or where developers want to establish tourist resorts or plantations – chiefs as representatives of their people will be those with whom developers negotiate. While this can be a good thing if the chief is wise and even-handed, all too often it emerges that the chiefs either are self-appointed or represent only a part of the custom owners, or the chiefs are tempted to benefit themselves rather than the people they represent. This has also occurred in the Solomon Islands, where chiefs, or Big Men, are not necessarily hereditary but achieve the title by individual effort and merit. It is with these chiefs that logging or mining companies are likely to deal. As has been indicated previously, chiefs or heads of villages may also be involved in the adjudicative process relating to disputes over property.91 This may be at an informal level, or may be incorporated into the formal dispute resolution structures of a country.92 In some jurisdictions chiefs and village councils have considerable powers to control the use of land or the construction of buildings. For example, in Samoa under the Village Fono Act 1990, village councils in Samoa have considerable power. These councils even have the power to banish villagers, either temporarily or permanently. While this may deprive the banished person from the use of land in the village, it is based on the premise that no person in Samoa is landless because of the extended family and thus will be able to seek shelter and support elsewhere.93 Countries in which chiefs appear not to be so important are Tuvalu and Kiribati. In Tuvalu the village council is more important. This consists of the elders of the families in the village, and determines land issues, including what crops shall be planted, what ground will be common and which will be allocated to various families. In Kiribati family heads are most important in the determination of land issues, and the same is true of Niue. In parts of the Federated States of Micronesia, such as Kosrae State, chiefs have disappeared, while in other parts they remain.

5.2.2.2 Rules of the common law and equity that restrict the use of property The rules of common law do not expressly require that a person must use property in a particular way, but rather they prohibit certain uses of property and provide compensation by way of damages for harm or injury caused by breach of those rules.94 The main rules of the common law as to the use of property are, first, that an occupier of land must not use that land, or allow that land to be used by others, so as to cause a substantial and unreasonable disturbance to neighbours (private nuisance) or to the public (public nuisance). For example, a company that built on its land a factory which belched out acid fumes which harmed the vegetation on neighbouring land;95 a company that constructed an oil refinery which emitted quantities of oily

91 These disputes may relate to anything, eg, boundaries, the ownership of livestock, or to land or trees. 92 This is dealt with in Chapter 10. 93 See Re the Constitution, Taamale v AG [1995] WSCA 1. 94 See further Chapter 11. 95 St Helens Smelting v Tipping (1865) 11 HLC 642.

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smuts that fell on neighbouring properties;96 a company that covered its building with glass sheets which reflected dazzling light into neighbouring offices;97 a sports club that conducted loud speedboat races on a secluded lake every weekend, to the disturbance of residents of lakeside homes;98 and a farmer who kept large numbers of pigs which produced a stench that disturbed neighbouring residents;99 all were held liable to pay damages for private nuisance, and in some cases were ordered to reduce the amount of the disturbance. Again, a landowner in Australia who allowed a gum tree on his land which was struck by lightning to continue to smoulder away without making sure that the fire was out,100 and a landowner who allowed a steep rock face on his land to continue to crumble away without protection for the people underneath,101 were held liable for private nuisance. A landowner who allowed his land close to a roadway to be used as a golf course, with the result that members of the public passing along the road were injured by misdirected golf balls, was held liable for public nuisance;102 likewise, a club that used its land close to a roadway as a cricket ground, so that members of the public were subjected to the cricket balls that were hit to the boundary, was held liable for public nuisance.103 In the second place, the rules of common law also provide that the occupier of land will be liable to pay damages if he or she keeps something on that land in the non-natural use of that land which escapes and causes damage. So, if a person constructs a reservoir of water on the land that he has leased, and the weight of the water is so great that it breaks into some disused mine shafts and floods into a neighbouring coalmine, then that person is liable, since he has used the land in a nonnatural way and thereby caused damage to the neighbour.104 Again, if a company stores large quantities of gas or oil on its land for distribution to consumers, it is liable if the gas105 or oil106 escapes and ignites or causes damage to neighbours. Thirdly, the rules of common law have held that a person who uses his or her property without reasonable care, so that harm is caused to a person who could reasonably be foreseen as likely to be harmed, will be liable to pay damages to compensate for the harm caused if that is a just and reasonable result. So, the driver of a truck, who carelessly left it with the engine running and unattended on a steep road, was held liable to pay damages for injuries suffered by a mother who rushed to rescue her children as the truck started to career down the hill.107 Again, the driver of a car who drove it so fast and so carelessly that it ran off the road and collided with a stationary camping van, killing the driver of the van instantly, was held liable to pay

96 97 98 99 100 101 102 103 104 105 106 107

Halsey v Esso Petroleum Ltd [1961] 1 WLR 683; Allen v Gulf Oil Refining Ltd [1981] AC 1004. Bank of New Zealand v Greenwood [1984] 1 NZLR 525. Kennaway v Thompson [1981] QB 88. Wheeler v JJ Saunders Ltd [1996] Ch 19. Goldman v Hargrave [1967] AC 645. Leakey v National Trust [1980] QB 485. Castle v St Augustines Links (1922) 38 TLR 615. Bolton v Stone [1951] AC 850. Rylands v Fletcher (1868) LR 3 HL 330. Batcheller v Tunbridge Wells Gas Co (1901) 84 LT 265. Northwestern Utilities v London Guarantee Insurance Co [1936] AC 108. Hambrook v Stokes [1925] 1 KB 141.

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damages to compensate for the nervous shock suffered by the wife of the driver of the van.108 So also manufacturers who produce products for sale to consumers, such as beverages,109 pharmaceutical medications,110 clothing,111 mechanical tools and equipment,112 which have been carelessly produced and which cause injury to the user, have been held liable to pay damages to compensate for their negligence. Again, farmers who carelessly farm their land, for example, by failing to take reasonable steps to eradicate variegated thistle,113 or spraying crops with dangerous insecticide,114 so as to cause harm to their neighbours, have been required to pay damages for their negligence. The rules of equity allow for a court to issue a decree of specific performance or an injunction to direct that property must be used in accordance with the terms of a contract, or may issue an injunction either to prevent a person from using property in breach of the terms of a trust or to order a person to do something. Injunctions which require that action must be taken are often called mandatory or positive injunctions, whilst injunctions which prohibit the taking of action are often called prohibitory or negative injunctions. 115 The rules of equity also allow for a court to make a declaration as to the rights of the parties. Thus, in Pung Nimp v Rumants,116 the National Court of Papua New Guinea made a declaration that where directors of a company held shares in trust for their lines or clans, and the directors had sold such shares in breach of those trusts to a purchaser who was aware of the breach of trust, the purchaser held such shares in trust for the members of the lines or clans. The extent to which these rules of common law and equity apply to customary land does not appear to have been discussed in reported decisions in courts of the South Pacific. In principle, it would seem that the principles of common law and equity should apply to such land as they do to other land. In some countries, the written law – the Constitution in the case of Vanuatu,117 and legislation in the case of Fiji,118 Kiribati,119 the Solomon Islands120 and Tuvalu121 – states that the use or utilisation, as well as the ownership, of customary land is determined by custom. It is open to argument that this means that customary land in those countries is not subject to the rules of common law and equity discussed above which relate to the use of property, but only to rules of customary law.

108 109 110 111 112 113 114 115 116 117 118 119 120 121

Hinz v Berry [1970] 2 QB 240. Donoghue v Stevenson [1932] AC 562. Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458. Grant v Australian Knitting Mills [1936] AC 85. Davie v New Merton Board Mills Ltd [1957] 2 QB 368; Muirhead v Industrial Tank Specialities Ltd [1986] 1 QB 567. French v Auckland City Council [1974] 1 NZLR 340. Tutton v AD Walter Ltd [1986] 1 QB 61. For further discussion of equitable remedies see Chapter 11. [1987] PNGLR 96. Art 74, Constitution of Vanuatu. S 3 Native Lands Act, Cap 133. S 12 Native Lands Ordinance, Cap 22. S 239 Land and Titles Act, Cap 133. S 12 Native Lands Ordinance, Cap 22.

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5.2.2.3 Rules of the written law that regulate the use of property Rules may be made by the written law, that is, by the constitution, by legislation or by subsidiary legislation, which prescribe or require certain uses of property, or which prohibit certain uses of property. The advantage of this form of management is that it allows for general rules to be made in advance that can specify or prohibit the use of property, and these rules can be publicised so that people know what they must do to act in accordance with those rules, and use the property only in accordance with those rules. In a number of island countries planning legislation was introduced under colonial administration: for example, the Building Control and Standards legislation of the Cook Islands dates back to 1969,122 and the Town Regulations of Tonga to 1903.123 Since independence, some island countries of the South Pacific, such as Fiji, Kiribati, the Solomon Islands and Vanuatu, have developed their own legislation,124 and elsewhere legislation from the United Kingdom applies.125 Sometimes the rules that are contained in the written law can be expressed in very broad terms, or in very narrow terms. For example, in the Cook Islands, Fiji, Kiribati, Papua New Guinea,126 the Solomon Islands and Vanuatu, planning legislation has been enacted that prohibits any substantial change to the use of land within a designated planning area, unless it has been approved by the planning authority. In contrast is s 74 of the Land Act of Tonga, which prescribes that the holder of a rural allotment must plant 200 coconut trees, and that these must be in rows and so arranged that the trees are 9 metres apart or 4.5 metres apart in rows which are 18 metres distant from each other, and they must be carefully tended and kept free from weeds.127 There are, however, two problems about management of property by prescription or prohibition in the written laws: inappropriateness and enforcement. Inappropriateness may occur because provisions in a written law have to be written and approved to come into force as law at a particular point in time, when it may not be possible to envisage accurately what will be the circumstances of the future. If the circumstances of the future develop differently from what was envisaged at the time the written law was made, the prescriptions or prohibitions of the law may become inappropriate, and may be difficult to change. In order to overcome the problem of dealing with a future which the lawmaker cannot accurately foresee, it is often necessary to empower some person, usually a government official, to exercise some discretion to make modifications, adjustments and exceptions to the prescriptions and prohibitions of the written law. The danger then is that that person may exercise his or her discretion unreasonably or unfairly, or on the basis of some error of fact or of law, and it may become necessary to provide for an appeal from that decision, and sometimes a second appeal, if the interests involved are sufficiently important.

122 Land Use Act 1969. 123 See also the Public Health Act 1916 (Tonga), and the Health Ordinance 1959 (Western Samoa). 124 Eg, Town and Country Planning Act Cap 139 (Fiji); Town and Country Planning Act 1979 (Solomon Islands); Land Planning Act Cap 48 (Kiribati); Physical Planning Act Cap 193 (Vanuatu). 125 Eg, the Town and Country Planning Acts of 1947, 1963 and 1971 (UK). 126 Physical Planning Act 1989. 127 Cap 132.

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Questions of enforceability arise because experience of human nature warns that human beings will not act in accordance with rules laid down by someone else unless they believe that it is in their best interests to do so, or unless they believe that they will be punished if they do not do so. It therefore usually becomes necessary, in order to ensure that the statutory rules of management are complied with, for the rules to provide some form of punishment for non-compliance. Normally, this punishment will be left to be enforced by the normal law enforcement agencies of the State – that is, the police. In countries of the South Pacific, the law enforcement officers of the government are often insufficient, both in numbers and in training, to be very effective, even with regard to their normal law enforcement operations, much less with regard to less usual kinds of operations, such as those relating to the management of property. The ‘shanty towns’ that have developed in breach of the planning legislation in and around the capital towns in Fiji, Kiribati, Papua New Guinea, the Solomon Islands and Vanuatu, and the illicit liquor outlets that continue to operate in many such towns in breach of the liquor licensing legislation, are striking testimony to the inadequacy of ordinary law enforcement officers to enforce provisions contained in written laws about the use of property. An alternative is to establish a special agency that will be responsible for the enforcement of the statutory rules as to the use of the property – an agency which does not have any other commitments and can build up an expertise with regard to the use of that property. Thus, in Fiji, the Agricultural Landlord and Tenant Act128 provided that the leases of all tenants who were cultivating customary land for agricultural purposes must be extended by another 30 years, subject to certain limitations, and provided that this would be enforced by a special agricultural tribunal and not by the ordinary police force. It is important, when considering the suitability of the written law as a means of prescribing or prohibiting uses of property, also to consider how these provisions are to be implemented and enforced, and to recognise that enforcement by the normal law enforcement agencies may not prove to be a very effective or satisfactory method of controlling the use of property. So, if one is serious about ensuring that people do not use property except as permitted by government or by a government agency, it may be necessary to establish a special body to enforce the statutory rules that provide that a person can only use property in a certain way if that person has the permission of government or a government agency. Thus, the physical planning legislation of South Pacific island countries often provides that the physical planning authority itself may take direct action to remove physical constructions that have been erected without the permission of the physical planning authority.129

128 Agricultural Land Lord and Tenant Act, Cap 270 (Fiji). 129 S 27 Town and Country Planning Act, Cap 139 (Fiji); s 28 Land Planning Act, Cap 48 (Kiribati); Physical Planning Act (PNG); s 24 Town and Country Planning Act, Cap 154; Sched 2, Physical Planning Act, Cap 193 (Vanuatu).

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CONCLUSION In this chapter, different models of management have been considered, as well as a variety of methods that may be adopted to manage or control the use of land, along with the advantages and disadvantages of such models and methods. Also relevant to the question of management has been the question of restrictions or lack of restrictions concerning what managers can do with property, ranging from unrestricted use by the owners managing their own property to considerations of the type and extent of restrictions which may be imposed on managers or owners.

CHAPTER 6 USE AND ENJOYMENT

INTRODUCTION The value of property lies not just in the economic benefits that might be gained from its sale, or from the rents or income it generates, but also from its use. This is particularly the case in societies where individuals have limited access to material goods, either because they lack the financial resources to acquire them, or because the range of available material wealth is limited. In such cases the use of things, especially land but also other commodities, is extremely important.1 Continued use over generations links people to the land and to their history. At the same time, as more people compete to use shared resources, new ways of sharing the use and enjoyment of property have to be devised and – as indicated in the previous chapter – new controls established to ensure that one person’s use or enjoyment does not encroach upon that of another person. In island countries of the South Pacific, control over the use and enjoyment of certain property for the good of the community is nothing new. What is more recent, however, is the increase in legislation restricting or determining the use and enjoyment of certain property, with individual interests or priorities giving way to considerations of public benefit or public welfare, environmental considerations and even global pressures. In this chapter, therefore, both mechanisms for facilitating use and enjoyment are considered, as well as mechanisms for how use and enjoyment are curtailed or controlled for the greater – or more general – good.

6.1

USUFRUCTUARY RIGHTS

Usufructuary rights are the rights to use and enjoy property without being the owner of it. The term ‘usufruct’ derives from Roman law and is more often found in civil law systems than common law systems.2 It means to use and take the fruits or benefits.3 Traditionally the term referred to land and to the right that might be granted by one owner to another to use the land and take what it produced. In common law a similar result could be achieved by the trust or strict settlement,4 whereby a person could benefit from the property but the ownership lay elsewhere – in the case of the trust, with trustees.5 The granting of use rights over land is often found in island countries

1 2

3 4

5

Informal shared use of chattels such as lawn mowers, vehicles, household and agricultural implements is common. It is found in French civil law, for example, especially in the case of a widow, who may be granted the usufruct of a deceased husband’s estate for the remainder of her life. See Dadomo, C and Farran, S, French Substantive Law: Key Elements, 1997, London: Sweet & Maxwell, pp 81–90. There is some overlap here with the more familiar common law notion of profit à prendre, discussed in Chapter 4. A strict settlement was a device found in common law, whereby the tenant for life could use and control property which then went on trust to others. A typical use of the strict settlement was where land was for the remainder of her life to a widow and then on trust for the children. See section 6.2 below, under ‘Beneficial rights’.

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of the South Pacific and its importance in relation to the development of land, especially difficulties in the alienation of land, is significant and sometimes not well understood by those unfamiliar with this idea. Illustration of this can be found in the Solomon Islands case of Kinisita v Ramolele, in which it was stated: While accepting that in any major disposition of customary land, the primary right holders are basically the 'front liners', the secondary right holders whose rights are said to be secondary cannot be ignored. One fundamental reason for that proposition is that in the Solomon Islands context nobody is landless, whether that be in terms of ownership or just usufructuary right which is closely associated with the right of occupation. In customary land tenure system the rights of use and of occupation, although they may be regarded as secondary rights, must be accorded with their proper scope of consideration based on the rules applicable to customary land. It would be wrong to assume that the concepts of primary and secondary rights under other land tenure systems, for example, Torrens System, can equally be applied to customary land tenure system. In the context of Solomon Islands, secondary rights in customary land may well have evolved and have been enjoyed from time immemorial. In many respects such rights can properly be regarded as continuing, such as a right to occupation on the land and cultivation.6

As is evident from the above, usufructuary rights may overlap with other rights such as occupation, cultivation, easements and beneficial enjoyment. They may also give rise to conflicts such as charges of trespass, claims of acquisition by way of adverse possession and disputes as to whether a person is a licensee, has acquired an interest by way of an estoppel or under some form of trust, or is a squatter. Whereas ownership of land in customary land tenure will vest in the group, usufruct rights will often be exercised by an individual or the smaller family unit. As indicated in Chapter 1, a person holding usufructuary rights has the right to use the property – which may be land or other property – and often to take the fruits or benefits from it, but must look after it for those who hold the title to the property and their successors.7 So a person holding the usufruct cannot alienate or transfer the property to another without the consent – express or implied – of the title holder. The difference between a usufructuary and a beneficiary (under a trust, for example) is that the former will actively use the property while the latter will be the passive recipient of benefits, such as income or revenue generated from the trust property and managed by trustees. So, while a usufructuary will be a beneficiary, a beneficiary will not necessarily be a usufructuary. Some of the usufructuary rights found in the South Pacific region will now be considered.

6.1.1 Rights of cultivation The owner of land will have the right to cultivate that land and harvest whatever crops are grown. However, it is also possible for the owner to grant rights of

6 7

Land Appeal Case No 1 of 1996 [1996] SBHC 52. Eg, under French Law, in Art 587 of the Code Civil, the usufructuary has the right to enjoy the property in the same manner as the owner but subject to the obligation to conserve the substance of the thing. The Oxford Dictionary of Modern Legal Usage, 2nd edn, 1995, p 906, equates the usufructuary with the life tenant of English common law. The term does not appear to be widely used in Australia or New Zealand.

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cultivation to others.8 This might be done in custom, or by way of a lease or other agreement. Indeed, rights of cultivation, especially in custom, of land belonging to others are widely recognised in island countries of the South Pacific, especially in the case of cultivation of short-term crops.9 This practice has a number of consequences. First, it has an impact on the meaning and definition of land. Although in common law the approach for a long time was that crops attached to the land belonged to the owner of the land, a more pragmatic view is taken in the South Pacific region, taking into account custom and practice. For example, in the case of Kosrae State v Molid Tolenoa, the court recognised that common law regarded crops growing on the land as part of the land and therefore realty.10 However, local custom recognised the right of those other than owners of the land to come onto the land and cultivate crops which belonged to the person undertaking the cultivation as personal property. Consequently, the wrongful taking away of such crops could amount to theft – which only applied to personal property. This view of crops as personal property is not without its difficulties, as the definition of land in certain jurisdictions specifically states that it includes things growing on the land. There may, therefore, be an apparent conflict between statutory definitions and customary practice. The weight of custom will then depend on the weight of customary law in any given legal system.11 Secondly, an ability to allow others the right of cultivation is important for a number of reasons. For example, members of the extended family may have been driven off their land, or the landowner may need additional labour or may be absent. In the last case, neglecting the land may leave it vulnerable to being seized by the State, or by others. It is not unusual in jurisdictions where absentees – either from the rural area, island or the country itself – want to retain their land rights, to find others cultivating the land.12 Such a practice can on occasion lead to difficulties, especially if the practice has continued for a long period of time and those cultivating the land seek to assert stronger rights than those of mere use.13 As has been indicated, there are differing approaches by the courts of island countries of the South Pacific to the issue of acquisition of land by adverse possession.14 Generally, however, a use right will not equate with an ownership right, especially as regards customary land. Thirdly, an adverse possible consequence of allowing others to come on to the land to cultivate it is that when the true owner seeks to evict these people there may be claims for compensation for the value of crops.15 This can be further complicated by claims of ownership to trees, or disputes as to whose labour was involved not just

8 9

10 11 12 13 14 15

As stated in the case of Liiou’ou v Saruhohola [1999] SBHC 83: ‘It is common ground that two unrelated tribes cannot own the same customary land, although one tribe may grant permission for a non-related tribe to live on the land and cultivate food crops.’ See, eg, the case of Kosrae State v Molid Tolenoa [1989] FMKSC 2, in which the court held that ‘Kosraens perceive sugar cane as a short term crop which people plant on lots owned by someone else, with the understanding that the sugar canes are not perceived as part of the land’: www.vanuatu.usp.ac.fj/paclawmat/Micronesia_cases. Ibid. See Introduction. In the Cook Islands, provision for this is made in legislation in s 50 Cook Islands Amendment Act 1946. As in Talili v Satele Momosea [1988] SPLR 2 (American Samoa). See Chapters 3 and 7. As in the cases of Berry v Saolo [2001] VUSC 36 and Faafulu v Su [2000] WSSC 17.

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in planting the crops but in keeping the crop weeded, or indeed conflicting claims as to who was the first person to clear the land. Lastly, a right to cultivation is also very important where a person cannot hope to acquire ownership or title rights to land. For example, in most of the South Pacific region, where society is organised patrilineally and land rights pass through male heirs, a married woman will go to the house of her husband. She will be allowed to cultivate land there, but as an individual will have no title to it. If her husband dies, unless she has secured rights for her children, she may lose her right to be on the land. In some cases a married daughter will also be allowed to retain cultivation rights in her own village, so that in case of need she can return there and be provided for. In matrilineal societies, where land passes through the female line, the converse may apply and men will be allowed to cultivate land belonging to their wife’s clan or family.

6.1.2 Timber rights Timber is a very valuable commodity in many of the island countries of the South Pacific, not only for commercial reasons but because traditionally it provides fuel for cooking, the material for building houses and making canoes, and even the bark for cloth.16 Rights to collect firewood will often be common rights, whereas rights to certain types of trees, such as mangrove trees in swamps, may belong to those who have the land at the edge of the swamp. In some jurisdictions trees are deemed to belong to the person who planted them, rather than the owner of the land where they are planted.17 This is particularly the case with trees which regularly bear food crops, such as bread fruit trees and coconuts. Indeed one of the purposes of the legislation in the Solomon Islands was to cope with the diversification of rights in relation to land and timber. As stated by Ward CJ: The purpose of the original Forest and Timber Act and Part IIA of the amended Act is to ascertain the persons who are entitled to grant timber rights and approve an agreement by which the logging company acquires those rights from them. Ownership of customary land and ownership of timber rights is not the same thing. Frequently the same people are involved because the ownership of the land will usually have included the rights to the timber on the land but many people who do not have ownership rights to the land have rights over the timber.18

The rights to harvest trees and exercise timber rights have given rise to considerable controversy since the first sandalwood traders arrived in the Pacific. Large areas of valuable timber were felled on the basis of scant remuneration to local customary owners, often with no consultation other than with a chief, and no concern for reafforestation. The consequence is that the hardwoods of the region have been severely depleted due to uncontrolled or poorly managed logging operations. In recent years some legislation has been passed both to control logging and to encourage re-

16 The traditional ‘tapa’ cloth found in Fiji, Samoa and Tonga is made from the beaten bark of the mulberry tree. 17 Alternatively the planting of trees may be evidence of ownership, as suggested by O’Mera, J, ‘Samoa: Customary Individualism’ in Crocombe, R (ed), Land Tenure in the Pacific, 1987, Suva: University of the South Pacific, p 91. 18 Allardyce Lumber Co Ltd & Others v AG [1988–89] SILR 78.

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afforestation.19 Where this has happened, logging can be done only under properly issued licences which may define the terms of the logging. Disputes may still arise, however, either in terms of the capacity of a custom owner to enter into a logging agreement in the first place,20 or the extent of the rights conferred under licence,21 or indeed whether there is a valid licence.22 Also, it is not unknown for custom owners to grant a number of licences over the same land or over land which overlaps, or for illegal, that is unlicensed, logging to occur. The existence of logging rights which are separate from ownership of the land has also given rise to disputes between primary and secondary rights holders, especially in the Solomon Islands.23 The difficulty is that logging presents an easy opportunity for custom owners to reap cash rewards with very little effort. There is also the temptation of handsome commissions from logging companies persuading government ministers or public sector servants that a logging contract is in the best interest of the government. What is not always realised is the long-term damage done by logging, not only as regards the loss of hardwood trees but also through the construction of roads to logging sites, the impact of denuding the land of vegetation and the destruction of habitats for a variety of other plant and animal life.

6.1.3 Hunting, fishing and foraging rights The right to take natural produce from the sea, bush or land is important to people who live by subsistence farming.24 In some island countries of the South Pacific, traditionally certain members of the community were designated as fishermen or hunters, and only they were allowed to hunt or fish for certain species. Some of these rights will be common rights, others will be granted to certain groups of people. For example, certain trees will be deemed to belong to certain people – such as bread fruit trees – even if on someone else’s land. Coconut trees may also belong to certain people, but strangers may be permitted to pick green coconuts or fallen coconuts. In some cases the harvest of certain fruits will be restricted, but the harvest of other benefits, such as leaves or fallen branches, will be common. The same is true of fishing. While all the members of a community may have the right to fish, fish traps or nets will belong to certain individuals and the right to catch certain species of fish may be limited to certain – usually important – people.25 Sea fishing, by line, net or diving, will be available only to coastal dwellers, but inland people may catch freshwater eels and prawns. Increasingly Pacific islanders are moving towards a preference for tinned fish, but there is also the opportunity with greater cash availability for individuals to 19 Eg, the Registration and Timber Harvest Guarantees Act Cap 28 of 2000 (Vanuatu); Forest Resources and Timber Utilisation Act Cap 40 (Solomon Islands). 20 Leua v Kalena Timber Co Ltd [1999] SBHC 13. 21 Cal Timber Co. Ltd v Santa Cruz Timber Ltd [1999] SBHC 36. 22 Guadalcanal Resource Development v Dalsol Ltd (No 2) [1996] SBHC 62. 23 Allardyce Lumber Co Ltd v AG [1988–89] SILR 78. 24 Crocombe, R, and Hide, R, indicate that in Papua New Guinea people were dependent on hunting, fishing and foraging as a secondary source of food: ‘New Guinea: Unity in Diversity’ in Crocombe, R (ed), Land Tenure in the Pacific, 1987, Suva: University of the South Pacific, pp 324–26. 25 With less dependency on fishing as a food resource, some rights which would have traditionally been held by individuals or controlled by certain people in the village seem to have disappeared. See Lambert, B, ‘Kiribati: Micro-Individualism’ in Crocombe, R (ed), Land Tenure in the Pacific, 1987, Suva: University of the South Pacific, pp 171 and 178.

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combine and purchase fishing boats and more sophisticated equipment, and there is increasing – although not always very effective – regulation of the fishing fleet.26 In Pacific island countries, the harvesting of produce from reefs or lagoons is important. Sometimes such harvesting will be seasonal and sometimes it will be the work of certain persons, such as women or young men. It is not unusual to find food that has been harvested or captured being used as an exchange commodity, or sold for cash or used on ceremonial occasions.27 Gifts of food which is common in one locality but rare in another may be sent between islands, to maintain ties with family and friends. The right to forage on reefs has raised questions regarding the ownership of the foreshore. While use of the reef was seen as being part of customary usage, introduced law under colonial administrators designated land covered by the sea as being Crown or public land, in particular the foreshore.28 This was especially a problem in the Solomon Islands, where introduced legislation failed to establish if land covered by sea water could be defined as ‘native land’.29 Eventually the matter was resolved by holding that if land – including that covered by water – was capable of public ownership then it was also capable of native ownership, provided sufficient evidence could be brought to establish ownership, use or occupation in custom.30 Increasing population pressure on reef resources, the fragility of coral reefs, climatic changes and new methods of harvesting reef resources all pose a threat to the right to harvest food from the sea. At the same time, the reefs and sea offer potential for development. For example, in Niue, seaweed is being farmed as a potential export crop. Pearls, especially from the Cook Islands, have long been a valuable cash commodity, and pearls and mother-of-pearl are protected under the Marine Resources Act 1989. However, unless such resources are harvested with care and good management, it is likely they will dwindle. One of the ways in which they can be managed is to limit the number of those who can take natural resources. However, in some cases, this will conflict with traditional communal rights. It is also true that Pacific island countries are increasingly aware of the importance of their maritime territories. In 1976, all the Pacific island states extended their territorial seas beyond the standard 12 mile limit, to 200 miles. The result is that in all cases Pacific island territories have more water than land, if their exclusive economic zones are taken into account. Unfortunately, although this generates some income through the registration

26 Most fishing boats are meant to be licensed, but there are regular stories of fishing boats being lost at sea or ending up a long way from their home port, eg, Samoan and Tongan fishing boats being rescued drifting in Fiji or Vanuatu waters. 27 Food plays an important role in all ceremonies but also things that are harvested from the sea such as certain shells will also be important ceremonially, eg, the conch shell. 28 Land covered by water which is not sea may be classified as land in common law, eg, the bottom of lakes or rivers. See Allardyce Lumber Company Ltd v Laore [1990] SILR 174. 29 The difficulty arose because of contradictory definitions of land in different legislation. Under the Land and Titles Act, Cap 93, revised edition 1961, title to land below the mean low water mark vested in the Commissioner of Lands as the owner of public land. However, a definition of land in the Land and Titles (Amendment) Act of 1964 did not expressly exclude land covered by sea at mean low water, from falling within the definition of land for the purposes of ‘native land’. ‘Native land’ was ‘any land lawfully owned, used or occupied by a person or community in accordance with current native usage’, King’s Regulation 1914, Cap 49, revised edition 1950 and Land and Titles Ordinance, Cap 56, revised edition 1963. 30 Combined Fera Group v AG [1997] SBHC 55. See further Kabui, F, ‘Crown Ownership of Foreshores and Seabed in Solomon Islands’ (1997) 21 Journal of Pacific Studies 123.

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of fishing fleets, none of the island countries have sufficient resources to patrol their respective waters effectively, and poaching is common. Future exploration and exploitation of the seabed for minerals and fossil fuels will no doubt present further challenges to the use of marine resources and questions as to who should benefit from these. Hunting rights were considerably more important in the past than they are today. Many species have been driven to near extinction due to the introduction of hunting with guns, as opposed to spears or bows and arrows, and the reduction in uncleared bush areas. However, where wild birds and animals such as pigs exist, hunting continues, even if such species are meant to be protected by legislation.31 The right to hunt is usually an individual right which will require permission to go on to certain lands but not others.32

6.1.4 Common rights A number of the rights mentioned above were traditionally common rights, and still are today. In most systems of customary ownership, especially of land and its resources, rights will be shared either among members of the same family or clan, or across generations. Few rights are unique to one individual, and even in the case of movable property or chattels, there may be a belief that the property of one member of the family can be used by another member without any requirement for permission or grant. So in considering common rights in this chapter, the focus is on rights that are shared by members of different family groups. These rights may arise in custom, by agreement (such as in a contract), by means of legal structures such as partnerships or co-operatives, or by operation of statute. For example, in a number of jurisdictions, certain areas of land or aspects of land will be available to the village community. There may be areas of uncultivated land where all members of the village can go to collect wood for fuel, pick certain wild fruit and herbs or medicinal plants, or collect salt or clay. Alternatively, all villagers may have the right of access to water or reef products. For example, in Fiji, coastal villages may have a communal fishing area. Also, as has been mentioned in Chapter 4, the public may have rights of way over certain areas of land and water, such as the foreshore, rivers and lagoons. In Tokelau, certain lands are referred to as ‘village lands’ and members of the village will have the right to take produce from these, provided they have permission. The extent of these lands varies from atoll to atoll, and is controlled by the village council. Certain foods, such as large fish or turtle, have to be divided among the village.33 In some island countries, communal rights may be limited to certain groups or clans, such as membership of a family. This is the case in

31 It is impossible to enforce most of this legislation and as the produce from hunting will invariably be consumed rather than sold, it is likely that illegal hunting will continue until a number of species no longer survive in the wild. See comments by Arutangai, S, ‘Vanuatu: Overcoming the Colonial legacy’ in Crocombe, R (ed), Land Tenure in the Pacific, 1987, Suva: University of the South Pacific, p 295. 32 Eg, to hunt on State land might require a licence and certain areas of forest would be regarded as taboo and therefore closed to hunters. 33 Hooper, A and Huntsman, J, ‘Tenure, Society and Economy’ in Crocombe R (ed), Land Tenure in the Atolls, 1987, Suva: University of the South Pacific, p 134.

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the Marshall Islands, where members of the same matrilineal group (bwij) have the right to benefit from land which is held in common by members of that group.34 As land comes under increasing pressure and is cleared of natural bush, there is less and less common land, and increasing regulation, for example, of where cattle or pigs can forage. This is true not only of land, but also of water and marine resources. Increasingly there may be a need to curtail common rights in the interest of conservation of certain resources.35 There is also greater movement throughout the South Pacific region towards ownership and enjoyment of resources by individuals or the smaller nuclear family, and also greater subdivision of land which might previously have been common or used by a larger number of people. It is not only in respect of land that rights may be common. Certain intellectual property may be shared, for example, songs and dances. For this reason it is often impossible to trace or identify the first creator, inventor or originator of a song, design or dance. In some cases, however, only certain people or classes of people may be allowed to perform or participate in certain ceremonies. For example, in Vanuatu, only men take part in ‘land diving’, while in Tonga, special dances may be reserved for women. Certain skills and knowledge will be shared communally, often reflecting division of labour among the sexes.36

6.1.5 Burial rights As indicated in Chapter 4, the right to bury members of one’s family in land is very important because burial sites are evidence of a claim to land.37 Consequently, where members of a person’s family have been buried on land to which that person has no rights, there are potential conflicts. Burying the dead on the land may amount to a statement of claim to the land, which the true owners will seek to refute. Conversely, if there are burial sites on the land, even if the descendants of those buried are no longer in possession of the land, this will be important evidence for establishing title in customary law. The right to assume responsibility for the burial of a deceased person is also important. Usually this is the responsibility of the next of kin, but where a stranger or more distant relative takes on this task – and the expense of the funeral – this may entitle this stranger or remote kin to claim certain property of the deceased, including land.38

34 Mason, L, ‘Tenures from Subsistence to Star Wars’ in Crocombe, R (ed), Land Tenure in the Atolls, 1987, Suva: Institute of Pacific Studies, University of the South Pacific, p 9. 35 This is suggested by Hunt, C, ‘Property rights and environmental management on Pacific atolls’ (1996) 23 International Journal of Social Economics No 4/5/6, pp 221–34. 36 Eg, the making of mats and baskets is often women’s work, and the knowledge of how to do so is passed on from one generation to the next, while carving of masks and tamtams is men’s work. 37 See, eg, the evidence considered in the case of Cook v Sauvao [2002] WSSC 15. 38 This is possible in Kiribati, but may also be claimed in other jurisdictions, see, eg, the Vanuatu case of Esau v Tokon [2002] VUSC 34, in which the plaintiffs sought an order of specific performance concerning an oral agreement relating to land which was to be gifted to them if they bore the funeral expenses of the donor.

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6.1.6 Ceremonial rights Ceremonial rights and obligations remain very important in island countries of the South Pacific, and often involve transfers of property. Sometimes this property is traditional property, such as shell money in Solomon Islands, or tapa cloth in Tonga or Fiji. Often there will be a blend of tradition and modern, so, for example, at a village wedding in Vanuatu the new couple may receive plastic household goods, cooking pots, yams, mats, calico, as well as money and pigs. Traditionally, such ceremonies mark important occasions, such as birth, menstruation, circumcision, marriage and death. Today they may include graduation, birthdays and festivals of the Christian calendar. Ceremonies traditionally were – and still are today – also important for changes in status, such as becoming a chief or Big Man, or moving up a grade in the customary hierarchy. Ceremonies also take place at moments of great importance, such as visits by people of status, reconciliation between disputants, and the payment of compensation or fines. Certain people will be entitled to take part in these ceremonies, others will be merely spectators. In some cases certain people will be excluded, depending on age, sex or status. Often ceremonies, such as the preparation and presentation of kava in Vanuatu, or yaqona in Fiji, will be reserved for men. In others, women will be the main participants. Most ceremonies have a degree of publicity that extends beyond the immediate family. Thus the ceremony is important evidence in the history of people, and events may be recorded by certain ceremonies which took place.39 Marriage, for example, especially in rural areas, whether the parties are married according to custom or in church, is an event celebrated by the village, and various parts of the ceremony will take place at different locations in the village. Many ceremonies are now acquiring commercial value as examples of indigenous culture, which tourists and visitors will pay to see.40 While this may be of benefit to those taking part, there are dangers not only of conflict arising between the custom owners of these ceremonies but in the commercial exploitation of by-products such as photographs, films and soundtracks. There is also the danger that taboos may inadvertently be broken or openly flouted, and sensibilities hurt or anger provoked.41 Even everyday occasions may require the observance of ceremonies. For example, in Fiji it is usual to take a gift (sevusevu) to a person whose assistance you are seeking, whatever the nature of the assistance: for example, hospitality or information.42 Similarly, in most countries, it is usual to take a gift of food to any social gathering, and at any formal occasion, such as the opening of a school or a workshop, mats, baskets, necklaces or other customary gifts may be presented to speakers or officials. 39 Eg, in law reports concerning land disputes it is not unusual to find evidence being led regarding certain ceremonies that took place and the identity of participants at these ceremonies featuring as part of the oral evidence to support claims. 40 Re Nagol Jump, Assal & Vatu v Council of Chiefs of Santo [1992] VUSC 5; [1980–84] 2 Van LR 545. 41 Eg, at the 2002 Melanesian Arts Festival held in Vanuatu, dancers from Moto Lavu in the Banks Islands of Vanuatu performed a special dance called the ‘snake dance’. It is a taboo dance and spectators were requested not to take photographs; to do so would offend the taboo. Nevertheless, some tourists did so. The punishment does not fall on the tourists, who go home with their photographs, but on the dancers who have allowed the taboo to be broken. 42 This is so deeply entrenched that even researchers from the University of the South Pacific, undertaking research in Fiji, include costs of sevusevu in their project budgets.

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6.1.7 Rights of chiefs and councils It is still true of most island countries of the South Pacific that chiefs and senior members of the community have considerable authority and play an important role in the allocation and use of land and other resources. Sometimes chiefs themselves are important landowners and may have rights to other property which commoners will not have. For example, they are often entitled to the first fruits, or the greatest share of any return from the land.43 Chiefs will also acquire certain benefits because of their management powers regarding the land, although in return they will be expected to provide for the people they rule over or represent. Indeed, in Vanuatu, some communities may regard land rights as being vested in chiefs for the benefit of their community. For example, in the case of Family Sope v Family Kalulu,44 the court held: ‘[T]here is no individual ownership of land according to Pango custom. Land rights are held by the chief and their council.’ Chiefs may also influence the rights of others to property through their role in the adjudication of claims.45 In some jurisdictions of the South Pacific, however, being a chief has its own material benefits. For example, in Fiji, chiefs and heads of mataqali whose numbers are limited and restricted from increasing, receive between them 22.75% of the net income generated from Native Trust Land, administered by the Native Land Trust Board, while ordinary ‘commoner’ Fijians receive 52.5% to be divided among a limitless number of claimants. In Tonga, nobles have the right to hereditary estates, while commoners must apply for land. Although chiefs will not always be major landholders, increasingly the interplay of politics with traditional chiefly roles makes those chiefs closest to development both powerful and wealthy figures. It is rare to find a Minister in Cabinet who is not a chief, or descended from a chiefly line. Often these people will have acquired chiefly or ‘Big Man’ status on their way up the political ladder.46 In a number of jurisdictions of the region, chiefs are given a particular role within the constitutional or legislative structure of the country (see below). This may give them considerable control over land and its development, so that even though they may not be entitled to additional benefits by virtue of their position as chiefs, their position of power means that there may be a conflict of interests between their status as individuals and the role they hold as chiefs.

6.2

BENEFICIAL RIGHTS

Beneficial rights are those found under a trust or similar arrangement, whereby the person who enjoys the benefit of the property is not the legal owner of the property but the beneficial owner. The management of the property is generally in the hands of others, as is the legal ownership. One of the most obvious examples of beneficial ownership in the region is in the case of native land in Fiji, considered in Chapter 5.

43 This traditional practice can create problems with income generated by development, especially when the role of chief overlaps with that of politician or government servant. 44 Civil Case No 1, 1994 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Vanuatu_cases. 45 See Resolving Claims to Property, Chapter 10. 46 Eg, in Samoa, only matai can stand for election.

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Anyone who is registered as a native Fijian is entitled to benefit from the land held on trust by the Native Lands Trust Board established by the Native Lands Trust Act,47 by receiving a share of the income generated from the land which is managed by the Board. However, the Board itself also benefits, as it takes a percentage of the income generated to meet its administrative costs.48 Elsewhere one finds both formal and informal trusts, whereby the beneficial rights of custom owners are looked after by representatives of the community or family, such as the matai in Samoa,49 or more formal trust boards, as in Vanuatu.50 A trust may also be implied where lineal patterns of descent are interrupted through the absence of the required member of a family. For example, in a patrilineal system where there is no eldest son, a daughter may take the lands for her lifetime until a son is born, or a mother may hold the land on trust until a son comes of age. Similarly, in matrilineal systems where land passes from mother to eldest daughter, sons may look after the land where there is no daughter. In some cases the land may pass laterally for a generation, pending the arrival of a blood relative of the right sex.

6.3

CONTROLLING USE AND ENJOYMENT

As has been indicated in Chapter 5, those who manage property, whether for themselves or others, may be subject to agreed or externally imposed controls on what they can do with that property. These controls can also inhibit or impinge on the enjoyment or use of the property, or even prevent certain people from using or enjoying certain property. If people are to co-exist peacefully then they have to exercise their property rights with regard to the equivalent right of others to do the same. Inevitably this means that the use and enjoyment of property cannot always be exercised in a totally uninhibited way, because to do so might impinge on the property rights of others. The use and enjoyment of property is always subject to compromise for the benefit of the group, whether that is the family, the village, the locality or the public as a whole. Restrictions or controls on the unfettered enjoyment of property arise in a number of different ways. They may be informal or formal. As has been indicated, unless they are sanctioned in some way, they are likely to be ineffective. So, for example, however much one person might dislike the noise made by his or her neighbour, unless there is some consensus as to what is acceptable and what is not, and some sanction for exceeding the acceptable noise level, then the control is meaningless and the offended neighbour is likely to take matters into his or her own hands; the consequence will be a breakdown in social harmony, and possibly retaliation. The control of the use and enjoyment of property is directed in the first place at maintaining harmony and peace. As controls become more complex and detailed, they may be informed by broader policies such as the safeguarding of certain resources and the enhancement of what the State deems to be the public good or in the public interest, so that the control of property use may range from restrictions on what 47 Native Lands Trust Act, Cap 134 (Fiji). 48 See Kamikamaca, J and Davey, T, ‘Trust on Trial – the Development of the Customary Land Trust Concept in Fiji’ in Ghai, Y (ed), Law, Government and Politics in the Pacific Islands, 1988, Suva: Institute of Pacific Studies, USP, p 285. 49 A point illustrated by the case of Tufele Liamatua v Mose [1998] SPLR 41; [1998] ASHC 1. 50 See Chapter 5.

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farmers can spray on their crops, to what artists may paint on their canvasses. Matters concerning the way in which a person uses or enjoys property also overlap with how property interests are protected – considered in Chapter 9 – and the remedies which may be sought if rights are infringed – considered in Chapter 11. Often it is the fear of being held liable for certain consequences of use that will inhibit unfettered use or enjoyment of certain property.

6.3.1 Controls over land Controls over the use and development of land are necessary both to maintain natural resources and to avoid use which becomes anti-social or threatens to encroach on the use rights of others. In order to preserve resources and to ensure smooth social relations, controls relating to land are found both in customary law and in introduced law. In custom, such controls are often expressed by way of customary prohibitions or taboos, for example, regarding burial sites or the location of gardens. Legislation also imposes controls over land, for example, certain land may be restricted to certain uses, such as agricultural use or industrial use. Parties to agreements relating to land may also agree to controls over what is to be done to the land or how it is to be developed. These often take the form of covenants within the sale agreement.51 With growing pressure on land and diversification of its use, more controls are needed, especially as the density of population increases.

6.3.1.1 The law relating to neighbours and nuisance In this area the applicable law is largely based on common law principles that have been introduced, such as the torts of trespass and nuisance.52 However, customary law is also used to defuse conflicts between neighbours and chiefs, and village councils may impose restrictions on conduct likely to give rise to nuisance such as noise, movement after dark, the dumping of rubbish and the grazing of animals.53 In common law there are actions available to an aggrieved party if a neighbour conducts himself in such a way as to interfere with the use and enjoyment of land,54 or if the neighbour allows anything to escape from his land – for instance, animals, sewerage or smoke – that causes harm or unpleasantness.55 Similarly, if animals wander onto land and cause damage then the owner or keeper of those animals may be liable in trespass, as well possibly as nuisance and under statute. Liability for animals is based on the idea of strict liability of the person in possession or control of the animals. Often there are statutory provisions relating to liability for animals.56 The person who 51 52 53 54

See Chapter 4. See Chapters 5 and 11. See below, under Controls of Chiefs and Councils. For consideration of the law of nuisance see Kippion v the AG [1994] VUSC 1. In order to bring an action in private nuisance it is necessary to have an interest relating to the land, eg, to be the lessee or owner. 55 This is governed by the rules developed in the English law case of Rylands v Fletcher (1868) LR 3 HL 330. In many cases the subsequently developed tort of negligence will apply to situations which may previously have been covered by the Rylands v Fletcher rule. See, eg, Burnie Port Authority v General Jones Pty Ltd (1944) 120 ALR 42. See also the cases referred to in Chapter 5, which illustrate this tort. 56 Eg, Trespass of Animals Act, Cap 166 (Fiji); Animals (Civil Liability) Act 1982 (Nauru); Animals Act 1971 (UK), which applies in Tonga and Vanuatu.

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has suffered harm from these animals may also exercise self-help, such as driving the animals back or taking them to the nearest pound, or even in certain cases destroying them.57 The difficulty with either self-help or taking a neighbour to court is that this causes bad feeling, and as the parties are likely to have to continue to live as neighbours, it is better if these matters can be resolved peacefully and by conciliation. In rural areas especially, the chiefs may be called on to facilitate this process and there may be the exchange of customary payments to heal any rifts which have occurred. In urban areas, things become a little more complicated. Often people do not know their neighbours very well and there are other causes of nuisance, such as loud music or televisions, road traffic and more people coming and going at night. There are also likely to be bylaws passed by town or municipal councils, which regulate a lot of social behaviour and impose fines for breach. For example, there may be bylaws about parking, littering, drinking in public places, keeping animals, and so on. Consequently, where a person is upset by the conduct of a neighbour, he may report the complaint to the police or local authority.

6.3.1.2 Planning and development The control of development, especially urban development, is in its infancy in island countries of the South Pacific. Urban sprawl is endemic to the region and in rural areas there is even less control by national legislation. Planning and use control generally vest in local authorities, or authorities specially designated for this purpose which are subject to the director or minister of planning or urban development. Maintaining and enforcing building standards is not always easy with seriously limited resources such as skilled surveyors and building inspectors, and tropical weather, including cyclones and earthquakes, sometimes cause havoc to buildings and infrastructure which has to be remedied quickly. Also, development pressure can encourage short cuts, or even avoidance of controlling or regulating mechanisms, and it is not unknown for regulating agencies to be offered inducements to waive or not enforce strict requirements.

6.3.1.3 Exploitation of natural resources In custom there are controls over natural resources because of the dependency of people on these resources. In particular there are restrictions on the catching of certain fish at specific times of the year, or the hunting of certain birds. Increasingly these taboos are reflected in legislation, for example, measures directed at the preservation of certain species of flora and fauna.58 The exploitation of other natural resources, such as sand, coral, gravel and timber, may also be governed by custom, or increasingly by legislation. For example, the exploitation of certain resources, such as gravel or minerals, may be controlled by the State, which is deemed to be the owner of such resources. Sometimes the control is determined by local chiefs or landowners, and it is not uncommon to find disputes arising where one landowner has granted a licence to remove sand, for example, from 57 See, eg, s 23 (21) General Laws Ordinance 1931 (Western Samoa); s 6 Dogs Act, Cap 150 (Vanuatu); s 5 Pounds and Animals Act, Cap 147 (Tonga). 58 Such as the Wild Birds Preservation Ordinances 1937–67 (Nauru).

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a beach for building purposes, which other custom owners of the land oppose, although they might approve if they were to gain a share of the profits. Today, other natural resources at risk are gravel, stone and coral, which are increasingly in demand for building and roads. In some countries, exploitation of these resources is covered by legislation,59 however, frequently, informal agreements are entered into in exchange for other benefits to the community, such as the construction of a church or school by the developer requiring these natural resources, or the chief granting the right in return for other favours. Moreover, where monopoly rights are granted under a licence, local people may find that they are unable to access these resources for their own uses and have to pay for materials which formerly had been common resources. Another area of concern is marine resources. It is gradually being realised that marine resources are not infinite, and that the habitat of much marine life is under threat from a number of causes such as urban effluent, erosion, damage to coral reefs, pollution, as well as pressure of numbers. Most of the countries of the South Pacific region have legislation in place to try to control the exploitation of marine resources.60 Unfortunately not all jurisdictions have sufficient manpower and budgets to police and enforce these measures, and sometimes sustainability of resources is not top of the political agenda. The sustainability of natural resources of all sorts is a serious issue in the Pacific and one that is only recently beginning to be addressed.61 For many, the natural resources are all they have to exploit, and in order to generate cash for other enterprises these must be utilised. At the same time the need for hard cash by governments facing economic difficulties also provides a temptation to exploit resources, and there is evidence of this in Papua New Guinea (mining), the Solomon Islands (timber and tuna), Nauru (phosphate) and elsewhere. There is also the difficulty of deciding whether there should be open access to such resources, or controlled access, and if the latter, who should be the controllers and who should benefit?

6.3.1.4 Environmental and global considerations Concern over the sustainability of natural resources is not restricted to the Pacific island countries; the matter is of international concern. However, Pacific island countries are not strong players in the global arena. While some are parties to international conventions and protocols, they are more likely to be environmental victims than beneficiaries. This is evident, for example, from the use of islands such as Bikini Atoll, in the Marshall Islands, for missile testing, the use of Christmas Island for nuclear explosions, the dumping of nuclear waste in the approaches to Kiribati, and the passage of ships containing toxic waste through Pacific island seas. Currently, threats to low-lying islands, especially those of Tuvalu, as a result of global warming and rising sea levels are international news. Depletion of fish stocks, especially tuna, is threatened by factory fishing from Japan and Taiwan and the inability of island nations to police their coastal waters. Moreover, introduced measures to conserve 59 Eg, the Mines and Minerals Act Cap 190 (Vanuatu). 60 Eg, Marine Spaces Act, Cap 158A (Fiji); Fisheries Act 1988 (Samoa); Fisheries Act 1997 (Nauru); Fisheries Act, Cap 158 (Vanuatu), and Fisheries Act 1989 (Tonga). 61 See, eg, Hunt, C, ‘Property rights and environmental management on Pacific Atolls’ (1996) 23 International Journal of Social Economics 221–34.

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marine resources may conflict with customary approaches of access to these resources, and may fail either because of resistance, lack of enforceability and poor understanding, or because of lack of prior consultation with those people affected by restrictions.62 Nevertheless, national awareness of environmental issues is gradually increasing. For example, the Cook Islands passed the Rarotonga Environment Act in 1994,63 Samoa the Land and Environment Act 1989, and Kiribati has passed an Environmental Act 1999. Litigation regarding pollution issues is beginning to be heard in the courts. 64 However, environmental awareness is still in its infancy and environmental protection is hampered by inequality of power, lack of resources, especially to enforce anti-pollution measures, and lack of awareness regarding the long-term impact of environmentally damaging practices. Pacific Island countries are gradually signing up to international conventions, such as the United Nations Convention on the Law of the Sea 1982 and the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific 1989,65 but insufficient enforcement machinery for these, together with the refusal of main players to either sign or abide by the Convention provisions, makes their effectiveness questionable. Some regional initiatives have taken place and continue to be advocated, for example, under the South Pacific Regional Environmental Programme (SPREP) established in 1993 and the work of the South Pacific Forum established in 1991.66 These initiatives set standards and aims, but often do little to deal with practical problems.

6.3.1.5 Controls of chiefs and councils In all countries except Tonga, customary land is held and occupied and used in accordance with custom. However, provided there is agreement between the customary owners, custom does not usually provide detailed rules as to what should be done with the land, so that, within the framework of general agreement of all the owners, the managers of customary land are free to use the land as they wish. For this reason, in some countries, restrictions upon the use of customary land, especially as regards leasing and alienation, have been imposed by the written law – see Chapter 8. The different roles of chiefs and traditional ways of controlling property have been considered in more detail in Chapter 5.

62 See Asafu-Adjaye, J, ‘Customary marine tenure systems and sustainable fisheries management in Papua New Guinea’ (2000) 27 International Journal of Social Economics 917–27. 63 Rarotonga Environment Act (Cook Islands) 1994–95. 64 See, eg, Ryan v Bhardwaj [1999] WSSC 26 and 27, and Pati v Westerlund and Director of Lands [2000] WSSC 30, Samoa, regarding pollution caused by development of land. 65 See Hewison, G, ‘The Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific’ (1993) Case Western Reserve Journal of International Law 449. 66 For comment see Giraud-Kinley, C, ‘The Effectiveness of International Law: Sustainable Development in the South Pacific Region’ (1999) 12 Georgetown International Environmental Law Review 125.

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6.3.2 Controls over movables Although it might be thought that the owners of movable property can do what they like with such property, increasingly this is not the case, especially as regards its use. Thus, although the owners of a car may be able to buy and sell it or give it away to whomever they like, they will not be able to drive it on public roads without complying with a range of controls such as registering and taxing the car, ensuring it is roadworthy, keeping within the speed limit and parking it only in permitted places. If the owner is under a certain age or does not have a driving licence, that person will not be able to use the car at all. These controls can arise from legislation, or from considerations of the liability which will be incurred if the user of certain property harms others in some way, for example, by causing a nuisance. Thus there are controls that compel a person to act in some way and there are controls that restrain a person from acting in other ways. These controls arise because of social and public policy considerations. As more and more people live closer to each other, these controls increase. While customary rules place few restrictions on the use of movable property, articles which are symbols of chiefly rank and status, such as armlets, necklets, mats, whales’ teeth, headdresses, will normally be prohibited by custom from being used by commoners. Also, custom in some areas prohibits the use of the household effects of an indigenous person who has died, and that prohibition may extend to the whole house belonging to the deceased person. Introduced law, however, imposes greater controls on movable property, with the result that restrictions on the use and enjoyment of movable property are widespread throughout island countries of the South Pacific and include a variety of movables, from cattle to cars. Increasingly, such controls are found in legislation, although some common law controls derive from nuisance (in the case of animals) and custom (in the case of such things as masks, headdresses and certain necklaces). The greater the potential danger that can be caused by movable property, the more likely there is to be control. Thus one finds controls relating to licensing and use of cars, boats, guns or firearms,67 explosives,68 and dangerous dogs.69 One may also find certain controls imposed in the interest of the community at large, such as controls relating to the emission of fumes, noise or effluent.70 In rural areas, it is not unusual to find village councils imposing certain controls, ranging from rules relating to the dumping or burning of refuse, to curfews regarding the use of public places. Sometimes the legal grounds for exercising such controls are not very clear but are imposed in the interests of community harmony.

6.3.3 Controls over incorporeal property The control of incorporeal property tends to relate to its transfer, alienation or distribution and to the unauthorised use or enjoyment of such property by those not entitled to benefit from the property. 71 This last is particularly the case with 67 Eg, the Firearms and Ammunition Act, Cap 80 (Solomon Islands), Firearms Act, Cap 198 (Vanuatu), and the Arms Ordinance 1960 (Samoa). 68 See Explosives Ordinances 1924–67 (Nauru). 69 Eg, the Dog Registration and Control Ordinance 1955 (Western Samoa). 70 Such as Control of Nocturnal Noise Act, Cap 40 (Vanuatu). 71 See discussion of this in Chapters 7, 8 and 9.

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intellectual property, while restrictions on transfer and alienation also relate to other forms of incorporeal property such as shares, investments and titles. Generally, the requirement to comply with certain formalities for the transfer of incorporeal property will prevent wrongful use of such property. If such use does occur then it may be as a result of fraud or deceit. However, with intellectual property it is not unusual to find others, who have no legitimate right to the benefits of the property, using it and seeking to benefit from it. For example, the person entitled to benefit from the royalties of a song is the person who holds the copyright, the creator of the song. However, it may be that another singer decides to use this song for his or her own benefit and not acknowledge the original copyright holder’s interest. This is a common problem with a lot of intellectual property interests, especially in island countries of the South Pacific where recognition of such interests is not always very effective, either because there is insufficient legislation or because there is no mutual enforcement of rights granted and recognised elsewhere. In order to prevent the misuse of incorporeal property, the law often uses the devise of registration to protect the rights of the bona fide user or owner. Alternatively, or in conjunction with this, the law establishes certain criteria, compliance with which will identify the person who is entitled to use and enjoy the benefits of the property. This is the case with copyright, for example. These legal structures derive from introduced ideas and often do not lend themselves to the context of island countries, especially in respect of indigenous or cultural incorporeal property, such as indigenous music, song, dance and art.72 The reason for this is that in custom, much incorporeal property is enjoyed by the community from which it derives: for example, production of natural medicines, canoe carving, patterns of weaving, certain styles of dress or narratives. Introduced ideas relating to intellectual property focus on the individual, and are based on the possibility of ascertaining the inventor or creator of a design, process or work of art, all of which can present difficulties when applied to things such as songs, dances, designs and processes in the Pacific region. Certain forms of intellectual property, for example, relating to healing skills, certain histories or spiritual powers, may be restricted to individuals, while other incorporeal property will be the preserve of sectors of society, such as adult men only, women or village elders. In either case, the knowledge or ideas are likely to have been passed down from one generation to another, or the origins lost in the past. There are not always the assertions of individual ownership or creativity which may be found in Western cultures.73 Incorporeal property is often communal. To assert otherwise would be highly antisocial. Consequently, much intellectual property has been in the public sphere – at least as far as the village community is concerned – for a long time. This is not a new development. Also, in undeveloped economies, traditional incorporeal property has little or no commercial value. If a taboo regarding the use or display of something is broken, penalties may follow, usually a custom fine and an act of attrition in some way. Traditionally, incorporeal property has been passed down generations orally or by imitation. Where there have been restrictions on use these have been in custom

72 There is some provision for ancient artefacts, such as the Antiquities Ordinance 1935 (Nauru), and the National Cultural Council Act (Cap 186) (Vanuatu). 73 There are exceptions, eg, knowledge of magic or special medicinal skills are often the property of individuals.

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through the use of taboo, the customary prohibition on certain types of conduct. So, for example, it may be necessary to ask the permission of a chief or village council to perform a custom dance or sing a custom song. Often such a request will be accompanied by traditional payment. Some intellectual property is secret, such as the skills of ‘clevers’ or wizards, and is closely guarded in custom.

CONCLUSION It is apparent that the use and enjoyment of property can take a number of different forms. While the use and enjoyment of property can be exercised unrestrictedly as long they do not infringe the rights of other people similarly to use and enjoy their own property, increasingly use and enjoyment are restricted and curtailed as people live in closer proximity to each other and as the range of property which people might want to use increases. So one finds in any social organisation certain restrictions on use and enjoyment being introduced and enforced in the interests of the social unit. At first, these may be customary or traditional controls enforced by chiefs or village leaders, but increasingly in the Pacific island countries, as elsewhere, legislation has been introduced, and more recently international measures. Pacific island countries, along with the rest of the world, are increasingly aware of the need to conserve natural resources and strive for sustainable development. In seeking to meet modern goals island countries of the South Pacific face many challenges, not least, growing populations, limited natural resources, fragile economies and the indifference of bigger and more powerful nations.

CHAPTER 7 ACQUISITION OF PROPERTY

INTRODUCTION In this chapter, methods by which people acquire rights to property will be considered. Some of these methods interlock with the methods by which property is alienated from its owner, and in effect are the converse of alienation, which will be discussed in the next chapter. Some methods of acquisition, however, stand on their own and do not relate to alienation. There are several kinds of actions whereby the legal systems of island countries of the South Pacific recognise that a person may acquire common law or legal rights to property. These are: the creation of the property by that person; receiving a grant or transfer from the existing owner of the property; and taking possession of the property of another person, without a grant or transfer from the owner of that property. In addition, the legal systems provide for certain occasions when common law or legal rights to property may be acquired by a person without any action by that person for that purpose, where the rights are acquired by operation of law alone: succession to the property of a person who has died, or of a corporate body that has ceased to exist; natural additions to the property of a person; and intermixing with property of a person. The legal systems of the island countries of the South Pacific also allow for a person to acquire equitable or beneficial interests in the property of others: for example, by the owner of property creating a trust of that property in favour of that person. It is also possible for a person to acquire an equitable or beneficial interest in the property of another person without any grant from that person but by operation of law alone, as when the law will impose a constructive trust or equitable lien over the property of another in favour of that person. These various methods for acquiring common law or legal rights to property, and equitable interests in property, will be considered in turn in this chapter.

7.1

CAPACITY TO ACQUIRE RIGHTS AND INTERESTS IN PROPERTY

Historically, under the early common law, foreigners were regarded as not having any capacity to own land. In England, legislation has removed that disability. However, in all island countries of the South Pacific, foreigners are unable to own customary land, but in the Cook Islands, Fiji, Kiribati, Niue, Papua New Guinea, Samoa and Tuvalu they can own freehold land, subject to permission from the government in Kiribati1 and Samoa. 2 Under the common law, movable property could be acquired by foreigners, but legislation in England3 and some island countries of the South Pacific – 1 2 3

S 3 Non-Native Land (Restriction on Alienation) Ordinance, Cap 63 (Kiribati). Ss 4–6 Alienation of Freehold Land Act 1972 (Samoa). S 1 Merchant Shipping Act 1894 (UK).

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the Cook Islands,4 Fiji5 and Papua New Guinea6 – prohibits the ownership by foreigners of shares in a ship. Persons under the age of 21 years, usually referred to as infants or minors, were held under the common law to have capacity to acquire only necessaries – articles such as moderate,7 but not luxurious,8 food, clothing and medicine, that were necessary for the maintenance of the infant or minor – and also property of a beneficial and permanent nature, such as land,9 leases of land10 and shares in a company,11 subject, however, to repudiation within a reasonable time of attaining majority.12 Purchases of other property by an infant were regarded by the common law as generally void. The common law position with regard to ownership of property was endorsed by s 1 of the Infants Relief Act 1874 (UK), which, as a statute of general application, was applied to Fiji, Kiribati, the Solomon Islands, Tonga, Tuvalu and Vanuatu. This provision was copied in s 12 of the Infants Act 1908 of New Zealand, which has been applied to the Cook Islands13 and Niue.14 Later, s 1(6) of the Law of Property Act 1925 (UK) provided that an infant could not have a legal right to land,15 and this provision is presumably in force, with regard to non-customary land, in Kiribati, the Solomon Islands, Tuvalu and Vanuatu, by virtue of the fact that these countries were all formerly subject to the jurisdiction of the High Court of the Western Pacific.16 It has also been adopted in Tonga.17 There is, however, no similar provision in the Property Law Act of Fiji 1969, or in the Property Law Act 1950 of New Zealand, which is in force in the Cook Islands,18 Niue19 and Samoa.20 In 1987 in England, legislation was enacted to repeal the Infants Relief Act 1874,21 and this legislation is in force in Tonga22 but not elsewhere in the South Pacific. In Samoa, all contracts by infants, other than for necessaries, are subject to approval by a magistrates’ court or the Supreme Court.23 In England, legislation was

4 5 6 7 8 9 10 11 12

13 14 15 16 17 18 19 20 21 22 23

S 9 Shipping Registry Act 1985 (Cook Islands). S 13 Marine Act 1986 (Fiji). S 14 Merchant Shipping Act, Cap 242 (PNG). Dale v Copping (1610) 1 Bulst 39; 80 ER 743; Peters v Fleming (1840) 6 M & W 42; 151 ER 314. Ryder v Wombwell (1868) LR 4 Exch 32; Nash v Inman [1908] 2 KB 12. Whittingham v Murdy (1889) 60 LT 956. Davies v Beynon-Harris (1931) 47 TLR 424. North Western Railway Co v M’Michael (1850) 5 Exch 114, 155 ER 49. If, however, an infant does repudiate the transaction upon reaching 21 years, he or she is not entitled to recover any payments of money paid during infancy, unless the infant has received absolutely no benefit from the transaction – there has been a total failure of consideration: Valentini v Canali (1889) 24 QBD 166; Steinberg v Scala [1923] 2 Ch 452; Pearce v Brain [1929] 2 KB 310. S 630 Cook Islands Act 1915 (NZ). S 692 Niue Act 1966 (NZ). S 1(6) Law of Property Act 1925 (UK). S 15 Western Pacific (Courts) Order 1961 (UK). Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). S 627 Cook Islands Act 1915 (NZ). S 700 Niue Act 1966 (NZ). S 7 Reprint of Statutes Act 1972 (Samoa). Minors’ Contracts Act 1987 (UK). Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). S 21 Infants Ordinance 1961 (Samoa).

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enacted in 1969 to reduce the age of majority from 21 years to 18 years.24 This has been adopted in Tonga25 and applied in Vanuatu.26

7.2

ACQUISITION OF LEGAL RIGHTS TO PROPERTY

The English legal system, and all the legal systems of island countries of the South Pacific that are based upon this system, recognises two different kinds of rights in property: legal or common law rights, which are the normal kind of rights to property which can be enforced against all people, and equitable or beneficial rights, which are enforceable only against certain persons, for example, persons whose conduct has been such that it would be unfair or inequitable for them not to have to recognise those rights, or persons who have acquired the property with notice of the equitable interest, or who have acquired the property without payment, by way of gift. In the first part of this chapter, consideration will be given to the way in which common law or legal rights can be acquired, and in the later part of the chapter, the way in which equitable or beneficial interests in property can be acquired.

7.2.1 Creation of new property If property has not existed before, but is brought into existence by the labours and ingenuity of a person, that person obviously has some moral basis for claiming that the property belongs to him or her. This moral basis is recognised by the common law and has been applied, subject to some modifications, to various forms of property.

7.2.1.1 New movable object Under the common law, the person who creates a new movable object is regarded as the owner of it, and this is so whether that person was the owner of all the materials that were used for the manufacture of the produced article or not. So, when a Scottish company manufactured chipboard out of various ingredients, including resin supplied by another company, it was held that the chipboard was a totally new product which was owned by the Scottish company, and that the company supplying the resin had no title to the chipboard, even though the resin was an essential component of the chipboard.27 Nowadays, because of the operation of this principle, the suppliers of goods that are to be used in the manufacture of a new product before payment for the goods is received, frequently insist that the manufacturer must sign a contract to provide that the supplier of the ingredients of the new product shall be the owner or co-owner of the new product, or shall have a charge over the new product and/or over the proceeds of the sale of the new product, at least until the ingredients are fully paid for. This type of contractual term is sometimes referred to as a Romalpa clause, deriving from the name of the first case to come before the Court of Appeal in England, in 24 25 26 27

S 1 Family Law Reform Act 1969 (UK). Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). S 3 High Court of the New Hebrides Regulation 1976 (UK). Borden (UK) Ltd v Scottish Timber Products Ltd [1981] 1 Ch 25.

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which the effect of such a contractual term was considered. In that case, a supplier of aluminium foil which was used in the manufacture of aluminium products was held, by virtue of the terms of its contract with the manufacturer, to be able to acquire rights over the finished product and also over the proceeds from the sale of that product.28 Such an arrangement was relied upon by the supplier of nylon fibre which was used for making carpets, although in that case the contractual arrangement was held to be not effective because the arrangement was not registered, as required by legislation.29 The rights of ownership which the common law confers upon the creator of a new product are strengthened and reinforced by legislation in England30 and in some island countries of the South Pacific31 which provides that the inventors of new inventions in those countries may register them, and thereby obtain the exclusive right to use them for a period of 14 to 16 years. Other island countries provide only for the registration of inventions which have already been registered in the United Kingdom or elsewhere.32 There are, however, certain situations where the common law has considered that the person who creates a new movable thing is not entitled to own it. If, for example, a person creates a new product out of ingredients belonging to another person without that other person’s permission, the creator would seem to have forfeited any moral claim to ownership of the product. Some have suggested that in such a situation, the product should be regarded as being owned by the owner of the ingredients that have been wrongfully used.33 This view was not followed in England, however, at least where it was possible to identify the proportions of ingredients contributing to the new product. In such a case, the resultant product, an admixture of different oils, was held to be owned by all those persons whose ingredients contributed to the product, including the wrongdoer, as tenants in common in proportions equivalent to the respective amounts of ingredients owned by each, any difficulties of assessment being resolved in favour of the innocent parties.34 If the contributions by the various ingredients could not be adequately estimated, it might be necessary to apply the maxim that the product is owned by the innocent party or parties. Another exception to the general principle that a person who creates a new product is entitled to own it, has been held by the courts to apply in relation to houses and other structures erected on, or in, land. These are held by the common law to belong not to the person who built them, or who paid for them to be built, but to the owner of the land. Thus, in Fiji it was held that a dwelling-house on a plantation that was bolted to wooden foundation posts set in the ground was owned by the owners of the land, and not by the man who built the house and lived in it, and to whom it

28 29 30 31

Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. Re Bond Worth Ltd [1980] 1 Ch 228. Patents Act 1977 (UK). Patents Act 1953 (NZ) which is in force in the Cook Islands, Niue and Tokelau; Patents Act, Cap 239 (Fiji); Patents and Industrial Designs Act 2000 Papua New Guinea; Patents Act 1972 (Samoa); Patents Act 1977(UK) which is in force in Tonga. 32 Registration of United Kingdom Patents, Cap 87 (Kiribati); Patents Registration Act 1973 (Nauru); Registration of United Kingdom Patents, Cap 179 (Solomon Islands); Registration of United Kingdom Patents Act, Cap 61 (Tuvalu). 33 Blackstone’s Commentaries on the Laws of England, Vol 2, 17th edn, 1830, 404–05; Lord Moulton in Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, 695; Jones v De Marchant (1916) 28 DLR 561. 34 Indian Oil Corporation Ltd v Greenstone Shipping SA (Panama) [1988] 1 QB 345.

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had been bequeathed by his mother, who also had lived in it.35 On the other hand, if the building is not attached to the land, such as a wooden dwelling-house resting on the land by its own weight, the ownership of the building remains with the person who built it, not with the owners of the land.36 This same principle for the loss of ownership of property by attachment in the case of land has not been applied to attachment to a movable object.37 The customary laws of island countries of the South Pacific also usually allow that people who create movable property by their own hands out of ingredients that they have found or have purchased, can own the property that they have created. Thus mats and baskets that are woven from pandanus leaves owned by the weaver belong to the weaver. How customary law would regard a product that was manufactured, partly or wholly, out of ingredients which were owned by other people whose permission had not been obtained, is not clear. It is quite possible that customary law might regard the suppliers of the ingredients as having some kind of interest in the product, until they were recompensed for their contribution.

7.2.1.2 New artistic, dramatic, literary or musical work The courts of common law in England formerly recognised that a person who wrote a book, a poem or a play, or drew or painted a picture, or composed a piece of music, acquired rights of ownership of that literary, dramatic, artistic or musical creation, so long as it remained unpublished, that is, not made available to the general public. Accordingly, the writer, or painter or composer could prevent other persons from using or copying that unpublished creation. So a university professor who wrote up notes for a lecture on moral philosophy to a class in a Scottish university was held able to prevent a student from copying and publishing them, because giving the lecture to the class was not regarded as making the notes available to the general public.38 However, once the creator of an artistic, dramatic, literary or musical work made it available to the public, that person lost the ownership of it. The creator was then regarded by the common law as surrendering his or her rights of ownership to the members of the public, who could then make such copies of it as they wished.39 In Britain, Parliament intervened and prohibited the publication, progressively, of original books,40 engravings and etchings,41 prints,42 sculpture,43 plays and dramatic productions, 44 lectures, 45 musical compositions, 46 paintings, drawings and

35 36 37 38 39 40 41 42 43 44 45 46

Harman v Towson and Harman (1943) 3 FLR 344. Sadhulal Bhakshkar v Morrison (1957) 5 FLR 97. Hendy Lennox (Industrial Engineers) Ltd v Grahame Puttick Ltd [1984] 1 WLR 485. Caird v Sime (1887) 12 App Cas 326. Donaldson v Beckett (1774) 4 Burr 2408; 1 ER 837; Jefferys v Boosey (1854) 4 HL 815; 10 ER 681. Copyright Act 1709. Engravings Copyright Act 1734 (UK). Prints Copyright Act 1774 (UK). Sculpture Copyright Act 1798 (UK). Dramatic Copyright Act 1833 (UK). Lectures Copyright Act 1835 (UK). Copyright Act 1842 (UK).

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photographs.47 These separate statutes were then gathered together and incorporated into general copyright legislation,48 which was extended to apply to Fiji49 and, as a statute of general application, applied also to the British Solomon Islands Protectorate, the Gilbert and Ellice Islands, and to the British citizens of the New Hebrides and Tonga.50 Increasingly, island countries of the South Pacific are passing their own protective legislation, and this is considered in Chapter 9. Customary law in South Pacific island countries takes a similar view with regard to incorporeal products of a person’s mind. Knowledge as to how to perform magic, or to make and apply medicines, is regarded as something which is owned by the person who invented the magic or the medicines, and it can be used and copied only with the permission of the person who created it.

7.2.1.3 Goodwill of business Another important form of newly created property that is regarded as belonging to the creator is the goodwill of a business which the owner of the business has created or built up. Goodwill of a business has been authoritatively described as ‘the whole advantage of the reputation and connection formed with customers together with the circumstances, whether of habit or otherwise, which tend to make that connection permanent’51 and: … the good name, reputation, and connection of business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old established business from a new business at its start.52

Goodwill of a business can be bought and sold, and disposed of at will and made the subject of a charge.53 The goodwill of a business has also been held to be ‘property’ which is protected by the provisions of constitutions from compulsory acquisition without adequate compensation.54

7.2.1.4 New trade marks and industrial designs In the early 19th century, the Court of Chancery in England recognised that the person who invented and publicly used a distinctive mark or symbol to distinguish the goods of his or her trade was the owner of that mark and could obtain an injunction to stop

47 Fine Arts Copyright Act 1862 (UK). 48 Copyright Act 1911 (UK), which was replaced by the Copyright Act 1956 (UK), and then by the Copyright, Designs and Patents Act 1988 (UK). 49 Copyright (Fiji) Order 1961 (UK) extended the Copyright Act 1956 (UK) to Fiji. 50 S 15 Western Pacific (Courts) Order 1961 (UK) extended the Copyright Act 1956 (UK) to countries subject to the jurisdiction of the High Court of the Western Pacific. 51 Vol 35, Halsbury’s Laws of England, 4th edn, 1994, London: Butterworths, para 1206. 52 Lord Macnaghten in IRC v Muller & Co’s Margarine Ltd [1901] AC 217, at 221. This approach has been adopted in the region in the cases of The Vanuatu Mission of the Seventh Day Adventist Church v The Seventh Day Church of the Republic of Vanuatu [1996] VUSC 19, and in Fiji in Blue Lagoon Cruises Limited v Evanson (1980) 26 FLR 13. 53 See, eg, IRC v Muller & Co’s Margarine Ltd [1901] AC 217, RJ Reuter Co Ltd v Ferd Mulhens [1954] Ch 50. 54 Ulster Transport Authority v James Brown [1953] NI 79.

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another person from using it. 55 This ownership recognised by the courts was strengthened and supported by Parliament, which enacted legislation to provide for the registration of trade marks and to impose penalties for their infringement.56 The protection of these forms of intellectual property is considered in more detail in Chapter 9.

7.2.2 Grants of rights to property by the owner Probably the most common way nowadays by which a person acquires legal rights to property is as a result of a grant or transfer of those rights by the existing owner. A grant or transfer usually occurs when the owner of property willingly transfers that property to another person. Such grant or transfer may be made without any payment, and as a present or donation by the grantor. The person granting the property is then called the donor, and the person receiving the property is called the donee. Alternatively, the grant or transfer may be made for a payment or consideration from the grantee. The person who is granting or transferring the property is then usually called the seller or vendor, and the person receiving the property is called the purchaser or buyer, and the transaction is called a sale and purchase. Sometimes property may be granted unwillingly by the owner to another person, as a result of physical force or legal power exercised by the grantee, in which case the transfer is described as an involuntary or compulsory acquisition. Sometimes, however, the law provides for the transfer of property from one person to another person without any action by the transferor or the transferee – the transfer then occurs by operation of law, and is usually then described as a transfer rather than a grant. Different methods by which property may be transferred from the owner to another person will now be considered.

7.2.2.1 Form of grant Although originally in English common law a grant of an interest in land could be made orally, in 1677 the Statute of Frauds gave effect to the preferred practice and required that a transaction conferring an interest in land must be made, or evidenced, in writing. Any other form of grant became increasingly obsolete as a means of transferring interests in land, so that when British colonies were established in the South Pacific it was deeds that were accepted and provided for as the means of transfer of interests in land, that is, both freehold estates and also lesser interests such as leaseholds, easements and profits à prendre. In many countries, legislation was passed which prescribed that a deed was necessary to transfer freehold estates and to grant leases of land for more than two or three years.57 In some countries – Fiji,58 the

55 Millington v Fox (1838) 3 My & Cr 338; 40 ER 956. 56 Trade Marks Registration Act 1875 (UK); see now Trade Marks Act 1994 (UK). 57 S 10 Law of Property Act 1952 (NZ) which was in force in the Cook Islands, Niue and Tokelau; compare, however, s 11 Property Law Act, Cap 130 (Fiji). See also s 54 Law of Property Act 1925 (UK) regarding leases of over three years, which is in force in Kiribati and Tuvalu; s 134 read with s 135 Land and Titles Act, Cap 133 (Solomon Islands); Land Leases Act, Cap 163 (Vanuatu). 58 Pt V, Land Transfer Act, Cap 131 (Fiji).

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Solomon Islands,59 Tonga60 and Vanuatu61 – a system of registration of interests in non-customary land was established by legislation, and in those countries documents for the transfer of interests in land were prescribed by the legislation, which must be used in order to constitute a valid transfer of interests in registered non-customary land. Ownership of customary land in South Pacific island countries is usually transferred, in much the same way as freehold estates in land were originally transferred in England, by oral statements of grant made by the owner to the grantee on the land, as the parties stood on, or within sight of, the land, accompanied by an indication of the boundaries of the land. To this was usually added some exchange of gifts and a feast to help both to publicise the event and emphasise its importance. As regards grants of rights to movable property, the common law did not require that these should take any particular form, and they could be made either orally or in writing;62 nevertheless, parties frequently found it desirable to record their transaction in writing in order to reduce the risk of dispute over the terms of the transaction. This written document which embodies the sale and purchase of movable property is usually called a bill of sale.63 Legislation has intervened to require that grants of certain movable property must be expressed in writing,64 and further, that grants of certain movable property, such as shares in companies65 and interests in ships,66 must be registered by an agency of government. The granting of movable property under customary law is similar to that under common law – it may be done orally, by word of mouth, or by written document, but in practice usually by the first method. Most grants are made by persons who are alive, so that the grants are between living people.67 However, the legal systems of all island countries of the South Pacific allow a person to make grants of both land and movable property by a will which is to come into effect only on the death of the grantor.

7.2.2.2 Effect of grant A grant of an interest in property normally takes effect as a transfer of that interest according to its terms, but the common law has adopted as a very basic principle that a person cannot grant a greater interest in property than he or she has.68 This means 59 60 61 62 63 64

65 66 67 68

Pt VIII, Land and Titles Act, Cap 133 (Solomon Islands). Ss 104, 107, 115, 137 Land Act, Cap 133 (Tonga). Pt IV, Land Leases Act, Cap 163 (Vanuatu). Halsbury’s Laws of England, 4th edn, 1992, London: Butterworths, Vol 35, paras 1231–1242. Ibid, Vol 4(1), paras 601–10. Eg, the assignment of chose in action, such as a debt, must be in writing, see eg, s 136 Law of Property Act 1925 (UK); s 130 Property Law Act 1952 (NZ) which applies in the Cook Islands and Samoa. Also transfer of company shares, eg, s 73 Companies Act, Cap 175 (Solomon Islands). See, eg, Companies Ordinance Cap 10A, Kiribati, which prescribes forms for the transfer of shares. See, eg, Shipping Registry Act 1985 (Cook Islands); Shipping Act Cap 53 (Vanuatu), Shipping Act 1998 (Samoa); Shipping Act 1990 (Kiribati). Sometimes referred to as inter vivos. Known as the principle of nemo dat quod non habet, meaning that no one may give or grant what he or she does not have, and illustrated in the case of Cundy v Lindsay (1878) 3 App Cas 459.

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that if a grant is made of an interest in property that the grantor does not have then the grant is ineffective. For example, when a fraudster pretended to two elderly sisters that he was a wealthy man living at a substantial address, and thereby persuaded them to sell him their car in return for a cheque that proved to be worthless, the court held that the sisters intended to sell the car only to the wealthy man, not to the fraudster, so the contract of sale to him was void and he had no title to pass on to an unsuspecting third party to whom he sold the car, and who was ordered by the court to return it to the sisters or pay them the value of it.69 Again, when a person, entrusted by the owner with two vehicles to be delivered to a cousin of the owner, sold one of the vehicles to one of his neighbours, the Supreme Court of Samoa held that the sale was of no effect, because the seller did not have authority from the owner to sell it, and so the vehicle was returned to the true owner.70 The application of this basic common law rule can, as the cases described above illustrate, be quite disastrous for unsuspecting third parties who deal with an apparent owner of property believing that he or she is the true owner, when in fact that is not so. Legislation has therefore been introduced to try to reduce some of these effects for innocent third parties. As regards movable property, in England the Sale of Goods Act 1893 (UK) contains a number of exceptions to the nemo dat quod non habet rule. That Act,71 or legislation which is modelled on it,72 is in force in all island countries of the South Pacific. The main exceptions that are provided by this legislation are: sellers of goods who remain in possession of the goods or of the documents of title after the goods have been sold, or mercantile agents acting on their behalf, can confer good title to those goods upon some other person in good faith who is unaware of the previous sale; buyers of goods who, with the consent of the seller, are in possession of the goods, or mercantile agents acting on their behalf, may confer good title to those goods upon some other person in good faith who is unaware that the seller still retains some right to the goods; and sellers of goods who have a voidable title to goods, which has not been avoided at the time of sale, may confer a good title to those goods upon a buyer in good faith who is unaware of the defects to the seller’s title. As regards land, the common law relied upon the principle of estoppel to prevent a person who leased land from another person from claiming that that other person was not the owner of the land that had been leased and so could not grant a valid lease. Once the occupier has accepted the other as owner and lessor, and entered into possession, the occupier is regarded as estopped from denying the title of the owner, even though in law that other person is not the owner of the land.73 So a man in Samoa who had leased a shop, when he was sued for unpaid rent, was unable to rely in his defence upon the fact that the man from whom he leased the shop did not have any right to lease it to him, since the land was government land and he had not

69 70 71 72

Ingram v Little [1961] 1 QB 31; see also Sowler v Potter [1940] 1 KB 271. Westbrook v Esera [2002] WSSC 4, Supreme Court, Samoa. See Chapter 2. Presumably in force in Kiribati and Tuvalu. Sale of Goods Act 1908 (NZ) in force in Cook Islands, Niue and Tokelau; Sale of Goods Act, Cap 230 (Fiji); Nauru; PNG, Samoa, Solomon Islands, Tonga; Vanuatu. 73 See, eg, Industrial Properties v AEI Ltd [1977] 2 All ER 293.

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obtained the permission of the appropriate government agency to grant a lease of the land.74 In all island countries of the South Pacific, legislation has attempted to avoid some of the pitfalls for an innocent purchaser of land by requiring some form of registration of the documents conferring interests in land. The protection afforded by registration is dealt with in Chapter 9.

7.2.2.3 Grants that may be set aside by the courts Although great freedom is allowed by the common law and by legislation to owners of property as to the grants that they may make of their property, there are some limits placed upon the ability of an owner of property to make grants of that property. Some of these are to protect the owners from disposing of their property under pressure from the person in whose favour the grant was made, whilst others have been imposed to prevent the owners of property from evading the rightful claims of their creditors, or to prevent the owners from treating their families unfairly. Some of these limits will now be considered, looking first at the situation where grants have been unfairly procured. The courts have placed certain limits upon the freedom of persons to make grants to others in order to protect the owners from fraudulent manipulators and from undue pressures to make unwise decisions that they later regret. If it can be proved, or in some cases can be presumed, that an owner of property has been subjected to duress or force,75 or to undue influence or persuasion,76 to make a grant of property, the courts will, if they are approached promptly, and if the grantor has not affirmed the grant after escaping from the situation of duress or undue influence,77 set aside the grant and order that the property must be returned to the grantor. Another situation is where a grant is made that defeats creditors. Legislation in force in island countries, modelled on legislation in England, provides that certain grants made by a bankrupt within a reasonable period before the act of bankruptcy must be held to be void and of no legal effect, so that the property must be returned to the trustee in bankruptcy to be held for the benefit of the creditors. These include: grants by way of gifts within two years immediately before the act of bankruptcy; grants that were made to defeat the rights of creditors (often referred to as a fraudulent conveyance); and grants that are made to one creditor within six months of the bankruptcy (often termed a fraudulent preference).78 Further, in all island countries of the South Pacific, legislation has been enacted that prohibits the granting of ownership of customary land to non-indigenous people.79 The granting of leases to non-indigenous people is permitted, however, 74 75 76 77 78 79

Mapusua Pelenato v Faalogo Vaitusi [1994] WSLR 232. Williams v Bayley (1866) LR 1 HL 200; Pao On v Lau Yiu Long [1980] AC 614. Lloyds Bank v Bundy [1975] QB 326. Allcard v Skinner (1887) 36 Ch D 145; Fry v Lane (1888) 40 Ch D 312. S 172 Law of Property Act 1925 (UK). Ss 467–69, Cook Islands Act 1915 (NZ); s 5(1) Native Land Trust Act, Cap 134 (Fiji); s 5 Native Lands Act, Cap 61 (Kiribati); s 3(1) Lands Act 1976 (Nauru); ss 432–34 Niue Act 1966 (NZ); s 132 Land Act 1996 (PNG); s 221 Land and Titles Act, Cap 133 (Solomon Islands); cl 104 Constitution of Tonga; s 5 Native Lands Act, Cap 22 (Tuvalu); Arts 73–75 Constitution of Vanuatu.

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provided the permission of the government is obtained. As indicated in Chapter 2, the granting of ownership of customary land to indigenous people is permitted in Kiribati,80 Nauru,81 Papua New Guinea,82 the Solomon Islands,83 Tuvalu84 and Vanuatu,85 subject, however, to the approval of the appropriate court in Kiribati and Tuvalu, and to the approval of the Head of State in Nauru. In the Cook Islands,86 Niue87 and Papua New Guinea,88 legislation provides for customary land to be converted into freehold land, which can then be granted to another person.

7.2.3 Taking possession of property without grant Possession, which is dealt with in Chapter 3, would appear to be one of the most straightforward ways of acquiring property. If property is not already owned by another person then there is some moral justification for the person who takes possession of it to acquire legal rights to that property, because there is no other person who can claim to have rights to it. The simple adage, ‘finders keepers’, gives expression to this, and the common law has recognised this, subject, however, to some qualifications. More problematic is the situation when a person takes possession of some property that is owned by someone else. Normally, taking possession of property which is owned by someone else provides no moral justification for the acquisition of rights in the property: quite the reverse, because this would normally constitute theft. However, there may be exceptional cases where such action would be regarded as acceptable, as where, for instance, the property has been lost and its rightful owner cannot be found. The common law, customary law and statutory law have recognised other situations where taking possession of the property of another person without a grant from that person should give rise to rights to that property. These various situations will now be considered in detail.

7.2.3.1 Property never owned before If a person finds or discovers some land or movable thing that has never been owned by anybody else – what the Latin jurists termed a terra nullius or a res nullius – and that person takes physical control of that land or that thing with the intention of making it his or her own, it would seem only logical and sensible that the law should regard that person as entitled to that land or that thing, because there is no one else who would seem to have a better claim, or higher moral justification to have it. Thus if land is discovered that is not occupied or owned by any person, such as the land in island countries of the South Pacific before the waves of Melanesian,

80 81 82 83 84 85 86 87 88

S 64(1)(a) Magistrates’ Courts Ordinance, Cap 52. S 3(3) Lands Act 1976 (Nauru). S 132 Lands Act 1996 (PNG). S 239 Land and Titles Act, Cap 133 (Solomon Islands). S 19(1)(a) Native Lands Act, Cap 22 (Tuvalu). Arts 73–75, Constitution of Vanuatu. Ss 423–24 Cook Islands Act 1915 (NZ). Ss 411–12 Niue Act 1966 (NZ). Land (Tenure Conversion) Act 1963 (PNG).

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Micronesian and Polynesian migration, it would seem appropriate that the persons who take possession of that land for themselves should be regarded as acquiring legal title to it. The explorer and adventurer passing through who does not settle and work the land would seem not to be entitled, but those who settle on the land and work it to show that they have taken possession of it, would seem to have moral justification to own the land which the law should recognise. In principle, this has been incorporated into the law as regards customary land, although there are some significant qualifications in practice, and also into the law regarding movable property. It has not, however, been incorporated into the law as regards non-customary land. These three forms of property will now be considered in turn. Customary law in all island countries of the South Pacific recognises original occupation of land by indigenous people as a prime means of acquiring ownership to that land. Thus in Papua New Guinea, Amet J (as he then was) stated in In The Land Titles Commission Application 90/101 (Re Hides Gas Project Land Case): The central thrust of the case for the complaint [sic] Tuguba Tribe clans … was that they were the original discoverers of the land in dispute and … that the Tugubas were the first inhabitants of the land and, thereby, are the true owners in custom.89

So also, in Buga v Ganifiri,90 the High Court of the Solomon Islands recognised that of the five methods of acquiring ownership of customary land in the island of Malaita, the first was ‘original discovery’. Again in Vanuatu, the Supreme Court in Manie and Kaltabang v Kilman91 stated: ‘In custom, it is accepted that the custom owner is the descendant of the person who first came here and built a Nasara.’ Whilst there is no doubt that the custom of all island countries recognises that original possession of customary land confers ownership, it is important to recognise that there are a number of factors that have qualified the actual application of that principle. In the first place, the legislature in some countries – Kiribati,92 Nauru93 and Tuvalu94 – has enacted legislation that provides that certain decisions taken as to the ownership of customary land are final and indefeasible. The result is that even though evidence may later be found to identify the original occupiers of the customary land, that evidence cannot be admitted and the decisions that have been made must stand and cannot be challenged, even though there is considerable doubt as to whether the person named as owner was the original occupier, or even the descendant of the original occupier.95 Secondly, the law may indicate that ownership of customary land is to be determined at a particular time, which tends to focus attention upon who was the owner at that particular time rather than on who was the original occupier. Thus the Deed of Cession of Fiji, 10 October 1874, stated in cl 4: ‘that the absolute ownership of all lands not shown to be now alienated … or not now in the actual use and occupation of some chief or tribe shall be and is hereby vested in Her … Majesty.’ The wording of this clause obviously directed attention to ownership as at the date of cession, 10 October 1874, rather than the date of original occupation. The Governor of 89 90 91 92 93 94 95

[1993] PNGLR 310, 313. [1982] SILR 119, 120. [1980–88] 1 Van LR 343. S 4 Native Lands Ordinance, Cap 61 (Kiribati). S 8 Nauru Lands Committee Ordinance, 1956–63 (Nauru). S 4 Native Lands Ordinance, Cap 22 (Tuvalu). Eg, Re Mwareow, Land Appeal No 6 of 1969, Nauru Law Reports, 1969–82, Part B, 3.

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Fiji, Sir Bickham Estcott, reflected this in his speech to the Great Council of Chiefs on 20 May 1914, when he said: ‘It is written in the Deed of Cession, signed by the chiefs in former times, that it is the duty of all persons laying claims to land to prove that they were using that land at the time of cession.’ Again in those countries where a general registration of land was taken in earlier times – Cook Islands, Fiji, Kiribati, Nauru, Tuvalu – there is a tendency to regard that date as the important one for the determination of ownership, rather than the date of the original occupation. Thus in Capelle v Mwareow Dowaiti, the Supreme Court recounted: In 1962, when the ownership of Eatedogi, portion no. 296, had to be decided by the Nauru Lands Committee, the Committee did what it usually does; it referred to the Land Registration Book of 1928 and found that the land was registered in the names of Einiga and Elizabeth only … [I]t could quite properly have come to the conclusion, from the entries in respect of his land in the land registration book of 1938 … that the land belonged without dispute to Einiga and Elizabeth.96

Thirdly, courts or other bodies making decisions about ownership of customary land, when confronted with conflicting genealogies stretching back through hearsay stories to the purported original occupier many generations before, often tend to give much weight to recent events that can more accurately be determined. The Privy Council encouraged this approach in Adjeibi Kojo II v Kwadwo Bonsie: Their Lordships notice that there was no dispute as to the primary facts which the witnesses observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute was all as to the traditional history which had been handed down by word of mouth from their forbears. In this regard it must be recognised that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. When there is a conflict of traditional history, one side or the other must be mistaken, yet both be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable. That is how both the native courts approached the matter and their Lordships think that they were right in so doing.97

The approach described by the Privy Council in the above passage has been adopted on a number of occasions in island countries, sometimes with,98 sometimes without,99 express reference to the above decision. It is significant to note that of the three cases from which passages were quoted earlier as stressing that ownership of customary land was determined by original occupation, in two of those three cases, evidence of recent acts of occupation was regarded as more significant than traditional histories of original occupation.100 In the case of non-customary land the notion that the first persons to take possession of land should be entitled to own it for themselves was not applied in 96 Nauru Law Reports, 1969–82, Part B, 51. 97 [1957] 1 WLR 1223 at 1226–27, per Lord Denning. 98 Eg, Malas Family v Songoriki Family [1980–88] 1 Van LR 235; Regenvanu Family v Ross and Abel [1980–88] 1 Van LR 284. 99 Eg Manie and Kaltabang v Kilman [1980–88] 1 Van LR 343; In The Land Titles Application 90/101, (Re Hides Gas Project Land Case) [1993] PNGLR 310. 100 Ie, Manie and Kaltabang v Kilman (above); In The Land Titles Commission Application 90/91 (above).

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those island countries which became colonies of Britain, because the common law that was applied to those countries held, as discussed more fully in an earlier chapter,101 that all land in British colonies was subject to the radical or ultimate title of the British Crown. In these countries – the British colonies of the Cook Islands, Fiji, the Gilbert and Ellice Islands, Niue and Tokelau – as in the British colonies in Australia and New Zealand, the Crown was regarded by the common law as the initial or ultimate owner of all the land in the country.102 As Chapman J explained in the early New Zealand case of R v Symonds:103 Any acquisition of territory by a subject, by conquest, discovery, occupation, or purchase from native tribes (however it may entitle the subject conqueror, discoverer or purchaser, to gracious consideration from the Crown) can confer no right on the subject. Territories therefore acquired by the subject in any way vest at once in the Crown.

This same principle of ownership of land by the Crown was also applied in Samoa,104 which was a mandate/trusteeship territory of the colony, later Dominion, of New Zealand, and in Tonga. 105 Although neither was a colony of Britain, their governments – the New Zealand government in the case of Samoa, and King Tupou I (strongly persuaded by his adviser and later Prime Minister, the English missionary, Rev Shirley Baker) in the case of Tonga – were much influenced by English ideas. In the case of movable property, the notion that the person who first possesses a movable thing that is not owned by anybody else should be regarded as entitled to own it has arisen mainly with regard to wild animals and birds. The common law has held that a person who captures and takes possession of a wild animal or bird is regarded as having a qualified or special ownership of that creature: that is, the right to own the creature remains with the possessor so long as the creature is physically under the possessor’s control, or has left that control but intends to return. If the creature leaves that control and has no intention of returning,106 the creature is regarded as resuming its wild state and so is owned by no one. This question has arisen, for example, with regard to pigeons. Pigeons are regarded as wild creatures, but if they have been tamed and taught to return to their cage, as homing pigeons, then their possessor may be regarded as owning them even when they fly away, so long as they have the intention of returning.107 The qualified or special ownership of wild creatures has been extended to apply also to the person who is in possession of land on which wild creatures live. That person is regarded as owner of any wild creatures that live on the land – such as partridge108 and rabbits109 – but if they stray from that land of their own accord then that ownership is lost and they belong to the 101 See Chapter 2. 102 Caldwell v Mongston (1908) 2 FLR 1; Attorney-General (NSW) v Brown (1847) Legge 312; Geita Sebea v Territory of Papua (unreported; reversed on appeal, but not on this point, (1941) 67 CLR 544 and confirmed on this point by the High Court of Australia in Administration of Papua New Guinea v Guba [1973] PNGLR 603; R v Symonds (1847) NZPCC 387; Wi Parata v Bishop of Wellington (1877) Jur (NS) 72. 103 (1847) NZPCC 387, 389. 104 S 268 Samoa Act 1921 (NZ). 105 Cl 104 Constitution of Tonga. 106 Sometimes referred to in Latin as the animus revertendi. 107 Hamps v Darby [1948] 2 KB 350. 108 Sutton v Moody (1697) 1 Ld Raym 250; 91 ER 1063. 109 Blades v Higgs (1865) 11 HLC 639; 11 ER 1474.

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person in possession of the land onto which they stray. If creatures are chased from the land on which they are living by some other person who then seizes them, the position is more difficult. There is authority to say that the creatures then belong to the person who chases and takes them, even though that person may be liable for trespass, 110 but that seems rather unduly to reward wrongdoing. The right of ownership of wild creatures under the common law is, however, in England, subject to one qualification. It is subject to the prerogative right of the Crown under the common law to claim some fish, called royal fish – sturgeon and whales111 – and also some birds, called royal birds – wild white swans.112 This prerogative right seems never to have been asserted in the island countries of the South Pacific, and there must be some doubts as to whether this rule of common law would be regarded as sufficiently appropriate to the circumstances of those countries to be considered to have been introduced along with the rest of the common law. The rules of customary law are probably much to the same effect as those of common law, but very little has been researched and recorded about the rules of customary law in relation to movable property, so it is not possible to be very sure about this. If indigenous people find some wild creature, and hold it in captivity, it seems that they are regarded in custom as entitled to own that creature and keep it, or destroy it or let it free, as they please, and no other person is entitled to touch it without their permission. Rather more difficult in custom is the claim of indigenous people to wild creatures that they have captured, but which then escape and stray onto the land of others. Many indigenous people seem to contend that the rights of ownership continue by virtue of the original captivity, despite the absence of control, which would be different from the common law.

7.2.3.2 Property that is owned by another person If a person comes across something that is owned by another person, whether that thing is land or movable property, clearly, if that person takes possession of that thing, that action normally does not provide any moral justification for that person to acquire any legal rights to that thing. Usually, if a person takes possession of something that he or she does not own, that will amount to theft or criminal trespass and will be punishable as a crime. There are some exceptional situations, however, when the common law has considered that possession of such property should give rise to legal rights in that property. These are considered below. An example of such property is currency. If a movable thing is legal currency in a country, clearly it must be able to be freely negotiated and transferred from one person to another, without having to check and verify whether the person passing it had a right to own it or not, and any person who has it in his or her possession should be able to acquire ownership of it. So coins, bank notes and negotiable instruments are regarded as being able to be owned by the person who takes possession of them honestly in the ordinary course of business or dealing. As Viscount Haldane LC said in Sinclair v Brougham:

110 Sutton v Moody (1697) 1 Ld Raym 250; 91 ER 1063. 111 Vol 12(1), Halsbury’s Laws of England, 4th edn 1988, London: Butterworths, para 229. 112 Ibid.

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If a sovereign or bank note be offered in payment it is, under ordinary circumstances, no part of the duty of the person receiving it to enquire into title. The reason of this is that chattels of such a kind form part of what the law recognizes as currency, and treats as passing from hand to hand in point, not merely of possession, but of property. It would cause great inconvenience to commerce if in this class of chattel an exception were not made to the general requirement of the law as to title.113

The fact that honest possession of currency confers ownership of it applies to the coins and notes when they are being used for the purpose of currency. If money or banknotes are stolen, and they can be identified, they can be recovered by the owner. As Viscount Haldane added: ‘If money in a bag is stolen, and can be identified in the form in which it was stolen, it can be recovered in specie [in its own form].’114 If a movable thing which is owned is lost by that owner, and the owner cannot be traced, then the first person to find the article and take possession of it is regarded by the common law as the owner.115 This kind of qualified ownership is sometimes referred to as possessory title – possession which is as good as ownership in the absence of the true owner.116 The law relating to finders and possessory title is discussed in Chapter 3. There are, however, some exceptions to the right of the first finder of a lost movable. First, if the finder is acting as agent for another person or as an employee of another person, the finder is regarded as acquiring the found property for the principal or the employer, rather than for himself or herself.117 Secondly, if the finder is trespassing on the place where the article is found, as where, for example, a man goes onto a golf course without permission to find lost golf balls, and then sells them back to the players, the finder will not acquire good title.118 Thirdly, if the lost article is on or in the land of a person, that person will be regarded as being the person first in possession, and therefore the person entitled to possessory title, rather than the finder.119 If a lost article is found lying on the surface of land, however, that is usually not sufficient to indicate possession by the landowner.120 Fourthly, the common law has held that in England the Crown, as part of its prerogative rights, has the right to claim ownership of treasure trove121 and also of wreck, including flotsam, jetsam, ligan and derelict.122 These rights do not seem to have been asserted in island countries of the South Pacific, and there must be a question as to whether these 113 114 115 116 117 118 119 120 121

122

[1914] AC 398, 418. Ibid. See Banque Belge pour l’Etranger v Hambrouck [1921] 1 KB 321. Armory v Delamirie (1722) 2 Stra 505; 93 ER 664. See also Bridges v Hawkesworth (1851) 21 LJQB 75; and Parker v British Airways [1982] QB 1004. South Staffordshire Water Co v Sharman [1896] 2 QB 44; London Corporation v Appleyard [1963] 1 WLR 982. Hibbert v McKiernan [1948] 2 KB 142. Eg, Elwes v Briggs Gas Co (1886) 33 Ch D 562; South Staffordshire Water Co v Sharman [1896] 2 QB 562; Ranger v Giffen (1968) 87 WN (Pt 1) NSW 531. Bridges v Hawkesworth (1851) 21 LJQB 75; Parker v British Airways [1982] QB 1004. Treasure trove has been described as ‘gold or silver in coin, plate or bullion, found deliberately concealed in a house or in the earth or other private place, with the intention of recovery, the owner thereof being unknown’, Vol 12(1) Halsbury’s Laws of England, 4th edn, 1998, London: Butterworths, para 373. For discussion as to what constitutes treasure trove, see Attorney-General for Duchy of Lancaster v GE Overton Farms Ltd [1982] Ch 277. Flotsam is parts of a ship or its cargo that have floated away from a ship when it has sunk; jetsam is things that are thrown from a ship into the sea to lighten it; ligan is parts of a ship or its cargo that are attached to a buoy and sent adrift, usually to lighten the ship; and derelict is a ship that has been abandoned but which is still afloat. For further discussion see Vol 12(1), Halsbury’s Laws of England, 4th edn, 1998, London: Butterworths, para 271.

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common law rules are appropriate to the circumstances of these countries, so as to be part of the common law that has been introduced into them. Lastly, in many island countries of the South Pacific the legislation regulating the sale of goods provides that if goods are stolen and the thief is prosecuted and convicted of theft, ownership of the goods reverts in the person from whom they were stolen, notwithstanding any intermediate dealings.123 Where a person has possession of a movable object that has been abandoned by its owner, a lay person might well suppose that if a movable object has been thrown away by the owner then the first person who takes possession of it will be the owner of it. The legal position, however, is not so clear. There is some authority for saying that owners of property can never divest themselves of ownership unless they transfer the ownership to someone else. In other words, they cannot divest themselves of their ownership of a movable object just by throwing it away or leaving it in some place. Chief Justice Coke noted in 1613: ‘A man cannot relinquish the property he hath in his goods unless they be vested in another.’124 There is a decision of a court in Tasmania that supports this view, that an owner can never lose ownership of an article by abandoning it.125 On the other hand, there are other judicial statements in Australia that seem to consider that ownership can be lost by abandonment.126 The question does not seem to have been considered in any island countries of the South Pacific as yet, and so the correct answer for the lay person, as for the law student and legal practitioner, as to whether or not a person can acquire ownership of movable property that has been abandoned, by first possession of it, remains illusive. As has been indicated in Chapters 2 and 3, a person may also acquire the property of another through lengthy possession of property whose owner is known. In principle, the fact that a person has retained possession of the property of another person whose whereabouts are known, without that person’s permission for a long time – 5, 10, 20, 30, 40, 50 years – gives that person no greater moral justification to have rights in the property than on the first day that he or she took possession of it without the owner’s permission. In principle it is theft or criminal trespass, as it was on the first day of possession. However, there are some realities to consider. The possessor may have spent much time and expense in developing and improving the property. The owner might have neglected to take any steps to recover the property. The property may have been sold or dealt with in some way, so that other persons may have some claim to it. For this reason, some legal systems allow a person who has possessed property for a long time to acquire ownership of it. This is called ownership by prescription. The legal system of England, however, allowed prescription as a basis for ownership only to a very limited extent – for the acquisition of title to easements and profits à prendre over land. In some island countries of the South Pacific prescription has been allowed by legislation to confer much greater rights to property – ownership of non-customary land.

123 Eg, s 24 Sale of Goods Act 1893 (UK), which has been applied in Kiribati, Solomon Islands, Tuvalu and Vanuatu; s 26 Sale of Goods Act 1908 (NZ), which has been applied in Cook Islands, Niue and Tokelau; s 25(1) Sale of Goods Act, Cap 230 (Fiji); s 24 Goods Act, Cap 251 (PNG); s 24 Sale of Goods Act, Cap 251 (PNG); s 24 Sale of Goods Act 1975 (Samoa). 124 Haynes’s Case (1613) 12 Co Rep 113; 77 ER 1389. 125 Johnstone & Wilmot Pty Ltd v Kaine (1928) 23 Tas LR 43. 126 Re Jigrose Pty Ltd [1994] 1 Qd 382; Keene v Carter (1994) 12 WAR 20.

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On the other hand, in England and all the island countries of the South Pacific legislation has been enacted that limits the period of time when a person may bring court proceedings to recover his or her property. This legislation to limit the bringing of court proceedings is not designed to confer rights to property, but it has much that effect, because it shuts out claims from the true owner after a certain period of time. The result is that the claim of the possessor to the property can no longer be challenged. Both these methods of acquiring rights to property by lengthy possession – prescription and limitation of court proceedings – will now be considered in more detail. Roman law recognised that prescription or lengthy ownership of land could provide a person with rights of ownership of land. The concept of ownership by prescription was not adopted by the common law with regard to movable property or with regard to land, except in two rather limited respects: it was recognised that lengthy possession and use could give rise to a right of easement over land, and also a right to a profit à prendre over land. Early in the development of the common law judges had held that if a person could show that an easement or a profit à prendre had been exercised since ‘time immemorial’, which was later fixed as the beginning of the reign of Richard I in 1189, then it would be assumed that it had a lawful origin. This obviously became increasingly difficult to prove as the years went by, and the courts of common law then adopted, in addition, the notion of the ‘lost grant’ the notion of long usage. If uninterrupted use of an easement or a profit à prendre could be proved for more than 20 years it would be presumed, in the absence of evidence to the contrary, that there had been a lawful grant of that right, which had been lost. The ‘lost grant’ was obviously normally fictitious, and in 1832 Parliament intervened to prescribe a statutory period for easements and profits à prendre. The Prescription Act 1832 (UK) provided that if a person could prove uninterrupted enjoyment of an easement for 20 years, or a profit à prendre for 30 years preceding an action, then the right was not defeated upon proof that it did not exist at an earlier time. If a person could prove uninterrupted enjoyment of an easement for 40 years or of a profit à prendre for 60 years, then the right became absolute and indefeasible. In England it is possible to rely upon the common law, both ‘time immemorial’ and ‘lost grant’, and also the Prescription Act 1832, as a basis for a right to an easement or a profit à prendre.127 In island countries of the South Pacific there does not seem to have been discussion of prescription as a means of acquiring easements and profits à prendre. The Prescription Act 1832 (UK) appears to be a statute of general application in force in England at the time that such statutes were applied or adopted into island countries of the South Pacific, but it does not appear to have been relied upon in any case that has been reported. In two countries, however, Fiji and the Solomon Islands, locally enacted legislation extends the concept of prescription to the acquisition of the ownership of estates in land. The land registration legislation of Fiji128 and of the Solomon Islands129 enables a person to apply to be registered as the owner of a fee simple in Fiji, or of a perpetual or fixed-term estate in the Solomon Islands, after a period of possession adverse to the 127 See, eg, Roberts v James (1903) 89 LT 282; Hulbert v Dale [1909] 2 Ch 570. 128 Ss 77–92 Land Transfer Act, Cap 131 (Fiji). 129 Ss 224–27 Land and Titles Act, Cap 133 (Solomon Islands).

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proprietor of not less than 20 years in the case of Fiji, and 12 years in the case of the Solomon Islands. It is clear that to enable a person to take advantage of this provision to acquire ownership of land, the person must have been in possession for the prescribed period, and that that possession must have been adverse to the owner. As regards possession, the High Court of Solomon Islands has held that visits to the land several times a week to collect coconuts and firewood are not sufficient to constitute possession,130 and the Supreme Court of Fiji has held that some cultivation of, and grazing on, part of the land in question does not constitute possession of the land.131 On the other hand, the construction of a dwelling house on the disputed land has been considered to amount to possession.132 As regards adverse possession, it is clear that possession cannot be adverse to the owner if the possession is undertaken as a result of permission given by the owner,133 or as a result of a grant made by the owner;134 nor, it has been held in Fiji, can possession be adverse to a landowner if the land has been leased, and so time will run against the landowner only when the lease or tenancy has expired.135 On the other hand, it is not necessary that the initial entry was wrongful, and ‘it is sufficient if acts are done which are inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it.’136 Where an applicant seeks to register an interest acquired by adverse possession the burden of proof is upon the applicant, who must satisfy the registrar or the court that the application is well founded, and that the area for which registration as owner is claimed is precisely delineated.137

7.2.3.3 Limitation of court proceedings to recover property The common law placed no restriction on the time for bringing court proceedings for the recovery of property or for any other purpose. From the 12th century onwards, however, legislation was enacted in England which placed limits on the period for bringing court proceedings to recover land, and the period was eventually reduced in 1874 to 12 years after a person had taken possession of the land without permission of the owner.138 Later, in England, legislation placed limitations on the bringing of other court proceedings, including proceedings to recover movable property.139 This legislation is usually described as limitation legislation. Although the legislation did not expressly confer rights in property, it had that effect, because it shut out any claim by the original owner of property after a certain time and left the possessor in undisturbed control of the property. A former Chief Justice of the Solomon Islands, Daly CJ, in Bird v Registrar of Titles, described the effect of limitation provisions as follows:

130 131 132 133 134 135 136 137

Bird v Registrar of Titles [1980–81] SILR 47. Yakub Ali v Ram Singh (1966) 13 FLR 69. Lee Bow Yiu v Patel (1957) 5 FLR 62. Bechani Golay v North End Property Development Ltd (1989) 35 FLR 89. Taylor v Pickering (1936) 3 FLR 191. Abdul Rahman Sahu Khan v Dhupraji (1967) 14 FLR 181. Abdul Rahman Sahu Khan v Dhupraji (1967) 14 FLR 181, 183. Yakub Ali v Ram Singh (1966) 13 FLR 69; Abdul Rahman Sahu Khan v Dhupraji (1967) 14 FLR 181; Bechani Golay v North End Property Development Ltd (1989) 35 FLR 89. 138 Real Property Limitation Act 1874. 139 Limitation Act 1623 (Eng).

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The basis of the doctrine of limitation is that, after a period of time during which a person has failed to exercise his rights, that person is prevented from applying to a court to enforce those rights and therefore his rights are lost. In relation to land this means that if the owner is dispossessed by the adverse possession of another he must assert his rights within a certain period. If the owner does not do so, the other acquires a right to the land because it cannot be reclaimed from him. The period is governed by the appropriate law of limitation relating to the enforcement of rights before a court.140

Limitation Acts are in force in all countries of the South Pacific. In the Cook Islands141 and Niue,142 the Limitation Act 1950 of New Zealand was applied. In Kiribati143 and Tuvalu,144 the Limitation Act 1939 (UK) was applied, and in Tonga145 its successor, the Limitation Act 1980 (UK), has been adopted. In Fiji,146 Papua New Guinea,147 Samoa,148 the Solomon Islands149 and Vanuatu,150 local legislatures have enacted their own limitation legislation, although it is closely based upon the English legislation. All of these Acts provide that proceedings in respect of contracts or torts cannot be brought more than six years after the cause of action arose, and that proceedings for the recovery of land cannot be brought more than 12 years after the cause of action arose, except in the case of Tonga, where the period is 10 years. Since proceedings for recovery of movable property are brought on the basis of torts – actions for detinue or conversion – the result of this legislation is to prevent the owner of movable property from bringing proceedings to recover that property more than six years after the cause of action arose,151 and to prevent the owner of land from bringing proceedings to recover that land more than 12 years (10 in Tonga) after the cause of action arose. The limitation provisions with regard to proceedings for the recovery of movable property do not seem to have given rise to much discussion in the courts, probably because when movable property is lost it is very difficult to trace, and so the original owner is very unlikely to find it and claim it back from the person in possession of it. The limitation provisions with regard to proceedings for the recovery of land, which apply only to non-customary land, give rise to some difficulty with regard to determining when the cause of action arose, as it is from this point in time that the

140 [1980–81] SILR 47, 54. 141 Limitation Act 1950 (NZ), which was applied to the Cook Islands by s 641 Cook Islands Act 1915 (NZ). 142 Limitation Act 1950 (NZ) was applied to Niue by s 706 Niue Act 1966 (NZ). 143 S 15 Western Pacific (Courts) Order 1961 (UK); Laws of Kiribati Act 1989 (Kiribati). 144 Laws of Tuvalu Act 1987 ( Tuvalu). 145 Limitation Act 1980 (UK) was adopted by ss 3 and 4 Civil Law Act, Cap 15 (UK), but subject to s 148 Land Act, Cap 132 (Tonga) with regard to land. 146 Limitation Act, Cap 35 (Fiji). 147 Statute of Frauds and Limitation Act, Cap 330 (PNG). 148 Limitation Act 1975 (Samoa). 149 Limitation Act, Cap 18 (Solomon Islands). 150 Limitation Act, Cap 18 (Vanuatu). 151 In most countries, the legislation also provides that if an item of movable property has been unlawfully detained or converted a further time before the expiration of the limitation period from the first conversion, the limitation period of six years is to be calculated from the first unlawful detention or conversion, not the later one, thereby abrogating a rule of common law which provided that the limitation period would run from the later conversion: Miller v Dell [1891] 1 QB 468.

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limitation period is to be calculated. In some countries – Kiribati,152 Nauru,153 Samoa154 – the legislation provides that the possession must be ‘adverse’ in order to exclude recovery by the true owner. The courts in Samoa have emphasised that to preclude the recovery of the owner, the possession by the stranger or squatter must be adverse,155 that possession can never be adverse if it is enjoyed with the permission of the owner, and that to constitute ‘adverse possession [it] must be “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner”’.156 In Tonga, although the legislation does not expressly require that there must have been adverse possession before the limitation period will start to run,157 the Privy Council appears to have interpreted the legislative provision as having that effect.158 On the other hand, in some other island countries of the South Pacific – the Cook Islands159 and Niue160 – the legislation, as in England, provides merely that the right of action shall accrue at the time when the owner has been dispossessed or has discontinued possession of the land. It might be asked whether there any differences between dispossession and adverse possession? In England, the House of Lords has recently held that there is indeed a difference: that the term ‘possession’ as used in the English legislation means only possession, and nothing more, and does not require any element of adverse possession, or of confrontation, or of inconsistent user, or of ouster, or of intention to own the land, as some courts in England had previously considered to be necessary. All that is necessary for a possessor of land without permission to exclude the proceedings of the owner for recovery of his or her land, is to show that the possessor has in fact been in occupation of the land, with the intention to possess it for himself or herself for a period of 12 years.161 This decision may highlight a difference between those countries in the South Pacific where the legislation requires merely 12 years of dispossession before owners are prohibited from bringing legal proceedings for the recovery of their land, and those countries where the legislation requires, or the courts have interpreted, that there must be 12 years of adverse possession before such proceedings are prohibited. Moreover, this decision, that mere possession of their land by others for 12 years is sufficient to disentitle the owners of non-customary land from recovering their land, may cause legislatures to ponder the social desirability of such a result. Most of the supreme courts of the region are not, however, compelled to follow House of Lords decisions.

152 153 154 155 156 157 158 159 160 161

S 10 Limitation Act 1939 (UK) in force in Kiribati. S 10 Limitation Act 1939 (UK) in force in Nauru. S 14 Limitation Act 1975 (Samoa). Western Samoa Trust Estates Corporation v Faisaovale [1970–79] WSLR 136; Atiifale Fiso v Reid CA 8/95 (1995–96) unreported judgments, Western Samoa; Reid v Fiso [2001] WSCA 4. Ibid. S 170, Land Act, Cap 132. Tu’ifua v Tui [1974–80] Tonga LR 99. S 8 Limitation Act 1950 (NZ) in force in the Cook Islands. S 8 Limitation Act 1950 (NZ) in force in Niue. JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221. This decision has already given rise to some lively controversy: Tee, L, ‘Adverse Possession and the Intention to Possess’ [2000] Conv 113; Radley-Gardner and Harpun, ‘Adverse Possession and the Intention to Possess – a Reply’ [2001] Conv 155; Tee, L, ‘Adverse Possession and the Intention to Possess’ [2002] Conv 50.

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7.2.4 Compulsory acquisition of property In earlier times the customary laws of island countries in the South Pacific recognised the power of conquering tribes to seize the property, both movable and immovable, of the conquered tribe and hold it as their own. Since these countries came under the control of European countries, such a method of acquiring property by private persons has been prohibited in the interests of the peace and harmony. This has raised a difficult question in some island countries as to whether courts should recognise forceful seizure of customary land in earlier times as providing a basis of ownership of customary land today.162 Whilst legislation, in the interests of peace and order in the community, has been enacted in all island countries of the South Pacific to prohibit the forceful seizure of property by private persons, it has been recognised that sometimes it may be necessary for the public benefit that property is compulsorily acquired from the owner and transferred to other persons or the State. The main examples of such situations are when persons take action to defeat or evade the claims of their creditors, or when companies are unable to pay their debts. This process is described as bankruptcy, and legislation is in force in all island counties of the South Pacific for creditors to apply to the courts for the making of a receiving order against a debtor who is evading such creditors. This order has the effect of placing all the property of the debtor under the control of a receiver or trustee in bankruptcy, who has the duty of getting in, and realising, all the property of the debtor and then distributing it, subject to minor exceptions, amongst the creditors of the bankrupt.163 Similarly, with regard to companies that cannot pay their debts, the legislation in force in island countries of the South Pacific that provides for the establishment of companies, also provides that a creditor of a defaulting company can apply to the courts for a compulsory winding-up order and the appointment of a liquidator.164 The function of the liquidator is basically the same as that of a receiver or trustee in bankruptcy – that is, to get in all the property of the company, realise it and distribute it amongst the creditors, and if there is any surplus, to distribute that amongst the shareholders. The third main way in which property can be compulsorily acquired in island countries of the South Pacific is compulsory acquisition by the State. Legislation has been enacted in all island countries of the South Pacific to authorise the State compulsorily to acquire property required for the benefit of the public, but subject to

162 In Wema Kaigo v Siwi Kurondo [1976] PNGLR 34, the court accepted that a tribe in Papua New Guinea were the custom owners of land which they had, in accordance with their custom, seized from a defeated tribe in the course of an inter-tribal war before the country was brought under colonial administration. See Muroa G, ‘Judicial Recognition of Land Acquisition in Traditional Societies; Wena Kaigo v Siwi Kurondo’ (1996) MLJ 21. 163 The Bankruptcy Act 1914 (UK) was applied to Kiribati and Tuvalu, and its successor, the Insolvency Act 1986 (UK), has been adopted in Tonga; Bankruptcy Act 1908 (NZ) was applied, with modifications, to the Cook Islands, Niue and Samoa; and in Fiji, Papua New Guinea and Solomon Islands, the legislatures enacted Bankruptcy Acts, which followed closely the English Act: Bankruptcy Act, Cap 48 (Fiji); Insolvency Act, Cap 253 (PNG); Bankruptcy Act, Cap 3 (Solomon Islands). 164 Companies Act, Cap 247 (Fiji); Companies Ordinance, Cap 10A (Kiribati); Corporations Act 1972 (Nauru); Companies Act, Cap 146 (PNG); Companies Act, Cap 175 (Solomon Islands); Companies Act, Cap 27 (Tonga); Companies Act, Cap 191 (Vanuatu). The Companies Act 1955 (NZ) was applied to the Cook Islands, Niue and Samoa.

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certain safeguards, particularly as to the giving of notice and as to the payment of compensation.165 The utilisation of such legislation to acquire land, even for projects so obviously in the public interest as the provision of schools, the construction of roads, the extension of airports, the erection of power lines and the provision of hydro-electricity, has aroused much protest from landowners in all island countries of the South Pacific, which has been exacerbated by delays and inefficiencies in the assessment and payment of compensation, resulting often in threatened and actual closures, and other disruptions to public facilities. As a result, state agencies prefer, wherever possible, to proceed by consensual arrangements, rather than by relying upon the statutory powers of compulsory acquisition.

7.2.5 Acquisition of legal rights to property by operation of law In all the situations that have been considered so far action has been taken for the deliberate purpose of allowing a person to acquire legal rights to property. A person has created a new property, or has received a grant of property, or has taken possession of property, or, in the case of the State, has compulsorily acquired rights to property. In addition, there are some situations where no deliberate steps are taken to create or to grant legal rights to property, but the common law or statutory law has considered that legal rights to property should be vested in that person.

7.2.5.1 Natural additions to property All living forms of movable property naturally produce additions. Animals produce young, and so also do birds, fish and insects. The rules of common law, and also many rules of customary law, consider that the natural increase of living creatures normally belong to the owner of the female.166 There are, however, some exceptions. First, cygnets or young swans are regarded as owned equally by the owners of the male and the female swan.167 Secondly, if the animals are hired, the offspring are regarded as owned by the hirer, not by the owner of the animals, unless there is some express provision to the contrary in the hiring arrangement.168 As regards natural additions to land, it sometimes happens that the forces of nature – wind, sea and water – will cause accretions or additions to it. Sand and rocks may be swept up by the waves of the sea, and mud or silt may be deposited by the floodwaters of a river, and sand and light soil may be blown by strong winds, onto or alongside land, forming what is technically termed accretions or additions to the land. The common law, and also customary laws of most island countries of the South Pacific, recognises gradual natural additions as belonging to the owners of the land to which they attach.169 Thus, soil and ground which are deposited onto the boundary of

165 See Chapter 9. 166 This is also in accordance with the Roman law maxim, partus sequitur ventrem, meaning the progeny follow the womb. 167 Case of Swans (1592) 7 Co Rep 15b; 77 ER 435. 168 Tucker v Farm and General Investment Trust Ltd [1966] 2 QB 421. 169 See the Kiribati case of Nariki Kautu v Makirita Rinikarawa and Others [1997] KICA 20.

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land by the seawater belong to the owner of the land,170 and sand dunes blown up against the boundary of land belong to the owner of that land.171 On the other hand, the rules of common law draw a distinction between such natural gradual accretions and identifiable pieces of ground which are suddenly swept onto, or fall onto, land – these are regarded as still owned by the person from whose land they came if they can be traced172 – and also between natural accretions and man-made additions, such as reclamations and fillings, which belong to the owner of the land on which they have been placed or constructed.173

7.2.5.2 Human-made additions to property As mentioned above, if a person builds extensions to his or her land by way of fillings or reclamations over the land owned by another person, those extensions are regarded by the common law as belonging to the owner of the land on which they are placed or constructed. So when some merchants on Lagos Island built embankments and walls out from their seaward boundaries to protect their properties from the sea, and built up reclaimed land over the foreshore owned by the Crown, the extensions were held to belong to the Crown.174 Movable objects that are fixed to land are also normally regarded as part of the land. Thus fences and houses that are constructed on top of the land are normally regarded as part of the land, and mines and wells that have been constructed into the land are considered to be part of the land. Moreover, movable things that have been attached to buildings or other structures that are attached to the land also normally become part of the land. In determining whether a movable object is sufficiently attached to the land to be regarded as a fixture, and as part of the land, the degree of fixing and the permanency of the fixing are to be considered, and also the purpose of the fixing of the movable object.175 For example, weaving looms that have been nailed to the floor of a worsted mill,176 a gas engine which was screwed to posts set into the floor of a factory, 177 a dwelling house which was bolted to foundation posts set in the ground,178 and a stained glass window that had been fitted into a church,179 all have been held to be fixtures. On the other hand, a wooden dwelling house resting on its own weight on the ground,180 a bush tramway for removing logs which was screwed onto sleepers, half of which were lying on top of the ground and half of which were partly embedded in the ground,181 an electric

170 Gifford v Lord Yarborough (1828) 3 Bing 163; 130 ER 1023; Government of the State of Penang v Ben Hong Oon [1972] AC 425. 171 Southern Centre of Theosophy Inc v South Australia [1982] AC 706. 172 Thakurain Ritraj Koer v Thakurain Sarfaraz Koer (1905) 21 TLR 637; Humphrey v Burrell [1951] NZLR 262. 173 Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599. 174 Ibid. 175 See further, Blackburn J in Holland v Hodgson (1872) LR 7 CP 328, and Jordan CJ in Australian Provincial Assurance Co v Coroneo (1938) SR (NSW) 700. 176 Holland v Hodgson (1872) LR 7 CP 328. 177 Hobson v Gorringe [1897] 1 Ch 182. 178 Harman v Towson and Harman (1943) 3 FLR 344. 179 Re St Michael’s, Orchard Portman [2001] Fam 302. 180 Sadhulal Bhakshkar v Morrison (1957) 5 FLR 97. 181 Pukuweka Sawmills Ltd v Winger [1917] NZLR 81.

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stove standing on its own weight in a dwelling house,182 an air-conditioning unit standing on its own weight on the roof of an office building,183 and a large deep freeze unit standing on its own weight in a hotel,184 have all been held not to be fixtures and not part of the land. The courts have held that there are exceptions to the normal rule that articles which have been so attached to land as to be fixtures are to be regarded as part of the land. Fixtures that have been attached by tenants for the purpose of ordinary domestic convenience and utility, or that have been attached for the purpose of decoration, and which can be removed without seriously damaging the building to which they are attached, are considered to remain as movable property and not to become part of the land. Thus kitchen ranges, stoves, coppers and grates,185 tapestries186 and antique panelling and fireplaces,187 which had been attached to buildings by tenants and were able to be removed without serious damage, have all been held to be ‘tenants’ fixtures’ and therefore removable by the tenants, and not part of the building to which they were attached. Movable objects attached by tenants to buildings for the purposes of trade and which can be removed without serious damage have also been held by the courts to be ‘tenants’ fixtures’ which can be removed by the tenants and do not form part of the land. Thus taps, washbasins, mirrors and electric fittings which a tenant installed in a building to enable it to be used as a hotel were held to be removable by the tenant and not part of the building;188 so also petrol pumps which were installed by a tenant to enable him to use land as a petrol station were held to be removable by him and not part of the land.189 The courts have held that tenants should be allowed a reasonable time to remove their fixtures, but if they fail to avail themselves of that time the fixtures become part of the land.190 Another exception made by the courts to the general rule that movable property that is attached to land becomes part of the land, is where the parties have agreed to depart from that general rule. If the parties choose to make some different arrangement then they are free to do so, and the court will respect their wishes. So when the terms of a lease provided that a building erected on the leased land was to be the property of the lessee and removable by him at the end of the lease, the building was held not to be part of the land, and so it could be seized and sold by creditors of the lessee in execution of a court judgment for an unpaid debt.191 The common law rule that movable objects attached to land normally become part of the land has not been applied to the attachment of movable objects to other movable objects. Although one noted commentator in England has stated that ‘there seems no good reason why a corresponding principle should not apply where a chattel has been affixed to another chattel,’192 this has been disputed by another 182 183 184 185 186 187 188 189 190 191 192

Abercrombie v Wellington (1957) 73 WN (NSW) 336. Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947. Garrick v Costello (1974) 20 FLR 88. Darby v Harris (1841) 1 QB 895; 113 ER 374. Leigh v Taylor [1902] AC 157. Spyer v Phillipson [1931] 2 Ch 183. Garrick v Costello (1974) 20 FLR 88. Smith v City Petroleum Co Ltd [1940] 1 All ER 260. Ibid. Filimone Vatusere v Jaimal (1936) 3 FLR 194. Vol 35, Halsbury’s Laws of England, 4th edn, 1994, London: Butterworths, para 1238.

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distinguished antipodean commentator,193 and has not been accepted by the High Court in England.194 Indeed one might ask: is there any good reason why it should; and, further, is there any good reason, apart from the physical difficulty of separating fixtures from land to which they have been attached, for the original rule that provides that fixtures attached to land are to be regarded as part of the land?

7.2.5.3 Accidental intermixture of goods If the movable property of one person is accidentally intermixed with the property of another person, without the fault of either, and the properties are so mixed that they cannot be separated, there is some authority for saying that the common law would consider that the resultant mass belongs to them both as tenants in common in proportion to their respective contributions. So when bales of cotton were shipped in marked bales from America to England, but during the course of the voyage the ship was wrecked, and some of the bales were lost and the remainder lost their identifying marks, all the owners were held to be tenants in common of the bales that could not be identified, in proportion to the number of bales which each had originally shipped as compared with the total number of bales which were originally shipped.195 If, however, the intermingling has been caused by the wrongful actions of one of the owners, there was some authority that suggested that the whole mass belonged to the innocent party.196 However, this was not followed by the High Court in England in 1988, when it held that even when there was a wrongful intermixture of two different oils which could not be separated, the resultant mixture was owned by the owners of the two different oils as tenants in common in proportions equivalent to the respective amounts which they each contributed, but that the innocent party could recover damages against the wrongdoer for any losses in respect of quality or otherwise resulting from the admixture.197 If, of course, as discussed earlier in this chapter, the things that have been mixed together result in a completely different product, as where two or more articles are mixed together in a manufacturing process to produce a totally different article and to destroy the ingredients as separate entities, the resultant product is regarded as a new product which is owned by the person who created it.198

7.2.5.4 Common law possessory liens As indicated in Chapters 3 and 4, the common law allows that persons carrying on certain trades and professions have the right to retain possession of the property of their customers or clients until they are paid for their services. This right to retain

193 194 195 196

Sawer, G, ‘Accession in English Law’ (1935) 9 ALJ 50. Hendy Lennox (Industrial Engineers) Ltd v Grahame Puttick Ltd [1984] 1 WLR 485. Spence v Union Marine Insurance Co Ltd (1868) LR 3 CP 427. Vol 2, Blackstone’s Commentaries on the Laws of England, 17th edn, 1830, 404–05 (reprinted 2001, London: Cavendish Publishing); Lord Moulton in Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, 695; Jones v De Marchant (1916) 28 DLR 561. 197 Indian Oil Corporation Ltd v Greenstone Shipping SA (Panama) [1988] 1 QB 345. 198 Borden (UK) Ltd v Scottish Timber Products Ltd [1981] 1 Ch 25.

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possession is said to be imposed by the common law, and is not a result of any contract or other deliberate action by the parties.199

7.2.5.5 Succession to property upon intestacy As will be discussed in the next chapter, the legal systems of island countries of the South Pacific allow every person to dispose of property that he or she owns by a written will or testament that takes effect upon the death of that person, who is usually termed a testator or testatrix. Succession to the property of such deceased person is described as testate succession. If a person does not make a will, or if the will does not dispose of all the property owned by the testator, or if the will is held to be partly or wholly invalid, then all or part of the property of the deceased person will not be able to be succeeded to in accordance with the terms of a will, and this is described as intestate succession. Legislation has been enacted in England, the Administration of Estates Act, 1925 (UK), that lays down who is to succeed to the property of a deceased person in the absence of a valid will, and this has been applied to Kiribati, Tuvalu and Vanuatu. 200 This Act was followed closely by the Administration Act 1969 of New Zealand, which was applied to the Cook Islands201 and Niue.202 In Fiji,203 Nauru,204 Papua New Guinea,205 Samoa,206 the Solomon Islands207 and Tonga,208 the legislatures have enacted their own legislation to regulate succession to the property of a person who dies intestate. This legislation does not, however, apply to succession to customary land, which in all island countries, except Tonga, where there is no customary land, is determined in accordance with rules of custom. Custom usually requires that land must be succeeded to by the legitimate male or female children of the owner, equally, regardless of age, although sometimes a child may be able to succeed to the land of both father and mother, or may be able to choose. Sometimes an illegitimate child may be allowed to succeed to the same extent as, or to a lesser or greater degree than, legitimate children, and sometimes the eldest, or the youngest, child may be entitled to succeed to more, or to less, than the other children. In Tonga, where customary land has been replaced by royal estates, hereditary estates of nobles and hereditary allotments, succession to the hereditary estates of nobles, and to the hereditary allotments of commoners, is stated by the Constitution209 and also by legislation210 to be confined to children who are legitimate and male, and priority is given to the eldest male child. 199 See further Vol 5(1), paras 586–88; Vol 24, paras 586–88; Vol 44(1), paras 244–350, Halsbury’s Laws of England, 4th edn, 1992, London: Butterworths. 200 S 15 Western Pacific (Courts) Order 1961 (UK); s 3, High Court of the New Hebrides Regulation 1976 (UK). 201 S 623 Cook Islands Act 1915 (NZ). 202 S 680 Niue Act 1966 (NZ). 203 Succession, Probate and Administration Act, Cap 60 (Fiji). 204 Succession, Probate and Administration Act 1976 (Nauru). 205 Wills, Probate and Administration Act, Cap 291 (PNG). 206 Administration Act 1975 (Samoa). 207 Wills, Probate and Administration Act, Cap 33 (Solomon Islands). 208 Probate and Administration Act, Cap 16 (Tonga). 209 Cl 111–13 Constitution of Tonga. 210 S 41 (commoners’ allotments) and s 82 (nobles’ estates) Land Act, Cap 132 (Tonga).

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In Nauru, succession to the movable property of indigenous people is expressly stated by the written law211 to be determined in accordance with custom. Succession to movable property owned by indigenous people in Kiribati, 212 Papua New Guinea,213 Samoa,214 the Solomon Islands,215 Tuvalu216 and Vanuatu217 is also probably to be regulated by the rules of custom, although the written law in these six countries is not as explicit on this point as it is in Nauru. Since many indigenous people in island countries of the South Pacific have not accumulated a great deal of movable property by the time of their death, the rules of customary laws relating to succession to movable property have not required to be discussed to the same extent as those relating to customary land. In most areas it would seem that, subject to any direction by the deceased when alive, movable property of a deceased person is usually divided, more or less equally, between all members of the family of the deceased, with some flexibility as to the extent of the family.

7.2.5.6 Succession to property of corporations which are dissolved The principal non-governmental corporate bodies that are empowered to manage and own property are companies,218 co-operative societies,219 credit unions220 and incorporated societies.221 The legislation that establishes each of these kinds of corporate body also provides for what is to happen to the property owned by the corporate body, and who is to succeed to that property, if the body is dissolved.

7.3

ACQUISITION OF EQUITABLE INTERESTS IN PROPERTY

In the preceding pages of this chapter there has been discussion of how legal interests in property may be acquired. In the remaining pages attention will be given to the main methods whereby equitable interests in property may be acquired; a number of these have been touched on in previous chapters.222

211 212 213 214 215 216 217 218

219

220 221 222

S 3(1)(b) and (c) Custom and Adopted Laws Act 1971 (Nauru). S 4(j), Sched I, Laws of Kiribati Act 1989 (Kiribati). S 5(g) Customs Recognition Act, Cap 19 (PNG). Art 111(1) Constitution of Samoa. S 8(g) Customs Recognition Act 2000 (Solomon Islands). S 4(i), Sched I, Laws of Tuvalu Act 1987 (Tuvalu). Art 95(3) Constitution of Vanuatu. Eg, Companies Act 1955 (NZ) which has been adopted in Cook Islands by the Companies Act 1970–1971 (Cook Islands); Companies Act, Cap 247 (Fiji); Companies Ordinance, Cap 10A (Kiribati); Corporations Act 1972 (Nauru); Companies Act, Cap 146 (PNG); Companies Act 1955 (Samoa); Companies Act, Cap 191 (Vanuatu). Co-operative Societies Act, Cap 14 (Fiji); Co-operative Societies Act, Cap 250 (Kiribati); Div 5, Part XII, Companies Act, Cap 146 (PNG); Co-operative Societies Ordinance, 1952 (Samoa); Co-operative Societies Act, Cap 164 (Solomon Islands); Co-operative Societies Act, Cap 118 (Tonga); Co-operative Societies Act, Cap 64 (Tuvalu); Co-operative Societies Act, Cap 152 (Vanuatu). Credit Unions Act, Cap 251 (Fiji); Credit Unions Ordinance 1960 (Samoa); Credit Unions Act, Cap 165 (Solomon Islands); Credit Unions Act, Cap 107 (Tonga); Credit Unions Act 1989 (Vanuatu). Incorporated Societies Act 1908 (NZ), which has been applied to the Cook Islands and Niue; Incorporated Societies Ordinance 1952 (Samoa); Incorporated Societies Act, Cap 28 (Tonga). See, eg, Chapters 4, 5 and 6.

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Equitable interests in property are not as strong as legal rights to property, because they are not binding on everybody as are common law or legal rights – they are only binding on the persons whose actions are such that it would be inequitable or unfair to allow them not to be bound by them, and on people who acquire the property as a gift, without paying for it. A person who purchases property in good faith with no knowledge of the existing equitable interest is not bound to accept it. Equitable interests in property are acquired only when a legal owner of property grants an equitable interest, or when the law imposes such an interest.

7.3.1 Grant of equitable interests in property The Court of Chancery held that an owner of property could grant an equitable or a beneficial interest in that property in favour of another person in several different ways, which will now be considered.

7.3.1.1 Express trust Probably the most usual way for an owner of property to grant an equitable interest in property is by placing that property on trust for the benefit of certain persons.223 This may be done in two ways: either the owner of the property may transfer the property by grant to another person to be held on trust for the benefit of the persons who are to be the beneficiaries; or an owner of property may declare that he or she is holding his or her property on trust for certain persons. As discussed in Chapter 5, in such a situation the Courts of Chancery in England held that the persons for whom the property was held on trust, the beneficiaries, acquired a type of ownership of the property which is called beneficial ownership.224 This concept of beneficial ownership arising from a trust, which was peculiar to the English legal system and did not develop in other European legal systems, has been adopted in the legal systems of all island countries of the South Pacific, although there has been relatively little discussion in reported cases about the acquisition of this type of ownership, the main reported case being one where the existence of a legally enforceable trust was denied by the court.225

7.3.1.2 Equitable charge The courts in England have held that it is possible for an owner of property to make that property subject to a charge in favour of another person. This is done usually in order to provide a security for a loan that has been given to the owner, or a security for payment for goods that have been supplied on credit to the owner. The charge may be given over specific named property of the owner, often described as a ‘fixed charge’, or it may be given over the property of the owner generally, often described as a ‘floating charge’. A charge can be granted by contract that makes clear the intention of the parties, and no special formality is required by the rules of equity. Equitable

223 See also Chapters 1 and 5. 224 See Chapter 2. 225 Tito v Waddell (No 2) [1977] 1 Ch 106.

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charges thus form a very simple and convenient method for an owner of property to use as a means of providing security for a transaction.226 There is the danger, however, that, because an equitable charge is so simple to grant, the owner of property may grant several charges over the same property to different people, or may grant a charge that is greater than can be fulfilled. Accordingly, the legislation relating to companies in England and many island countries of the South Pacific requires that charges given by companies must be registered in the registry of companies, so that people dealing with the company may be aware of their existence, and if this is not done, the charge is void as against the creditors if the company is liquidated. The responsibility for registering a charge, however, is placed by the legislation upon the company, and if a company fails to register the charge, the person in whose favour the charge is granted will find that he or she has acquired a charge that is worthless.227

7.3.1.3 Informal grant of lease and mortgage of property The Court of Chancery in England held that when a person agreed to make a grant of a lease or a mortgage of a property to another person, and then, for some reason, failed to complete the deed of grant required by the common law, but the other person performed his or her part of the arrangement, then the court could specifically enforce the agreement and so regard the other person as acquiring the interest in the property. In the famous case of Walsh v Lonsdale,228 the owner of a weaving shed and some other buildings agreed in writing that he would grant a lease of the buildings for seven years. The lease was never drawn up, but the tenant entered into possession of the buildings and started to pay rent, but then fell into arrears. The English Court of Appeal held that although a formal lease had not been granted, there had been an agreement to do so which could be specifically enforced, and so the tenant should be regarded as having an equitable lease of the premises. More recently, the Privy Council held that when a Chinese man had agreed to sell a leased property in the New Territories of Hong Kong to a purchaser, and the purchaser went into occupation and paid rent, but no legal grant was ever made, the purchaser and the descendants of the purchaser had an equitable claim to the leased property which could be enforced against the seller, and also the descendant of the seller, who was registered as the owner, because he was not a bona fide purchaser for value without notice since he had acquired the land by succession and not purchase.229 The same principle has been applied where an owner of property agreed with a lender of money to grant a

226 See, eg, Capital Finance Co Ltd v Stokes [1969] 1 Ch 261; Re Bond Worth Ltd [1980] 1 Ch 228; Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584; Re Welsh Ferries Ltd [1986] 1 Ch 471. 227 As happened in Capital Finance Co Ltd v Stokes [1969] 1 Ch 261; Re Bond Worth Ltd [1980] 1 Ch 228; and Re Welsh Ferries Ltd [1986] 1 Ch 471. 228 (1882) 21 Ch D 9. 229 Wu Koon Tai v Wu Yau Loi [1997] AC 179.

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mortgage over the property, and gave the lender the documents of title of the property, but never made a deed to mortgage the property to the lender.230 A mere agreement, oral or written, to grant a mortgage as security for a loan, accompanied by a deposit of the title deeds of the property with the lender, used to be a popular method of creating a mortgage in England,231 but it has now been held by the Court of Appeal232 to be subject to legislation enacted in England in 1989 that requires that all contracts for the disposition of an interest in land must be in one written document which incorporates all the terms of the disposition.233 Principles of equity are, of course, always subject to legislation, and for this reason the Privy Council held that an agreement to grant a sub-lease of native land in Fiji, which legislation provided could be done only with the permission of the Native Land Trust Board, could not confer any equitable interest in the land if the permission of the Board had not been obtained.234 On the other hand, the courts in Papua New Guinea have held that leases for which legislation required the Minister of Land’s consent, conferred an equitable interest even though the consent of the Minister had not been obtained.235 The courts have held that the person who comes to the court to seek recognition of an informal arrangement, must come promptly and ‘with clean hands’, as in all applications for equitable relief. So if a person claiming to be an equitable tenant has acted in breach of the terms of the agreement for lease requiring that he keep the premises in good repair, he will not be granted recognition by the court.236 Moreover, like all principles of equity, a claim cannot prevail over the rights of a purchaser for value without notice of the arrangement.237

7.3.2 Acquisition of equitable interests in property by operation of law Earlier in this chapter there was discussion as to how common law or legal interests in property could be acquired by operation of law alone, without any action by the parties for that purpose. Similarly, there are some situations in which the courts will hold that an equitable interest in property may be acquired by operation of law alone, without any action taken for that purpose by the parties.

230 See Coote on Mortgages, 9th edn, 1927, Vol I, Stevens and Sons, p 86: A deposit of title deeds by the owner of freeholds or leaseholds with his creditor for the purpose of securing either a debt antecedently due, or a sum of money advanced at the time of the deposit, operates as an equitable mortgage or charge, by virtue of which the depositee acquires not merely the right of holding the deeds until the debt is paid, but also an equitable interest in the land itself. 231 Re Wallis & Simmonds (Builders) Ltd [1974] 1 WLR 391; Re Alton Corporation [1985] BCLC 27. 232 United Bank of Kuwait PLC v Sahib [1997] Ch 109. 233 S 2 Law of Property (Miscellaneous Provisions) Act 1989 (UK). 234 Chalmers v Pardoe [1963] 1 WLR 677. 235 Re Luabar Logging Pty Ltd [1988] PNGLR 124. See also McCosker and King v Kuster [1967–68] PNGLR 182; Wine v Giglmai [1990] PNGLR 462; Jay Mingo Pty Ltd v Steamships Trading Pty Ltd [1995] PNGLR 129. 236 Swain v Ayres (1888) 21 QBD 129; see also Re Yabo Sabo For Nagi Clan [1995] PNGLR 13. 237 Pilcher v Rawlins (1872) 7 Ch App 259.

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7.3.2.1 Vendor’s and purchaser’s lien If a person sells property and parts with possession of it, before receiving full payment for it, the principles of equity provide that the seller or vendor will have a lien over that property until the full payment is made. Contrariwise, if a purchaser has paid the purchase price for property, but has not obtained possession of the property, the principles of equity impose a lien over the property until the property is delivered into his or her possession.238 These liens may have been abolished as regards movable property by the legislation relating to the sale of goods which is in force in many island countries of the South Pacific,239 and the liens with regard to the sale of land have been specifically abolished by legislation in force in some island countries of the South Pacific.240

7.3.2.2 Trustee’s lien The principles of equity have also imposed upon the property of a trust a lien for the amount of costs properly incurred by a trustee in the administration of the trust and in the protection of the trust property. Thus trustees were held entitled to retain the rents received from the trust property in order to pay the court costs which they had incurred in respect of court proceedings properly brought by them to protect the trust property.241

7.3.2.3 Constructive trusts Probably the most important method developed by the principles of equity to allow a person to acquire an equitable interest in property is that of constructive trust. The courts have spoken in very general terms as to when they will impose a constructive trust. One of the most often quoted statements as to when a constructive trust will be imposed are the general words of Lord Diplock in Gissing v Gissing, when he said, in relation to land, that a constructive trust is created whenever a person ‘has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land so acquired’.242 Various more specific bases for when it would be inequitable to deny a person a beneficial interest in property have been suggested, such as: reasonable expectations of the parties;243 unconscionable conduct of one of the parties;244 unjust enrichment by one of the parties;245 estoppel 238 See further Chapters 1 and 4. 239 The unpaid seller retains a lien over goods in his or her possession until these are paid for. See eg, s 40, Sale of Goods Act, Cap 230 (Fiji); s 40 Sale of Goods Act 1975 (Samoa); s 41 Sale of Goods Act 1893 (UK), which is in force in Kiribati, Nauru, Solomon Islands, and Vanuatu; s 39 Sale of Goods Act 1979 (UK), which is in force in Tonga; ss 39–47 Sale of Goods Act 1991 (Tuvalu); Law of Sales, Part V.2, Title 23 (Marshall Islands). 240 See s 28 Property Law Act 1952 (NZ), which is in force in the Cook Islands, Niue and Tokelau. 241 Stott v Milne (1884) XXV Ch D 710. See Chapter 4. 242 [1971] AC 886 at 905. For consideration of the authorities see Nisha v Munif (1999) 45 FLR 246. 243 Eg Hayward v Giordani [1983] NZLR 140; Pasi v Kamana [1986] 1 NZLR 603; Oliver v Bradley [1987] 1 NZLR 586. 244 Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1984) 164 CLR 137. 245 Rathwell v Rathwell [1978] 2 SCR 436; Pettkus v Becker [1980] 2 SCR 834; Sorochan v Sorochan [1986] 2 SCR 38.

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of one of the parties denying the beneficial interest;246 and common intention of the parties.247 These various bases were discussed by the Chief Justice of Samoa in Elisara v Elisara and Kerisoma,248 who expressed a preference for unjust enrichment and reasonable expectations. The main situation in reported cases of the island countries where a constructive trust has been imposed is where a person has contributed to the financing of a home or movable property, which is placed in the legal ownership of another person.249

7.3.2.4 Estoppel Another important situation where the courts of South Pacific island countries have held that a person may acquire a beneficial interest in property which is in the legal ownership of another person, is where the legal owner has encouraged a person to spend money on making improvements to the property in the belief that the owner will grant that person a certain interest in the property. Where that situation has arisen, the owner of the property may be estopped from denying that the person who has made the improvements has a beneficial interest in the property. So, in OG Sanft and Sons v Tonga Tourist and Development Co Ltd,250 the Privy Council of Tonga held that a firm that had granted a sub-lease of its land to a company before the company was incorporated and had allowed the company, after incorporation, to spend money on improvements to the land, was estopped from claiming that the sub-lease was void because the company was not incorporated at the time the sub-lease was signed on behalf of the company. On several other occasions in Tonga, the principle of estoppel has been relied upon to estop the holders of commoners’ allotments in Tonga from removing occupiers from parts of the allotments on which they had been allowed by the holders to build houses.251 Again in Fiji, the same principle of estoppel was relied upon to prevent the owner of freehold land from removing an occupier of land from that land during his lifetime.252

CONCLUSION The legal systems of island countries of the South Pacific provide for people to acquire legal rights of ownership of property which are enforceable against everybody by their actions of creating new property, of receiving a grant of property from another person, and of taking possession of property without a grant. The legal systems of these countries also allow for the compulsory acquisition of property by others. Creditors of persons who take action to defeat or evade the claims of the creditors, and

246 247 248 249 250 251

Gillies v Keogh [1989] 2 NZLR 327; Grant v Edwards [1986] Ch 638. Pettitt v Pettitt [1970] AC 777; Gissing v Gissing [1971] AC 886. [1994] WSSC 13. See further Chapter 11 and the use of the constructive trust as a remedy. [1981–88] Tonga LR 26. Veikune v To’a [1981–88] Tonga LR 138; Motuliki v Namoa, Motuliki and Minister of Lands [1981–88] Tonga LR 141. 252 Bruce Duncan Lawlor v Timoci Duaibe (1976) 22 FLR 134. See also Sheila Maharaj v Jai Chand [1986] AC 898.

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creditors of companies that fail to pay their debts, can obtain orders from the courts which result in the property of the debtor or defaulting company being distributed to the creditors. The State is usually given power compulsorily to acquire the property of private persons, when necessary for some public purpose, and subject to certain legislative and constitutional safeguards, and is often given power to forfeit property which is produced by, or was used for carrying out, certain criminal activity, and to forfeit property that is the proceeds derived from serious crimes. Property may also be acquired without any deliberate actions for that purpose, either by the acquirer or by any other person, but rather by the operation of law alone, as in the case of natural additions to property and human-made additions to property; in the case of succession to the property of a person who has died intestate; and succession to the property of corporate bodies that have been dissolved. The legal systems of the island countries also allow for people to acquire equitable interests in property which are enforceable against those whose conduct has been such that it would be inequitable or unfair for them to deny the interest, and also against those who acquire that property by gift, or with knowledge of the interest. Such equitable interests can be acquired by a person if the owner of the property places that land on trust in favour of that person, and if the owner grants an equitable charge over the property. Even without these deliberate actions by the owner of property to grant an equitable interest in the property, an equitable interest may be acquired by operation of law in the case of a vendor’s lien, a purchaser’s lien, a trustee’s lien and a constructive trust imposed by the courts in accordance with the principles of equity.

CHAPTER 8 ALIENATION OF PROPERTY

INTRODUCTION The term ‘alienation’ is derived from a Latin word, alius, which means ‘another person’. So, in relation to property, the term ‘alienation’ refers to the process whereby rights in property are transferred to another person. The word ‘alienation’ may sometimes be used in a wide sense to refer to the transfer of any rights in property to another person, or in a narrower sense to refer to the transfer of rights of ownership of property only. This latter is the way the word is used in the Oxford Dictionary of Current English, 1 when it describes the verb ‘alienate’ as meaning to ‘transfer ownership of’. It is in this narrower sense, of a grant or transfer of ownership of property, that the word ‘alienation’ will be used in this chapter. There are three basic ways in which the property of a private person may be alienated or transferred to some other person. One possible way is by voluntary actions by the owner which are intended to have that effect – often described as voluntary alienation. A second method is by voluntary and intentional actions taken by some other person for this purpose – often described as involuntary alienation. A third way in which the property of one person may be transferred to another person is not through the actions of people at all, but by the effect of legal provisions – often described as alienation by operation of law. There is one other possible method by which a person may lose rights to property which should be mentioned in this connection – abandonment of property. Abandonment of property does not strictly constitute alienation, because, if it operates at all, it merely divests a person of rights to property but does not confer rights of property on any other person. Moreover, as has been indicated in the previous chapter, there is some uncertainty whether abandonment of property is able even to divest a person of his or her rights to property. However, it is a concept that is sometimes considered in relation to alienation, so it will be discussed, albeit briefly, in this chapter.

8.1

VOLUNTARY ALIENATION OF PROPERTY

There are two main ways by which a person may voluntarily transfer or alienate his or her ownership of property. The transfer may be made gratuitously, without payment or consideration, or it may be made for payment or consideration. A transfer that is made gratuitously is described as a donation, a gift or a present, and the person making the gift is described as a donor, whilst the recipient of the gift is described as a donee. A transfer that is made for consideration, or payment or value is described as a sale or a purchase, and the person who is transferring the property is called a seller or vendor, whilst the person who is receiving the property is called a buyer or a purchaser.

1

The Oxford Dictionary of Current English, 1985, Oxford: OUP, p 17.

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There is one other way of voluntarily alienating property, which is not so significant or common as the two methods just mentioned. That is voluntary bankruptcy or liquidation. These three methods of voluntary alienation will now be considered in more detail.

8.1.1 Sale As indicated above, a sale is a transaction whereby a person, called a seller or vendor, sells property, or rights to property, to another person, the buyer or purchaser, who provides, or promises to provide, some payment for it. A sale, therefore, is based on, and follows from, a contract between the two parties – the seller or vendor, and the buyer or purchaser.

8.1.1.1 Movable property The common law developed a number of rules to regulate the sale of movable property, which were replaced in England by the Sale of Goods Act 1893 (UK). This Act was introduced into the laws of Kiribati, the Solomon Islands, Tuvalu and Vanuatu,2 and has not been replaced by local legislation. Its successor, the Sale of Goods Act 1979 (UK), has been adopted in Tonga.3 On the other hand, in Nauru, where the 1893 Act would also seem to have been adopted, it appears to have been replaced by Nauruan custom, at least as regards sales between Nauruans.4 In the Cook Islands,5 Niue6 and Tokelau,7 the Sale of Goods Act 1908 of New Zealand, which is closely modelled on the English statute, has been applied.8 In Fiji,9 Papua New Guinea10 and Samoa,11 legislation has been locally enacted to regulate the sale of goods, all of which was modelled on the sale of goods legislation of England. There is therefore a great similarity amongst the legislation in force in island countries of the South Pacific. It is important to note that this legislation applies to all movable property which is the subject of trade or commerce, including large goods, such as motor vehicles and ships, and it also applies to crops growing in the ground which it is agreed will be cut before sale. This legislation provides that a sale of existing movable goods can be concluded by an oral or a written contract, or a contract that is partly oral and partly written. Oral contracts are obviously simpler and more convenient to make in the short term, but the danger is that they may not contain all the terms that one of the parties would have wished, or that there is a difference of recollection as to what terms were included in the contract. For example, an oral contract was made in Papua New Guinea for the sale of coffee at a certain price, but there was a dispute as to the 2 3 4 5 6 7 8 9 10 11

S 15 Western Pacific (Courts) Order 1961 (UK). Ss 3 and 4 Civil Law Act, Cap 25. S 3(1)(b) Custom and Adopted Laws Act 1972 (Nauru). S 638 Cook Islands Act 1915 (NZ). S 701 Niue Act 1966 (NZ). Reg 13 Tokelau (New Zealand Laws) Regulations 1969 (NZ). S 638 Cook Islands Act 1915 (NZ). Sale of Goods Act, Cap 230. Goods Act, Cap 251. Sale of Goods Act 1975 (Samoa).

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amount that had been agreed to be sold – the seller claiming that no specific amount had been agreed, whilst the purchaser claimed that 20 tons had been agreed.12 Also, if the contract is partly oral and partly in writing, there may be a dispute as to whether the writing adds to, modifies or replaces the oral statements. So when an oral agreement was made, again in Papua New Guinea, to sell a farm and also farm machinery, including a tractor which was stated to be in good working order, and this was followed by a written contract that made no mention of farm machinery, a dispute arose when it was discovered that the tractor was not in good working order – the court held that the oral contract in this case was what the parties had agreed, and the written contract could not vary that, so that the seller was in breach of that contract in respect of the tractor that was not in good working order.13 So far as the transfer of rights of ownership is concerned, the sale of goods legislation in force in island countries of the South Pacific provides that if there are specific or ascertained goods, rights of ownership are transferred when the parties to the contract of sale intend this to happen, and this is to be determined by having regard to the terms of the contract, the conduct of the parties and the circumstances of the case. The legislation goes on to provide that if there is an unconditional contract then, unless the parties agree otherwise, they are assumed to intend that the rights of ownership are transferred at once by that contract, even though the payment of the consideration and/or the delivery of the goods are postponed until later. If something needs to be done to make the goods ready for delivery then, unless the parties agree otherwise, rights of ownership will not pass until the goods are ready and the buyer has been informed. If the goods are not in existence at the time the contract of sale is made then rights of ownership do not pass, unless the parties have agreed otherwise, until goods have been appropriated to the contract with the assent of both parties (see below). The legislation makes it clear that the seller may make the transfer of rights of ownership of the goods, whether specific or subsequently ascertained, subject to conditions, so that ownership is not transferred to the purchaser until those conditions are fulfilled. It is very common nowadays for sellers to insist that rights of ownership do not pass to the purchaser, even though the goods have been handed over to the purchaser, until payment has been received in full by the seller for those goods. For example, a written contract for the sale of coffee made in Papua New Guinea stated that ‘the coffee remains the property of the seller until it is … paid for in full, even if the seller has already parted with the coffee or with the documents that represent the coffee’. Consequently, the court held that, although the purchaser had sold the coffee to an overseas buyer, the seller was entitled to block the shipping of the coffee overseas until he received payment in full.14 On the other side, a buyer may insist that the ownership of goods does not pass to him or her until the goods have been received, so that if anything happens to them in transit to the buyer, the risk remains with the seller. So when a person made a contract in Port Moresby for the purchase of a vehicle which was to be shipped in a container to him in Kieta, and the car key and container key sent to him in Kieta by registered mail, the court held that rights of ownership did not pass to the purchaser until the vehicle reached him, so when the

12 Fraser and Fraser v Angco Pty Ltd [1977] PNGLR 134. 13 Marlor Investments v Symmons [1967–68] PNGLR 292. 14 Yha Hauka Coffee Pty Ltd v Kumul Kopi Export Pty Ltd [1991] PNGLR 332.

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vehicle was damaged in transit, because it was not properly containerised, the vehicle was then still in the ownership of the seller.15 Nowadays it is very common for persons to sell goods without having received full payment for them. Such sales are often described as sales on credit or account, and there are various ways in which this can be done. One way is for the seller to sell the article and place it in the hands of the purchaser, in consideration for the purchaser’s promise to pay at a later date. This method of sale has the obvious danger that the purchaser may fail in his or her promise to pay, and may sell or give the article to someone else before completing the payments due. Another method is for the seller to sell the goods but retain possession of them until the purchaser has paid the full price. This method, which is sometimes described as ‘lay-by’, is much safer for the seller, but not so convenient for the purchaser, because he or she does not obtain possession and use of the article until the price is fully paid. In Fiji, but not it seems in other island countries of the South Pacific, lay-by sales are regulated by legislation, which protects the position of the potential purchaser if the lay-by is cancelled, or the potential seller goes bankrupt. However, the law does not require any special formalities as regards the making of the lay-by agreement.16 Another method of providing for the sale of goods on credit is to allow the proposed purchaser to hire the article, and to make additional payments towards the purchase of the article which can be used to meet the cost of the purchase price, if the hirer decides at the end of the hire to purchase the article. This method, which sometimes is called a ‘true hire-purchase’, or a ‘Helby v Matthews17 agreement’, has the advantage for the owner that the rights of ownership of the article remain with the owner of the article until the purchaser is ready to complete the purchase price and full payment is assured. It also has the advantage for the hirer that he or she can enjoy the use of the article before full payment is made. However, there is the disadvantage that the hirer may sell the article to an innocent third person before acquiring rights of ownership, as happened in Helby v Matthews, or may become bankrupt, as happened in McEntire v Crossley Bros Ltd.18 A fourth method that can be used is for the owner to agree to sell the goods and to allow the proposed purchaser to have possession of the goods whilst paying instalments of the purchase price, but with rights of ownership not to pass until the final payment is made. This method, which is often called ‘a conditional purchase agreement’, or a ‘Lee v Butler19 agreement’, has the advantage of convenience for the purchaser, who can use the goods whilst making the payments, but the disadvantage that the purchaser may sell the goods to an innocent third person before making final payment and acquiring ownership, as happened in Lee v Butler. Nowadays it is usual for the seller of articles on credit, especially those that are sold by way of a true hire-purchase agreement or a conditional sale, to seek the assistance of a finance company to carry the burden of waiting for the full payments for the goods to be made. Often a finance company enters into a transaction of sale on credit to provide financing for traders of goods until the full payment is made. This is

15 16 17 18 19

Toba Pty Ltd v Poole [1984] PNGLR 94. Part IV, Sale of Goods Act, Cap 230. [1895] AC 47. [1895] AC 457. [1893] 2 QB 318.

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usually done in one of two ways. First, when a buyer indicates to a trader that he or she wishes to purchase the goods, the trader sells them to the finance company, which then sells or hires them to the buyer, so that the trader then drops out of the picture. This is often described as ‘direct collection’, and was discussed by the Court of Appeal of Fiji in ANZ Banking Group Ltd v Merchant Bank of Fiji.20 Alternatively, the trader of the goods enters into the hire-purchase agreement or the conditional sale agreement with the hirer/purchaser, and then transfers to the finance company the trader’s rights under the agreement with the hirer/ purchaser. This method is often described as ‘block discounting’. In both cases, this practice results in the finance company replacing the trader, so that the finance company and the hirer/purchaser become the parties to the hire-purchase or conditional purchase agreement, not the trader and the hirer/purchaser. With both the true hire-purchase and the conditional purchase agreement there is the danger that the hirer/purchaser who has the goods in his or her possession may sell them to an innocent third party before completing the payments due. The sale of goods legislation in England and in the South Pacific provides that if a person has bought, or agreed to buy, goods and has them in his or her possession with the consent of the seller, any sale of those goods by that person to another person who has no notice of the rights of the original seller confers rights of ownership upon that other person. This provision obviously protects people who innocently purchase goods from conditional purchasers of property, but not those who purchase from hirers under a hire-purchase agreement, since hirers have not agreed to purchase the property until the period of the hiring ends. In England, legislation to regulate true hire-purchase agreements was enacted in 1938. This was enlarged and amended by the Hire-Purchase Act 1954. This English hire-purchase legislation, being in force in England on 1 January 1961, is in force in Kiribati, the Solomon Islands, Tuvalu and Vanuatu, by virtue of the Western Pacific (Courts ) Order 1961 (UK) – assuming that it is legislation of general application, and that it is considered by the courts to be appropriate to the circumstances of those countries, because in those countries there is no locally enacted hire-purchase legislation. The current hire-purchase legislation in England, which is now to be found in that part of the Hire-Purchase Act 1964 (UK) which relates to motor vehicles, and the Consumer Credit Act 1974 (UK), will be adopted in Tonga if considered appropriate to the circumstances of the country.21 In only two island countries of the South Pacific is there locally enacted legislation to regulate hire-purchase agreements, whether true hire-purchase agreements or conditional sales – the Cook Islands22 and Papua New Guinea.23 This legislation requires that every hire-purchase agreement must be in writing and must be executed in accordance with the requirements of the legislation. In Fiji, Nauru, Niue, Samoa and Tokelau there appears to be no legislation in force – whether applied, adopted or locally enacted – to regulate hire-purchase agreements or conditional purchase agreements – a matter which in Fiji was commented on by the Court of Appeal in 1994,24 but so far without legislative

20 21 22 23 24

(1994) 40 FLR 266. Ss 3 and 4 Civil Law Act, Cap 25. Hire Purchase Act 1980 (NZ). Hire Purchase Act, Cap 252 (PNG). ANZ Banking Group Ltd v Merchant Bank of Fiji (1994) 40 FLR 266.

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response.25 Because of the absence of legislation regulating hire-purchase agreements, in some countries traders have attempted to rely upon the legislation relating to bills of sales (see below), because that legislation requires that bills of sale must be in writing and must be registered. However, neither the true hire-purchase agreement, which is a hiring with an option to purchase, nor a conditional sale, which does not transfer ownership until the last payment is made, is a bill of sale, which is a transfer of ownership of goods to serve as a security for a loan. Therefore reliance on the legislation relating to bills of sales is misplaced, as the Court of Appeal of Fiji recently pointed out.26 A bill of sale, which in the Cook Islands, Niue and Samoa is called a chattel security, is a document that transfers the ownership of movable property to a lender of money to serve as a security for a loan. Bills of sale of movable property to another person to serve as a security for a loan are regulated by locally enacted legislation in Fiji,27 Kiribati,28 Papua New Guinea,29 Samoa,30 the Solomon Islands31 and Tuvalu.32 In these six countries the transfer is required to be in writing and to be registered, and in Samoa the legislation prescribes the actual form that must be used for such a transfer. In the Cook Islands33 and Niue,34 the Chattels Transfer Act 1924 of New Zealand has been applied, and that also requires that the transfer of goods by way of security must be not only in writing, but in a prescribed form. In Nauru, Tonga and Vanuatu there is no locally enacted legislation, but in Tonga35 and Vanuatu36 the Bill of Sales Acts 1878 and 1892 (as amended) of England would seem to apply so far as appropriate to those countries. In Nauru, although the Bills of Sale Acts of England are within the list of English legislation that has been adopted, they would seem to have been rendered inappropriate as regards Nauruans by the fact that dispositions of property inter vivos between Nauruans is stated by legislation to be regulated by Nauruan custom.37

8.1.1.2 Non-customary land In some island countries of the South Pacific – the Cook Islands, Fiji, Kiribati, Niue, Papua New Guinea, Samoa and Tuvalu – there are some areas of freehold land which are relics from the time when settlers were able to purchase freehold estates whilst the countries were dependencies of Britain, Australia and New Zealand. Originally rights in freehold land were sold in the same way that rights in freehold land were sold in

25 While the Fair Trading Decree No 25 of 1992 (Fiji) goes some way to protecting consumers, it does not directly relate to credit sales. 26 ANZ Banking Group Ltd v Merchant Bank of Fiji (1994) 40 FLR 266. 27 Bills of Sale Act, Cap 225 (Fiji). 28 Bills of Sale Act, Cap 4 (Kiribati). 29 Instruments Act, Cap 254 (PNG). 30 Chattels Transfer Act 1975 (Samoa). 31 Bills of Sale Act, Cap 174 (Solomon Islands). 32 Bills of Sale Act, Cap 57 (Tuvalu). 33 S 626 Cook Islands Act 1915 (NZ). 34 S 684 Niue Act 1915 (NZ). 35 Ss 3 and 4 Civil Law Act, Cap 25. 36 S 15 Western Pacific (Courts) Act 1961 (UK). 37 S 3(1)(b) Custom and Adopted Laws Act 1971 (Nauru).

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England in the 19th century – by written deed which was signed and sealed by the parties, and of which each party had a copy. Subsequently, in Fiji38 and in Papua New Guinea,39 a system of registration was introduced by legislation that requires the use of special written documents which are prescribed by the legislation for the transfer of rights to non-customary land. In two countries of the South Pacific – the Solomon Islands and Tonga – there is non-customary land that is not freehold land. In the Solomon Islands, during protectorate times, some freehold land was granted, but freehold land was abolished on the eve of independence in 1977 and was replaced by perpetual estates, which can be owned only by Solomon Islanders or others permitted by Parliament. The transfer of perpetual estates and also fixed-term estates can be effected only by the use of written documents that are prescribed by the legislation. 40 In Tonga, it is not permitted to sell land, but hereditary estates may be granted by the Crown to nobles, and allotments of land may be granted by the Minister of Lands to commoners. The method for making such grants is prescribed by legislation. In some countries, the sale of non-customary land to foreigners requires official approval – by a government minister in Kiribati,41 and by the Head of State in Samoa.42

8.1.1.3 Customary land In Papua New Guinea,43 the Solomon Islands44 and Vanuatu,45 there is no restriction on the sale of rights of ownership of customary land to indigenous people, provided the customary processes for doing so are observed. In other countries there are some restrictions. In the Cook Islands,46 Kiribati47 and Tuvalu,48 the approval of a court is required, and in Nauru the approval of the Head of State.49 In Fiji,50 Niue51 Samoa52 and Tokelau53 the transfer of ownership of customary land is allowed only to the State. Most countries allow for the leasing of customary land to any person, indigenous or non-indigenous, but this normally requires official approval: for example, the approval of a government minister in Kiribati,54 Papua New Guinea,55 Samoa,56 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

Land Transfer Act, Cap 131. Land Registration Act 1961 (PNG). Form 4, Land and Titles (General) Regulations 1969 (Solomon Islands). Non-Native Land (Restriction on Alienation) Ordinance, Cap 63. Alienation of Freehold Land Act 1972. Land Act 1996 (PNG). Land and Titles Act, Cap 133 (Solomon Islands). Land Reform Act, Cap 123 (Vanuatu). S 51 Land (Facilitation of Dealings) Act 1970 (Cook Islands). S 64(1) Magistrates’ Courts Ordinance, Cap 52 (Kiribati). S 19(1) Native Lands Act, Cap 22 (Tuvalu). S 3(3) Lands Act 1976 (Nauru). S 51(1) Native Land Trust Board Act, Cap 134 (Fiji). S 17(3) Land Act 1969 (Niue). Art 102, Constitution of Samoa. S 25 Tokelau Amendment Act 1967 (NZ). S 10 Native Lands Act Cap 61 (Kiribati) – non-native lease. S 69(1) Land Act 1996 (PNG). S 4 Alienation of Customary Land Act 1965 (Samoa).

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Tuvalu57 and Vanuatu;58 the approval of a government official in the Solomon Islands;59 the approval of a statutory body in Fiji;60 or the approval of a court in the Cook Islands,61 Kiribati,62 Niue63 and Tuvalu.64

8.1.1.4 Choses in action As indicated in Chapter 1, the term ‘chose in action’, or thing in action, is used to describe a right to property which can be obtained or enforced only by legal action or proceeding. The owner of the right cannot hold or take the property – but he or she has the right to do so, which can be enforced by a court action. A chose in action is therefore a form of incorporeal or intangible property, as distinct from tangible, corporeal property, such as movable property or land, which can be touched and taken into possession. The documents that give rise to a chose in action can be touched and taken into possession, but the rights that they confer are very different from, and worth much more than, the paper on which they are written.65 Traditionally, choses in action were divided into legal and equitable choses, depending on whether they were enforceable in the courts of common law or the courts of equity, and this distinction still is of some significance as to the way in which they can be transferred. The main forms of legal choses in action are: debts due under contracts unless they are stated to be non-assignable, 66 shares in companies, mercantile choses such as bills of exchange, contracts for carriage by sea, bills of lading, benefits of contracts, insurance policies, money in a bank account, copyright and patents. The main form of equitable choses, sometimes called choses in equity, are interests under trusts, wills and intestacies, and shares in partnerships. Under the common law, only two kinds of legal choses in action were assignable or transferable: legal choses transferred to, or by, the Crown and, as a result of the impact of the law merchant, mercantile choses, such as bills of exchange, bills of lading and policies of insurance. This was modified by s 136 of the Law of Property Act 1925 (UK), which provided that any legal chose or thing in action can be assigned in writing, provided that notice is given to the debtor or other person from whom the assignor would have been able to claim the thing in action. This section, as part of a statute of general application in force in England on 1 January 1961, appears to be in force in Kiribati, the Solomon Islands, Tuvalu and Vanuatu, as countries previously subject to the jurisdiction of the High Court of the Western Pacific,67 and also adopted to be in

57 58 59 60 61 62 63 64 65

S 31 Native Lands Act, Cap 22 (Tuvalu) – non-native lease. Art 79 Constitution of Vanuatu. S 143(2) Land and Titles Act, Cap 133 (Solomon Islands). S 4 Native Land Trust Board Act, Cap 134 (Fiji). S 477 Cook Islands Act 1915 (NZ) – native freehold land. S 11 Native Lands Act, Cap 61 (Kiribati) – native leases. Ss 26 and 29 Land Act 1969 (Niue). S 32 Native Lands Act, Cap 22 (Tuvalu) – native leases. For further discussion see Vol 6, Halsbury’s Laws of England, 4th edn, 1991, London: Butterworths, paras 1–90; Garrow and Fenton, Law of Personal Property, 6th edn, 1998, Wellington: Butterworths, Ch 12. 66 As in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] AC 85. 67 S 15 Western Pacific (Courts) Order 1961 (UK).

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force in Tonga under the Civil Law Act of that country. 68 A similarly worded provision in s 130 of the Property Law Act 1952 of New Zealand is in force in the Cook Islands,69 Niue 70 and Samoa,71 and in Fiji, there is an almost identically worded provision in s 113 of the Property Law Act of that country.72 Although the provision in the Property Law Acts applies to the transfer of legal choses in action generally, there are some forms of legal choses in action which have been held to be not assignable, mainly for reasons of public policy – principally, the burden of contracts,73 the benefit of contracts which are stated to be not assignable,74 fire insurance policies75 and the salaries of government employees.76 Also there are some kinds of legal choses in action for which the legislatures have prescribed special forms of transfer. Probably the most important example of legal choses for which a special form of transfer is required are shares of companies. Legislation has been enacted in all island countries of the South Pacific, except Niue and Tokelau, to regulate the establishment and operations of companies, and in most of these countries – the Cook Islands,77 Fiji,78 Kiribati,79 Nauru,80 Papua New Guinea,81 Samoa,82 the Solomon Islands,83 and Vanuatu84 – the legislation requires that shares can only be transferred by proper instruments for the transfers of shares which are delivered to the company. Equitable choses in action were considered by the courts of equity to be freely transferable, and could be transferred by any form of transfer, oral or written, and did not require consideration, provided the intention to make an immediate assignment of the equitable chose was clear. The provisions in the Property Law Acts relating to assignments of legal choses in action are regarded as not applicable to equitable assignments or transfers. As was said in a significant decision of the House of Lords in 1915: ‘The statute does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree.’ 85 However, this freedom as to the method of assignment of equitable choses has been restricted by legislation in many countries

68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85

Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). S 637 Cook Islands Act 1915 (NZ). S 700 Niue Act, 1966 (NZ). S 7 Reprint of Statutes Act 1972 (Samoa). Cap 130 (Fiji). Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660. See also Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] AC 85, 103. Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] AC 85, 103. Lynch v Dalzell (1729) 2 ER 292. Lucas v Lucas and High Commissioner for India [1943] P 68. S 84 Companies Act 1955 (NZ), which has been adopted in the Cook Islands, subject to amendments, by the Companies Act 1970–71 (Cook Islands). S 79 Companies Act, Cap 247 (Fiji). S 28 Companies Ordinance, Cap 10A (Kiribati). S 85 Corporations Act 1972 (Nauru). S 103 Companies Act Cap 146 (PNG). S 84 Companies Act 1955 (Samoa). S 73 Companies Act, Cap 175 (Solomon Islands). S 83 Companies Act, Cap 191 (Vanuatu). Per Lord Macnaghten in William Brandt’s Sons & Co v Dunlop Rubber Company [1915] AC 459 at 461.

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which requires that the assignment of an equitable interest must be in writing and signed by the assignor. Section 53 of the Law of Property Act 1925 (UK) provides that a disposition of any equitable interest must be in writing and signed by the person disposing of that interest. This provision, as previously mentioned, is in force in Kiribati, the Solomon Islands, Tonga, Tuvalu, and Vanuatu. There is a similarly worded provision in s 49A of the Property Law Act 1952 of New Zealand, which is in force in the Cook Islands, Niue and Tonga. There is no such provision, however, in the Property Law Act of Fiji.86 The courts of equity were also prepared to recognise equitable assignments of legal choses in action, as well as of equitable choses, which would confer an equitable title only, and so subject to any prior legal or equitable interests. An equitable assignment of a legal chose in action can be in any form, oral or written, even though it does not comply with the statutory requirements required for the assignment of legal choses, provided the intention to assign is clear. The assignee is then said to acquire an equitable interest in the legal chose, or be the equitable owner of the chose. There is, however, still some uncertainty as to whether such an assignment can be made voluntarily, or whether it must be supported by consideration, because of the basic principle adopted by the courts of equity that they would not assist a volunteer, or person who gives no value for the interest received.87

8.1.1.5 Future goods and choses in action The common law did not consider that it was possible to transfer property that was not yet in existence. Although it may be anticipated, expected and hoped that property will be produced in the future, for example, the young progeny of animals or birds, or agricultural crops that are not yet growing, or dividends on shares in a company which have not been declared by the company, or interest on a loan that is repayable at any time without notice, there is no guarantee that this will happen – the forces of nature or the actions of humankind may intervene to prevent the expected property from materialising. For this reason the courts of common law held that it was impossible to transfer any rights of ownership of future property – what was often termed an expectancy, or a possibility, or a spes, from the Latin word meaning ‘a hope’. However, the courts of equity were prepared to recognise that a person could confer an interest in property not yet in existence by a contract to do so, either oral or written, which would be specifically enforced when the property came into existence, provided, however, that value had been given for the transfer by the transferee, since, as indicated before, the courts of equity had the fundamental policy of assisting only persons who had given value, and not volunteers or persons who had given nothing for the interest that they were claiming. This requirement of consideration applies even if the contract is by a written deed, which normally does not require consideration. Thus a deed made by a manufacturer for value which transferred not only existing machinery in his factory, but also ‘all machinery … which shall be fixed or placed’ in the factory, was held to be sufficient to confer an interest in all the

86 Cap 130. 87 See Windeyer J in Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 28–32; also Garrow and Fenton, op cit, n 65 above, paras 12.025–12.066.

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machinery in the factory, both existing and after-acquired, to the assignee.88 Again, a bill of sale made for value, which assigned all the book debts of a manufacturer ‘due and owing’, was held to be valid as an assignment of the future book debts as they were made.89 The sale of goods legislation that, as discussed earlier, is in force in all the island countries of the South Pacific, except possibly Nauru, allows for the sale of future goods to be made in the same way as sales of existing goods – that is by oral or written contract, or by partly oral and partly written contract. Whilst the legislation describes goods widely as applying to all movable goods, including large movable objects like motor vehicles and ships, and also to growing crops, it does not apply to incorporeal property, such as choses in action. For the sale of future choses in action, therefore, reliance must be placed on the rules of equity discussed above. As regards future goods, if the goods are specific, ownership of them will pass when intended by the parties, and if the goods are sold by description ownership will normally pass when goods of that description are unconditionally appropriated to the contract, with the assent of both parties. If the future goods are being made in accordance with an order given by the purchaser, the parties may agree that ownership will pass at some stage before the goods are completed, as, for example, after the payment of the first or second instalment of the purchase price.90 Alternatively, the parties may agree that ownership is not to pass until the goods have been tested or trialled.91 Assignments of future property, especially choses in action, have assumed great significance in recent years in many countries as a method by which taxpayers can avoid paying income tax on income that they would expect to derive from investments; and difficult questions have arisen for decision by courts in Australia and New Zealand, as well as in England, as to whether future income is derived from an existing chose in action, and so to be regarded as part of, or, as it is sometimes said, a fruit of, the existing chose, which can be assigned by written contract or deed, or whether it is a future possibility that can be assigned only on the basis of value given.92 Little of these difficult questions seems to have been reflected in reported decisions of courts in island countries of the South Pacific.

8.1.1.6 Sales that may be set aside The courts and the legislatures of island countries of the South Pacific have not concerned themselves with whether the parties to a sale have made a good bargain for themselves. It is well known that a sale will not be set aside because one of the parties feels that he or she did not get as good a return from the transaction as anticipated. The general approach of the courts is well described in this passage from a judgment of the Supreme Court of New Zealand:

88 Holroyd v Marshall (1862) 11 ER 999. 89 Tailby v Official Receiver (1888) 13 App Cas 523. 90 This is quite common practice with regard to the building of ships: see Re Blyth Shipbuilding and Dry Docks Company Ltd, Forster v Blyth Shipbuilding and Dry Docks Company Ltd [1926] Ch 494; McDougall v Aeromarine of Emsworth Ltd [1958] 1 WLR 1126. 91 See, eg, Sir James Laing v Barclay, Curle & Co Ltd [1908] AC 35. 92 Cf, eg, Schneideman v Barnett [1951] NZLR 301, and McCleay v Commissioner of Inland Revenue [1963] NZLR 711 with Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 and Williams v Commissioner of Inland Revenue [1966] NZLR 395.

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The mere fact that a transaction is based on an inadequate consideration or is otherwise improvident, unreasonable, or unjust is not in itself any ground on which this Court can set it aside as invalid. … The law in general leaves every man at liberty to make such bargains as he pleases, and to dispose of his own property as he chooses. However improvident, unreasonable, or unjust such bargains or dispositions may be, they are binding on every party to them unless he can prove affirmatively the existence of one of the invalidating circumstances, such as fraud or undue influence.93

So when a husband in Fiji agreed to sell to his wife his interest in the matrimonial home for a mere $200, so that he could be free to go and live with his mistress, the courts would not release him from the contract that he had made.94 Although the courts, and the legislatures, of the island countries of the South Pacific will not save owners of property from their own foolishness and stupidity, they will intervene to protect them from the duplicity of others, and also to prevent them from defrauding their creditors. The courts have held that they should intervene and set aside a sale of property if it was obtained as a result of fraud, duress or undue influence, unless there has been some undeserving conduct on the part of the person seeking the intervention of the court. If it can be shown that a sale has been procured by fraud, the courts will set the sale aside: ‘fraud’, it is said,95 ‘unravels everything’. Accordingly, a sale of debentures by a company to an investor was set aside because the company stated that the additional funds would be used for expanding its premises and equipment, when in reality they were to be used for paying its debts.96 Similarly if it is clear that the sale has been obtained by duress. Thus when one major shareholder forced another major shareholder to buy out his shares by threats to his life, the deed of sale was set aside.97 Again, if a sale has been brought about by the undue influence or persuasion of one of the parties, it may be set aside by the courts. So when a member of a religious group was persuaded by another member of that group to purchase that other member’s house at a greatly inflated price, the sale was set aside.98 In the case from New Zealand referred to earlier in this section, the Supreme Court did intervene and set aside the sale of a mortgage to a businessman on the grounds of undue influence.99 In the cases referred to in the preceding paragraph, the courts intervened to set aside sales because they had been procured by the duplicity of others. The courts were also concerned that owners of property should not make sales of their property which were made to defraud creditors, and this has been endorsed and replaced by statutory provisions that enable sales of property that have been made to defraud creditors to be set aside. Since 1571, Parliament in England has prohibited conveyances or transfers of property that have been made for the purpose of defeating the claims of creditors, unless the sale has been made to a bona fide purchaser who was unaware of the intentions of the transferor. The current provision is contained in s 172 of the Law of Property Act 1925 (UK), which as a statute of general application in force in 93 94 95 96 97 98 99

Brusewitz v Brown [1923] NZLR 1106, at 1109, per Salmond J. Azam v Azam (1967) 13 FLR 115. Lazarus Estates Ltd v Beasley [1956] 1 QB 702, at 712, per Lord Denning. Edgington v Fitzmaurice (1885) 29 Ch D 459. Barton v Armstrong [1976] AC 104. Tufton v Spermi [1952] 2 TLR 516. Brusewitz v Brown [1923] NZLR 1106.

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England on 1 January 1961, would seem to be in force in Kiribati, the Solomon Islands, Tuvalu and Vanuatu, as countries previously subject to the jurisdiction of the High Court of the Western Pacific,100 and also to be adopted to be in force in Tonga,101 if considered appropriate to the circumstances of those countries. There appears to be no such provision in the other property law legislation in force in other island countries of the South Pacific. In the legislation that regulates bankruptcy in England which is in force in some island countries of the South Pacific,102 and in the legislation regulating bankruptcy in New Zealand,103 which has been partly applied to the Cook Islands,104 Niue105 and Samoa,106 as well as in the legislation which has been enacted by the legislatures of other island countries of the South Pacific, for example, Fiji,107 Papua New Guinea108 and the Solomon Islands,109 there is a similar provision allowing for the setting aside of transfers of property to defeat creditors unless made to a purchaser in good faith. This only applies to transactions that occurred within a certain period – usually two years, but sometimes as little as six months – before the transferor became bankrupt. The legislation in force in island countries of the South Pacific also provides that any transfers of property by a debtor to a creditor for the purpose of giving the creditor preference over other creditors, usually termed fraudulent preferences, may be set aside if made within a certain period – usually three or six months – before the transferor became bankrupt.110 This provision has also been made applicable to companies. The courts in Fiji have stressed that before a transfer within the specified period can be regarded as fraudulent for the purposes of this provision, the person claiming that it is a fraudulent preference must show, on the balance of probabilities, that the purpose of the transferor was to give the transferee a preference over other creditors. In the absence of proof that the substantial or dominant motive in the mind of the debtor was to prefer the creditor to whom the transfer was made, a transfer to a creditor will not be regarded as fraudulent within that provision. So a trading transaction111 and a repayment of a bank overdraft,112 without more, were held not to be fraudulent preferences.

100 S 15 Western Pacific (Courts) Order 1961 (UK). 101 Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). 102 S 42 Bankruptcy Act 1914 (UK) was applied to Kiribati, Tuvalu and Vanuatu by s 15 Western Pacific (Courts) Order 1961 (UK), and its successor, s 339 Insolvency Act 1986 (UK), has been adopted in Tonga. 103 S 75 Bankruptcy Act 1908 (NZ). 104 S 655 Cook Islands Act 1915 (NZ). 105 S 723 Niue Act 1966 (NZ). 106 S 7 Reprint of Statutes Act 1972 (Samoa). 107 S 44 Bankruptcy Act, Cap 48 (Fiji). 108 S 75 Insolvency Act, Cap 253 (PNG). 109 S 48 Bankruptcy Act, Cap 3 (Solomon Islands). 110 S 44 Bankruptcy Act 1914 (UK), which is in force in Kiribati, Tuvalu and Vanuatu; s 340 Insolvency Act 1986 (UK), which is in force in Tonga; s 79 Bankruptcy Act 1908 (NZ), which is in force in the Cook Islands, Niue and Samoa; s 46 Bankruptcy Act, Cap 48 (Fiji); s 79 Insolvency Act, Cap 253 (PNG); s 79 Bankruptcy Act, Cap 3 (Solomon Islands). 111 Official Receiver v Sibluk Transport (1993) 39 FLR 141. 112 Official Receiver v National Bank of Fiji (1992) 38 FLR 137.

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8.1.2 Gift As has been indicated previously, the essence of a gift is that it is a gratuitous transfer, a donation or a present of property by the owner of that property, the donor, to the recipient or donee. No payment or other consideration is given by the recipient for the gift. The advantage of gifts is that they enable the donors to show their affection and respect for their family and friends, and also to provide support for them and for activities and purposes that they wish to encourage. The disadvantage of gifts for donors is that they may, through ignorance, or carelessness, or over-persuasion by others, make gifts that they may later regret. For donees, the disadvantage is that they may receive some property that they do not want, or it may be subject to conditions that they do not wish to carry out. Gifts may also have disadvantages for the family and creditors of donees, if the effect of the gift is to give to others property that they might have expected to acquire. Gifts may be made by a donor whilst that person is still alive – what are often described as gifts inter vivos (‘between living men’). The legal systems of all island countries of the South Pacific also enable people to make gifts to take effect when they are dead – either by making a written will, or by making a gift on account of death, what are usually referred to as gifts mortis causa (‘because of death’). These various forms of gifts will now be considered.

8.1.2.1 Gifts inter vivos The law makes some distinctions between gifts of movable property and gifts of other forms of property. The common law allows for gifts of movable property to be made either by a written deed, which is signed and sealed by the party to be bound, and which does not need to be accompanied by, or followed by, delivery of the article, or alternatively, by an oral or written statement of gift, coupled with actual or constructive delivery of the article. Mere statement of gift by itself is not enough – it must be accompanied by, or followed by, a physical handing over of the article itself, or of something that gives access to the article, such as the key to a safe, or a statement as to where the article can be found. So, a father who said that he was giving a cheque to his baby, but put the cheque in his safe, was held not to have made a gift of it to his baby.113 Likewise, a husband who showed his wife a furnished room and told her that everything that was in it was hers, but did not physically give any of it to her, was held not to have made a gift of the furniture to his wife.114 On the other hand, a playwright who, just before going overseas, told a colleague that he had mislaid the text of the play, but if the colleague could find it, he could have it, was held to have made a gift of that play to the colleague.115 Although the common law does not place any other restrictions on the way in which movable property may be given as a gift, legislation may do so, and some examples of such legislation will be met later in this chapter. Gifts of freehold land, like sales of freehold land, were originally required, in all the island countries of the South Pacific where such land existed – the Cook Islands,

113 Jones v Lock (1865) 1 Ch App 25. 114 Re Cole [1964] Ch 175. 115 Thomas v The Times Book Co [1966] 1 WLR 911.

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Fiji, Kiribati, Niue, Papua New Guinea, Samoa and Tuvalu – to be made by written deed. In Fiji116 and Papua New Guinea,117 however, the legislation that required registration of documents conferring rights or interests in freehold land also required that certain written instruments be used for the transfer of those rights and interests in place of deeds, and these instruments must be used whether the transfer is by way of sale or gift. Transfers of perpetual estates and fixed estates in the Solomon Islands, as mentioned earlier, are required to be made by certain statutorily prescribed instruments, and these are to be used whether the transfers are made by sale or gift.118 In the case of gifts of customary land, in Papua New Guinea,119 the Solomon Islands 120 and Vanuatu, 121 there is no restriction against the gift of rights of ownership of customary land to indigenous people, provided the customary processes for doing so are observed. In other countries, there are some restrictions. In the Cook Islands,122 Kiribati123 and Tuvalu,124 the approval of a court is required for any kind of alienation, whether by sale or by gift, and in Nauru the approval of the Head of State is required for any transfer of land, whether by gift or sale.125 In Fiji,126 Niue,127 Samoa128 and Tokelau,129 the transfer of ownership of customary land, whether by sale or by gift, is allowed only to the State. In the case of gifts of choses in action, as discussed earlier, these are rights to property which cannot be physically taken into possession and which can be enforced only by court actions or proceedings. A legal assignment of a legal chose in action must comply with the terms of the Property Law Acts already discussed – that is, it must be in writing and signed by the assignor, and written notice must be given to the debtor or person from whom the chose is claimed. If the assignment complies with these requirements consideration is not necessary, so the legal chose in action can be assigned by way of gift. Equitable choses in action can be assigned by writing signed by the assignor, and also do not require consideration, so may be done by way of gift. However, equitable assignments of legal choses probably do require consideration, and so cannot be made by way of gift.130 In the case of gifts of future goods and choses, as indicated earlier, the courts of common law in England could not conceive that there could be a transfer of property not yet in existence, but the courts of equity were prepared to accept that future goods

116 117 118 119 120 121 122 123 124 125 126 127 128 129 130

Land Transfer Act, Cap 13 (Fiji). Land Registration Act 1961 (PNG). Form 4, Land and Titles (General) Regulations 1969. Land Act 1996 (PNG). Land and Titles Act, Cap 133 (Solomon Islands). Land Reform Act, Cap 123 (Vanuatu). S 51 Land (Facilitation of Dealings) Act 1970 (Cook Islands). S 64(1) Magistrates’ Courts Ordinance, Cap 52 (Kiribati). S 19(1) Native Lands Act, Cap 22 (Tuvalu). S 3(3) Lands Act 1976 (Nauru). S 51(1) Native Land Trust Board Act, Cap 134 (Fiji). S 17(3) Land Act 1969 (Niue). Art 102 Constitution of Samoa. S 25 Tokelau Amendment Act 1967 (NZ). See Windeyer J in Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 28–32; also Garrow and Fenton, op cit n 65 above, paras 12.025–12.066.

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could be assigned, provided that there was consideration given for the assignment. Legislation in all island countries of the South Pacific that regulates sale of goods has, as observed earlier, enabled sales of future goods to be made, but it does not extend that facility to gifts of future goods. So, in consequence, gifts cannot be made of future goods. As regards future choses, the courts of equity insisted that they would not intervene to assist volunteers who had not given value for the future chose, and this was so even if the voluntary assignment was made by deed. So a deed made by a woman assigning her interest in the estates of her brother and sister, who were still alive, so that her interest was only an expectancy or a possibility, was held to be invalid as an assignment, because it was not made for consideration or value.131

8.1.2.2 Gifts that may be set aside As indicated earlier, courts in legal systems based on that of England are not willing to intervene to save owners of property from their own foolishness or stupidity – they will only intervene to set aside transactions that have been procured by the duplicity of others, or that have been taken to defraud creditors. As with sales, so also with gifts; if it can be shown that property has been given by the owner to the donee as a result of fraud, duress or undue influence, the gift will be set aside. Moreover, the courts have recognised that when a person is dependent on another person, for maintenance, support, companionship or advice, that person may be susceptible to the blandishments and persuasion of the other person upon whom that person is so dependent, and may very readily be induced by that other person to make a gift, or gifts, to that other person. In such a situation of dependency, as between ageing family member and younger family member, or client and solicitor, or patient and doctor, or religious devotee and religious adviser, or doting admirer and the person who is the object of desire, the courts will assume that there has been undue influence in the absence of evidence to the contrary. So it was that when an elderly, sick man, who had become dependent on the care of a young man of a reclusive religious sect, made substantial gifts to the young man, these were set aside by the court.132 Another elderly man had made so many gifts to a secretary-companion that his property had nearly all disappeared by the time he died, but the gifts were set aside by the court.133 A gift of land made by a very elderly illiterate Chinese woman to her nephew, with whom she lived and upon whom she was dependent, was also set aside for assumed undue influence.134 A substantial gift by a man who was devoted to a woman who treated him with indifference, was also set aside for assumed undue influence.135 Again a gift of land by an elderly woman to her daughter who was effectively her guardian was set aside on the assumption of undue influence which had not been disproved.136

131 132 133 134 135 136

Re Ellenborough [1903] 1 Ch 697. Mosley v Loughman [1893] 1 Ch 736. Re Craig dec’d [1971] Ch 95. Inche Noriah v Shaik Allie Bin Omar [1929] AC 127. Louth v Diprose (1992) 175 CLR 621. Aitken v Williamson [1956] NZLR 151.

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In countries such as Kiribati, Nauru, and Tuvalu, which recognise the right of owners of customary land to make gifts of that land to other people, custom also often imposes a limit upon this right to give away customary land – a limit in favour of the members of the donor’s family. So in Kiribati, the Gilbert and Ellice Islands Lands Code provides in s 4 that a disposition inter vivos of land may be overruled by the land court if any of the issue or next of kin would be left in hardship as a result, or if shares of next of kin would be grossly unfair as a result.137 There is a similar provision in s 4 of the Tuvalu Lands Code. It has also been noted already that the legislatures in England and in the island countries of the South Pacific have enacted legislation which contains a provision that invalidates transfers of property, except to purchasers in good faith and for value, which are made within a certain period – usually two years – before the transferor becomes bankrupt. The terms of this provision make it particularly applicable to transfers by gift. It has also been noted earlier in this chapter that legislation is in force in England and in many island countries of the South Pacific which provides that if debtors transfer property to a creditor for the purpose of giving that creditor an advantage over other creditors, within a certain period before becoming bankrupt, then the transfer can be set aside. That legislation, also, by its terms applies to transfers by way of gift, as well as to transfers for consideration.

8.1.2.3 Gifts by will The common law in England allowed for the owners of movable property to make wills or testaments to give their movable property to other people when they died. The person making a will is usually called a testator, and gifts of movable property by will are usually called bequests or legacies. Freehold land, however, could not be given away by will, except in some special parts of England where local custom permitted this. Under the common law, land was regarded as automatically inheritable by the heirs of the owner. In the 17th century, however, legislation was enacted that enabled freehold land also to be given by will. Gifts of land by will are usually called devises. Originally wills could be made either in writing or orally, and were proved by the evidence of witnesses who were present when the will was made. In 1677, the British Parliament enacted the Statute of Frauds 1677, which required that wills of movable property over £30 in value, and also wills devising land, must be in writing and evidenced by three or four credible witnesses. In 1837, the British Parliament enacted the Wills Act 1837 (UK), which provided that all wills, except those made by soldiers on actual military service and by mariners and seamen at sea, must be in writing, signed by the testator at the end, and signed also by two witnesses. This Act is in force in Cook Islands, Niue and Tokelau, but it has been replaced by locally enacted legislation regulating wills in Fiji,138 Papua New Guinea,139 Samoa,140 the Solomon

137 S 2, Native Lands Act, Cap 61 (Kiribati). See also Tooma Tokintekai v Tobotika Obera [1997] KICA 3. 138 Wills Act, Cap 59 (Fiji). 139 Wills, Probate and Administration Act, Cap 291 (PNG). 140 Wills Act 1975 (Samoa).

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Islands,141 Tonga142 and Vanuatu,143 although all are basically to the same effect regarding the formalities that are to be observed for making a will. In Kiribati,144 Nauru145 and Tuvalu,146 custom allows for dispositions by will, provided the will is made in accordance with custom, and this has been held in Nauru to exclude the operation in that country of the Wills Act 1837 (UK), at least as regards Nauruans. Under the common law today, any kind of property can be given by will, but in the island countries of the South Pacific there are some restrictions with regard to customary land. In the Cook Islands147 and Niue,148 the disposition of customary land by will is expressly prohibited by legislation. In other countries, however – Kiribati,149 Nauru150 and Tuvalu151 – it has been expressly recognised by statute that it is permissible in custom to give interests in customary land by will, although this may be restricted only to donees who are indigenous.152 In countries such as Fiji, the Solomon Islands and Vanuatu, the legislation merely states that customary land is to be held in accordance with customary usage, which seems to allow for disposition of customary land by will when that is permissible by custom. English law allows considerable freedom to make gifts by will. The courts in England held, with regard to dispositions of property by will, as with dispositions inter vivos, that they should not intervene in what people did with their property. Testators were free to be as unjust and unfair to their family and friends as they pleased. Parliament in Britain, unlike many countries of Europe, refused to curb the freedom of testators to make what provisions they liked in their wills. This approach was originally adopted in all island countries of the South Pacific, but some exceptions have been developed by the courts, by legislation and by custom. As has been indicated earlier in this chapter, the courts have held that gifts inter vivos may be set aside if they have been procured by duress, fraud or undue influence. This is also the case with regard to gifts by will. Thus a gift by a woman in her will to a man who claimed to be her husband when he was in fact already married to another woman, was set aside for fraud,153 and conversely, a gift by a man to a woman who claimed to be his wife when she was already married to another man, was also set aside for fraud.154 The ability of the courts to set aside the terms of codicils of a will

141 142 143 144 145 146 147 148 149 150 151 152 153 154

Wills, Probate and Administration Act, Cap 33 (Solomon Islands). Probate and Administration Act, Cap 16 (Tonga). Wills Act, Cap 55 (Vanuatu). S 64 Magistrates’ Courts Act, Cap 61 (Kiribati). Re Dugirouwa [1969–82] Nauru Law Reports, Part B, 9; Aremwa v Nauru Lands Committee, 17; Rasch v Akibwib, 145. S 15 Native Lands Act, Cap 22 (Tuvalu). S 445 Cook Islands Act 1915 (NZ). S 489 Niue Act 1966 (NZ). S 64 Magistrates’ Courts Act, Cap 61 (Kiribati). S 3(1)(b) Customs and Adopted Laws Act 1971 (Nauru). S 15 Native Lands Act, Cap 22 (Tuvalu). Aremwa v Nauru Lands Committee [1969–82] Nauru Law Reports, Part B, 17. Kennel v Abbott (1797) 4 Ves 802; 31 ER 416. Wilkinson v Joughin (1866) LR 2 Eq 319.

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made by a wealthy German businessman who spent much of his time in England was much discussed in Re Fuld (No 3).155 Besides setting aside a gift in a will, the courts in England considered that it would be quite contrary to public policy to accept that a person who had killed another person should be able to take a gift under the will of the person he or she had killed. The gift in such cases was held to be forfeited by reason of the wrongful action of the claimant.156 This common law rule has now been reinforced by legislation, the Forfeiture Act 1982 (UK), which presumably has been adopted in Tonga.157 Another ground on which a gift under a will may be set aside is where the deceased has failed to make reasonable provision for his or her family. In Fiji,158 Papua New Guinea,159 Samoa160 and the Solomon Islands,161 legislation has been enacted which authorises courts, if they consider that testators have failed to make reasonable provision in their wills for their family, to make an order for such provision to be made from the estate of the testator. Legislation enacted to the same effect in England in 1938162 would seem to have been applied to Kiribati, the Solomon Islands and Tuvalu,163 and its successor enacted in 1975164 appears to have been adopted in Tonga165 and applied to Vanuatu.166 In countries where it is recognised by custom that indigenous people may make wills to dispose of their property after death, particularly Kiribati, Nauru and Tuvalu, the will must be approved by the appropriate court and the court has power to vary the dispositions contained in the will if they are not in accordance with custom, particularly as regards the provision that they make for family members of the testator. Thus, in Kiribati and Tuvalu, gifts for nursing to persons outside the family are allowed only if the family was not willing to nurse the testator and the testator has prosecuted them in the appropriate court.167 Again, in these countries gifts for kindness will not be approved if they are too large and cause hardship to the next of kin.168

8.1.2.4 Gifts mortis causa – gifts on account of death The courts of equity in England have for many years recognised that a person could make a valid gift of property to another person to take effect on his or her death, even though the formalities of a will were not complied with. This has been described as anomalous, because it is contrary to the words and spirit of the Wills Act 1837 (UK), 155 156 157 158 159 160 161 162 163 164 165 166 167 168

[1968] P 675. Re Hall [1914] P 1; Re K [1985] Ch 85; [1986] Ch 180. Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). Inheritance (Family Provision) Act, Cap 61 (Fiji). Part VI, Wills, Probate and Administration Act, Cap 291 (PNG). Part IV, Administration Act 1975 (Samoa). Part VII, Wills, Probate and Administration Act, Cap 33 (Solomon Islands). Inheritance (Family Provision) Act 1938 (UK). S 15 Western Pacific (Courts ) Order 1961 (UK). Inheritance (Provision for Family and Dependants) Act 1975 (UK). Ss 3 and 4 Civil Law Act, Cap 25 (Tonga). S 3 High Court of the New Hebrides Regulation 1976 (UK). S 5 Native Lands Code (Kiribati); s 5 Native Lands Code (Tuvalu). S 6 Native Lands Code (Kiribati); s 6 Native Lands Code (Tuvalu).

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but it is too well entrenched in English law to be able to be shaken or dislodged, at least by judicial decision. The essential requirements for the validity of a gift mortis causa are: an expression of a gift of property to take effect on the death of the donor, recognition by the donor that death is close, and physical handing over of the property, or of means of access to that property.169 So when an old lady, who was lying in hospital suffering from a serious accident, and who knew that she was on the danger list, gave some bank pass books to close friends and told them that they could have the money in the bank accounts, she was held to have made a valid gift mortis causa to them.170 Again, when an old man, who knew that he was dying in hospital of cancer of the pancreas, gave to a woman who had been his long-time companion the keys to his house, including keys to a steel box in which were the deeds of his house, and told her that the house was hers, he was held to have made a valid gift mortis causa to the woman.171 There are no reported cases regarding gifts of this kind in the Pacific region, but there is reference to gifts mortis causa in the Estate and Gift Duties Act Cap 203 of Fiji, which would appear to recognise the possibility of such gifts existing.

8.1.3 Voluntary bankruptcy or winding-up172 As discussed in the previous chapter,173 legislation has been enacted in England and legislation is in force in island countries of the South Pacific, to enable creditors of a person who is taking action to defeat or evade their claims, and also creditors of companies that are not paying their debts, to petition the court for the debtor to be made bankrupt or the company to be put into liquidation, so that their property may be available for distribution to the creditors. Although the legislation allows for this process to be initiated by creditors, it also allows for it to be initiated voluntarily by the debtor or the company. If debtors or companies can clearly see that there is no other way out of current financial difficulties, they can apply to the court to be adjudicated bankrupt or to be wound up, and as a result of the court order all the property of the bankrupt, with some minor exceptions, will be at the disposal of the receiver or trustee in bankruptcy, or the liquidator for eventual distribution amongst the creditors. Both a trustee in bankruptcy and a liquidator in a winding-up are subject to control by the courts, and may be removed by the court. Thus a liquidator of a company in Papua New Guinea was removed by the court because he lived in Australia and had delegated most of the work of the liquidation to a man who was not an official liquidator, and both he and his agent in Papua New Guinea were in a position of conflict of interest, and a replacement was appointed.174 On the other

169 See further, Vol 20, Halsbury’s Laws of England, 4th edn, 1993, London: Butterworths, paras 67–74. 170 Birch v Treasury Solicitor [1951] Ch 298. 171 Sen v Headley [1991] Ch 425. 172 The term ‘winding-up’ is usually used when the affairs of a company are being terminated voluntarily by the company, whereas the term ‘liquidation’ is more commonly used when the process is being taken compulsorily by the creditors. 173 See Chapter 7. 174 Re Papua New Guinea Block Company Pty Ltd (In Liquidation) [1982] PNGLR 28.

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hand, the bankruptcy legislation, whilst it enables the court to remove a trustee in bankruptcy, does not confer power upon the court to appoint a replacement.175

8.2

INVOLUNTARY ALIENATION OF PROPERTY

Normally the law of island countries of the South Pacific allows the owners of property to decide for themselves when, and in what circumstances, they will transfer their property, and to whom they will transfer it. The common law and equity did not allow other people to force the owners of property to transfer their property to those people, except under principles of feudalism which have long become extinct in England. Nowadays legislation has been enacted in island countries of the South Pacific which authorises the compulsory alienation of property in two main situations: insolvency or inability of the owner to meet his or her debts, and needs of the State. These will now be considered in more detail.

8.2.1 Compulsory bankruptcy or liquidation As has been seen earlier,176 there is legislation in force in island countries of the South Pacific, that provides for courts to order that a debtor be adjudicated bankrupt, and that a company be put into liquidation or wound up. This legislation, as discussed earlier, allows for a debtor voluntarily to apply to be adjudicated a bankrupt, but most of the occasions on which a court is authorised to make an order adjudicating a debtor as a bankrupt are occasions which enable a creditor to make the application for a bankruptcy order against the wishes of the debtor, that is: fraudulent transfer of property by a debtor to evade the claims of creditors; deliberate absence of a debtor from home or departure from the country; failure to comply with a bankruptcy notice served by a creditor; or notice by the debtor that debts will no longer be paid. Bankruptcy is often forced upon a debtor, and is thus a method of involuntary alienation of property. Similarly, there are legal provisions for companies. Legislation allows for a company to be wound up voluntarily when its members wish to complete its business activities. The legislation of all island countries in the South Pacific also enables this to be done compulsorily, when creditors who have not been paid wish to have their claim met out of the property of the company. The legislation provides for the control of the property to be taken over by the liquidator, but not the ownership, except where a vesting order is made by a court. A vesting order is not often made – usually only where it is necessary in order to enable the liquidator to bring court proceedings in respect of the property. However, the appointment of a liquidator will normally result in a scheme of arrangement which will enable the property of the company to be sold and the proceeds distributed to the creditors and members of the company. It should be noticed, however, that the compulsory liquidation of a company does not always necessarily mean that the property of the company will be sold. Sometimes the scheme of arrangement that is agreed to by the creditors may allow the company to continue in business and try to trade itself out of its difficulties.177 175 Lulu Buksh v Official Receiver (1987) 33 FLR 144. 176 See Chapter 7. 177 Eg, Dominion Hardware Company Ltd v Master Foods (Fiji) Ltd (1988) 34 FLR 177.

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8.2.2 Alienation of land to the State It is rare for private individuals to alienate land to the State. Occasionally this does happen under leases, and companies or large trading concerns may enter into cooperative ventures with the State for the use of land or exploitation of its resources. More usually, land is only alienated to the State through the process of compulsory acquisition. As discussed in the preceding chapter, in all island countries of the South Pacific, legislation has been enacted to empower the State compulsorily to acquire land that is necessary for the public interest. The advantage of such legislation obviously is that it enables the State to construct the necessary infrastructure for the development of the country, for example, roads, ports, airfields, schools, water supply, market-places, and police stations Nevertheless, as indicated, compulsory acquisition of land by the Sate is usually very strongly opposed by landowners, and there have been serious confrontations between the State and landowners in almost every island country of the South Pacific over such compulsory acquisitions. Difficulties and delays in determining what is adequate compensation, and delays in making payments of compensation, have exacerbated the anger of landowners.178 As a result, governments usually prefer not to use the statutory powers of compulsory acquisition, and prefer, if at all possible, to enter into some consensual arrangement with property owners, for example, leases.

8.2.3 Forfeiture of property of criminals by the State In earlier times in England, the forfeiture of goods and land to the Crown was provided by law to be the normal consequence of conviction for treason or a felony, but this was abolished in 1870.179 With the disappearance of the feudal system, forfeiture of land also disappeared as a punishment for criminal offences, but was replaced by monetary fines, and the penal codes of all island countries of the South Pacific provide for monetary fines as a common form of punishment. The criminal legislation of England,180 and also of some island countries of the South Pacific, authorises the forfeiture of counterfeit notes and other documents on conviction of forgery.181 The customs legislation in force in many island countries of the South Pacific authorises the forfeiture of vehicles and ships that are used for smuggling goods subject to customs duty, as well as the forfeiture of the smuggled goods themselves.182 In addition, legislation is starting to appear in South Pacific island countries which authorises the forfeiture to the State of the proceeds of serious crime – variously defined as crime which is punishable by imprisonment for over one year (Fiji) or three years (Vanuatu), or the proceeds of which are over a certain sum of

178 Often there are difficulties in calculating the value of, and therefore compensation for, land. See Angelo, AH, ‘Compulsory Land Acquisition in Small Pacific Communities – Thoughts on Land Valuation’ (1995) 23 MLR 183. 179 Forfeiture Act 1870 (UK). 180 Ss 7 and 24 Forging and Counterfeiting Act 1981 (UK). 181 Eg, s 368 Penal Code, Cap 17 (Fiji); s 366 Penal Code, Cap 26 (Solomon Islands). 182 Eg, Part XII, Customs Act 1966 (NZ), which is in force in the Cook Islands and Niue; ss 197–98 Customs Act, Cap 196 (Fiji); Part XII, Customs Act 1977 (Samoa); ss 220–21 Customs and Excise Act, Cap 121 (SI); ss 216–17 Customs and Excise Act, Cap 67 (Tonga).

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money (Vanuatu). 183 No doubt in view of the mounting concerns about the laundering of the financial returns from extortion rackets and drug trafficking, there will emerge further examples of this type of legislation. The customary law of many island countries of the South Pacific also provides that people who have committed very serious offences under custom, or their families, must transfer ownership of some movable and/or immovable property to the victim or the family of the victim, the amount depending on the seriousness of the offence. Where legislation prohibits the possession or display of certain articles, such as articles of a pornographic or heretical nature, the legislation also usually provides for the confiscation of such articles.

8.3

ALIENATION BY OPERATION OF LAW

There are some situations where the law provides that property shall automatically be transferred by one person to another person without actions on the part of either to achieve that effect. The main situations where this occurs are when a person dies intestate, that is, without making a will, so his or her property has to be transferred to others, and where the courts consider that it is fair that a constructive trust or a compulsory lien should be placed over the property of a person in favour of some other person.184

8.3.1 Intestate succession The legislation relating to intestate succession has already been discussed in the preceding chapter.185 It is sufficient here to remind readers that there is in force in all island countries of the South Pacific, legislation that regulates the way in which the property of persons who die without making a will is to be distributed amongst their next of kin. It is important to recall that this legislation does not apply in any of the island countries of the South Pacific to customary land, which is the main form of property of the majority of indigenous people in those countries, succession to which is regulated entirely by custom. Nor does the legislation apply to the succession to movable property in Nauru which is owned by indigenous people, because succession to such property is stated to be regulated by Nauruan custom.186

8.3.2 Constructive trust As has been indicated in Chapters 2 and 7, equitable interests may be acquired under various forms of trust. Further, as will be seen in Chapter 11, the rules of equity provide that a trust may be imposed upon property as a form of remedy, so that it must be held for the benefit of some person other than the owner. Such a trust is usually called a constructive trust and is imposed regardless of the wishes of the owner in order to provide a solution to a situation which is just and in accordance 183 Proceeds of Crime Act 1997 (Fiji); Proceeds of Crime Act 1998 (Niue); Serious Offences (Confiscation of Proceeds) Act 1989 (Vanuatu). 184 See Chapter 11. 185 See Chapter 7. 186 S 3 Custom and Adopted Laws Act No 11 1971 (Nauru).

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with good conscience. A constructive trust attaches to the property which is the subject of the trust, and the beneficiaries thereby obtain an equitable interest in that property which can be enforced against the person whose conduct has given rise to the constructive trust, but not against a person who buys that property bona fide and for value without notice of the constructive trust.

8.4

ALIENATION BY ABANDONMENT

Logically, there is much to be said in favour of the statement made many years ago by Chief Justice Coke that ‘A man cannot relinquish the property he hath in his goods unless they be vested in another.’187 There cannot be alienation of property unless there is an alienee – some person to whom the property is transferred. There are some judicial statements in Australia that support the view that owners of movable property can divest themselves of ownership by abandoning it,188 and these are supported by the noted commentator on English law, Sir William Blackstone.189 On the other hand, there are judicial statements in Australia that suggest to the contrary – that a person can never lose rights of ownership merely by abandonment and that there must be some form of transfer to another person190 – and these are supported by another early commentator on English law191 and by the statement of Coke CJ referred to above. The noted English commentator, Sir Frederick Pollock, observed in 1894 that it was then a ‘high, grave and dubious question’,192 and it appears to remain such, especially in the South Pacific region where there has been little consideration of the matter.193

CONCLUSION In this chapter it is apparent that there are several different ways in which rights to property may be alienated or transferred to a person other than the owner. An owner of property is allowed by law to transfer property to other people by sale, or by gift, which may be either inter vivos or by will, but subject to certain restrictions imposed by common law and equity, by customary la, and by legislation. Owners of property may also choose to alienate their property by voluntary bankruptcy or liquidation. In certain situations, property may be able to be required by another person to be transferred to that other person without the consent of the owner – to private persons in the case of compulsory bankruptcy or liquidation, and to the State in the case of compulsory acquisition of property for public purposes and in the case of forfeiture of the instruments, products and proceeds of criminal activity. The legal systems of the

187 Haynes’ Case (1613) 12 Co Rep 113. 188 Re Jigrose Pty Ltd [1994] 1 Qd R 382 at 386, and Keene v Carter (1994) 12 WAR 20 at 25. 189 Blackstone’s Commentaries on the Laws of England, Vol 2 (reprint 2001, London: Cavendish Publishing), Chapters 1 and 9. 190 Johnstone & Wilmot Pty Ltd v Kaine (1928) 23 Tas LR 43. 191 St German, ‘Doctor and Student’ 91 Seld Soc at 292. 192 (1894) LQR 293. 193 See further Vol 35, Halsbury’s Laws of England, 4th edn, 1992, London: Butterworths, para 1125; Garrow and Fenton, op cit n 65 above, para 2.030.

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island countries of the South Pacific also allow for the automatic alienation of property when persons die intestate without having disposed of their property by will.

CHAPTER 9 PROTECTION OF PROPERTY

INTRODUCTION Clearly, if a legal system recognises that a person can have rights of ownership and other interests in property, as has been indicated in all the legal systems of island countries of the South Pacific, then that legal system should make some provision to ensure that those rights and interests are protected and are not lost, or damaged or removed. In Chapters 7 and 8, reference was made to various procedural steps that might have to be complied with in order to acquire or to alienate certain property, for example, the alienation of customary land. These procedures or regulations are not solely for the purpose of keeping a record of certain transactions, but also to protect the holders of property rights from hastily engaging in transactions which may not be in their own or others’ – if they act in a representative capacity – best interests. However, as has also been indicated previously, the law does not generally step in to prevent people from acting unwisely if they have full legal capacity and they choose to do so. Protective measures may therefore be regulatory, preventive or remedial. They may be voluntary, in so far as they exist and a person may choose to make use of them, or they may be compulsory. In this chapter, a variety of methods that have been provided by the legal systems of island countries of the South Pacific for protecting property and rights and interests in property will be considered. The main methods that have been developed for this purpose are: the physical preservation of property; prohibitions against physical interference with property; prohibitions against unlawful copying of property; and the registration of rights and interests in property. These forms of protection overlap with topics already covered, such as controls or structures for the management of property, restrictions or limitations on the use and enjoyment of property; and restrictions on modes of acquisition and alienation of property. It should also be noted that one of the ways in which property rights are protected is by affording an aggrieved party the right to take legal action against the offending party and seek a remedy to correct or compensate for the infringed property right. In this chapter the focus is on measures that can be used to strengthen claims to certain property or to prevent infringement of property rights, while in Chapter 11 consideration will be given to those remedies that are available once a property right has been infringed.

9.1

PHYSICAL PRESERVATION OF PROPERTY

Perhaps the most positive and active way in which property can be protected is by physical preservation. Preservation involves the placing of movable property in a safe place where it cannot be unlawfully interfered with, and the maintenance and upkeep of immovable property, together with the exclusion of unauthorised entry onto it. The disadvantage of preservation is that it becomes very difficult for the owner to use the property. The more securely property is preserved, the more difficult it is for the owner to access that property and use it.

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Neither the customary laws of island countries of the South Pacific, nor the common law in force in these countries impose any obligation upon people to preserve their property, or the property of others. It is generally believed that the owners of property can be relied upon to take whatever steps they think are necessary to preserve their own property. Legislation has, however, intervened to require that some property must be preserved, especially documents affecting title to lan, and title to some forms of movable property. Thus in Fiji, the Solomon Islands and Vanuatu, legislation requires that the registrar of titles must preserve the documents that support the entries in the register relating to non-customary land.1 In Tonga, the Minister of Lands is required to keep and bind in to books duplicates of the documents of grant of hereditary estates and allotments, and also of leases and mortgages of hereditary estates and allotments.2 In the Cook Islands, Fiji and the Solomon Islands, the legislation relating to bills of sales requires that the original document, or a duplicate of the original, must be kept by a government registry.3 In some countries of the South Pacific, it has been considered desirable to provide facilities to enable people, if they so wish, to place their property, or documents indicating their rights and interests in property, in safe custody with an agency of the State. There is no compulsion to do so, but owners may do so if they wish. For example, in Fiji, the Registration Act, Cap 224, which was enacted in 1879, allows people, if they wish, to deposit wills and codicils, as well as other documents, such as letters, memoranda or sale notes, with the registrar of deeds for preservation.4 In Fiji also, the Preservation of Objects of Archaeological and Palaeontological Interest Act, Cap 264, authorises the owners of any objects of archeological or palaeontological interest to make agreements with the Fiji Museum Trust Board for the protection or preservation of such objects.5

9.2

PROHIBITIONS AGAINST UNLAWFUL PHYSICAL INTERFERENCE WITH PROPERTY

Unlawful physical interference with property may take several different forms: it may take the form of removing the property and taking it away, permanently or temporarily, without the permission of the owner, or of damaging the property, or of entering the property, if it is immovable property, such as land or buildings, without the permission of the owner. Physical interference may be perpetrated by an individual, a corporation or the State. In the case of the last, as a fundamental right the written constitutions of all the island countries of the South Pacific provide protection of property by stating that there cannot be compulsory acquisition or deprivation of property by the State, unless

1 2 3 4 5

See, eg, s 19 Land Transfer Act, Cap 131 (Fiji). Ss 116 and 121, Lands Act, Cap 132 (Tonga). See, eg, s 10 Bills of Sale Act, Cap 225 (Fiji) and s 8 Bills of Sale Act, Cap 174 (Solomon Islands). In the Cook Islands, the Chattels Transfer Act 1924 (NZ) applies; and in Samoa, the Chattels Transfer Act 1975 applies. S 8, Cap 224 (Fiji). S 8, Cap 264 (Fiji).

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certain procedures are followed and adequate compensation is paid for the property.6 This protection is given in the fundamental rights provisions of the constitutions and in specific provisions relating to the acquisition of land by the State and compensation payable for this.7 Interesting questions have arisen as to the extent of the protection provided by such provisions. First, against what persons do the constitutional provisions provide protection? Some constitutions make it clear that they apply only to the State and agents of the State.8 Other constitutions make it clear that they apply to the State and to individuals.9 Yet other constitutions contain no express statements and are open to judicial interpretation.10 Questions may also arise as to what are agencies of the State for these purposes. In Fiji, a statutory body, the Fiji Electricity Authority, was held to be not subject to a provision in the Constitution providing protection from compulsory acquisition of property, which was stated by the Constitution to be binding against ‘the legislative, executive and judicial branches of government’ and ‘all persons performing the functions of any public office’.11 In contrast, in Canada, a statutory body, Freshwater Fish Marketing Corporation, was held to be an agency of the Crown, so rendering the Crown liable to pay compensation when it compulsorily took over a private business.12 A second question of importance arises as to what ‘property’ is protected by the Constitutional provisions. The Privy Council has held that ‘property’ includes tangible objects, and also the goodwill of a business13 and the right to a minimum salary, if it existed,14 but not the right of a holder of a public office not to be transferred to another post without three months’ notice.15 The third, and perhaps the most difficult, constitutional question that arises with regard to legislation that authorises compulsory acquisition of property is: what kinds of dealings with property by the State are prohibited by the Constitution, in the absence of adequate compensation? The courts have emphasised, first, that there is a distinction between a mere prohibition of a particular use of property and a deprivation or taking of that property. Prohibition of a particular use of property, such as orders as to when and 6

7

8 9 10 11 12 13 14 15

See, eg, s 40 Amended Constitution of Fiji 1997; s 5 Constitution of the Marshall Islands; s 8 Constitution of Nauru 1968. In Vanuatu there is also specific legislation: Provisional Appropriation Act (Expropriation for Public Utilities) Cap 376. See also State Acquisitions of Land Ordinance Cap 95B (Kiribati); Land Acquisition Act 1968 (Marshall Islands); Crown Acquisition of Land Act (amended 1970) Cap 135 (Fiji); Crown Acquisitions of Land Act Cap 24 (Tuvalu); Taking of Land Act 1974 (Samoa). See, eg, Art 5(j) ‘Protection for the privacy of the home and other property and from unjust deprivation of property’ and Arts 77, 80 and 81 of the Vanuatu Constitution 1980. Some constitutions make quite detailed provisions for the steps to be followed both for acquiring land for public purposes and for payment of compensation. See, eg, s 13 New Zealand Niue Amendment Act 1968, and s 20 Constitution of Tuvalu. Eg, s 21 Constitution of Fiji. Eg, s 12 Constitution of Tuvalu. Eg, s 3 Constitution of Kiribati; s 3 Constitution of Nauru; s 3 Constitution of Solomon Islands. Different interpretations have been adopted in Kiribati and Solomon Islands: cf Teitinnong v Ariong [1987] LRC (Const) 517 and Loumia v DPP [1985/86] SILR 158. Waisake Turuva v Kelevu Tabanivau and Others (1999) 45 FLR 177. Manitoba Fisheries Ltd v The Queen (1978) 88 DLR 462. Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79; Manitoba Fisheries Ltd v The Queen (1978) 88 DLR 462. King v Attorney-General of Barbados [1994] 1 WLR 1560. The Privy Council held that in this case the plaintiff had no right to a minimum salary, but only a right to receive such salary as the Minister or Parliament prescribed. Harrikissoon v Attorney-General [1979] 3 WLR 62.

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where a vessel could berth, do not constitute either a deprivation of property, or a taking of property,16 and so are not within the protection of a constitutional provision that relates to compulsory acquisition or taking by the State. The courts have also emphasised that there is a very clear difference between acquisition or taking of property, and deprivation of property: the latter requires only the removal or destruction of property, whereas the former requires that the property not only be removed from the owner, but also be transferred to the State.17 So the Privy Council has held that the building of a new terminal by the State for the storing and discharge of sugar in bulk, which ruined the business of a company which handled and stored sugar in bags by manual labour, was not an acquisition of the company’s business by the State – it just rendered that business obsolete and irrelevant.18 On the other hand, legislation that prohibits the carrying on of certain businesses without permission from a statutory corporation established by legislation, is regarded as acquiring the business of existing operators who can no longer continue without a licence19 unless those operators are offered work with the statutory corporation.20 Under the common law that is in force in all island countries of the South Pacific, to the extent that it is not inappropriate to the circumstances of the country, the taking of property without the permission of the owner is a criminal offence, and this has been endorsed by legislation in all island countries of the South Pacific. The Penal Codes and Crimes Acts of island countries of the South Pacific all provide that the unlawful taking of any property capable of being stolen is a criminal offence.21 This offence, originally common law but now statutory, is usually called theft, or stealing or, sometimes, larceny.22 When theft is accompanied by violence it is usually called robbery,23 and when theft occurs after breaking into a building it is usually called house-breaking or burglary.24 The essence of theft is that it is the taking of a thing, fraudulently and without a claim of right in good faith, and with the intention of permanently depriving the owner of that thing. Accordingly, if it is taken under a claim of right, or if is taken with the intention of later returning it to the owner, there is no theft.25 Property which is capable of being stolen is usually defined by the legislation as any inanimate or 16 France, Fenwick & Co v The King [1927] 1 KB 458. 17 Government of Malaysia v Selangor Pilots Association [1978] AC 337; Société United Docks v Government of Mauritius [1985] LRC (Const) 801. 18 Société United Docks v Government of Mauritius [1985] LRC (Const) 801. 19 Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79; Manitoba Fisheries v The Queen (1978) 88 DLR 462. 20 Government of Malaysia v Selangor Pilots Association [1978] AC 337. 21 See, eg, Part XXVII Penal Code, Cap 67 (Kiribati); Div V Chpt XXVII Penal Code, Cap 17 (Fiji); s 122 Penal Code, Cap 1325 (Vanuatu). 22 See, eg, reference to the Larceny Act 1916 (UK) in Kiribati, Tonga and Vanuatu. Legislation in the Marshall Islands and Fiji also uses the term ‘larceny’. The term is also used in cases decided under the UK legislation, eg, Public Prosecutor v Baldwin Jacobson Lonsdale (unreported) judgments of the Joint Court of the New Hebrides 1970–73. In the Marshall Islands, the Revised Criminal Code 1988 distinguishes between ‘petty larceny’, which is the taking and carrying away of personal property worth less than $50, and ‘grand larceny’ which relates to personal property over this value – ss 136–37, Title 31. 23 See, eg, s 92 Crimes Ordinance 1961 (Samoa). 24 See, eg, s 102 Crimes Ordinance (Samoa) and s 300 Penal Code, Cap 17 (Fiji). In Fiji it has been held that a person may be charged with larceny and burglary at the same time: R v Aseri Raratabu (1972) 18 FLR 129. 25 See Chapter 11.

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animate thing, that has value and is the property of some person, and also anything that is attached to or is part of land, once it has been severed from the land.26 Under the common law, only a thing that was tangible, and was movable, and was the property of someone, was able to be stolen, and these three requirements seem to have been carried forward in the legislation. Gas, although of very light weight, can be stolen, because it is tangible and movable, but it is believed that in common law electricity cannot be stolen, because it is not a tangible thing. However, under legislation, electricity can be stolen.27 Under the common law, corpses of human beings, although tangible and movable, were regarded as not owned by any person, and so not capable of being stolen,28 and this is believed still to be true,29 although the coffins, clothes and sheets in which the corpse was laid continue to be owned by those who provided them and so can be stolen.30 In addition, the legislation makes it clear that animate creatures, which are tame or have been tamed, or are wild but held in captivity, are capable of being stolen, but not wild creatures which are alive in a state of nature – once wild creatures in a state of nature have been killed, however, their dead bodies may be stolen. Animate human beings cannot be stolen, however, because they are not creatures, nor are they the property of any person. The common law also considers that the wilful burning of a dwelling house is a punishable offence, arson, and this has been endorsed by the Penal Codes and Crimes Acts of island countries of the South Pacific.31 However, the common law did not regard as criminal and did not punish other forms of interference with property without the permission of the owner, such as the entry onto immovable property, or wilful damage to property with the exception of arson, or the use of property of another person without that person’s consent, leaving it to the owner in such cases to seek civil remedies. The legislature in Britain, however, has intervened, and also the legislatures of most island countries of the South Pacific, and they have imposed criminal liability in respect of these forms of interference with property.32 Thus the Penal Codes and the Crimes Acts and Codes of the Cook Islands, Fiji, the Marshall Islands, Samoa, Tonga and Tuvalu, provide that malicious damage to

26 See, eg, s 85 Crimes Ordinance 1961 (Samoa), s 250 Penal Code, Cap 67 Kiribati, s 258 Penal Code, Cap 17 (Fiji). In Samoa both animate and inanimate things are referred to, whereas in Kiribati only inanimate things. However, in both Samoa and Kiribati, animals can also be stolen; the effect of the law is that theft includes the taking of animate and inanimate things. 27 See, eg, s 8 Larceny Act 1916 (UK), s 264 Penal Code, Cap 26 (Solomon Islands), s 265 Penal Code, Cap 17 (Fiji), s 256 Penal Code, Cap 8 (Tuvalu). 28 R v Sharpe (1857) 26 LJMC 47; R v Price (1884) 12 QBD 247; compare, however, R v Kelly [1998] 3 All ER 741 (CA), where a charge of theft succeeded because the body parts which had been stolen had had human skill involved in their preservation and dissection. 29 For further discussion see Skegg, PDG, ‘The Removal and Retention of Cadaver Body Parts: Does the Law Require Parental Consent?’ (2003) 10(3) Otago Law Review 425. 30 R v Garlick (1843) 1 Cox CC 52. This interpretation seems to have been applied in the case of the 1916 Larceny Act (UK). 31 See, eg, ss 317–20 Penal Code, Cap 17 (Fiji), s 135 Penal Code, Cap 135 (Vanuatu), s 112 Part III Revised Code 1988 Title 31 Criminal Code (Marshall Islands). The crime of arson has given rise to a number of cases in the region. See, eg, Sovita v Police [2000] WSSC 2. 32 Eg, in Tonga, there is provision for a range of acts attracting liability for wilful damage to property, including the removal of landmarks and survey pegs, trespass and taking and using cattle without an owner’s consent – ss 178–191 Criminal Offences, Cap 18. See also ss 319–29 Penal Code, Cap 17 (Fiji), which are very broad in scope.

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property is a criminal offence, and also the use of certain kinds of movable property, particularly motor vehicles, vessels and cattle, without the permission of the owner. Entry onto immovable property, such as lands and buildings, without more, however, is not always a criminal offence. In the Marshall Islands and Tonga, entry onto land, or staying on land, without permission is a criminal offence.33 In other countries, however, trespass by itself is not a criminal offence, and something more must be shown. In Fiji and Tuvalu, for example, the respective Penal Codes provide that it is necessary to show that the entry was with intent to commit an offence,34 and in Vanuatu the entry or occupation must be with intent to intimidate, insult or annoy.35 Under the customary laws of island countries of the South Pacific, physical interference with the property of another person without permission was often regarded as unlawful and wrong, but not always. In some countries a person was considered entitled to take the property of a relative, and to use it, without the permission of the relative.36 In Nauru and Tonga this customary right of taking property of a relative without permission has been expressly abolished by legislation,37 but customary rights to take and to use the property of relatives without permission may still live on.

9.3

PROHIBITIONS AGAINST COPYING OF PROPERTY

As indicated in Chapter 7, the common law position was that although the creator of a new movable or incorporeal object acquires rights to it, once the creator of an artistic, dramatic, literary or musical work made it available to the public, that person lost the ownership of it. The creator was then regarded by the common law as surrendering his or her rights of ownership to the members of the public, who could then make such copies of it as they wished.38 In Britain, Parliament intervened and prohibited the publication, progressively, of original books,39 engravings and etchings,40 prints,41 sculpture,42 plays and dramatic productions,43 lectures,44 musical compositions,45 and paintings, drawings and photographs.46 These separate statutes were then gathered together and incorporated 33 S 188 Criminal Offences Act, Cap 18 (Tonga), s 154 Criminal Code (Marshall Islands). 34 S 147 – relating to trespass to burial and religious places – and s 197 – criminal trespass – in Penal Code, Cap 17 (Fiji); s 125 (burial places) and s 182 (criminal trespass) Penal Code, Cap 8 (Tuvalu). 35 S 144 Penal Code, Cap 135 (Vanuatu). 36 The prohibitions now found in legislation in Nauru and Tonga (see below) suggest that this was the case at least in these two countries and may have been more widely practised. Current USP students from Fiji, the Solomon Islands and Vanuatu maintain that this is still the practice, especially in rural areas. 37 In Nauru under s 2(3) Custom and Adopted Laws Act 1971; in Tonga under s 147 Criminal Offences Act, Cap 18. 38 Donaldson v Beckett (1774) 4 Burr 2408, 1 ER 837; Jefferys v Boosey (1854) 4 HL 815, 10 ER 681. 39 Copyright Act 1709. 40 Engravings Copyright Act 1734. 41 Prints Copyright Act 1774. 42 Sculpture Copyright Act 1798. 43 Dramatic Copyright Act 1833. 44 Lectures Copyright Act 1835. 45 Copyright Act 1842. 46 Fine Arts Copyright Act 1862.

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into general copyright legislation,47 which was extended to apply to Fiji48 and, as a statute of general application, applied also to the British Solomon Islands Protectorate, the Gilbert and Ellice Islands, and to the British citizens of the New Hebrides and Tonga.49 This situation is in the course of being changed. In Fiji,50 the Federated States of Micronesia, 51 the Solomon Islands, 52 Vanuatu, 53 Samoa, 54 and Papua New Guinea,55 legislation has been enacted to replace the British legislation and to provide for the protection of copyright, and also for the registration of copyright. In Tonga, legislation has been enacted that provides protection for copyright, but not for registration of copyright.56 In Kiribati57 and Tuvalu58 the copyright legislation is basically an adjunct to the British legislation which is still in force in those two countries. In the Cook Islands, Niue and Tokelau, the copyright legislation of New Zealand,59 which provides both for the protection of copyright and also for the registration of copyright, has been incorporated into their legal systems. In Nauru, English law would seem to apply under the Custom and Adopted Laws Act of 1971. In the early 19th century, the Court of Chancery in England recognised that the person who invented and publicly used a distinctive mark or symbol to distinguish the goods of his or her trade was the owner of that mark, and could obtain an injunction to stop another person from using it.60 This ownership recognised by the courts was strengthened and supported by Parliament, which enacted legislation to provide for the registration of trade marks, and to impose penalties for their infringement.61 In some island countries of the South Pacific – Fiji and Samoa – there is legislation that allows for the registration in that country of new trade marks;62 in some other countries, there is legislation that allows only for the registration of trade marks registered in the United Kingdom.63 Where there is legislation that permits the person who has developed a trade mark distinguishing his or her goods to be

47 Copyright Act 1911 (UK), which was replaced by the Copyright Act 1956 (UK), and then by the Copyright, Designs and Patents Act 1988 (UK). 48 Copyright (Fiji) Order 1961 (UK) extended the Copyright Act 1956 (UK) to Fiji. 49 S 15 Western Pacific (Courts) Order 1961 (UK) extended the Copyright Act 1956 (UK) to countries subject to the jurisdiction of the High Court of the Western Pacific. 50 Copyright Act 1999 (Fiji). 51 Copyright Act 1981. 52 Copyright Act, Cap 138 (SI). 53 Copyright Act 2000 (Vanuatu) – not yet in force. 54 Copyright Act 1998. 55 Copyright and Neighbouring Rights Act 2000. 56 Copyright Act, Cap 121 (Tonga). 57 Copyright Act, Cap 16 (Kiribati). 58 Copyright Act, Cap 60 (Tuvalu). 59 Copyright Act 1962 (NZ). 60 Millington v Fox (1838) 3 My & Cr 338; 40 ER 956. 61 Trade Marks Registration Act 1875 (UK); see now Trade Marks Act 1994 (UK). 62 Trade Marks Act, Cap 240 (Fiji); Trade Marks Act, Cap 385 (Papua New Guinea); Trade Marks Act 1972 (Samoa). 63 Registration of United Kingdom Trade Marks Act, Cap 88 (Kiribati); Registration of United Kingdom Trade Marks Act, Cap 180 (Solomon Islands); Registration of United Kingdom Trade Marks Act, Cap 120 (Tonga); Registration of United Kingdom Trade Marks Ordinance, Cap 63 (Tuvalu); Registration of United Kingdom Trademarks, Cap 88 (Vanuatu). The Cook Islands, Niue and Tokelau all adopted the New Zealand Trade Marks Act 1953, while in Nauru, the Trade Marks Act 1955–58 (Australia) seems to be applicable under the Trade Marks Regulations Adoption Ordinance (No 3).

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registered as the proprietor of that trade mark, then the rights which are protected by registration are the rights to the exclusive use of the trade mark on or in connection with the goods for which is it registered, and the right to bring actions for infringement against those who seek to use the trade mark without consent or a licence to do so. Similarly, legislation to protect original industrial designs by registration was enacted in England in 1883,64 and has been followed by more recent legislation.65 In the Cook Islands and Niue, legislation, which was enacted in New Zealand, is in force to provide for the registration of original designs created in those countries, and also the registration of designs registered in other countries.66 In Nauru, the legislation relating to designs which was enacted in Australia67 has been adopted.68 In some other island countries of the South Pacific – Fiji,69 Kiribati,70 the Solomon Islands,71 and Tuvalu72 – legislation has been enacted which provides protection for designs that have been registered in the United Kingdom. Other intellectual property legislation in the region includes legislation that enables new inventions to be protected by letters patent issued to the inventor, which grant the inventor ‘the sole and exclusive privilege of using, selling or making the invention’ in the country.73 There is also often legislation that enables letters patent which have been issued in the United Kingdom to be registered in the country and to take effect as if they had been issued in the country. 74 Apart from the case of copyright, most protection provided by legislation requires registration of interests in order to be effective (see below). In the case of copyright, registration provides evidential protection. A person who can establish that he or she is the author or coauthor of a work is entitled to claim the moral and economic rights associated with copyright.75

64 65 66 67 68 69 70 71 72 73

Patents, Designs and Trade Marks Act 1883 (UK). Copyright, Designs and Patents Act 1988 (UK). Designs Act 1953 (NZ). Designs Act 1906–34 (Cmth). S 11, Laws Repeal and Adopting Ordinance 1922–36 (Nauru). United Kingdom Designs Protection Act, Cap 242. United Kingdom Designs Protection Ordinance, Cap 99. United Kingdom Designs (Protection) Act, Cap 181. United Kingdom Designs Protection Act, Cap 62. S 4 Patents Act, Cap 239 (Fiji). See also Patents Registration Act 1973 (Nauru); Patents and Industrial Designs Act 2000 (PNG); Patents Act 1972 (Samoa). 74 In Kiribati, the Registration of UK Patents Act Cap 87 refers to the Patents Act 1977 (UK), while the Patents Act 1949 (UK) applies in the Solomon Islands and Vanuatu. The Patent Act 1953 (NZ) applies in Niue, Tokelau and the Cook Islands. In the Marshall Islands and Federated States of Micronesia, it is probable that American law applies as there is no specific national provision. 75 The range of works which may be protected under copyright legislation and thereby be deemed to be ‘protected works’ varies across the region and may include performance rights, the production of sound and film broadcasts and recordings, computer works and cable programmes and in some countries folklore or indigenous works – see eg, s 6(1)(c) Copyright Act, Cap 121 (Tonga); s 29 Copyright Act 1998 (Samoa); Part V Copyright and Neighbouring Rights Act 2000 (PNG); s 66 Copyright Act 1999 (Fiji).

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9.4

217

REGISTRATION OF RIGHTS AND INTERESTS IN PROPERTY

Registration of rights of ownership of property, and of other interests in property, is probably the most widespread method of protecting those rights and interests. This form of protection of property concentrates on preserving the rights and interests in the property, not so much upon preserving the property itself. Registration of rights and interests in property is the compilation of official lists or records of rights and interests in property. Under the customary laws of island countries of the South Pacific there is no requirement that rights and interests in property should be recorded anywhere. Indeed, cultural values in these countries are against the recording of interests in property, first, because written records generally are not part of the traditions and cultures of these countries and, secondly, because details of rights to land are regarded as very private and confidential to the persons entitled to the land; to allow others to know such information would be to invite spurious claims to the land. Nor do the rules of common law and equity require that rights and interests to land must be officially recorded, not because of a lack of a tradition of writing, but because of fear that such information would come to the knowledge of others who could mount fraudulent claims to the land. However, in recent times, views have changed about the desirability of maintaining written records of rights and interests in land, and in many countries there is a realisation that there is value in requiring that rights and interests in land are officially recorded. As a result, the legislature has intervened in all South Pacific island countries to require that certain rights and interests in certain property must be officially recorded. However, the details of the rights and interests in property that are to be registered, and the results of registering or not registering those rights and interests, are not the same for all kinds of property or in all countries, and different approaches have been adopted.

9.4.1 Purposes of registration of property Registration or official recording of property, like the registration of people, can be used for various purposes. These purposes will be determined by the legislature, which enacts the legislation authorising the registration of property.

9.4.1.1 Statistical purposes Sometimes, registration can be used for statistical purposes, so that governments may know how many inhabitants or things are present in the country, for general planning purposes. Registration of births, deaths and marriages of people, and the registration of the numbers of cattle and of poultry, and of the number of motor vehicles, are registrations for such a purpose. Usually, however, registration is undertaken by governments for some other purpose, beyond that of providing general statistical information for general planning purposes.

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9.4.1.2 Fiscal purposes Sometimes, registration of property is undertaken for fiscal purposes, so that it can provide the basic information for levying taxes. Registration of land provides the basis for central and local governments to impose rates and property taxes, and the registration of businesses enables central and local governments to levy business taxes and business licence fees, and to require the payment of contributions to a national provident fund.

9.4.1.3 Proprietary purposes Sometimes, registration is undertaken to enable the rights of ownership and other interests in property, and any changes in such rights and interests, to be recorded. Registration of land is often undertaken for this purpose, but also registration of shares, charges and debentures of companies.

9.4.1.4 Regulatory purposes Sometimes, registration is undertaken to enable government to regulate and control the ownership and use of property and interests in property. Thus registration of motor vehicles enables the government to impose conditions as to the roadworthiness of the vehicles, and registration of the drivers of motor vehicles enables government to place conditions on the competence and experience of drivers of motor vehicles.

9.4.1.5 Commercial purposes Sometimes, registration of property is undertaken for commercial or business purposes, to assist the sale and purchase of property. Thus the registration of the ownership of motor vehicles and ships, and land, and shares in companies, enables people who wish to buy or sell those forms of property to know with more certainty what they are buying or selling, and who are the other parties to the transaction.

9.4.1.6 Preservation purposes Occasionally, registration is undertaken for preservation purposes to ensure that the property or the interests in that property do not disappear. Thus registration of wills and registration of decisions of courts is undertaken to ensure that those documents do not get lost, or burnt, or blown away, or stolen or forgotten as the years pass by.

9.4.1.7 Multi-purposes Sometimes, indeed often, registration of property may have more than one purpose, and sometimes the purposes of registration may change over time. Thus, the registration of motor vehicles and land, has statistical, fiscal, regulatory and commercial purposes. So also, registration of land which may have been originally for commercial purposes to assist the people who deal with land, may later be used for fiscal purposes by a government to enable it to impose fiscal levies upon the owners or occupiers of the land. This, indeed, is why often registration is resisted by persons

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having interests in property. The registration may be the first step in larger plans devised by government to exercise regulatory control over the property and over those who own or use the property, and/or to impose fiscal impositions on those who have interests in the land. Also, within the description of each general class of purposes, statistical, fiscal, regulatory, commercial and protective, it is possible to distinguish several different sub-classes. Thus fiscal purposes may include the levying of rates, property tax, rent tax, sales tax or purchase tax. A regulatory purpose may be to control the condition of property, or to control the nationality, or the ethnicity, or the age, or the sex, or the political or religious affiliations of people who own or use property, or who make business with the property. A commercial purpose may be to protect purchasers of property, or to protect sellers of property, or to protect the owners of property, or to protect the people who have other interests in the property.

9.4.2 Forms of registration of property The forms of registration of property that are adopted will obviously be influenced by the purpose or purposes which are to be served by the registration of the property in question.

9.4.2.1 Compulsory and optional registration The purpose of registration of property will influence whether the registration is to be compulsory or voluntary. If the purpose is statistical, fiscal, regulatory or commercial, that is, purposes which governments wish to promote, then obviously the registration will normally be compulsory. Most of the registration systems referred to in this chapter are compulsory, because they are designed wholly or partly for the benefit of government. If, on the other hand, the registration is basically to assist people rather than the government, such as most forms of registration to preserve property or interests in property, then it is quite possible that registration will be voluntary, and available for people to use or to not use, as suits their personal interests best. Thus the Registration of Deeds Act, Cap 224, of Fiji, enacted in 1879, permits persons to deposit their wills, and also any letters, memoranda, sale-notes, agreements, plans, accounts or similar documents, for preservation with the registrar of deeds.76 The Customary Lands Records Act, Cap 132, of the Solomon Islands, enacted in 1995, permits any customary land-owning group or any person who claims an interest in any customary land to apply to the land record office in the province in which the land is situated for the recording of primary rights to the land and the boundaries of the land.77 The advantage of a voluntary system of registration is that it enables people who have interests in property to have those interests recorded and preserved for the future. The main disadvantages of this system of registration are, first, that it is not compulsory, so that the record cannot be regarded as comprehensive – there may be other interests in the property that are not recorded; secondly, that it gives no special protection to interests that are registered, and so unregistered interests that were acquired earlier than those that were registered will override those that have been 76 S 8 Registration of Deeds Act, Cap 224 (Fiji). 77 S 9 Customary Lands Records Act, Cap 132 (Solomon Islands).

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registered; and, thirdly, that it may preserve for the future a record that is incorrect and be a cause of disputes in years to come. An example of a dispute arising some time after registration can be found in the case of The Family of the Former High Chief of Butaritari v The Old Men of Butaritari.78 In this case, separate areas of land were registered in the name of the High Chief in his capacity as Chief – as chiefly lands – and his family – as family lands, in 1953. In 1963 the chiefly title was abolished and the former chiefly lands distributed to the families who had been entitled to family land in 1953. This distribution was challenged by the Old Men of Butaritari, who argued that this land should have reverted to the people from whom the original High Chief had acquired the lands. The Land Appeals Panel, the Senior Magistrate and the High Court all held that the title registered by the Lands Commission conferring land on the High Chief in 1953 was indefeasible, and it could not now be held that other claimants should have been registered as the rightful owners of the land. Moreover, on the disestablishment of the chiefly title the land reverted to the Crown – not to the families.

9.4.2.2 Official and private registration The purpose of registration of property will also influence whether the registration is to be undertaken by the government or agencies of government, or by private individuals. If the purpose is statistical, fiscal or regulatory, or involves some kinds of commercial purposes which the government wishes to promote, obviously the registration will normally be undertaken by a government agency. The agency of government that is selected to undertake the registration will be determined largely by the amount of activity that is required to undertake the registration. If the amount of activity is large, a separate office or section of a government department is established to deal with the registration. Thus the registration of non-customary land and leases of customary land in Fiji, Kiribati, Papua New Guinea, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu, is undertaken by a registry section within the Ministry or the Department of Lands.79 Again, the registration of the documents that establish companies, and the registration of the debentures and charges issued by companies, is in most countries required to be undertaken by a registrar of companies who has a separate office within a Ministry or Department of Justice.80 Where the volume of activity involved in the registration of property is not very great, often the task of registration is delegated with other related tasks to a government official. Thus, the registration of customary land is usually undertaken by the registrar of the court (High Court, the Cook Islands;81 High Court, Niue;82 78 Civil Appeal No 1 1975 [1975] KIHC 1. 79 For non-customary land see, eg, Land Transfer Act Cap 131 (Fiji), Land and Titles Act Cap 133 (Solomon Islands); and for leases see, eg, Land Leases Act Cap 163 (Vanuatu), Land Act Cap 133 (Tonga). 80 On the regulation of companies see Companies Act 1955 (NZ) amended by the Companies Act 1970–71 which applies in Cook Islands; Companies Act, Cap 247 (Fiji); Companies Ordinance, Cap 10 (Kiribati); Companies Act 1972 (Nauru); Companies Act, Cap 146 (PNG); Companies Act 1955 (Samoa); Companies Act, Cap 175 (Solomon Islands); Companies Act, Cap 191 (Vanuatu). 81 Land (Facilitation of Dealings) Act 1970. 82 Land Ordinance 1969 (Niue).

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Magistrates’ Court (Lands), Kiribati;83 Lands Court, Tuvalu84) or the commission (Native Land Commission, Fiji85) that is responsible for determining interests in customary land. In Samoa, the registrar of lands is also the director of lands.86 In Fiji, the registrar of deeds is also the registrar of titles87 and the registrar of native lands,88 and the registrar of vessels is also the director of marine.89 In Vanuatu, the registrar of motor vehicles is also the collector of rates and taxes,90 and the registrar of companies is also the registrar of business names.91 In Fiji, the transport licensing authority is often also the road traffic controller.92 Where a government body is responsible for registration, the legislation may, and often does, require that there is one central registry, so that the registration process is centralised at the headquarters of the body concerned, as is the registration of noncustomary land in Fiji,93 Papua New Guinea,94 Samoa,95 Tonga96 and Vanuatu.97 Alternatively, there may be some devolution of authority to departmental officers in individual districts or islands, as with the registration of most interests in customary land in Kiribati and Tuvalu, which is authorised to be done by the registrars of the magistrates’ courts or local courts,98 and as with the registration of clubs in Fiji, which is authorised to be undertaken by the commissioner of each administrative district of Fiji.99 Or there may be a dual system, whereby duplicate registers are kept centrally and also in the islands, as with the registration of customary land in the Solomon Islands,100 or whereby registers of some interests are kept centrally and registers of other interests are kept in districts or islands, as with customary land in Kiribati101 and Tuvalu,102 where registers of non-native leases of customary land, which require the approval of the Minister of Lands, are maintained by the ministry at the capital towns. Although normally registration is undertaken directly by an agency of government, there may be some situations where, for reasons of practical convenience, the registration may be required to be undertaken by private persons, subject to supervision by government. Thus, in Fiji, guests who occupy rooms in

83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102

Magistrates’ Courts Ordinance, Cap 52. Native Lands Act, Cap 22. S 8 Native Lands Act, Cap 133 (Fiji). S 3 Land Registration Act 1992/93 (Samoa). S 2 Registration Act, Cap 224 (Fiji). S10 Native Lands Act, Cap 133 (Fiji). S 16 Marine Act 1986. Ss 2 and 33 Road Traffic (Control) Act, Cap 29 (Vanuatu). Ss 1 and 2 Registration of Business Names Act, Cap 62 (Vanuatu). Eg, Kovovulavula v Public Service Commission Court of Appeal 6/1994 (unreported) www.vanuatu.usp.ac.fj/paclawmat/Fiji_cases. Land Transfer Act, Cap 131 (Fiji). Land Registration Act, Cap 191 (PNG). Lands Act (Samoa). Land Act, Cap 132 (Tonga). S 2 Land Leases Act, Cap 163 (Vanuatu). Native Lands Act, Cap 61 (Kiribati) and Native Lands Act, Cap 22 (Tuvalu). Ss 2 and 4, Registration of ClubsAct , Cap 194 (Fiji). S 17 Customary Land Records Act, Cap 132 (Solomon Islands) S 10 Native Lands Act, Cap 61 (Kiribati). S 31 Native Lands Act, Cap 22 (Tuvalu).

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hotels or guest houses are required by the Hotels and Guest Houses Act, Cap 195, to be registered, to help to ensure that the premises are not kept for disorderly or immoral purposes which are prohibited by the legislation.103 This registration is required to be done, for obvious reasons of practical convenience, by the managers of hotels and guest houses, not by a government agency, but the registers that are so kept are open to inspection by the chairman of the Hotels Licensing Board.104 Again, in all island countries of the South Pacific, a register of the persons who own shares in public companies is required to be kept; but this registration is required to be done by the officers of the company, not by a government department, although it is subject to inspection by the registrar of companies, and also by members of the company.105

9.4.2.3 Multiple registers In many countries there is only one register of property, and this is to be found in the capital town. Thus, in Fiji, there is only one register of native lands, and that is held in Suva by the registrar of titles. Again, in Fiji,106 Papua New Guinea,107 the Solomon Islands108 and Vanuatu109 there is only one register of non-customary land, which contains all the entries relating to non-customary land, and that is maintained by the registrars of titles in the capital towns of Suva, Port Moresby, Honiara and Port Vila. In Fiji, there is one register of vessels that is maintained in Suva,110 and in Samoa, also, one register of ships that is maintained at Apia.111 In Fiji112 and in the Solomon Islands,113 there is one register of bills of sale that is maintained in Suva and Honiara, respectively. On the other hand, in Kiribati and Tuvalu, the respective Native Lands Acts provide that there is a register of native lands for each island, which is maintained by a native lands registrar, and also a register of non-native leases and sub-leases of customary land, which is maintained by the Ministry of Lands in the capital towns.114 In Tonga, the Land Act, Cap 132, provides for a number of registers to be maintained by the Ministry of Lands: a register of hereditary estates, a register of hereditary allotments, a register of leases, a register of sub-leases, and a register of documents relating to leaseholds.115 Occasionally, duplicate systems of registration are established – one for the districts or the islands, and one for a central registry. Thus in Fiji, a copy of the register of native title in the Fijian language relating to each province is deposited with the

103 S 9 read with s 5 Hotels and Guests Houses Act, Cap 195 (Fiji). 104 Ibid read with s 3, Cap 195 (Fiji). 105 See eg, s 114 Companies Act, Cap 247 (Fiji); s 24 Companies Ordinance, Cap 10A (Kiribati); s 105 Companies Act, Cap 175 (Solomon Islands). 106 Land Transfer Act, Cap 131 (Fiji). 107 Land Registration Act, Cap 191 (PNG). 108 Land and Titles Act, Cap 133 (Solomon Islands). 109 Land Leases Act, Cap 163 (Vanuatu). 110 S 19 Marine Act 1986 (Fiji). 111 S 11 Shipping Act 1972 (Samoa). 112 S 10 Bills of Sale Act, Cap 225 (Fiji). 113 S 8 Bills of Sale Act, Cap 174 (Solomon Islands). 114 Native Lands Act, Cap 61 (Kiribati); Native Lands Act, Cap 22 (Tuvalu). 115 Ss 116, 121, 126, 128 and 131 Land Act, Cap 132 (Tonga).

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scribe of that province,116 and the Customary Land Records Act 1995 of the Solomon Islands provides that ‘duplicates of each finalised customary land holding group record shall be stored in the Central Land Record Office and the appropriate Land Record Office’.117

9.4.3 Details of property to be registered The purpose for which registration of property is undertaken will clearly influence the kinds of details which are to be contained in the register. If a purpose of the registration is fiscal then the register will need to contain details of the property sufficient to provide the basis for calculating the tax or other fiscal imposition, and details of the persons, owners or users, who are to pay the tax or fiscal imposition. However, such a registration will not need to contain details of the property not relating to the calculation of tax, nor will it need to contain non-relevant details of the persons who are to pay the tax, or any details of other persons who have interests in the property. Thus the legislation that requires registration of motor vehicles in Vanuatu and most other countries in the South Pacific, which is partly for fiscal purposes, partly for commercial purposes and partly for proprietary purposes, requires that the name and address of the original and subsequent owners must be registered, and also sufficient details of the vehicle to identify it and to provide a basis for the payment of road tax, but the legislation does not require that details be given of mortgages or charges on the vehicle.118 On the other hand, if a purpose of the registration is commercial, the register will need to contain details of the persons having interests in the property, and of the nature of those interests, that are relevant to the commercial purpose that is to be served by the registration, but no other details. Thus in all island countries of the South Pacific there is a Companies Act that requires that a register of members must be kept which contains the names and addresses of the members and the numbers of the shares held by each member and the amount paid up in each share.119 The register of members is not required, however, to contain details of the age or the nationality of the shareholder, nor of other shares held in other companies. So also, if a purpose of the registration of property is regulatory, the register will need to contain such personal details of the persons having interests in the property as are relevant to the form of control that is envisaged, for instance, nationality, ethnicity, age, sex, political or religious affiliations, academic or practical qualifications, and also, possibly, details of other interests in property which are held by those persons, as well as details about the use that is made of the property. Thus the Companies Acts of South Pacific island countries referred to in the preceding paragraph require that registers of directors must be kept by each company, and these registers must show the following details: present forename and surname, any former forename and surname, postal address, nationality, age, business occupation, and all other directorships held by that director.120

116 117 118 119 120

S 14 Native Lands Act, Cap 133 (Fiji). S 17(2), Cap 132 (Solomon Islands). See, eg, s 33 Road Traffic Control Act, Cap 29 (Vanuatu). See, eg, s 114 Companies Act, Cap 247 (Fiji). See, eg, s 197 Companies Act, Cap 247 (Fiji).

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If a purpose of registration of property is proprietary, it may require that instruments granting or affecting rights and interests must be registered, as does the Land Registration Act 1992/93 of Samoa; 121 or it may go further, as does the legislation of Fiji, Papua New Guinea, the Solomon Islands and Vanuatu with regard to the registration of non-customary land, and require that the register must contain a description of the land, the name and address of the owner, and a record of all encumbrances and other adverse interests affecting the land.122 Registration in the case of land is particularly important for protecting claims of title. The simplest form of registration is to require that all documents conferring an interest in land must be registered with a government department or agency, and if a claimant is not registered then a claim to an interest in land by that claimant will be of no legal effect. This system of registration, which is known as the deeds registration system and is adopted in Samoa,123 ensures that all the documents conferring interests in land are preserved and that they are readily accessible in one place, so that any person wishing to deal with the land knows where they can be found and examined, and knows also that there is no other document that can be relied upon as conferring an interest in that land. A rather more sophisticated system of registration of interests in non-customary land has been adopted in Fiji,124 Papua New Guinea,125 the Solomon Islands126 and Vanuatu.127 This system is known as the Torrens system of land registration, after the name of its creator, Sir Robert Torrens of South Australia, who established it there in the 1850s. The essence of this system of registration is that all documents conferring an interest in land are registered with a government agency, which then prepares a certificate of the title and enters on it particulars of all the documents that have been registered, and the interests registered on that certificate are conclusive and indefeasible, except in certain limited cases (see later). This system makes things much easier for persons dealing with land, because instead of having to search through all the documents that have been registered relating to the land in which they are interested, they need only scan the one or two pages of the certificate containing the details of the documents that have been registered. The actual process of registration usually requires the making of an entry in a register, and the delivery of a copy of each document which is required to be registered. Sometimes, however, as in the case of bills of sale, crop liens and deeds in Fiji, and with bills of sale in the Solomon Islands, no entry in a register is required to be made – registration requires only the delivery of a copy of the document that is to be registered and the making of an index of the documents that have been delivered – but, in the Solomon Islands, a certificate of registration must be stamped on the document.128

121 S 16 Land Registration Act 1992/93 (Samoa). 122 Land Transfer Act, Cap 131 (Fiji); Land Leases Act, Cap 163 (Vanuatu); Land and Titles Act, Cap 133 (Solomon Islands). 123 S 16 Lands Act (Samoa). 124 Land Transfer Act, Cap 131 (Fiji). 125 Land Registration Act, Cap 191 (PNG). 126 Pt VIII, Land and Titles Act, Cap 133 (SI). 127 Pt IV, Land Leases Act, Cap 163 (Vanuatu). 128 See s 8(4) Bills of Sale, Cap 174 (Solomon Islands).

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9.4.4 Credibility or conclusiveness of the register Where registration involves, as it usually does, entry in a register, that entry is obviously intended to be read by people other than the person who entered it, and those people will normally accept as accurate what is contained in the record. The question arises then as to what weight is to be placed on the record. Is the entry in the register to be regarded as any other written statement, open to be challenged and disputed? Or is it to be regarded as conclusive and unable to be challenged or contradicted?

9.4.4.1 Express provision as to credibility of register Sometimes the legislation that provides for registration expressly states what is the credence or weight to be given to the entry in the register that it has established. The legislation may expressly state that the register is prima facie evidence of what is stated in the register. Thus the Trade Marks Act Cap 240 of Fiji states that the fact that a person is registered as proprietor of a trade mark is prima facie evidence that the trade mark was valid and assigned to that person.129 To similar effect, although expressed more negatively, is the Land Ordinance 1969 of Niue, which states that ‘[T]he Land Register shall in no way constitute conclusive evidence of ownership or title’.130 On the other hand, there are some forms of registration that are expressly stated by the empowering legislation to be conclusive and binding. Thus the legislation relating to the registration of non-customary land in Fiji, the Solomon Islands and Vanuatu provides that the contents of the register are conclusive, but with certain exceptions: fraud, misdescription and adverse possession in the case of Fiji;131 fraud, misdescription of a right of way or other easement, wrong description of the land or its boundaries and tenancies for not more than three years in the case of Papua New Guinea;132 fraud, overriding interests and adverse possession in the case of the Solomon Islands;133 and adverse possession and overriding interests in the case of Vanuatu.134 The legislation of the Solomon Islands relating to the registration of customary land, the Customary Records Act, Cap 132, provides that every entry in the completed record shall be ‘received in all proceedings as conclusive evidence of the matter’, without any exceptions at all.135 So also the Native Lands Acts of Kiribati – with some minor exceptions – and Tuvalu, which state that titles to native land which are evidenced by a register of lands are ‘indefeasible’.136

129 130 131 132 133 134 135 136

S 39 Trade Mark Act, Cap 240 (Fiji). S 5(2). Part V Land Transfer Act, Cap 131 (Fiji). S 33 Land Registration Act, Cap 191 (PNG). Part VIII Land and Titles Act, Cap 133 (Solomon Islands). Part IV Land Leases Act, Cap 163 (Vanuatu). S 16(2) Customary Land Records, Cap 132 (Solomon Islands). S 4 Native Lands Act, Cap 61 (Kiribati); s 4 Native Lands Act, Cap 22 (Tuvalu).

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9.4.4.2 No express provision as to the credibility of the register Quite often, the legislation that provides for the registration of property does not expressly state what weight is to be given to the register. In such a case, the courts have to attempt to decide the question. This has been an issue on several occasions with regard to the register of allotments, which the Land Act, Cap 132, of Tonga requires to be maintained by the Minister of Lands but does not state what credence is to be given to its contents.137 The courts of Tonga have held that the entries in the register are normally to be regarded as conclusive, but they may be challenged and disregarded on grounds of fraud,138 mistake139 and wrong principle.140 The Native Lands Act, Cap 133, of Fiji also does not expressly state what credence is to be given to the register of native lands, but the fact that s 10(2) allows for errors or omissions in the register to be corrected suggests that the register should be regarded as prima facie, and not conclusive, evidence of the truth of its contents.

9.4.5 Legal consequences of registration or lack of registration The purpose of registration of property will affect the legal consequences of registration or failure to register. If the purposes of registration of property are statistical, fiscal or regulatory, in which case the government is primarily concerned to ensure that registration is undertaken, there is normally no legal consequence for registration, but there is a legal consequence for failure to register, which is a punishment to compel the person to register – non-registration is designated a criminal offence punishable by a fine or a period of imprisonment.141 If, on the other hand, the purpose of registration is commercial, proprietary or protective, there may be a legal consequence of registration and also a legal consequence for nonregistration. Sometimes, however, the legislation that establishes a system of registration fails to make clear what are the legal consequences of registration and/or of nonregistration. In such a case, the courts must decide what terms, if any, they should imply to carry out what they perceive to be the purpose of the legislation with regard to the legal consequences of registration and of non-registration.

9.4.5.1 Legal consequences of registration There are several legal consequences of registration of property that are often expressly stated in legislation establishing systems of registration of property in island

137 Ss 120–121 Land Act (Tonga), Cap 132. 138 See Ma’asi v Akau’ola (1956) II Tonga LR 107. 139 See, eg, Ofa Kihe Lotu Koloi v Enele Ongoongotau and Minister of Lands [2001] TOLC 4, in which the Minister himself was held to have made a mistake. See also, Fosita v Tu’inau [1981–88] Tonga LR 105; Ministry of Lands v Kulitapu [1974–80] Tonga LR 101; Vai v Uli’afia [1989] Tonga LR 56; Moa v Faka’osita [1990] Tonga LR 195; affd [1991] Tonga LR 32. 140 Sione Malamala v Sione Halahifi Malamala (1958) II Tonga LR 169; Havea v Tu’iatitu [1974–80] Tonga LR 64; also Afu v Lebas (1958) II Tonga LR 167; Vea and Totfili v Finau [1981–88] Tonga LR 131; Vai v Uli’afia [1989] Tonga LR 56. 141 See, eg, failure to register a business under s 29 Business Licences Act 1998 (Samoa), or the failure to register a dog under s 4 Dog Registration and Control Ordinance 1955 (Samoa).

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countries of the South Pacific. The first of these is that registration may confer permission to use the property in a certain way that would otherwise be prohibited. Thus, when a ship has been registered in Samoa by the port administrator under the Shipping Act 1972 of Samoa, it may engage in the carriage of passengers or cargo from any port in Samoa, which an unregistered ship cannot do. So also the legislation that provides for the registration of motor vehicles also provides that motor vehicles that have been registered may be driven on public roads, whereas those that have not been registered may not be so driven.142 Similarly, consequences arise with the registration of trade marks. For example, under the Trade Marks Act, Cap 240, of Fiji, when a trade mark is registered, the person who is registered as the proprietor is given ‘the exclusive right to the use of such trade mark upon or in connexion with the goods in respect of which it is registered’.143 Secondly, in some instances the effect of registration of documents is to call into being a new legal entity which did not exist before. Thus the Companies Act, Cap 247, of Fiji provides that when the memorandum and articles of association of a company are registered, the persons who signed the memorandum ‘shall be a body corporate by a name contained in the memorandum, capable of suing and being sued and of exercising all the functions of an incorporated company, with power to hold land and having perpetual succession and a common seal’.144 Likewise when a co-operative society is registered under the Co-operative Societies Act, Cap 152, of Vanuatu, it thereby becomes ‘a body corporate by the name under which it was registered, with perpetual succession and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings, and to do all things necessary for the purposes of its constitution’.145 Thirdly, in addition to granting permission to deal with property in certain ways, registration also normally imposes obligations on the owners, occupiers or users of property. Thus, owners of vessels that are registered in Fiji are required to transfer ownership by bill of sale and register that transfer in the register of vessels.146 The owner of a perpetual or fixed-term estate in the Solomon Islands which has been registered under the Land and Titles Act, Cap 133, is required to ensure that all boundary marks on the land are properly maintained and that all existing roads are kept open,147 and also that tenants in occupation of land who have leases of less than two years, and people in actual occupation, may continue to occupy the land until their interests expire.148 Lastly, the effect of registration of a claim to property may be to make the claim of a person to that property stronger than before, or conversely to make some claims weaker than before. This is done in two stages: registration of documents of title, which is necessary for documents to take effect; and entry in the register, which is conclusive.

142 143 144 145 146 147 148

Eg, s 9 Traffic Act, Cap 176 (Fiji). S 38 Trade Mark Act, Cap 240 (Fiji). S 8, Cap 247 (Fiji). S 8, Cap 132 (Fiji). S 35, Cap 35 (Fiji). S 133 Land and Titles Act, Cap 133 (Solomon Islands). S 114 Land and Titles Act, Cap 133 (Solomon Islands).

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In some countries, documents granting and affecting interests in certain property must be registered to have effect. Thus in Fiji,149 Papua New Guinea,150 Samoa,151 the Solomon Islands152 and Vanuatu,153 demands relating to non-customary land cannot be recognised unless these documents are registered. Further, the documents affecting the title of non-customary land take effect in order of time of registration, and not date of execution, which is the normal rule under the rules of common law and equity. So also with bills of sale which confer or affect rights in movable property in Fiji and the Solomon Islands and which must be registered under the Bills of Sale Acts of those countries.154 Likewise with transfers of ships and mortgages of ships in Fiji: under the Marine Act 1986 of Fiji, these must be registered in the register of vessels to be legally effective,155 and they take effect according to the date of registration, not the date of execution, which would be the normal rule. As a result, a claim in those countries to the ownership of, or to an interest in, non-customary land or a ship which derives from a document that is registered, is rendered much stronger than one based upon an unregistered document, or a document that is registered later. Similarly, with the registration of trade marks, when a trade mark is registered, the registered proprietor of the trade mark has ‘the right to the exclusive use of such trade mark in relation to the goods in respect of which the trademark is registered and to obtain relief in respect of infringement of the trademark in the manner provided by this Act’.156 As mentioned earlier, some registration systems provide not only that documents granting or affecting rights to property must be registered, but that the entries in the register are conclusive and cannot be challenged, subject to some limited exceptions. Thus the Native Lands Act, Cap 52, of Kiribati and the Native Lands Act, Cap 22, of Tuvalu, provide that titles to native lands registered in a register of lands shall be indefeasible,157 except for those in the registers relating to Tarawa and Tabiteuea.158 Again, as indicated previously, the Land Transfer Act, Cap 131, of Fiji, the Land and Titles Act, Cap 133, of the Solomon Islands, and the Land Leases Act, Cap 163, of Vanuatu, provide that entries in the registers of non-customary land are indefeasible, subject to the following exceptions: fraud, misdescription and adverse possession in the case of Fiji;159 fraud, misdescription and overriding interests in Papua New Guinea;160 fraud, adverse possession and overriding interests in the case of the Solomon Islands;161 and adverse possession and overriding interests in the case of Vanuatu.162 In these countries, assuming that the exceptions do not apply, once the

149 150 151 152 153 154 155 156 157 158 159 160 161 162

Part V Land Transfer Act, Cap 131 (Fiji). S 33 Land Registration Act, Cap 191 (PNG). S 16 Land Registration Act 1992/93 (Samoa). Part VIII Land and Titles Act, Cap 133 (Solomon Islands). Part VI Land Leases Act, Cap 163 (Vanuatu). S 6 Bills of Sale, Cap 174 (Solomon Islands); s 7 Bills of Sale, Cap 225 (Fiji). Ss 33–36 and 38 Marine Act, Cap 35 (Fiji). S 49 Trade Marks Act, Cap 385 (PNG). See similarly s 15 Trade Marks Act 1972 (Samoa). S 4 Native Lands Act, Cap 61. Land Registration (Tarawa and Tabiteuea) Ordinance 1969. Part V Land Transfer Act, Cap 131 (Fiji). S 33 Land Registration Act, Cap 191 (PNG). Part VIII Land and Titles Act, Cap 133 (Solomon Islands) Part IV Land Leases Act, Cap 163 (Vanuatu).

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document of title or interest in land is registered, the title or interest takes effect, even though for some reason the document of title is defective and would by itself and if unregistered be unable to have any legal effect and convey any title or interest. Conversely, also as mentioned earlier, there are some registration systems where the legislation expressly states that the register is not conclusive, for example, the Trade Marks Act Cap 240 of Fiji, which states that the fact that a person is registered as proprietor of a trade mark is ‘prima facie evidence’ that the trade mark was valid and assigned to that person shown on the register,163 and the Land Ordinance 1969 of Niue, which states that: ‘The Land Register shall in no way constitute conclusive evidence of ownership or title.’164 Then, of course, there are those registers as to which the legislation does not make any express provision with regard to the conclusiveness of the entry in the register, and the courts have to try to imply whether the entry in the register is conclusive and, if so, subject to what exceptions. Mention has already been made of the Land Act, Cap 132, of Tonga, and the Native Lands Act, Cap 133, of Fiji, as being examples of legislation that require that rights to ownership of allotments, and of native land, must be registered, but do not state expressly what is the conclusiveness of the register as to its contents. In Kiribati it has been held that while registration of title under the Native Lands Ordinance is stated to be indefeasible, the court, under jurisdiction conferred under the Magistrates’ Court Ordinance, may order rectification of the register to ensure that justice is duly administered.165

9.4.5.2 Legal consequences of non-registration The normal consequence of non-registration of rights or interests in property is usually, apart from criminal liability and punishment in the form of a fine or imprisonment,166 a negation or exclusion of the benefits conferred by registration, and prohibition of the use of property in certain ways. Thus when a ship has not been registered in Samoa by the port administrator under the Shipping Act 1972 of Samoa, it may not engage in the carriage of passengers or cargo from any port in Samoa,167 and likewise for vessels in Fiji which are not registered by the register of vessels under the Marine Act 1986 of Fiji.168 So motor vehicles that have not been registered may not be driven on public roads, whereas those that have been registered may be so driven. Non-registration may also result in the non-creation of a new legal entity. If the memorandum and articles of association of a company are not registered as required by the Companies Act of Fiji, then no incorporated body is in existence, and contracts purporting to be made by people on behalf of the non-existent company are, under

163 S 39 Trade Mark Act Cap 240 (Fiji). 164 S 5(2) Land Ordinance 1969 (Niue). 165 S 77 Magistrates’ Courts Ordinance (Kiribati) read with s 89 of the Constitution of Kiribati. This arose in the case of Kaibakia v Tabokai Land Appeal No 9 of 1996 [1997] KICA 23, in which the question was whether a garden pit, which was registered in a Pit Register, was native land for the purposes of registration of indefeasible title. The problem being that there was some confusion between the ownership of such pits and their location – which could be on the land of others. 166 See, eg, s 41 Trade Marks Act, Cap 240 (Fiji). 167 S 10 Shipping Act 1972 (Samoa). 168 S 14(3). They may also be detained in port until a registration certificate is produced.

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the common law, void and of no effect.169 Likewise, with regard to co-operatives and other associations, until they are registered as provided for by the relevant legislation they do not exist as incorporated bodies, but only as groups of individual people.170 Non-registration may also have the consequences that claims to rights and interests in property are weakened. When registration of rights and interests in property is required by the legislation in order to establish a claim to a right or interest in property, a complete failure to register the necessary documents to establish that right or interest normally means that the claim cannot succeed, or cannot succeed against certain persons, such as the creditors of the owner of the property, and a late registration of the documents normally means that the claim will be subject to those that have been registered earlier.171 Sometimes, however, the terms of the legislation, or the circumstances in which it was enacted, may indicate that there are exceptions to the usual consequences of nonregistration. Thus, although the Land Act, Cap 132, of Tonga states that all tax and town allotments must be registered, the courts of Tonga have on several occasions held that a man may nevertheless successfully claim title to an allotment even though he has not been registered as the holder of the allotment. 172 The basis of this interpretation is that two clauses of the Act (cll 80 and 82) do recognise that a person may not be registered as the holder of an allotment, and the registration system was introduced after many allotments had already been granted. Similarly, although the Patents Act, Cap 239, of Fiji, enacted in 1879, requires that after a patent has been granted it must be registered by the Administrator-General,173 it does not indicate that there are any legal consequences of registration or non-registration.

CONCLUSION The ability to protect property interests is essential, if people are to be able to use and enjoy their property in confidence. In some cases, taking measures to protect rights rests with the individual, and failure to take advantage of the protection afforded by the law is at the property owner’s own peril. In other instances, certain measures are compulsory and it may be impossible to deal with the property, for example, by alienation, unless the necessary provisions have been complied with; for example, where registration is compulsory before property can be used or title fully transferred. There remain, however, a number of property interests which are either inadequately protected, such as indigenous cultural property, or for which the scope of the actual

169 Newborne v Sensolid (Great Britain) Ltd [1954] QB 45. 170 See Cap 118 Co-operative Societies (Tonga); Co-operative Societies Act Cap 152 (Vanuatu); Native Co-operative Societies Ordinance 1935 (Nauru). 171 See eg, s 123 Land and Titles Act, Cap 133 (Solomon Islands). 172 See conversely the case of Vaka’uta v Vaka’uta and Minister of Lands [1977] Tonga LR 26, in which it was held, following earlier Tongan case law, that title to an allotment required both evidence of a grant and registration, so that where there was insufficient evidence of a grant even though there was registration, the claim must fail. 173 S 17. The Administrator-General grants a certificate (conferring letters patent) prior to registration. The evidence in the certificate is probably as useful in terms of protection as the actual registration from the point of view of the grantee’s rights, but not of course from the point of view of a third party wishing to inspect or challenge the register.

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protection is ill-defined – for example, where the consequences of non-registration are not clear. In some cases, the law’s provision of protective measures will lag behind changing needs and new forms of property.174 Where a person has done what he or she can to protect his or her property interests then there may still be a need to seek the help of the law. This will be so where rights have been infringed or protective measures, such as registration, challenged. The next two chapters look at the forums for resolving disputes, and at the remedies which may be available to aggrieved claimants.

174 Recent challenges include property in utilities, websites and electronic data bases.

CHAPTER 10 RESOLVING CLAIMS TO PROPERTY

INTRODUCTION This chapter is devoted to a description and discussion of the various methods that have been adopted for resolving disputed claims to property in island countries of the South Pacific. The main methods that will be discussed are traditional processes, that is, chiefly decisions, the use of physical violence and conciliation; introduced institutions, that is, government administrators, commissions, ordinary courts, modified ordinary courts, special courts, tribunals; and combinations of methods. This will be followed by a discussion of some general issues relating to the resolution of disputed claims to property.

10.1 TRADITIONAL PROCESSES 10.1.1 Chiefly decisions In earlier times, before the advent of European control of South Pacific island countries, the powers of the chiefs in most island countries included the power to decide which members of their tribes were the true owners of property, both movable and immovable. Often such decisions were made after listening to the rival claimants and after consulting other chiefs and elders in the community, and in a conscientious and accurate application of the relevant rules of custom. However, this was not always the case. Some chiefs acted unilaterally in such matters and were swayed by political, religious, family and personal considerations; sometimes, they acted through pure caprice.1 After the countries came under the control of European nations during the 19th century, the power of the chiefs to determine disputes about land was removed. Institutions were established by the colonial administrations in all countries of the region to determine claims by indigenous people to customary land, and different institutions were authorised to determine claims by indigenous or non-indigenous people to land that was no longer customary land. Institutions were also established by the colonial administrators to determine claims by indigenous and non-indigenous 1

The selfishness and capriciousness of some chiefs in earlier times, and their blatant disregard of the interests of their followers, were legendary. France records with regard to Fiji: ‘The authority assumed by those chiefs was absolute and unhampered by consideration for the welfare of their people. The occupants of land which was sold to Europeans were rarely informed of the chief’s decision until the transaction had been completed. Even minor chiefs, like Tui Nasavusavu, were completely despotic in this regard.’ (France, P, The Charter of the Land, 1969, Melbourne: OUP, p 48.) The chiefs of Fiji were not alone in this regard. Coates records similar phenomena in the Gilbert Islands: ‘[M]any of the kings were bestial characters. The most monstrous of all, both physically and morally, was Tom Binoka of Abemama, who thought nothing of amusing himself by shooting his own men in treetops, for the pleasure of seeing them fall sprawling to the ground. Of enormous stature and girth, he was a shrewd and conscienceless monster, who held every man’s life in his hand.’ (Coates, A, Western Pacific Islands, London: HMSO, 1970, p 175.)

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people to movable property. These institutions, which will be discussed in more detail shortly, were continued by the governments of island countries after they attained independence and self-government. The effect of the establishment of institutions to resolve claims to property was to greatly reduce the scope for chiefly decisions. Chiefly decisions no longer operated with regard to land, except in the initial stages; and with regard to movable property, they operated only to the extent that the rival claimants acknowledged the authority of the chief and did not wish to, or were unable to, apply to the institutions which had been established by the colonial administrations and continued by the indigenous governments after independence and self-government. In effect, chiefly decisions continued to operate to determine claims to movable property, and only within rural villages or urban settlements. In recent times, there has been an attempt in some island countries of the South Pacific to reinstate the role of the chiefs with regard to disputes about property, particularly land. In the Solomon Islands, legislation was enacted in 1985, the Local Courts Amendment Act 1985, that requires that all disputes about customary land must be submitted first to customary chiefs for determination, before they are submitted to the local courts and customary land appeal courts, which are the institutions established by the legislature to determine claims to customary land. In Samoa in 1990 the customary powers of chiefs were confirmed and recognised by legislation. The Village Fono Act 1990 provides that the chiefs of villages may exercise jurisdiction in accordance with the custom and usage of the village, with appeals to the Land and Titles Court. Again, in Vanuatu, legislation was enacted in 2001, the Customary Land Tribunals Act 2001, which provides that all claims to customary land are to be determined by tribunals, comprising chiefs and elders knowledgeable about the custom of the area where the land is situated, which are appointed by the chiefs of the area. A number of advantages can be claimed for decisions of chiefs as a means of resolving claims about property. First, chiefs are normally knowledgeable about the customs and histories of the area under their authority, and therefore should be able to give a decision which is in accordance with those customs and histories. Secondly, chiefs are normally impartial as between two competing claimants within their own community. Thirdly, chiefs are normally respected by all the members of their community, so that their decisions also will be respected. Fourthly, chiefs normally provide their services free of charge, or upon payment of gifts that are affordable by the parties. There are, however, some drawbacks about decisions of chiefs as a means of resolving claims about property. First, chiefs are not normally knowledgeable about customs and histories of communities other than their own, or about the written laws of the country, so that to the extent that a claim depends upon those factors chiefs are at a disadvantage. Secondly, sometimes chiefs have connections with one of the competing claimants which make it very difficult to act impartially, or to be seen to be acting impartially. Thirdly, chiefs may not be respected in their community, and they will not be respected to the same extent by members of other communities, especially the chiefs of other communities, and the members of other ethnic communities. Fourthly, chiefs nowadays, although not as despotic and tyrannical as many of their forebears, are nevertheless still human beings, not deities, and like all human beings, they are apt to make mistakes and to make decisions that are irrational, or arbitrary, or

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unreasonable, and there is usually no appeal from their decisions. Lastly, there may be uncertainty as to who are the true chiefs of a community or an area, and in several island countries, such as Fiji,2 Samoa3 and Vanuatu,4 there have been many and prolonged disputes about who is entitled to be regarded as a chief or a paramount chief. In Vanuatu, problems have also arisen as to which are the legitimate councils of chiefs in particular areas to deal with disputes.5

10.1.2 Physical violence In all island countries of the South Pacific, in earlier times when they had not fallen under the control of European powers, claims to property, both movable and immovable, but particularly immovable property, were frequently resolved by force of arms. In these armed forays the chiefs were usually at the fore.6 Sometimes, the

2

3

4

5

6

See, eg, Ratu Filimone Naliva v Ratu Sailasa Naisau (1935) 30 FLR 115 – title of Tui Ba; State v Native Lands Commission ex p Koroimata [1997] FJHC 49, 50; (1997) 43 FLR 102 – title of Turaga Tui Lawa; Rokomatu Namulo v Native Lands & Fisheries Commission [1995] FJHC 13 – title of Turaga Tui Nadi; Ratu Nacanieli Nava v Native Lands Commission, High Court, Fiji, JR 9/1002 (11 November 1992), www.vanuatu.usp.ac.fj/paclawmat/Fiji_cases – title of Taukei Vidilo; Bulou Eta Kacalaini Vosailagi v Native Lands Commission (1989) 35 FLR 116 – title of Ka Levu and Tui Nadroga. See the accounts of the disputes over the Lua, Tasi, Tupua and Tuimaleali’ifano titles in Meleisea, M, The Making of Modern Samoa, 1987, Suva: USP, pp 188–99; and the disputes over the various titles, especially the title of Mulitalo, which was disputed seven times within a period of less than 60 years, described in Vaai, S, Samoa Faamatai and the Rule of Law, 1999, Apia: University of Samoa, pp 228–36. See, eg, the continuing saga as to who is entitled to hold the rank of paramount chief in Erakor, West Efate Island, to which three different lines claim entitlement: ‘Chief Tenene still rules’, Trading Post, 16 February 2002, p 4; ‘La shefferie d’Erakor retrouve sa vrai identité coutumière après 120 ans’, Port Vila Presse (Nouvelles en Francais), 10 August 2002, p 2; ‘Erakor Chief Kalmari to appeal against island court ruling’, Trading Post, 10 August 2002, p 6; ‘Chief Kalmetabil prepared for showdown with Tenene’, Trading Post, 29 August 2002, p 5; ‘Suprim Kot i referem apil keis blong jifli taetol blong Erakor i kobak long majistret kot’, Tamtam, 4 September 2002, p 2. A similar dispute lingers on in Lelepa Island, off the north coast of Efate Island: ‘Lelepa Paramount Chief must step down’, Trading Post, 9 February 2002, p 5. See, eg, the dispute in Central Pentecost as to whether the Biltakan Council of Chiefs is the only legitimate customary council of chiefs in the area, or whether another more recently created council, Wilinsalean Council of Chiefs, also has authority in Central Pentecost: ‘Vengeance sur vengeance; Discorde totale à Melsisi’, Port Vila Presse (French edition), 22 June 2002, p 2; ‘Le Biltakan organise le retour à la paix au centre de Pentecote’, Port Vila Presse (Nouvelles en Francais), 3 August 2002, p 1; ‘Biltakan needs help from government’, Port Vila Presse, 10 August 2002, p 9; ‘Le Malvatumauri appelle à reunifier les chefs de Pentecote’, Port Vila Presse (Nouvelles en Francais), 7 September 2002, p 2. A graphic account of the incessant warfare between the tribes of central Viti Levu, Fiji, is given by Brewster, AB, who spent much of his long career amongst the tribes in the interior of the island: ‘They harried and chased each other, frequently burning villages, which were speedily replaced by others … The impression on my mind after some study of heir legends and folklore stories is that life in the hills in the olden times was like a huge game of hide-andseek.’ (Quoted in France, P (op cit n 1 above), p 35.) Such conditions were not confined to the hill tribes of Fiji, as is confirmed by Namai, who, speaking of the former Gilbert Islands, says: ‘In pre-colonial times, land was gradually acquired by settlement and internal wars. In warfare, strong kainga (extended families) and their allies could overcome weaker kainga and gain control and title to the land. Later, the weaker might become strong again, overcome their former conquerors and take their land back. Chiefs might seize the lands of their subordinates and give the use of these lands to other supporters in return for past or future favours and services.’ (Namai, B, in Crocombe, R (ed), Land Tenure in the Atolls, 1995, Suva: USP, p 44.)

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significance of property as a cause of the fights and warfare that were endemic throughout island countries of the South Pacific before European contact was obscured, and other causes, such as insults, suspicious activities and deaths, were attributed, but it seems clear that disputes about land and about movable property – especially pigs and women (who seem to have been frequently regarded as property) – were never very far from the surface. Indeed, the acquisition of property by the victors at the expense of the vanquished was the normal outcome of fights and wars.7 After islands fell under the control of European powers, warfare and violence generally were prohibited by the colonial administrators, and because of the superior military power at their command, these prohibitions were largely effective. The pax imperialis that was enforced by the colonial administrators was maintained by the governments of island countries after they attained independence or self-government and acquired police and, in Fiji, Tonga and Vanuatu, military units able to enforce the pax liberalis. As a result, nowadays, physical violence has much reduced in importance as a means of resolving claims to property in island countries of the South Pacific. However, that physical violence has not ceased in this regard, especially as respects claims to immovable property, is illustrated by events in the Solomon Islands in 1999 and 2000, when many people from Malaita and other islands outside Guadalcanal, who had occupied land in Guadacanal, were forcibly ejected from the lands they had occupied and had to flee to their home islands.8 In Papua New Guinea, also, there were reports in 2001 and 2002 of armed clashes between different tribes disputing rights to land, especially in the Highlands.9 Again, in Vanuatu, in 2001 and 2002, several incidents were reported of people being attacked and injured or, in some cases, killed because of disputes over land.10 7

The following observation by Chris Ballard in relation to Papua New Guinea no doubt reflects conditions in other island countries of the South Pacific: Across Papua New Guinea, people in public conversation will deny that wars were traditionally fought over land. Instead, pigs, women, insults, and deaths are cited as proximate causes for conflicts in which land was temporarily or permanently seized. Yet it is quite obvious, over a longer span of time and with the benefit of hindsight, that many wars were fought precisely over land and resources, and with the specific intention of holding and occupying lands previously belonging to others. (Ballard, C, ‘It’s the land stupid! The moral economy of resource ownership in Papua New Guinea’, in Larmour, P (ed), The Governance of Common Property in the Pacific Region, 1997, Canberra: Asia Pacific Press, ANU, pp 47–65, at p 50.) 8 See Keesing’s Record of World Events, 1999, Cambridge: Longman, pp 43005, 43069, 43213, 43214, 43154, 43069; ibid, 2000, pp 43417, 43367, 43472; ibid, 2001, pp 44008, 44062, 44219, 44353, 44407, 44462; ibid, 2002, pp 44683, 44736. ‘Behind the ethnic tensions and trouble in Honiara’, Islands Business, February, 1999, p 18; ‘Cooling of anger in Guadalcanal’, Islands Business, June 1999, p 22; ‘Malaitans flee homes’, Pacific Islands Monthly, July 1999, p 27; ‘Media under fire for coverage of Guadalcanal crisis’, Pacific Islands Monthly, August 1999, pp 40–41; ‘Former the Solomon police commander gets short end of stick’, Pacific Islands Monthly, September 1999, pp 34–35; ‘From Ceasefire … to Peace’, Islands Business, September 2000, p 32; ‘Fighting erupts in the Solomons’ Trading Post, 13 September 2002, p 12. 9 ‘Tribal warfare warning in PNG’, Pacific Islands Monthly, May 2000, pp 46–47; Keesing’s Record of World Events, 2002, Cambridge: Longman, pp 44568, 44624. 10 In the 12 months from December 2001 until December 2002, such incidents were reported relating to land on the following islands: Ambrym Island, ‘Tourists witness bloody fight’, Trading Post, 13 June 2002, ‘Police share blame in John Atel’s death’, Trading Post, 20 June 2002, ‘Land dispute ends in knife fight at Ranon’, Trading Post, 24 October 2002, p 6; Emae Island, ‘Two admit after attack’, Trading Post, 14 February 2002, and ‘Probleme fonciere a Emae’, Port Vila Presse, 16 February 2002, ‘Seven found guilty of intentional assault’, Port Vila Presse, 16 March 2002, p 4; ‘Suprim Kot i likluk bakeken long kes blong Eton vilij’, Tamtam, 4 September 2002, p 2; Efate Island, ‘Eton paramount chief remanded with 20 others’,

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The advantage of physical force as a means of settling a dispute about property is that it will physically prevent the other claimants from openly disputing the claim of the victors, and so bring the dispute to an end, at least for a time. The disadvantages are many. Unless all the possible rival claimants are eliminated, there will remain some who will continue to nurture a claim to the property, and who will wait for a suitable occasion to press those claims by force. Moreover, they are likely to harbour strong resentment against the original perpetrators of force, and to be anxious to exact a similar penalty upon them. The use of force also prevents any accurate understanding and assessment of the grounds for the rival claims to property, so that the basis of the claims and the cause for the dispute will not be clear and will not be able to be resolved. The use of force for settling claims to property is therefore likely to cause deep and abiding social divisions in the community, which may take generations to heal.

10.1.3 Conciliation In earlier times, conciliation was the only alternative to physical force as a means of resolving competing claims to property, where the parties were not willing to accept the decisions of chiefs. As Tiriata Betero explains in relation to the Gilbert Islands: ‘Traditionally whenever such a dispute arose there were usually only two solutions. Either bloodshed occurred and continued until one party acknowledged defeat, or a compromise could be negotiated by the chief or the elders.’ 11 Even where the competing parties did accept the decisions of chiefs, a ceremony of conciliation of the parties after the decision was often regarded as important to seal and give finality to the decision. When institutions were established by the colonial administrators, and continued by the governments after independence and self-governance, the primary purpose of these was to determine which of the rival claimants had the valid legal claim to the property, not to bring together the claimants. Sometimes, however, express provision was made by the legislation for the court or tribunal to try to reconcile the parties. Thus, s 35 of the Magistrates’ Courts Ordinance,12 of Kiribati provides that in civil and land cases and matters, a magistrates’ court and its officers ‘shall, as far as there is proper opportunity, promote reconciliation among persons subject to its jurisdiction and encourage and facilitate settlement in an amicable way and without recourse to litigation of matters of difference between them’. There is a similar provision in the Magistrates’ Courts Acts of Fiji,13 the Solomon Islands14 and Tuvalu.15 On the other

11 12 13 14 15

Trading Post, 3 January 2002; Malekula Island, ‘Land dispute results in yet another death’, Trading Post, 19 November 2002, p 6; Pentecost Island, ‘Pentecost Chief suffers over vt1m loss through two arson attacks’, Trading Post, 12 January 2002, p 4; Santo Island, ‘Santo tense after fighting and threats’, Trading Post, 15 December 2001; ‘Another land dispute ends in more arrests’, Trading Post, 21 December 2002, p 8; Tanna Island, ‘Dispute leaves one partly scalped and another severely beaten’, Trading Post, 8 January 2002, p 5. Betero, T, ‘Boundaries’ in Crocombe, R (ed), op cit n 6 above, p 44. Cap 52. Cap 14. Cap 20. Cap 2.

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hand, there is no such provision in the Local Courts Act of the Solomon Islands,16 or of Tuvalu,17 or in the Islands Courts Act of Vanuatu.18 In more recent times, the usefulness of conciliation as an alternative for resolving disputes, both before and after they have been submitted to an institution for determination, has become more fully recognised in Commonwealth countries, and alternative dispute resolution is a process which is more actively encouraged now by courts and tribunals of the Commonwealth than previously. This is starting to become reflected in the written law of island countries in the South Pacific. Thus, ss 9–20 of the Land Disputes Settlement Act (Cap 45) of Papua New Guinea provide for the appointment of land mediators to undertake mediation of disputes as to customary land, and s 28 of the Act provides that if the dispute reaches the Local Land Court, that court also has power to mediate the dispute. Section 28(2) of the Customary Land Tribunals Act 2001 of Vanuatu provides that ‘the parties may at any time try to reach an amicable settlement of the land dispute, and the tribunal must encourage and facilitate any such attempts’, and s 31 of the same Act provides that ‘the parties may enter into a customary reconciliation ceremony after a land tribunal announces its decision’. The revision of the rules of the Supreme Court of Vanuatu undertaken in 2002 also includes provision for parties in civil proceedings, including those relating to property, to be referred to alternative methods of dispute resolution, including conciliation.19 Conciliation as a means of resolving claims to property has several advantages. First, it can produce a resolution of the rival claims that everyone is happy about, and so will accept permanently and not dispute later. The result of conciliation usually means that there are no winners and no losers – all claimants get something of what they have claimed. Secondly, conciliation is usually cheaper, quicker and less public than submitting the matter for decision by an institution; and, thirdly, conciliation is certainly much less painful than resorting to violence. There are, however, certain disadvantages about conciliation as a means of resolving claims to property. First, conciliation may produce a ‘lop-sided’ agreement which is not really fair to one of the parties, and that party, or his or her relatives, may later regret the agreement and then renege on it, so that the dispute flares up again. Conciliation is worked out on the assumption that each claimant knows what he or she wants and what he or she can concede, and that the parties are of equal bargaining strength and capacity, but that might not always be so. Secondly, conciliation may produce an agreement which is inconsistent with the law, and that may later cause difficulties for, or between, the parties or their relatives.

16 17 18 19

Cap 19. Cap 3. Cap 167. Civil Procedure Rules No 49 of 2002, effective from 31 January 2003.

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10.2 INTRODUCED INSTITUTIONS 10.2.1 Government administrators In earliest colonial times, government administrators were quite frequently called upon to resolve disputes about land, especially customary land, before more permanent institutions, such as land commissions or ordinary courts, were established. This was especially so in the Gilbert and Ellice Islands, Papua New Guinea, New Hebrides and the Solomon Islands, where district agents were frequently called upon to help resolve disputes about customary land. Indeed, in the Solomon Islands20 and New Hebrides,21 right up until independence in 1980, district agents of the British and French governments were much involved in trying to resolve disputes about customary land. In the New Hebrides the situation was made more complicated by the presence of both British and French district agents in each district, so that New Hebrideans who were dissatisfied with the decision of one district agent could go to the other to try to obtain a more favourable decision from him.22 In the more substantial or difficult cases, the principal government administrators, such as resident commissioners of the Gilbert and Ellice Islands and of the New Hebrides, and the governors of Fiji, acted as appellate authorities from subordinate officials and commissions. The advantages of using government administrative officers to determine disputes about customary land were those of cheapness and administrative simplicity. The administrative officers were in the area, and they had a general responsibility to ensure the maintenance of law and order in the area under their control. Often they were, indeed, the only government presence in the area, so it seemed logical and sensible, both to indigenous people and also to the colonial governments, that they should be asked to resolve disputed claims to customary land. However, there were obvious disadvantages about government administrative officers making decisions about customary land. First, they would not have any personal knowledge of the customs and histories of the area, and although they might acquire some, that knowledge might not be accurate. Secondly, the government officers had other tasks to perform and the settlement of land disputes had to be accommodated in the work programme of the officers. Thirdly, the government officers usually had no established or uniform processes or procedures for resolving land disputes – some might be very consultative and include all interested parties, but some might not. Fourthly, after independence, the practice of establishing government administrative officers in local areas was largely discontinued in most countries For these various reasons, the use of ordinary government administrators as a means of determining claims to property has been discontinued. In Vanuatu, since 2000, a Customary Lands Disputes Resolution Officer has been appointed in the

20 For an interesting example of the intervention by a district agent in 1976, see Maerua v Kahantarou [1983] SILR 95. 21 For an interesting example of the intervention of British and French district agents in the 1970s see Bakeo, T, ‘Land Rights of Malekulans in Santo’ in Larmour, P, (ed), Land Tenure in Vanuatu, 1984, Suva: USP, pp 47–57. For further examples, see Bresnihan B and Woodward K, Tufala Gavman, 2002, Suva: USP, pp 74, 84, 189–90, 313, 443, 476, 508–509. 22 For examples see Bresnihan, B and Woodward, K, op cit, pp 22–23, 57–58, 98–99, 103, 165, 177, 234, 254, 259–60, 269–70, 281, 283, 298, 387, 403, 410, 426, 446, 475, 491, 564, 570–71.

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Department of Lands, but his function has been more that of facilitating resolution of disputes about customary land by established means than of making determinations himself as to rights to land. In Vanuatu, also, there is provision for the appointment of a lands referee, but the function of this official is not to resolve disputes about land, or resolve conflicting claims to land, as the title might suggest, but to determine the amount of rent payable for leases of land and the value of improvements on or to land.23 Nowadays, in all island countries of the South Pacific, the practice of using government administrators as a means for determining claims to customary land has ceased, and their role, which in the Western Pacific in colonial times was often very significant, has now been taken over by other introduced institutions, such as land commissions, ordinary courts, modified ordinary courts, special courts and tribunals.

10.2.2 Commissions Commissions are authorisations to a person or persons to investigate and determine claims to land, and the person who is authorised to undertake such work is called a commissioner. In early colonial times in island countries of the South Pacific, once the colonial administration had become effectively established, commissions were the most usual method of determining claims to land, especially customary land, because they were flexible, simple, cheap and mobile. Any number of persons might be appointed, any kinds of lands might be investigated, any procedures might be adopted, and any locations could be selected. Moreover, commissions could be appointed ad hoc for specific purposes, like the Commission of Inquiry into Land (Smith Commission) that was appointed in the Cook Islands in 1995–96, the Commission of Inquiry into Land Matters that was established in Papua New Guinea in 1973, and the Lands Commission (Phillips Commission) and the Special Lands Commission on Customary Land Tenure (Allan Commission) that were appointed in the British Solomon Islands Protectorate in the years 1919–24 and 1953–57 respectively. Commissions could also be appointed on a more permanent basis, like the Native Land Commissions of Fiji and the Gilbert and Ellice Islands, which continued in existence for many years, and in the case of Fiji has continued until today. Native Land Commissions were set up in early colonial times to determine claims to customary land in Fiji,24 Kiribati (then Gilbert Islands),25 Papua New Guinea,26 Samoa,27 the Solomon Islands28 and Tuvalu (then Ellice Islands),29 and many of the records relating to customary land were compiled in this way. Commissions were also established to determine claims to non-customary land in Fiji30 and Samoa.31 23 24 25 26 27 28 29 30 31

Lands Referee Act, Cap 148, s 2. Native Lands Ordinance 1880. Native Lands Commission Ordinance 1922. Native Land Registration Act 1952. Samoa Native Land and Titles Commission Ordinance 1924 (NZ). Lands Commission 1919–24; Special Lands Commission 1953–57. Native Lands Commission Ordinance 1922. Lands Claims Ordinance 1879. General Act of Congress of Berlin, 14 June 1889. For further discussion, see Gilson, RP, Samoa 1830–1900, 1970, Melbourne: OUP, pp 404–15.

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In more recent times, there has been a trend away from the use of commissions to determine claims to immovable property. It has been felt that a rather more structured and formalised process should be used to ensure that all possible claimants have, and are seen to have, adequate notice and a full opportunity to present their case. Nowadays commissions are used only in Fiji and Papua New Guinea. In Fiji, the Native Land Commission consists of one or more commissioners appointed by the Minister of Fijian Affairs, and sits with the roko, or Fijian provincial administrator, of each province in which it is sitting and is assisted by one or more assessors appointed by the province.32 In Papua New Guinea, the Land Titles Commission consists of such commissioners as the Governor-General shall appoint, and it may be assisted by assessors if it so wishes.33 As mentioned earlier, commissions, as a means of determining claims to property, have the advantages of simplicity, flexibility and inexpensiveness, at least for the parties, but they can have disadvantages of inadequate formality and inconsistency of process and fairness of procedure.

10.2.3 Ordinary courts For the purposes of this chapter, the term ‘ordinary courts’ is used to refer to the courts that have been established in all countries with general jurisdiction to determine civil and criminal proceedings. These include subordinate courts, superior courts, appellate courts and second-tier appellate courts.

10.2.3.1 Subordinate courts These are courts such as magistrates’ courts in Fiji,34 Kiribati,35 the Solomon Islands,36 Tonga,37 Tuvalu38 and Vanuatu;39 district courts in the Marshall Islands,40 Nauru,41 Papua New Guinea42 and Samoa;43 community courts and district courts in the Marshall Islands;44 island courts in Tuvalu45 and Vanuatu;46 local courts in the Solomon Islands;47 and village courts in Papua New Guinea.48

32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

Native Lands Act, Cap 133, ss 4–6. Land Titles Commission Act, 1962, ss 5–15. Magistrates’ Courts Act, Cap 21, s 3. Magistrates’ Courts Ordinance, Cap 52, s 3. Magistrates’ Courts Act, Cap 20, s 3. Magistrates’ Court Act, Cap 11, ss 2–3. Magistrates’ Courts Act, Cap 2, s 3. Courts Act, Cap 122, s 1. Judiciary Act, 1983, s 26. Judiciary Ordinance, 1957–65, s 13. District Courts Act, Cap 40, s 14. District Courts Amendment Act, 1992/93, s 3. Judiciary Act 1983, s 32. Island Courts Act, Cap 3, s 3. Island Courts Act, Cap 167, s 1. Local Courts Act, Cap 19, ss 2–3. Village Courts Act, Cap 44, s 2.

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10.2.3.2 Superior courts These are courts such as the High Court in the Cook Islands,49 Fiji,50 Kiribati,51 the Marshall Islands,52 Niue53 and the Solomon Islands;54 the Supreme Court in the Federated States of Micronesia,55 Nauru,56 Tonga,57 Tuvalu58 and Vanuatu;59 the National Court in Papua New Guinea;60 and the High Court of New Zealand for Tokelau.61

10.2.3.3 Appellate courts These are courts such as the Court of Appeal in the Cook Islands,62 Fiji,63 Kiribati,64 Niue,65 Samoa,66 the Solomon Islands,67 Tonga,68 Tuvalu69 and Vanuatu;70 the Privy Council of Tonga (cases relating to the estates and titles of nobles);71 the Supreme Court of the Marshall Islands72 and Papua New Guinea;73 the High Court of Australia for Nauru;74 and the Court of Appeal of New Zealand for Tokelau.75

49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75

Constitution of the Cook Islands, Art 47. Constitution of Fiji, s 120. Constitution of Kiribati, s 80. Constitution of the Marshall Islands, Art VI, s 3. Constitution of Niue, Art 37. Constitution of the Solomon Islands, s 132. Constitution of the Federated States of Micronesia, Art XI. Constitution of Nauru, Art 48. Constitution of Tonga, Art 86. Constitution of Tuvalu, Art 120. Constitution of Vanuatu, Art 49. Constitution of Papua New Guinea, s 163. Tokelau Amendment Act 1986 (NZ), s 3. Constitution of the Cook Islands, Art 56. Constitution of Fiji, s 121. Constitution of Kiribati, s 90 Constitution of Niue, Art 52. Constitution of Samoa, Art 75. Constitution of the Solomon Islands, s 85. Constitution of Tonga, Arts 91–92; Court of Appeal Act, 1966; Court of Appeal (Amendment) Act 1990. Constitution of Tuvalu, Art 134. Art 50, Constitution of Vanuatu. Constitution of Tonga, Arts 50 and 91; Court of Appeal (Amendment) Act 1990, s 5. Constitution of the Marshall Islands, Art VI, s 2. Constitution of Papua New Guinea, s 160. Appeals (Amendment) Act 1974, s 37, ss 44–45. Tokelau Amendment Act 1986 (NZ), s 4.

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10.2.3.4 Second-tier appellate courts These are courts such as the Privy Council of the United Kingdom for the Cook Islands,76 Kiribati (cases relating to the constitutional rights of Banabans),77 Niue78 and Tuvalu;79 and the Supreme Court of Fiji.80

10.2.3.5 Jurisdiction The above are the courts that have been established by legislation to determine ordinary civil and criminal proceedings, including those relating to property. The jurisdiction of the superior and appellate courts is, with the exception of the Privy Council of Tonga, exercised by persons with legal training and experience. The legislation establishing such courts requires that only persons with a minimum period of legal practice may be appointed as judges. In civil proceedings, including those relating to property, in most countries the judges of superior courts sit alone, without either assessors or juries. In Tonga, however, the Constitution provides that any person tried for a criminal offence punishable by more than two years’ imprisonment or a fine of T$500 (which includes the offences of theft of articles worth more than T$500, robbery, housebreaking and arson, but not wilful damage to property, taking cattle and trespass), is entitled to be tried by a jury.81 In Tonga, the Constitution also provides that ‘claims for large amounts shall be decided by a jury’ and allows any party in a civil case to request that a jury be appointed to make decisions about ‘any issue of fact’,82 although it seems that rarely is such a request made. The jurisdiction of subordinate courts, on the other hand, is often exercised by persons who have no legal training and experience but are regarded as being worthy members of the community. The members of all island courts and local courts are persons untrained in the law, and so also are many, but not all, persons exercising the jurisdiction of district and magistrates’ courts. In all island countries of the South Pacific, ordinary courts were established by the European colonial administrations shortly after acquiring control of the countries. These were from earliest times given jurisdiction to determine civil cases relating to movable property, and they have retained that jurisdiction to the present time. Disputes about ownership, possession, and any other rights and interests in movable property can be determined by the ordinary subordinate, superior and appellate courts. Where the movable property is cargo carried on a ship, or indeed the ship itself, the superior courts of most countries, but not the subordinate courts, have special powers of protecting and enforcing those rights by way of maritime liens and the arrest of the ship, or another ship owned by the same owner, which were developed from the principles of admiralty law.83

76 77 78 79 80 81 82 83

Constitution of the Cook Islands, Art 59(2). Constitution of Kiribati, s 123. Constitution of Niue, Art 55(2). Constitution of Tuvalu, Art 136. Constitution of Fiji, s 122. Constitution of Tonga, cl 99. Ibid. See further discussion in Chapter 11.

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In most countries, claims to ownership of non-customary land, such as freehold land and public land, and, in the Solomon Islands, perpetual estates and fixed-term estates, and claims arising under leases of customary land are also to be determined by the ordinary courts. In some countries, however, such as the Cook Islands and Niue, such claims are to be determined by modified ordinary courts, and in other countries, such as Tonga, by a separate land court, as is discussed shortly. Claims to interests in customary land, on the other hand, are not normally allowed to be determined by the ordinary courts. Usually, provision is made for claims to customary land to be determined by modified ordinary courts, land courts, land tribunals or land commissions, all of which will be discussed in later sections of the chapter. However, in Nauru, the Supreme Court has jurisdiction to deal with claims to customary land on appeal from the Nauru Lands Committee,84 and in the Solomon Islands the local courts have been authorised to determine claims to customary land.85 In the Solomon Islands,86 also, the High Court has jurisdiction to determine appeals from the customary land appeal courts, but only on questions of law. In Tuvalu,87 the Senior Magistrate’s Court and the High Court can hear appeals from the Land Appeal Panels, and, when doing so, are authorised, but not required, to obtain the assistance of assessors, so they can sit as ordinary courts. Several advantages may be argued for using the ordinary courts to determine claims to property. First, the judges of the superior and appellate courts have extensive knowledge of the written and common law, and extensive experience in assessing the testimony of witnesses. Secondly, the judges of superior and appellate courts, magistrates and district court judges, and the members of island courts and local courts are independent and impartial, and their decisions are respected. Thirdly, the ordinary courts are in existence, they have established premises, equipment and staff. There are, however, some disadvantages to using ordinary courts to determine claims to property. First, the law and practice relating to some kinds of property, such as customary land or incorporeal property, may be of a very specialised kind, and one with which the ordinary legal practitioner or worthy member of the community would not be familiar. Secondly, the ordinary courts have to deal with all sorts of civil and criminal proceedings, so that it is not possible for those who exercise the jurisdiction of those courts to build up any special expertise in a particular area. Thirdly, the ordinary courts usually give priority to criminal matters, with the result that civil proceedings relating to property may take a long time to be finally determined by the ordinary courts. It is for these reasons that alternatives to the ordinary courts as a means of resolving disputes about some kinds of property have been sought in most island counties of the South Pacific.

84 Nauru Lands Committee Ordinance, s 7. See, eg, Land Appeals Nos 5, 7, 10, 12 and 14 of 1973, Nauru Law Reports, 1969 to 1982, Part A, 78, and Land Appeals Nos 7 and 8 of 1975, ibid, p 139. 85 Land and Titles Act, Cap 133, s 254. 86 Land and Titles Act, Cap 133, s 257. See further Buga v Ganifiri [1982] SILR 119; Teika v Maui [1985/86] SILR 91. 87 Native Lands Ordinance, Cap 22, ss 25–27.

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10.2.4 Modified ordinary courts One alternative method that has been adopted in some countries for determining disputes about property is a modification of the ordinary courts – that is, to use the ordinary courts, but to modify them so as to make them more appropriate for determining the issues involved. In the Cook Islands88 and Niue,89 a lands division of the High Court has been established to determine disputes about land in those two countries. In Kiribati,90 claims to customary land are determined at first instance by a specially constituted magistrates’ court, in which three out of the five magistrates are drawn from a panel of lands magistrates, and on appeal by a specially constituted High Court consisting of a judge and four members drawn from the panel of lands magistrates. In each case the additional members are full members of the court, and decisions are made by a majority. In Vanuatu, during the time that the island courts were authorised to determine disputes about customary land, the legislation required that they must be presided over by a magistrate;91 and during the time that the Supreme Court was authorised to determine appeals from island courts on matters of customary land, the legislation required that two assessors knowledgeable in customary law must be appointed to assist the court.92 A more unusual modification of the powers of courts to deal with land is provided in the Marshall Islands, where any party to proceedings in a court may apply to that court for leave to obtain a determination by the Traditional Rights Court, which is composed of three or more judges, ‘selected so as to include a fair representation of all classes of land rights’, upon any question relating to land rights or customary law. If the court in which the proceedings are pending certifies that ‘a substantial question has arisen’, the matter shall be referred to the Traditional Rights Court.93 The determination of the Traditional Rights Court shall be given ‘substantial weight’ by the court in which the proceedings are pending, but it is not binding.94 In Tuvalu, also, as described in the preceding section, a rather unusual modification of the ordinary courts is provided with regard to customary land. The Native Lands Ordinance95 provides that the senior magistrate is to hear appeals upon customary land matters, with further appeal to the chief justice, but it goes on to provide that when hearing an appeal, the senior magistrate may appoint two or more persons ‘whom he considers suitably qualified’ to serve as assessors and assist with their opinions. Also, the chief justice, when hearing an appeal from the senior magistrate, may appoint two or more such persons to assist as assessors.96 The advantage of a modified form of an ordinary court as a means of determining disputes about property is that the structure and facilities of the ordinary court are 88 Constitution of the Cook Islands, Art 47, as amended by Constitution Amendment (No 9) Act 1981–82. 89 Constitution of Niue, Art 37, as amended by Constitution Amendment (No 1) Act 1992. 90 Magistrates’ Courts Ordinance, Cap 52, ss 75–76. 91 Island Courts Amendment Act 1989, s 1. 92 Island Courts Act, Cap 167, s 22. 93 Constitution of the Marshall Islands, Art VI, s 4. 94 Ibid, s 4(5). 95 Cap 22, s 26. 96 Ibid, s 27.

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already in place – the premises, the equipment, the staff, the procedures – so that it is not necessary to create anything new but only engraft on what already exists. The disadvantage, of course, of a modified ordinary court as a means of determining claims to property is that, even with the modification, an ordinary court may still not be the most appropriate way to determine disputes about property: it may not be sufficiently conveniently located, the costs of bringing proceedings in it may be too high for ordinary ‘grass-roots’ litigants, its processes and procedures may be too slow or too cumbersome, and the adjudicators may have insufficient knowledge and experience to deal with issues that will arise in the proceedings.

10.2.5 Special courts In some island countries of the South Pacific in which it was felt that the processes of a commission were not adequate for determining claims to property, but where it was felt that the ordinary courts, even in modified form, were not appropriate, a land court has seemed a preferable type of institution for determining claims to property. In Kosrae State of the Federated States of Micronesia, Papua New Guinea, Samoa, Tonga and Tuvalu, land courts have been established to make decisions at first instance with regard to claims relating to customary land. The membership of these courts varies. In Kosrae State,97 the Land Court consists of a principal land court judge and not more than two associate land court judges appointed by the Governor. In Papua New Guinea,98 the Local Land Courts are composed of a magistrate, who is designated as a land magistrate, sitting with two or four assessors. In Samoa,99 the Land and Titles Court is composed of the chief justice or a judge of the Supreme Court, and at least four Samoan judges and assessors, including at least two Samoan judges and one Samoan assessor. The Land Court of Tonga100 is comprised of one judge, usually also a judge of the Supreme Court, and an assessor selected by the judge from a panel of assessors appointed by the King. In Tuvalu,101 a Lands Court is established within each local government region, consisting of not less than six members, appointed by the council of the region with the approval of the Lands Officer of Tuvalu. Appellate land courts are established in Papua New Guinea, Samoa, the Solomon Islands and Tuvalu to hear appeals from the land court, or, in the Solomon Islands, the ordinary local court. In Papua New Guinea,102 these are called provincial land courts and they are comprised of three designated land magistrates. In Samoa,103 appeals are heard by a division of the Land and Titles Court, comprised of the chief justice or judge of the Supreme Court and two Samoan judges, who have not been involved in the decision from which the appeal is brought. In the Solomon Islands,104 appeals from local courts with regard to customary land are determined by customary land

97 98 99 100 101 102 103 104

Kosrae State Code, Title 11, Chapter 6, ss 603–04. Land Disputes Settlement Act (Cap 45), ss 21–23. Land and Titles Act 1981, ss 26 and 35. Land Act, Cap 132, ss 144–47. Native Lands Act, Cap 22, s 6. Land Disputes Settlement Act (Cap 45), ss 45–47. Land and Titles Act 1981, s 77. Land and Titles Act, Cap 133, s 255.

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appeal courts, which are comprised of at least five persons appointed by the chief justice, of whom at least one is a magistrate. In Tuvalu,105 appeals from land courts are heard by a Lands Courts Appeals Panel, comprised of a president, a vicepresident, and at least three other members, appointed by the minister. In Tonga,106 on the other hand, appeals from the land court are heard by the Court of Appeal, unless they relate to the estates of nobles, in which case they are determined by the Privy Council of Tonga, which is comprised of the ministers, governors and other persons appointed by the King. Each land court of first instance and each appellate land court has its own procedure, which requires the filing of documents, the giving of notice to interested parties, and a hearing at which evidence and/or argument may be presented by all parties. The advantage of a special court as a means of determining claims to property is that it enables formal procedures to be used for notifying parties and for giving evidence similar to those of a court, but allows the court to keep its processes, its hearings and its decisions separate from those of ordinary courts, and enables the adjudicators to build up an expertise as to the law or the customs in relation to that particular property. The main disadvantage about a special court to determine claims to property is that of expense. A separate court, with its own premises, furniture, equipment, storage facilities, adjudicators and staff, and travel requirements, may be expensive to maintain.

10.2.6 Tribunals A tribunal is defined as a ‘board appointed to adjudicate in some matter’,107 and it is used to refer to a body that is established to determine a matter in a judicial manner, that is, impartially, independently and in accordance with the evidence. A tribunal is required to follow prescribed procedures that are similar to those of a court but not quite as elaborate. Tribunals have been established in some island countries of the South Pacific to determine claims to customary land. An Appeal Tribunal has, since 1959, been established in Fiji to hear appeals from the Native Lands Commission (see earlier), and in Vanuatu customary land tribunals, since 2001, have exclusive jurisdiction to determine claims to customary land, at first instance and on appeal, in place of the Island Courts and Supreme Court, respectively. The Appeal Tribunal established in Fiji by the Native Land (Amendment) Act 1959 comprises three persons, a chairman and two members, appointed by the Minister of Fijian Affairs.108 A further amendment in 1998, the Native Lands (Amendment) (Appeals Tribunal) Act 1998, provides that the person appointed as chairman of the tribunal must be qualified to be appointed as a judge of the Supreme Court, or must be otherwise suitable because of his academic or other qualifications and experience,

105 Native Lands Act, Cap 22, ss 9 and 22. 106 Constitution of Tonga, cl 90, as amended by the Constitution of Tonga (Amendment) Act 1990; Court of Appeal Act, Cap 6, s 10, as amended by the Court of Appeal (Amendment) Act 1990, s 7. 107 Oxford Dictionary of Current English, 1985, Oxford: Clarendon Press, p 305. 108 Native Lands Act, Cap 133, s 7.

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whilst the members must also have suitable academic or other qualifications and experience.109 Also in Fiji, small claims tribunals have been established since 1981. These bodies have jurisdiction to hear and determine civil claims not exceeding $F2000, but excluding claims for the recovery of land, and claims in which the title to land is in question.110 The jurisdiction of a small claims tribunal is exercised by a referee, who must be ‘capable by reason of his special knowledge or experience of performing the functions of a referee’ but is not required to have legal knowledge or training.111 Appeals lie from such tribunals to the magistrates’ courts.112 The customary land tribunals established in Vanuatu by the Customary Land Tribunals Act 2001 are composed, at first instance, of three chiefs or elders knowledgeable about the custom of the area in which the land is situated, who are appointed by the principal chief of the village in which the land is situated. There is appeal to a tribunal of three chiefs and elders knowledgeable about such custom, appointed by the council of chiefs of the custom area, and a further and final appeal to a tribunal of five chiefs and elders knowledgeable about such custom, who are appointed by the council of chiefs of the island.113 All members of the customary land tribunals are required not only to be knowledgeable about the custom of the area in which the land in dispute is situated, but also to be independent of the rival claimants and to have no interest in the claims.114 The advantage of tribunals as a means of determining claims to property is their flexibility, in that persons can be appointed as adjudicators who have, or who may acquire, special knowledge in the type of matter that is to be adjudicated. Additionally, tribunals can be required to follow a regular procedure that ensures a fair hearing, but which is not quite as elaborate as the procedure of a court. The disadvantage of tribunals as a means of determining claims to property is that the members may have, or develop, interests and associations which link them too closely to some of the rival claimants, making it difficult for an independent or impartial decision to be given, or to appear to be given.

10.3 COMBINATIONS OF METHODS FOR DETERMINING CLAIMS TO PROPERTY It will be apparent from what has been described above that in many island countries of the South Pacific there are combinations of different methods for determining claims to property, particularly in relation to customary land. Where the property in question is customary land, there will normally be some attempts at conciliation and a chiefly decision, and sometimes also physical violence, before the matter is taken to formal institutions for determination. Moreover, in some countries there is quite a variety of different formal institutions authorised to determine a claim to customary 109 110 111 112 113 114

Native Lands (Amendment) (Appeals) Act 1998, s 3. Small Claims Tribunal Decree 1981, ss 8–9. Ibid s 6(2). Ibid s 33. Customary Land Tribunals Act 2001, ss 8, 9, 13, 14, 18, 19 and 23. Customary Land Tribunals Act 2001, s 37.

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land. For example, in Fiji, those institutions are a commission (Native Land Commission) and a tribunal (Appeal Tribunal); in the Solomon Islands those institutions are an ordinary court (Local Court), with appeal to a special court (Customary Land Appeal Court) and further appeal on a matter of law to an ordinary court (High Court); in Tuvalu those institutions are a special court (Lands Court) with appeal to another special court (Lands Appeal Panel), with further appeal to an ordinary court, which may be modified (Senior Magistrates’ Court), and a further appeal to an ordinary court, which may be modified (High Court).

10.4 GENERAL ISSUES It is evident that there is considerable variety and diversity amongst the methods that have been adopted in the South Pacific for the resolution of disputed claims to property, and these give rise to consideration of some general issues in relation to the resolution of such disputes, which will now be considered.

10.4.1 Ad hoc or standing arrangements Some of the arrangements for determining claims to land that have been adopted have been intended for a special purpose – they are established only when a situation is considered to justify it. Thus the two Lands Commissions that were established in the British Solomon Islands Protectorate, the Phillips Commission in 1919–24 and the Allan Commission in 1953–57 (see earlier), were set up only when it seemed that there were a number of difficult matters to determine. The customary land tribunals that are provided for in Vanuatu under the Customary Land Tribunals Act 2001 are to be set up only to hear a claim to customary land when it is made, and the membership of each tribunal will not necessarily be the same. The advantage of this sort of arrangement is that it is very flexible and inexpensive, because the members of the institution need be appointed only when necessary, and need be paid only when they are sitting to hear and determine claims to property. The disadvantage of such an arrangement, however, is that there is no continuity about the institution or the members of the institution, so that there can be no development of an institutional ‘memory’ or expertise, and special provision has to be made for the maintenance of records. Also, persons wishing to put forward claims for determination may not know where, or how, to lodge their claims. For these reasons, often, although more expensive, it is felt preferable to provide for a standing or permanent institution, rather than one that has to be created from time to time.

10.4.2 Expenses The expenses of a method for determining disputed claims to property have several aspects: expenses to the parties to the dispute; expenses to the persons who are determining the dispute; and expenses to the State, which means, ultimately, the taxpayers.

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First, clearly, any system that is set in place should not be so expensive for the parties that they will not avail themselves of it, or will do so only at great hardship to themselves. Secondly, any such system must ensure that the persons whose responsibility it is to determine the dispute will be adequately rewarded for their time and effort, and reimbursed their expenses in doing so. Thirdly, any such system must be one that is not a burden on the individual taxpayer who is in no way directly concerned in, or about, the determination of the dispute, nor a beneficiary of that determination. These are factors that have to be kept in balance no matter what system is adopted for resolving disputes about property. Obviously the greater the infrastructure, by way of premises, equipment and staff, that has to be provided, the greater the expense that has to be borne by somebody – the parties or the taxpayers. This argument applies particularly when considering the merits or otherwise of commissions or special courts as means of resolving disputed claims about property. An interesting innovation in this regard has been made by the Customary Land Tribunals Act 2001 of Vanuatu, in that the members of the customary land tribunals are to be paid a reasonable fee for each day that the tribunal sits, plus their actual and reasonable costs of transport and communications, and these payments are to be shared equally by all the parties to the proceedings, so that the tribunals are funded by the parties and not by the State and the taxpayer.115 Only the training of the members and the costs of maintaining records of the decisions are a direct burden upon the State.

10.4.3 Multiple interests in property It is important, when considering means of resolving conflicting claims to property, to recognise that, with regard to a particular item of property, movable or immovable, there may well be more than one interest that is in dispute. This is especially so with regard to immovable property. As discussed earlier in this book, there may be various persons claiming rights of ownership of immovable property, and also rights of possession, rights of occupation, rights in the form of easements, rights of usufruct or profit à prendre, and rights under mortgages. Also, multiple interests in the same property may arise with regard to movable property. Thus there may be various persons claiming rights of ownership, rights of possession, rights of use, rights of custody under pawns or liens, and rights under mortgages and charges. It is important that the processes adopted to resolve disputes about property are sufficiently flexible to include all of these possible claims to interests, and that the persons responsible for resolving the claims to property are sufficiently aware of, and competent to deal with, the claims to various interests that may arise in the course of the proceedings.

10.4.4 Appeals The ordinary courts in all countries of the South Pacific make provision for appeals. Although appeal is not a concept known to the common law, and although appellate courts did not originally exist in England, in more modern times it has come to be

115 Customary Land Tribunals Act 2001, s 32 and Sched 2.

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recognised in England and other Commonwealth countries that provision should be made for appeals. The chance of an error being made the first time a matter is considered and decided is so significant that allowance should be made for it, and an appeal should be provided for in a legal system. So when ordinary courts or modified ordinary courts, or special courts, or tribunals are authorised to make decisions about property, the laws which establish them also always provide for at least one appeal. Originally the laws which established native land commissions did not usually provide for appeals, but in more recent times appeals have been allowed, even from decisions of commissions. Two general issues arise with regard to appeals. First, the question of number – how many times should a person be able to appeal, and how many appeal institutions should be established? Clearly, at least one appeal should be allowed, but how many more, if any? In most countries of the South Pacific at least one appeal is allowed, but in some two appeals are allowed, and in some three appeals are allowed. When the value of property in dispute is high, and when the property in dispute is customary land, experience shows that parties will want to appeal decisions as far as is possible. In Samoa and Vanuatu, for example, almost every decision on title to customary land has been appealed. This will mean considerable delay in finalising a dispute, and it will mean considerable pressure on the appellate institution. If the appellate institution is an ordinary court, or a modified ordinary court, this will have serious repercussions on its other business. The second issue that arises with appeals is: who should constitute the members of the appellate institution? Should the appellate adjudicators be as experienced and knowledgeable as, or more experienced and knowledgeable than, or less experienced and knowledgeable than, the adjudicators who made the original decision? Should the appellate adjudicators have other qualities not possessed by the original adjudicators and, if so, what should those qualities be? This question is nicely posed – but not answered – by s 7A of the Native Lands (Amendment) (Appeals) Act 1998 of Fiji, which states that persons appointed as chairman and members of the Appeal Tribunal ‘must be suitable, by virtue of their academic or other qualifications to be members of the Appeal Tribunal’.

10.4.5 Proof of custom Those institutions that are authorised to determine claims to customary land are always authorised to use custom as the basis for those determinations. The question is: how is custom to be proved? If custom is regarded as a matter of fact then it should normally be proved by the oral testimony of witnesses who can testify to what they have seen or heard themselves, or of witnesses who are acknowledged as witnesses and who can therefore express their opinions about what they consider is custom. However, much of the evidence of custom is contained in stories and histories about events and actions and situations that are not within the personal knowledge of witnesses, nor within the expertise of expert witnesses. Accordingly, under the normal rules of evidence such testimony would be inadmissible as hearsay. Should, then, a special exception with regard to the proof of custom be made to the rule about the inadmissibility of hearsay, bearing in mind that, after all, it was a rule introduced by the courts to ensure the accuracy of oral testimony by witnesses?

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Alternatively, custom could be regarded as a matter of law and so not require proof by the testimony of witnesses but just the production of documents, as in the case of laws. This seems not illogical in those countries, such as Kiribati, Nauru, Papua New Guinea, the Solomon Islands, Tuvalu and Vanuatu, where custom is recognised as customary law and is stated to be part of the legal system. In some island countries of the South Pacific, legislation has been enacted to provide for the way in which custom is to be proved – Kiribati,116 Papua New Guinea,117 the Solomon Islands118 and Tuvalu.119 In the other island countries of the South Pacific, however, there has been no such legislative intervention, and no conclusive answer to the general question posed above.120

10.4.6 Chiefly titles The role of chiefs is important in some countries with regard to the determination of title to property, especially customary land. In Samoa and in Vanuatu, chiefs have a very significant role. In Fiji, the Marshall Islands, Papua New Guinea and the Solomon Islands they have rather different roles, but nevertheless roles of some significance in relation to customary land. It therefore becomes important to be able to know exactly who is a chief and who is not. In Fiji there are institutions established to determine claims to chiefly titles, the Native Land Commission and the Appeal Tribunal,121 and in Samoa122 the Land and Titles Court, but in the other countries there are no such institutions and, as has been indicated earlier in this chapter, there is considerable debate and often litigation about who is or is not a chief.123

CONCLUSION As can be seen from the foregoing sections of this chapter, there is quite a variety of methods that can be used, and are being used, in island countries of the South Pacific to determine claims to property. Claims to movable property are dealt with almost exclusively by chiefly decisions – where the dispute is between indigenous people – and by the ordinary courts. On the other hand, claims to immovable property are dealt with in a much wider variety of ways. Various institutions have been established to determine such claims peaceably – ordinary courts, modified ordinary courts, special courts, commissions and tribunals – and sometimes within the one country

116 117 118 119 120

Laws of Kiribati Act 1989, s 5 and Sched 1. Customs Recognition Act, Cap 19, s 2. Customs Recognition Act 2000, s 5. Laws of Tuvalu Act 1987, s 5 and Sched 1. For further discussion, see Corrin Care, J, Newton, T, and Paterson, D, Introduction to South Pacific Law, 1999, London: Cavendish Publishing, pp 57–58; and Corrin Care, J and Zorn, J, Proving Customary Law in the Common Law Courts, 2002, London: British Institute of International and Comparative Law. 121 Native Lands Act, Cap 133, ss 7 and 17. 122 Land and Titles Act 1981, ss 20–22, 34, 76–77. 123 See nn 2, 3 and 4 of this chapter.

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different methods are used at first instance and upon appeal. It has to be observed that from time to time the operation of institutions is disrupted by the intervention of physical force, but nowadays this is the exception rather than the rule. It is, however, an exception which, it is to be hoped, will become less and less evident as years go by.

CHAPTER 11 REMEDIES IN PROPERTY LAW

INTRODUCTION Where a person is wrongfully deprived of property, or a right in relation to the property is subject to some interference or encroachment, then the person whose right has been infringed will seek a remedy. Indeed, the right to seek a remedy may itself define a property interest. For example, in the case of Allison Benjamin v Kosrae State, a Federated States of Micronesia case,1 the plaintiff was able to bring an action for damages for trespass on the grounds of a sufficient possessory interest, even though he could not establish title to the property. By comparison, in the case of Jerry Tada v Siriako Usa, a Solomon Islands case, the right of the plaintiff to bring a claim for trespass and conversion was dependent on being able to establish a right to ownership, possession or a right to come into possession, which the plaintiff was unable to do.2 Conversely, where there is no remedy available then the law will hold there is no property interest capable of protection.3 In some cases the law will allow the wronged property owner to seek a remedy which is based on a claim to the property itself, the thing. This is sometimes referred to as a right in rem, while a right to bring an action against a person – for damages, for example – is sometimes referred to as a personal right, or right in personam. This latter is applicable in cases where the remedy will be enforced against the person who has infringed the right. These remedies will either be calculated in terms of money, or be remedies compelling or prohibiting certain conduct, for example, an injunction to restrain a nuisance, or to repair a retaining wall. As in other areas of the law, many of these remedies will be derived from common law and from the principles of equity. There are also remedies deriving from statute and from custom.4 Some remedies are limited in application to rights in relation to land, but many are applicable whether the subject matter is land or other forms of property. This last chapter considers the range of remedies which may be applicable to redress property-related grievances.

11.1

RIGHTS TO THE PROPERTY

Rights to the property itself can arise where the property has unlawfully been put out of reach of the rightful owner, but where the property is still identifiable and it is not prejudicial to an innocent third party, who may also have a claim to the property, for the rightful owner to exercise his or her right. In common law, although the owner of land will invariably seek to get the land back or to reassert control over the land – for example, through undisturbed

1 2 3 4

Allison Benjamin v Kosrae State [1988] FMKSC 2. Tada v Usa [1996] SBHC 7. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor and Others (1937) 58 CLR 479. As in the case of the Nagol Jump (land diving) in Vanuatu – Re the Nagol Jump, Assal & Vatu v Council of Chiefs of Santo [1992] VUSC 5; [1980–84] 2 Van LR 545.

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possession – the right to claim back personal, movable property is rarely used, the more usual remedy being damages on the grounds of a tort, or breach of contract.5 However, even with movable property, there may be advantages in claiming a right to the property itself, rather than bringing a personal action against, for example, the tortfeasor. If the tortfeasor cannot be located or is bankrupt, a personal action is of little help. There are certain situations, therefore, where the plaintiff will be able to claim the actual property, and these, along with personal remedies, are considered in this chapter.

11.1.1 Tracing Tracing is a process whereby the plaintiff seeks to establish a claim to particular property – or its identifiable replacement – on the basis of a pre-existing right to such property.6 Tracing is a procedural remedy found in both common law and equity, and may be used for all types of property, but most commonly for personal property. Once the property is traced then a variety of different remedies, which will be described later in this chapter, may be used, for example: compensation, the exercise of a lien over the property, restitution of the specific property, the imposition of a constructive trust, or the imposition of a charge. Tracing is particularly useful in the case of trusts, where the trust property has been put out of the reach of the beneficiaries, usually as a consequence of breach of trust by the trustee. Tracing is the procedure whereby the beneficiaries’ claim to the property is established and a constructive trust is imposed on the property, either in the hands of the trustee or in the hands of a stranger who has received the trust property aware of its origins. The advantage of this proprietary remedy is that even if the trust property has been converted into other property – for example, money into shares, or works of art into cash – the property can still be claimed. At common law, although in principle the beneficial owner of property may claim it from anyone who has possession of it, provided they have not acquired legal title to it, in practice the award is usually one of damages calculated by the value of the property, unless the court makes an order for the specific recovery of the property – which it might if the property is unique or irreplaceable.7 An order to return the property (whether it is tangible property or intangible property, such as shares) will be made in these limited circumstances, provided the property can still be found and identified. In the case of money, common law tracing is very limited, because once money has been paid into different mixed funds, converted into other currencies or moved into other jurisdictions – such as Pacific offshore banks – it is impossible to trace in common law. As soon as it is uncertain which money belongs to the plaintiff and which does not, this proprietary remedy must fail in common law.8 Where the property is goods or chattels, then may be traced into the hands of a third party, 5 6

7 8

The main torts were trespass (the unlawful taking of property), detinue (unlawful detention or keeping of property) and conversion (the unlawful disposal of property). Where the property is unchanged and is in the hands of a person who is aware of the plaintiff’s right then the common law allows the property to be followed. Where the property has been changed into something else then equity allows the substituted property to be traced, eg, cash converted into a luxury boat. In common law the remedy is not limited to trusts or fiduciary situations. See Banque Belge pour l’Etranger v Hambrouck [1921] 1 KB 321, where tracing was possible because the money was still unmixed.

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provided no defence is raised to defeat the claim, for example, that the transferor was acting as the agent of the beneficial owner, or the transfer took place in an open market. In the South Pacific region, the nature of tracing was considered in the case of National Bank of Vanuatu v Reece Kaluat and Mose Moli.9 Here, the court approved the dicta of Millett LJ: If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant’s behalf, he is entitled to a remedy ...10

Millett LJ was making the point that tracing is a process, rather than a remedy per se. Once the property can be traced then a remedy is granted, for example, a lien over the property, or compensation or payment of damages. In this case a mortgage had been advanced by the bank for the development of a plot of land registered in the name of the first defendant. The land had been found unsuitable for building on, and by way of an informal arrangement the second defendant had granted the first defendant the right to use another plot of land. Money raised by the mortgage had been used to build a house on this second plot of land. However, the mortgage could not be registered against this second plot. The bank sought and succeeded in holding that the second defendant was a constructive trustee of the property acquired with mortgage moneys, and that the debt owed by the first defendant could be traced to the property – the house – on the second plot of land. The remedy was to confer an equitable mortgage over the second plot of land until such time as a legal mortgage could be arranged. In this case the court did not clearly distinguish between legal and equitable tracing, partly, perhaps, because the plaintiff’s legal and equitable rights had been infringed. However, it would seem that this is a case of equitable tracing because the plaintiff was pursuing substituted property – the second plot of land – to which the plaintiff did not previously have any rights. In equity, tracing will be available where property in which the plaintiff has a preexisting interest has been transferred to a person, other than the bona fide purchaser for value without notice, in breach of a fiduciary duty. This duty need not be between the plaintiff and the person into whose hands the property is traced – although this may be the case. All that is required is that the property, at some point, must have been the subject matter of such a duty.11 This may be a trust situation, but could also include others in a fiduciary capacity such as company directors, executors or agents. As with the common law, the property must still be in existence, but unlike the common law, equity has come up with formulas for resolving the problems raised by mixed funds. Where money is mixed in an active banking account with other moneys, a charge is imposed on the fund.12 Where a trustee defendant has mixed trust money, or any other funds eligible to be traced in equity, with his own money, he is deemed to have used his own first, so that any remaining moneys – up to the sum owed – belong to

9 10 11 12

National Bank of Vanuatu v Kaluat [1998] VUSC 19. Boscawen and Others v Bakwa and Another [1996] 1 WLR 328, CA, at 334. See Re Diplock [1947] Ch 716 on this point. This remedy will also be available where the beneficiary has the right to elect to take property belonging to the trust – either in its original form or converted into something else – or to register a charge against the property for the value in money.

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the trust.13 The advantage here is that if there are other creditors, the trust fund is secure from their claims. If the trust money has been partly wasted and partly converted to other property then the beneficiaries may turn to the other property for their claim.14 Where a number of funds not belonging to the defendant are mixed then a different formula has to be used, because there may be a number of innocent claimants. Where the funds are converted to other property then the claimants may share in proportion to their original claims, or agree to be tenants in common in unequal shares determined by the value of the fund which has been misused in the first place.15 Where moneys are mixed in an active banking account – and are therefore unidentifiable – then a different and fictitious formula is used. This is that the first money in is deemed to be the first money drawn out.16 If there has not been a true mixing of funds, or if the application of this formula would be unjust, then the court can decide not to apply it but to divide the money or property acquired with proceeds of mixed innocent funds proportionately.17 It should also be noted that tracing cannot succeed where a bank account is overdrawn, because then it is held that the money has disappeared. The rationale for this is that in English law, money is still viewed as being tangible property rather than intangible property.18

11.1.2 Liens As indicated previously in Chapters 3 and 4, liens over property are a way of securing performance of an obligation – usually contractual.19 Where the obligation is not performed then the exercise of the lien is a remedy available to the aggrieved party. The remedy of a lien is a right to hold on to property belonging to the defaulter. A common law lien is a possessory lien. It is the right to retain property – chattels or documentary intangibles, such as certificates and deeds – where there has been a failure to perform an obligation. Historically such liens arose as a form of self-help, for example, where an innkeeper exercises a lien over the luggage of a guest who has not paid the bill, or a shoe repairer exercises a lien over the owner of shoes who has not come to collect and pay for them.20 In most cases the lienee – the person who holds the lien – will have actual possession of the property, but in some situations the lienee may have the right to prevent the lienor – the person whose property is subject to the

13 This is the principle established in the case of Re Hallett’s Estate (1880) 13 Ch D 696, where a solicitor mixed trust funds with his own and then made a number of payments out of this mixed fund. When he died he did not leave enough money to meet all his debts. 14 Re Oatway [1903] 2 Ch 356 – where some money was converted to shares and some wasted so that there was not enough money in the bank, the beneficiaries had a claim against the shares. 15 Eg, if $500 has been taken out of fund A and $75 out of fund B to purchase shares, the claim by the true beneficiaries of funds A and B is proportionate. 16 Clayton’s Case (1816) 1 Mer 529, 35 ER 781. 17 This is a solution preferred in some other common law jurisdictions such as Canada – Re Ontario Securities Commission (1985) 30 DLR (4d) 30. 18 Although there have been recent modifications to the law of tracing in English law – see, eg, Agip (Africa) v Jackson and Others [1991] Ch 547 – the law in this area has a long way to go conceptually to catch up with electronic banking, international money markets and money laundering. 19 See Chapters 4 and 7. 20 People engaged in ‘common callings’ where liens arose were historically innkeepers, ferrymen and common carriers.

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lien – from exercising certain rights by exercising a right of detention over the property. For example, in the case of an aircraft or a ship, where the company has not paid charges due, the lienee may be able to prevent the aircraft or ship from leaving, although the lienee will not have actual physical possession of the aircraft or ship. In some cases the lien will be general, rather than specific to the property in possession. For example, a solicitor may have a general lien over a client’s documents left in the solicitor’s possession until payment for services is made, even if those services do not relate specifically to the documents in question. A specific lien will be based on a close link between the property and the service rendered, as with a repairer ’s lien. However, a general lien may be created by contract, so that where the lienee acquires possession of property of a lienor who owes money for a previous transaction, this latter property may be retained pending payment for the previous transaction. A common law lien, unless modified by contract or statute, does not gives rise to the right to sell the property, so as a remedy it is of limited use. However, a lienee may apply to the court to execute the lien. In such circumstances the lien is more like a mortgage. An example of this approach, which finds support in French law, can be found in Vanuatu in the case of Barclays Bank International Ltd v Société Huilerie Nouvelles Hébrides, in which Chief Justice Cooke upheld the bank’s claim to a lien over water tanks on the land, because these represented the business equipment against which a loan had been secured. The custom owners had the choice, to give up the tanks to the bank or to compensate the bank.21 An equitable lien is not dependent on possession and arises in limited circumstances, as a question of law rather than voluntarily or consensually. An equitable lien is similar is some ways to a charge over property except that it needs no registration. Its most usual application is in the case of sales of land where the vendor of the land remains unpaid even though the purchaser has moved on to the land and is therefore in possession of it.22 Liens for the unpaid price may also arise in the case of intangible property, for example, in Re Stucley,23 or personal property.24 An example of the latter would be where a solicitor is owed fees by a client for a legal action which has been successful and from which the client had obtained property or money. The solicitor would be able to apply to a court to have an equitable lien over this property for payment of such fees.25 The circumstances in which an equitable lien may be recognised are not closed and such a lien may arise where equity deems it necessary to achieve a balance of rights. So an equitable lien may arise over trust property in favour of trustees waiting to be paid expenses for administering the trust, or a partner waiting for a share of the assets of a dissolved partnership. As a remedy, the exercise of the lien enables the lienor to obstruct the lienee in the beneficial enjoyment of the property until the claim secured by the lien is settled.

21 Civil Case No 167 of 1983 [1980–94] Van LR 88 . What is not clear, although an answer in the affirmative may be implied, is whether the bank could sell the tanks once these were given up. 22 In New Zealand the vendor’s lien over land is excluded by s 28 Law of Property Act 1952, which applies in Samoa and the Cook Islands. 23 [1906] 1 Ch 67, where the court upheld an equitable lien for the price of a reversionary interest in a trust fund which the beneficiary had sold to his father. 24 Hewett v Court (1983) 57 ALJR 211. Bridge M suggests that Australian courts are less adverse to equitable liens over personal property than English courts, a flexibility of approach of which courts in island countries of the South Pacific might take advantage. Bridge, M, Personal Property Law, 1993, London: Blackstone Press, p 160. 25 Worrell v Power (1993) 46 FCR 214.

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Statutory liens also arise and are found in particular in contracts of sale, where they are regulated under legislation governing the sale of goods of island countries of the South Pacific. The advantage of statutory liens is that they confer a power of sale on the lienor, whereas a common law lien does not.26 For example, under the Sale of Goods Act 1975, Samoa, the unpaid seller of goods has a lien over the goods and may sell them to a third party.27 Where the unpaid seller has parted with possession of the goods to the buyer then a lien will not be an available remedy, although he may still be able to stop the goods in transit. However, because the right to a lien under the sale of goods legislation is based on possession not ownership, even if the title to goods has passed to the buyer – for example, because they are in a deliverable state, or where the seller holds the goods as agent or bailee for the buyer – there will still be a lien as long as there is still possession by the seller.28 If the goods are sold on credit then a lien will not be available, because by the nature of the sale the seller has to wait for the purchase price. However, if the credit term has expired and the goods are still in the seller’s possession then a lien will arise. Subject to requirements of reasonable notice to the buyer, the unpaid seller can resell the goods. The new buyer acquires a good title to the goods and the seller still has the right to sue the first buyer for any damage or loss caused as a result of breach of contract. As indicated in Chapter 4, another statutory lien found in the South Pacific region which is non-possessory is a crop lien.29 Under a crop lien, the lienee has the right to the crops subject to the lien on default of payment of the loan against which the crops are secured. In practice, the lienee will rarely want to take the actual crops but rather the proceeds realised by the harvest and sale of these crops.30 The exercise of a lien as a remedy is limited to the original lienee; it cannot be transferred or assigned to a third party by the lienor. It is therefore a preventative remedy rather than restorative. Of course, a personal action to sue for the debt owed or to request an order of specific performance remains available. Where a lien has been granted over property which does not belong to the lienor, the lienee may, in certain circumstances, exercise the lien against the true owner. In the case of a repairer, authority is found in the English case of Tappenden v Artus.31 Here, the owner of a car, who was the employer of the lienor, allowed the lienor to have possession of the car and to use it for work-related purposes. When it broke down, the lienor took it to the garage for repairs. The owner subsequently refused to pay the garage for the work. The Court of Appeal upheld the garage’s right to exercise a lien over the car on the grounds that the lienor had apparent authority to place the car in the possession of the

26 If the common law lienee sells the property then the tort of conversion is committed and the lien automatically comes to an end so the lienee cannot keep the money. 27 Ss 39 and 40 Sale of Goods Act 1975 (Samoa). See also ss 41–43 Sale of Goods Act, Cap 230 (Fiji). 28 If the unpaid seller lets the goods out of his possession, eg, to the buyer or his agent, the lien ends. However, the lien is not terminated by the buyer disposing of the goods to a third party except where the third party has acquired them by a lawful document of title for valuable consideration and in good faith. 29 See, eg, Crop Liens Act, Cap 226 (Fiji), considered in the case of Wati v Nand (1997) 43 FLR 289. 30 See further Chapter 4. 31 [1964] 2 QB 184.

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garage for the purpose of effecting repairs to make it roadworthy.32 Similarly, an innkeeper does not have to enquire into the ownership of baggage accompanying a guest. Indeed, the innkeeper may be aware that the baggage is not the lienor’s – as in the case of Robins & Co v Gray,33 where the innkeeper was fully aware that the goods accompanying a salesman were owned by his employer and not the salesman himself. A type of lien that has arisen in a number of cases in the South Pacific region is a maritime lien.34 As a remedy the exercise of a maritime lien means that the ship is detained until the obligation secured by the exercise of the lien is discharged – usually the payment of moneys owing. The lien is exercised by the arrest of the ship. For example, in the case of The Ship ‘MV Voseleai’, The Captain and Crew of Vessel ‘MV Voseleai’ v The Owners of the Ship ‘MV Voseleai’,35 the ship was arrested following a complaint from the plaintiffs regarding unpaid wages. The court referred to the English law case of ‘The Ripon City’, in which Justice Gorrell Barnes explained that a maritime lien: is a privileged claim upon a thing in respect of service done on it ... to be carried into effect by legal process ... The law now recognises maritime liens in certain classes of claims, the principal being bottomry, salvage, wages, master’s wages, disbursements and liabilities and damage;36

and the case of ‘The Tolten’, in which Scott LJ said of a ‘maritime lien’: ... the lien consists in the substantive right of putting into operation the admiralty court’s executive function of arresting and selling the ship so as to give a clear title to the purchaser, and thereby enforcing distribution of the proceeds amongst the lien creditors in accordance with their several priorities ...37

Once the court allows the ship to be arrested, it is held as security for any judgment which the court makes in connection with the application for a remedy in rem. The owner of the ship can secure its release only by offering other security for the claims being made.38 The claimants have no right to the property itself. Indeed, once the defendant enters an appearance, it would seem that the action can proceed as one in personam – in other words, as a personal action. This is important if the ship has in fact disappeared. This happened in the case of Adrian Best and Others v The Owners of the Ship Glenelg.39 Here, a maritime lien was claimed over the ship for wages owing while it was in Vanuatu waters. It then left Vanuatu, but the lien attached to the ship – being a right in rem. Unfortunately the ship was then damaged at sea and lost. Insurance moneys were paid out and the plaintiffs sought to exercise their claim against these. The question for the court was whether the right in rem disappeared with the ship, or 32 The repairs had to be consistent with the implications of the contract between the owner and the lienor. Therefore, if the lienor had asked for it to be resprayed, this would not have been reasonably incidental to the implied authority of the lienor as regards the use of the car. 33 [1895] 2 QB 501. 34 Originally this was developed in maritime law under the courts of Admiralty in the United Kingdom. The supreme courts of island countries exercise admiralty jurisdiction and there are no separate courts with this function. There is little justification, therefore, for treating it as a separate branch of law in island countries of the South Pacific. 35 (1994) FLR 40; [1994] FJHC 4. 36 [1946] P 135 at 145. 37 [1897] P 226 at 241. 38 Eg, a payment into court or a banker’s undertaking – which was accepted in this case. 39 [1980–94] 1 Van LR 48.

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whether the plaintiffs could continue under the original action and claim against the insurance moneys held by the defendants. Justice Fatiaki held: ‘even though these actions were commenced as an action in rem, the entry of appearance by the respondent enables the appellants to continue the actions against the respondent as if they were actions in personam.’ The plaintiffs could therefore claim against the insurance moneys held by the defendants. Whether it is necessary to claim a lien over the ship before it can be arrested is less clear. This was a matter considered in the case of Donald Pickering & Sons Enterprises Ltd and Others v Karim’s Limited and Others.40 In this case the plaintiffs were unpaid ship repairers and marine engineers who had carried out work on two ships belonging to the defendants. A warrant of arrest was issued against the ships. The defendants challenged the lawfulness of this on the grounds that such an arrest could be made only if there was the prior existence of a maritime lien. The challenge was that there was no proprietary remedy available to the plaintiffs but only a personal one in contract. Judge Fatiaki reviewed the leading authorities on the matter and found that at one stage, the law had been that a maritime lien was the basis for bringing proceedings to claim the arrest and detention of the ship.41 The reasoning behind this was that the lien gave rise to the possibility of proceedings in rem, which, if they were pursued, perfected what was until then an inchoate right. It appeared, however, that proceedings in rem before the Admiralty Court without such a lien had been allowed in the early part of the 19th century. The disadvantage of the latter action is that a claim to a thing may be made only if it is in the hands of the debtor, whereas a lien attaches to the thing itself – here the ship – regardless of whose hands it is in. In Fiji, however, Judge Fatiaki held that the Administration of Justice Act (Imp) 1956, which conferred the admiralty jurisdiction on the High Court, allowed the court to order proceedings in rem against not only the offending ship – in respect of which the cause of action arose – but also any other ship owned by the defendant.42 In this case both ships were owned by the same debtor defendant and could therefore be subject to an action in rem, even though the debts related to maritime debts and therefore fell outside the category of claims which give rise to a maritime lien in Fiji – namely, salvage, collision, seamen’s wages, bottomry,43 master’s wages and master’s disbursements. The use of maritime liens to secure property as security for moneys owing is a very useful remedy in the South Pacific region, where ships can easily move from jurisdiction to jurisdiction, may call into ports outside their registered jurisdiction for supplies or repairs, and may have crew from a variety of countries on board.

11.1.3 Constructive trusts The use of the constructive trust as a way of acquiring equitable property interests by operation of law has been considered in Chapter 7. Constructive trusts may also

40 (1997) 43 FLR 41. 41 Citing Sir John Jervis in Harmer v Bell (1850) 83 RR at p 43 and Fry LJ in ‘The Heinrich Bjorn’ (1985) 10 PD 44. 42 The scope of the provisions was considered in the case of ‘St Elefterio’ [1957] 1 Lloyd’s Rep 283 at 287, by Willmer J, to which Judge Fatiaki also refers. 43 ‘Bottomry’ is the cost incurred in providing the ship with necessaries to put to sea.

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operate as a remedy when they are imposed by the court on property which would otherwise be freely disposable by the person asserting legal title to it. A constructive trust may be used in the case of both land and other property. Where a constructive trust is found then the property becomes trust property and the person in control of it becomes a constructive trustee, rather than absolute beneficial owner, and is bound by the obligations and duties of a trustee. Notably, the trustee can no longer deal with the property as if it were personal property. In particular, the trustee may not benefit from the property. While the constructive trust may be used for any sort of property,44 traditionally it arises in certain established situations. However, in the latter part of the 20th century, a new form of constructive trust evolved to deal with disputes over interests in property – primarily residential property – in circumstances where other rules of law, such as contract law or divorce statutes, were not applicable. First the traditional use of the constructive trust will be considered and then the more recent use. Where a constructive trust is used to prevent a person from benefiting from the property then this will be an interim step to safeguard the property pending the award of a final remedy, for example, restitution or damages. For example, where a director of a company, in breach of the fiduciary duty owed by directors to the company, obtains a profit by using information acquired as a result of the position of director, it will be deemed that any resulting profit is held on trust for the shareholders, or for whoever a fiduciary duty is owed.45 The enriched director will then be held liable to account for the profit personally or to hand it over.46 In some cases a fiduciary duty arises automatically – as in the case of a trustee and beneficiary. In others, it is presumed – as in the case of partners or company directors, where there is a rebuttable presumption – and in others, it must be established. It is not necessary that there is any fraudulent or dishonest conduct involved; indeed, the fiduciary may act perfectly honestly.47 The advantage of imposing a constructive trust over the profit made is that the constructive trustee cannot benefit at all from the property, whereas a personal action, such as liability to account, is limited to the sum plus interest. The significance of this distinction is evident when the profit is invested in an asset which may have a value beyond the sum plus interest. For example, in the case of AG for Hong Kong v Reid,48 money made as a result of accepting bribes in Hong Kong was invested in freehold land in New Zealand. The Privy Council held that Reid was not just liable to account for the total sum of the bribes plus interest, but that the freehold land was held on constructive trust – for the Crown in this case – and Reid could not benefit in any way from it. The use of the constructive trust in this type of situation is one which has not been applied greatly in the South Pacific region to date, but which would be very useful where benefits are acquired by persons in positions of trust, including government servants, as a result of bribes, backhanders, or sweeteners for contracts of tender or contracts to exploit natural resources.

44 Eg, ships in the case of Tofe v Fera [1999] SBHC 73, or land in the case of National Bank of Vanuatu v Kaluat [1998] VUSC 19. 45 It may be the property which is used in some way to make a profit, or the position held by the fiduciary. Eg, a director of a company may have access to financial information which can be used to private advantage. 46 Bray v Ford [1896] AC 44. 47 Boardman v Phipps [1967] 2 AC 46, is a leading case in this respect. 48 [1994] 1 AC 324.

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In certain circumstances, persons in fiduciary positions may be permitted to benefit from their position; for example, directors of a company, if the articles of association permit this, or if they act with the consent of shareholders.49 Similarly, trustees may themselves profit from their position if the trust deed expressly provides for this. The main issue for the courts, certainly in the case of trusts, is whether there is a conflict of interest between the interests of the trust and the trustee’s duties to the beneficiaries. It is also possible to claim that there is a constructive trust when trust property falls into the hands of a strange, who intermeddles with the trust. An intermeddler is someone who takes on trust property knowing that it is trust property. The beneficiaries of the property can trace the trust property into the stranger’s hands and also have a personal action against the intermeddler. A situation in which this might arise is where a company acquires property obtained as a result of the director’s breach of fiduciary duty. If the director is regarded as being the personification of the company then the company is liable. If the director is only the agent for the company then the company may not be liable if the agent was acting outside his or her authority, or had no duty to communicate the suspect transaction to the company.50 What the court is looking for is where the stranger to the trust has either dealt with and received trust property, knowing it to be trust property and the transaction to be in breach of trust, or has assisted in some way with a breach of trust.51 If there has been intermeddling but the trust property has not come into the intermeddler’s hands then a constructive trust cannot be imposed on the property, but the intermeddler will still be liable to account to the rightful beneficial owners.52 As indicated in Chapter 7, in recent years in a number of common law countries, including England and Wales, Australia and New Zealand, the constructive trust has been applied to establish a beneficial interest in property where there is no express trust. In particular, this form of trust has been used to determine an interest in cohabited property either where the parties are not married, or where there is no applicable matrimonial property legislation. The impetus for this pro-active approach by the courts arose to cope with the increasing social phenomenon of people sharing a home outside marriage.53 With more women earning money and thus contributing to the home either directly or indirectly, equity intervened to award a beneficial interest in the property where circumstances met certain criteria evolved by the courts. This application of the constructive trust is also found in island countries of the South Pacific. In Fiji, the Privy Council upheld a constructive trust, reversing the decision of 49 This was permitted in the Australian case of Queensland Mines v Hudson (1978) 18 ALR 1, but not in the English case of Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134. 50 See, eg, the English cases of Polly Peck International v Nadir [1992] 2 Lloyd’s Rep 238 (CA) and El Ajou v Dollar Land Holdings [1994] 2 All ER 685 (CA). 51 For ‘knowing assistance’ there must be: a trust; a dishonest and fraudulent design on the part of the trustees to the trust; assistance by the stranger in that design; and knowledge of the stranger. ‘Knowing receipt and dealing’ requires actual possession of the trust property together with knowledge – either at the time of receipt or afterwards – that the receipt is in breach of trust. If the receiver has notice of the trust – even constructive notice – he will be a constructive trustee of the property while it is in his hands. 52 See Mara v Browne [1896] 1 Ch 199 and Baden, Delvaux and Lecuit v Société Général pour Favouriser le Développement du Commerce et de l’Industrie en France [1983] BCLC 325. 53 Not all cases involve couples who are living together as if married. The constructive trust can equally apply where a mother and son share a home, or two sisters, or two friends etc. The situation is one of a pooling of resources by two or more persons, where legal title is vested in only one of the parties.

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the Fiji Court of Appeal, in the case of Sheila Maharaj v Jai Chand.54 The Privy Council stated that: ‘a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to the detriment of the claimant party.’ There is some dispute among legal authorities as to the requirements for establishing a constructive trust in these circumstances, and also the role of the constructive trust. The American approach has veered towards applying this type of trust as a procedural remedy for unjust enrichment, whereas English law has viewed it more as a legal institution in itself.55 After a period of fairly liberal application of the constructive trust in the 1970s, English law has become more formalistic in its requirements. In the South Pacific region, however, the more liberal approach seems to have been adopted, as stated clearly in the Samoan case of Elisara v Elisara, where Chief Justice Sapolu expressed the view that: It would appear to me from the case law on property disputes between married or unmarried couples, that the common law has come to the point where the constructive trust device is now broadly applied to achieve a just result in property disputes between spouses.56

Here the parties were married, but there was a dispute regarding the matrimonial home which could not be resolved by reference to legislation. The court therefore looked to the constructive trust, in particular the trust as formulated in the English case of Gissing v Gissing, where Lord Diplock stated: A resulting, implied or constructive, trust – and it is unnecessary, for present purposes to distinguish between these three classes of trust – is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.57

Applying the common law to the facts, the Chief Justice stated that: ‘the various approaches or tests to determine the question whether a constructive trust should be imposed … may be described as reasonable expectations, unconscionable conduct, unjust enrichment, estoppel and common intention.’ After an extensive review of case law from New Zealand, Australia and Canada, the judge decided that in the case of Samoa: … the unjust enrichment and the reasonable expectations tests should be applied. One advantage of the unjust enrichment test is that it has been adopted and applied by the Supreme Court of Canada to property disputes between de facto partners as well as married couples. So there is clear-cut authority for the application of the unjust enrichment test to matrimonial property disputes between married couples. As for the 54 [1986] 1 AC 898 (PC). 55 These differences of approach are commented on in Avondale Printers v Haggie [1979] 2 NZLR 124, 147. Mahon J pointed out that in England the constructive trust device has been traditionally used as a substantive principle of liability which is imposed where a fiduciary relationship exists, whereas in America the constructive trust has been used as a procedural device to prevent unjust enrichment. 56 [1994] WSSC 13. 57 Gissing v Gissing [1971] AC 886 at 905.

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reasonable expectation, even though it has been developed in de facto union cases, it is arguable that is also applies to matrimonial property dispute between married couples where no legislation covers the point.

Applying the law to the facts, the judge found that the wife had not made any direct contributions to the acquisition of property, the husband had not been unjustly enriched at her expense, nor had she been encouraged to incur any detriment in connection with the property. There was no evidence of agreement or understanding that she was to have a share in the property, and therefore ultimately there were insufficient grounds for imposing a constructive trust.58

11.1.4 Restitution In certain cases a court may have powers to order the return of property if it can be traced and identified, provided this is not prejudicial in the circumstances. Such a power may be specifically stated in legislation, or may arise from a general power to do justice in the circumstances. Restitution can apply in both civil and criminal proceedings. This matter was considered in the case of Public Prosecutor v Kalmet Kaltabang.59 In this case from Vanuatu, the accused had stolen certain sums of money from the government while in its employ. Money in several accounts belonging to the accused had been frozen. The Public Prosecutor sought an order of restitution. Provision for such restitution is made under s 108 of the Criminal Procedure Code, which reads: 108 Where, upon the arrest of a person charged with an offence, any property is taken from him, the Court before which he is charged may order— (a) That the property or a part thereof be restored to the person who appears to the Court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or (b) That the property or part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.60

It was apparent that the court could not make such an order if there was any question of doubt as to whom the money in the bank accounts belonged, or if third parties were involved. It was not clear if s 108 of the Criminal Procedure Code could be interpreted more broadly.61 However, Chief Justice Cooke went on to state that:

58 A different result was arrived at in the Fiji case of Shamshul Nisha v Abdul Munif (1999) 45 FLR 246, where a constructive trust was found by the court. In this case the dispute was between a mother and son. 59 Public Prosecutor v Kalmet Kaltabang [1980–94] I Van LR 211. 60 Chief Justice Cooke giving the judgment cited with approval the case of Stamp v United Dominions Trust (Commercial) Ltd [1967] 1 QB 418, which was decided under s 45 of the Larceny Act 1916 (UK), which gave similar powers to make orders of restitution to those contained in s 28 of the Theft Act 1968 (UK) and s 108 of the Criminal Procedure Code (Vanuatu). 61 Chief Justice Cooke went on to state that ‘section 108 of the Criminal Procedure Code, if the power is not therein contained, can be altered and adapted under section 44(2) of the Courts Regulation 1980, as necessary, under my inherent power to make the said order of restitution’.

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Even if section 108 of the Criminal Procedure Code does not possess a wide definition to allow me to make a restitution order, I hold that article 45(1) of the Constitution permits me to determine the matter according to substantial justice and I rule that substantial justice in this case would be the making of an order of restitution considering the amount of money stolen by the Defendant.

It is clear, therefore, that in certain circumstances restitution may be ordered, even if, as in the case above, it is impossible to state with certainty that the property restored is the actual property taken. As stated above, restitution is not limited to the acquisition of property by criminal means. It can be the remedy applicable where a contract is found not to exist or is repudiated. Even where there is no repudiation of the contract, restitution may be used, as, for example, in the case from Samoa of ANZ Bank Group Ltd v Ale, in which the defendant purchased a bank draft from the bank and was unduly enriched as a result of the wrong exchange rate being used.62 The court found that there was unjust enrichment on the basis of three criteria: the defendant was enriched by the receipt of the benefit; the defendant was enriched at the expense of the plaintiff; it would be unjust to allow the defendant to retain the benefit. Restitution was ordered.63 Restitution may also be ordered where an agreement is too vague to determine who is in breach. In the case of Charley Jim v Moses Alik, from the Federated States of Micronesia, there was a purported agreement relating to a car, but the terms of this were so confused that it was unclear what obligations each party had or who was in breach. The court resolved the matter by ordering the restitution of the car.64

11.1.5 Rights to recover possession of lands Where a person has been wrongfully dispossessed of land then the plaintiff may bring an action for recovery of possession. The action is framed so that the defendant bears the onus of showing why he or she should not deliver up possession of the land. The remedy overlaps with that of re-entry – considered under self-help and forfeiture, below – but requires the intervention of the court. The defence to such an action may be lapse of time, whereby the action is barred by statute,65 or where the defendant has acquired good title either by adverse possession or by acquiring an indefeasible registered title.

62 [1980–93] WSLR 468. 63 Whether restitution will apply where money is paid over as a result of mistake of law rather than fact has created some difficulty in other common law jurisdictions, but Australia and New Zealand seem to be moving towards a more coherent and uniform rule on this. See s 94A of the New Zealand Judicature Act; and s 23 of the Australian Law Reform (Property Perpetuities and Succession) Act 1962. See also David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 53. 64 [1989] FMKSC 1. 65 Eg, the Limitations Act, Cap 35 (Fiji); Limitation Act 1991 (Vanuatu); Limitation Act, Cap 18 (Solomon Islands); and Limitation Act 1975 (Western Samoa).

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11.1.6 Forfeiture Also relevant to possession is the remedy of forfeiture, or relief from forfeiture. Forfeiture may be familiar to readers in the context of criminal law, where goods acquired unlawfully are forfeited,66 and has been mentioned in Chapter 8. In the South Pacific region, provision for this is made under statute.67 However, the term is also met in property law, particularly in the context of leases where the plaintiff is either a landlord seeking to oust the occupant of property held under a lease and effect re-entry and forfeit the lease, or a tenant seeking to remain in occupation of the property and thereby seeking relief from forfeiture. The right to seek forfeiture of the lease lies with the landlord or grantor of the lease and may be provided for expressly in the contract of lease, being intended to apply where the tenant is in breach of a condition or term of the lease.68 The right to forfeiture in a legal lease creates a legal right of re-entry. Even where there is no express forfeiture provision, if the tenant breaches a condition of the lease or fails to comply with a condition then the landlord’s right to forfeit the lease is implied.69 A further circumstance in which forfeiture might arise is if the tenant asserts that he and not the landlord is the true owner of the property. The landlord may exercise a right of forfeiture by re-entry70 unless prohibited by legislation, as may be the case with a lease concerning a dwelling house, but is more likely to seek possession through the court. If the landlord is seeking forfeiture for non-payment of rent then a formal demand for rent must have been made, unless there is provision in the lease or by operation of statute that there is no need for a formal demand, for example, if the rent is overdue by a certain period of time.71 If non-payment of rent is the ground for the landlord claiming forfeiture of the lease, the tenant may seek relief from forfeiture if the rent has been paid, the tenant has paid any expenses incurred by the landlord in pursuing the rent, and the court thinks that it is just and equitable to grant relief. Where the breach complained of is for other reasons then the landlord must give a notice specifying the breach, the remedy required and any compensation required by the landlord.72 The landlord’s right of re-entry is a legal right if the lease is a legal lease, or an equitable right if the lease is equitable.73 In either case, it is a proprietary interest rather than just a personal right.

66 Eg, in the Vanuatu case of Chern Chin Her v Public Prosecutor [1989] VUSC 3, where the court upheld the forfeiture of a fishing vessel, its equipment, and the catch of fish where the accused had been caught fishing illegally in Vanuatu waters. 67 See, eg, s 45 Penal Code, Cap 45 (Tuvalu), s 45 Penal Code, Cap 26 (Solomon Islands). For application of forfeiture see, eg, Nambali v Public Prosecutor No 2 [1980–94] 2 Van LR 280, in which four vehicles acquired with misappropriated funds were forfeited to the State. 68 Where there is a forfeiture clause in the lease then the lease is voidable and the landlord can choose to continue with the lease and sue for damages for breach or exercise the right of reentry. 69 Eg, under s 107(b) Law of Property Act 1952 (NZ), which applies in Samoa, there is a right of re-entry implied in every lease. 70 See under ‘Self-help’ below. 71 See Kuen v Pongi [1997] SBHC 4, where Judge Lungole-Awich stated: ‘Usually non-payment of rent gives the landlord the right to forfeiture and re-entry.’ 72 See, eg, s 138 of the Land and Titles Act Cap 133 (Solomon Islands). 73 See, eg, s 1 Law of Property Act 1925 (UK).

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Relief from forfeiture is an equitable remedy available to a tenant where the rent has been paid, where the landlord has waived the breach which would give rise to forfeiture – either expressly or impliedly – or where the tenant applies for relief from forfeiture where the grounds are other than non-payment of rent. In the first situation, in order for waiver to be valid the landlord must be aware of the conduct giving rise to a breach of the lease and must have done some act which recognises the continuation of the lease. The waiver of the grounds for forfeiture does not prevent the landlord suing for breach of contract. Where forfeiture is based on non-payment of rent, then, if the tenant has paid the rent and any expenses incurred by the landlord, in equity there was relief from forfeiture, provided this was just and equitable.74 Where the landlord has already obtained an order for possession then application for relief from forfeiture must be made timeously, either within a statutory time period or under equity.75 Where forfeiture is claimed for other breaches, relief from forfeiture can be sought if the breach is remedied; but in some circumstances a breach cannot be remedied, for example, where sub-leasing has occurred or the premises have been used for immoral or illegal purposes, so in some cases there may be no relief from forfeiture. This seems to be the case with agricultural leases granted in Fiji under the Agricultural Landlord and Tenant Act.76 However, courts in island countries of the South Pacific have suggested that in balancing the right of the landlord to re-enter and the right of the tenant to relief from forfeiture, any provisions that are intended to protect the tenant – such as provisions regarding notice – should be construed liberally in favour of the tenant.77

11.2

SELF-HELP

The right of an aggrieved property owner to take steps without recourse to the courts to remedy his or her position has long been recognised in common law. Similarly, in practice, custom seems to permit the exercise of self-help, for example, by driving back animals which are trespassing, clearing gardens which are on land under dispute, or destroying buildings where the occupant is a trespasser. The principle behind allowing a degree of self-help is a practical one based on common sense and a recognition that it is not always practical or desirable that either emergency matters – as in the case of measures to prevent the spread of fire – or trivial matters – as in the case of overhanging branches from neighbouring property – should require the services of lawyers or courts. At the same time, however, it is necessary that some control is imposed on self-help, so as to prevent a total breakdown in law and order. In principle, therefore, self-help should be reasonable and proportionate to the interference or damage complained of. Most self-help remedies arise in common law or custom. Occasionally legislation may replace or support self-help measures. For

74 See Ata Mohammed v Victoria Grant (1875/1946) 3 FLR 107, where it was held that there was a right to relief from forfeiture where rent has been paid, both in equity and under the Common Law Procedure Act 1852. 75 Eg, in English law under the Common Law Procedure Act of 1852 a time period of six months is established. In equity the time must be reasonable as undue delay can defeat an equitable claim. 76 Cap 270. Considered in the case of Singh v Wilson-Speakman [1998] FJCA 12. 77 Fletcher v Noakes [1897] 1 Ch 652, cited with approval in Western Samoa Trust Estates Corp v Charles Leung Wai and Another [1960–69] WSLR 6.

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example, under the Pounds and Animals Act of Tonga,78 the owner or occupier of cultivated or pasture land can seize cattle found trespassing on the land and send them or take them to the nearest pound.79

11.2.1 Necessity In common law there is an ancient defence to damage to property where a person takes measures which are necessary to prevent further harm either to property belonging to that person, or to that of others. In order to avoid liability there needs to be some immediate danger, for example, the spread of fire or the risk of flood. The circumstances in which such action will be justified are limited, but may include tearing down a building in order to prevent the spreading of a fire or to prevent its collapse on to neighbouring property, lightening the load of a ship in danger of sinking, burning a fire-break to prevent the further spread of fire, and building defences against flooding water. The measures taken must be reasonable in the circumstances and proportionate to the imminent danger.80

11.2.2 Abatement This is a self-help remedy which is allowed sparingly in relation to land: for example, the right to cut down branches overhanging a garden from neighbouring land. It may also be used with goods, for example, where unsolicited goods of a perishable nature are delivered and the sender will not come and remove them, or animals break through a neighbour’s fence so as to destroy a vegetable garden. Generally, except in the case of overhanging branches, the remedy can be exercised only where the offender has done something wrong, rather than where there is an omission to act. However, this is not an easy test to apply, as the escape of livestock may be attributable either to the owner leaving the gate open – a positive act – or failing to repair his fence – an omission. The problem with abatement is that it can in turn lead to further legal action, for example, damage to property, trespass, etc. Nevertheless, abatement does exist as a remedy and, provided it is the minimum interference required to stop the nuisance, it is allowed. It has the advantage of being available without the help of the court and without having to wait for the harm to materialise or, if it already exists, get worse.

11.2.3 Re-entry and ejectment Other self-help remedies include exercising a right of re-entry onto land and forcefully removing trespassers or squatters. Re-entry is a remedy available in the case of trespass. In order to re-enter, the person entitled to possession must not use or threaten violence. The remedy is available only to the displaced occupier. Reasonable

78 Cap 147. 79 S 5. Similarly self-help remedies regarding dogs are provided for under s 6 Dogs Act, Cap 150, Vanuatu, ss 6 and 7 Dogs Act, Cap 168, Fiji, and ss 6 and 7 Dogs Act, Cap 46, Tuvalu. Under these statutes a person may destroy a dog that is worrying or attacking other animals or people. 80 Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218.

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force may be used to evict or eject a trespasser or squatter.81 Today, actions for re-entry of property are increasingly governed by legislation, 82 and the dispossessed landowner is more likely to seek the court’s help in bringing an action for ejectment than forcefully remove a trespasser or squatter,83 thereby running the risk of being sued for assault or battery.

11.2.4 The colour of right This has been mentioned in Chapter 2 and operates as a defence rather than as a remedy in cases where a person is charged with theft or larceny of property which the accused believes is his or her own property. Used successfully, it does not mean necessarily that the person charged will be allowed to keep the property – although this may be the case – but that the charge of theft or larceny will not succeed. This possible defence can only be raised where the accused honestly believed that he or she had a legal right to the property.84 The belief may be mistaken, and it may not be well grounded in a legal right, so long as it is honest.85 The defence has been raised in a number of cases in island countries of the South Pacific. For example, in the case of The Police v Tipi Magasiva Malaitai,86 an employee of a farm was accused of stealing cattle from the farm. He raised the defence of colour of right, on the grounds that it was a standard practice on the farm that where a person brought horses onto the farm – as he had done – he received cattle in exchange. He believed that the cattle he had slaughtered and carried away were those earmarked as his. The defence succeeded.87 It should be noted that in order for the defence to succeed, it is not necessary for the person relying on the defence to show an absolute right to possession, provided that the claim is ‘honest’ even if ‘wrongheaded’.88 The defence will not always succeed where there are public policy considerations involved. This is illustrated by a case from Australia, which, although it is out of the South Pacific region under consideration, raises some interesting questions – which

81 See Hemmings v Stoke Poges Golf Club [1920] 1 KB 720, approved in the Fiji case of AG v Hardeo Shandil (1974) 20 FLR 93. 82 Eg, s 118 Law of Property Act 1952 (NZ), which applies in Samoa. 83 Where a person has been dispossessed an action for ejectment can be brought provided an immediate right to possession can be established and that this is stronger than that of the current possessor. Ejectment is an action for the recovery of land. Originally it was only available to leaseholders in possession, because other rights in rem were not available to them. It is now found as an action for the recovery of land which is available by a summary procedure in English law. The action is based on the strength of the plaintiff’s title, not on the weakness of the defendant’s title – Emmerson v Maddison [1906] AC 569 (PC). Today it is more usual to find ejectment being used as a summary procedure to get rid of a tenant who has not paid rent. See the Vanuatu case Tatwin v Attorney General [1995] VUSC 5, and the Fiji case Ross v Shamin [1998] FJHC 163. 84 Larceny is ‘the stealing, taking or carrying away of personal property of another … without the owner’s knowledge or consent and with the intent to convert it to one’s own use’ – Kosrae State v Molid Tolenoa [1989] FMKSC 2. 85 Eg, under the Penal Code Cap 17 (Fiji), s 8: ‘A person is not criminally responsible in respect of an offence relating to property, if the act done ... by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.’ 86 [1994] WSSC 12. 87 Cf, however, the case of Evans v State [1998] FJHC. 88 See the dictum of Henry J in Murphy v Gregory [1959] NZLR 868 at 872, cited with approval in Police v Malaitai [1994] WSSC 12.

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could well become relevant in the region – as to how the law can develop when traditional property rights and more modern property concerns appear to collide head-on. The case in question was that of Walden v Hensler.89 Here, an aboriginal – Walden – had been charged with an offence under the Fauna Conservation Act 1974 of Queensland, Australia, as a consequence of catching and keeping wild birds. His defence was that under traditional Aboriginal practices regarding bush food, he thought he had a right to the birds. His defence failed, although the reasoning of the judges in reaching their decision was not unanimous.90

11.3

PERSONAL RIGHTS

Initially, in common law, only interests in land could be remedied by a real action – an action to recover the actual property. Consequently, infringements of rights in property other than land could only give rise to personal actions for damages in tort. As the law of contract began to develop, there was a need for a remedy where goods were in the possession of a non-owner with the permission or agreement of the owner. This led to a claim in detinue, where the possessor refused to give up the goods. In trespass the remedy was damages, whereas in detinue, the defendant had the option of either paying damages or handing the goods over. The court could order the return of the specific property in circumstances which permitted this.91 Detinue was followed by the development of a claim in trover, which emerged in the 16th century.92 Trover is rarely encountered today and in the South Pacific region the main torts used to protect or recover property are trespass to goods, conversion and detinue. An award of damages is the most usual personal remedy, whether the claim is based in tort or contract, or on the infringement of a specific property right.

11.3.1 Damages An award of damages is the most usual remedy claimed, especially in the case of movable property, largely because the common law never developed a strong claim in rem, unlike legal systems based on Roman law, where the right to claim the thing was an important feature. Besides actual damages, damages awarded may be nominal

89 (1987) 163 CLR 561. 90 There were two dissenting judgments. The three majority judges arrived at their decisions by very different routes: Brennan J held that wild birds could not be property and therefore could not be stolen so the defence was not available; Deane J took the ground that the defence claimed was based on ignorance of the criminal law rather than an honest belief of right; and Dawson J took the ground that public policy underpinning such legislation as the Fauna Conservation Act 1974 (Queensland) took precedence over any individual traditional rights. Subsequent legislation in Australia, namely the Native Title Act 1993, changed the situation in so far as native title included rights recognised in common law arising from traditional laws and customs of indigenous people. 91 The chattels would have to be recoverable and it would have to be just and equitable for the court to make such an order. 92 For trover, four elements were required: the plaintiff had to establish former possession of the goods; that the plaintiff had lost the goods; that the defendant had found the goods; and that the defendant had converted the goods to the defendant’s own use. In the 19th century, trover was largely replaced by the tort of conversion and detinue was limited to situations where the defendant could not redeliver the goods. Detinue was abolished in English law by the Torts (Interference with Goods) Act 1977.

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damages,93 compensatory damages94 or exemplary damages.95 The calculation of damages will usually depend on whether the action arises in tort – as in cases of trespass or nuisance – or in contract. In some cases the action will be framed as a claim for damages, in others the action will be a property action which refers to money, such as liability to account, or may be an action for a debt, or forfeiture – for example, in the case of rents or deposit moneys where there has been a breach of a lease or hirepurchase agreement. Prior to the intervention of insurance to provide compensation for all sorts of losses, compensation for accidental damage to property rested on the law of torts and could be claimed where the loss was caused by the blameworthy act of the defendant resulting in damage to the property of the plaintiff. Today, in many developed countries, claims against insurance policies have taken the place of seeking damages in the law of torts, whether that insurance is for motor vehicles, damage to buildings or the loss of a computer. Within island countries of the South Pacific, however, insurance against such loss is less common. The law of torts therefore remains highly relevant. The main torts that will apply in case of damage to property, as indicated above, are negligence, nuisance, trespass and – though found less often – conversion. Similarly, in more developed jurisdictions, consumer protection legislation has replaced the application of general rules of common law negligence in the case of defective goods or products. However, in island countries of the South Pacific, consumer protection is still in its infancy.96 Consequently, assessment of compensation will depend largely on the rules of common law. In the case of damage to property, compensation will cover damage to the thing itself and to any other property which it could reasonably have been foreseen would have been harmed. The value of the property damaged is irrelevant to the question of liability. Where the property is totally destroyed then the compensation will be its market value at the date of its destruction. The idea is to enable the plaintiff to replace the property. If the property would have also earned profits, for example a boat or ship, then these too may be claimed, or the cost of leasing or hiring a replacement until such time as a new one can be bought.97

11.3.1.1 Damages in tort The purposes of damages in the law of tort is to put the plaintiff in the position he or she would have been in had the tort not been committed. Besides actual damages, as

93 Nominal damages are where no or very little harm has been suffered by the plaintiff but the law recognises the legal right of the plaintiff, eg, nominal damages for trespass were upheld on appeal in the Vanuatu case of Jimmy v Karie [2002] VUCA 7, and for breach of contract in Nickel v Ah Vui [2000] WSSC 37. 94 As in the Samoan case of Tuivaiti v Faamalaga [1980] WSSC 2, in which the plaintiff succeeded in a claim for compensatory damages for claims based on trespass to land and loss of business through intimidation, all flowing as a result of banishment from his village. 95 As in the Solomon Island case of Alliance Trading Association (Solomon Islands) v Sanau [1993] SBHC 27, in which exemplary damages were awarded in a case involving deceit in the handling of property – here bills of lading. 96 Some protection can be found in Fiji, under the Fair Trading Decree of 1992, in the Code of the Federated States of Micronesia Vol 7 No 34 and, much more comprehensively, in the Consumer Protection Act of 2000 of Tonga. 97 As in the case of Liesbosch Dredger v SS Edison [1933] AC 449.

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indicated above, damages may be nominal, compensatory or aggravated, or exemplary. Exemplary damages are intended to be punitive in character, while aggravated damages are compensatory. These may be used where the gravity of the conduct of the defendant and the relationship between the parties is deemed by the court to be of such a character as to warrant not only the payment of damages for the actual harm suffered, but also compensation where there has been malice, wilful behaviour or bad motive on the part of the defendant. In English common law the scope to award exemplary damages has been severely curtailed since the House of Lords’ ruling in Rookes v Barnard.98 Prior to this, the distinction between aggravated and exemplary damages was not so significant. Since this decision, an award of exemplary damages must be justified as being necessary to compensate for the harm suffered. Moreover, subsequent decisions have indicated that exemplary damages can only be awarded in those circumstances in which they would have been so awarded prior to 1964.99 The circumstances in which such an award may be made are (i) where there is oppressive, arbitrary or unconstitutional action by the government or its servants; or (ii) where the defendant’s conduct has been calculated to make a profit for himself, over and above what might be payable to the plaintiff by way of damages. The first category refers to abuse of power by the executive, and is inapplicable in cases of private or corporate abuse of power. In English law the second category is restricted by the pre-1964 rule and excludes profits acquired under torts such as deceit, interference with contracts or conversion. It has, however, been suggested that such damages may be awarded where there has been the unlawful eviction of a tenant.100 It should be noted that these limitations need not necessarily bind the jurisdictions of island countries of the South Pacific.101 The measure of damages may depend on the tort claimed. Where damage is caused as a result of negligence then the damage claimable will depend on tests of remoteness and foreseeability. The common law test which seems to be applied in most of the South Pacific region is that of reasonable foreseeability – whether the harm suffered could reasonably have been foreseen as being a consequence of the defendant’s breach of a duty of care owed to the plaintiff.102 An alternative test is the earlier one of ‘direct consequence’.103 Which test will be applied in any jurisdiction of island countries of the South Pacific will depend on factors relating to the reception and application of the principles of common law and equity, as stated in the Introduction to this book. In the case of damage caused by nuisance, the claim will be for harm caused by the nuisance before the nuisance was brought to an end – usually by an injunction. Occasionally damages may be awarded rather than injunctive relief where the harm caused by the nuisance is slight, is capable of being estimated in

98 99 100 101

[1964] AC 1129. This follows from Cassell & Co Ltd v Broome [1972] AC 1027. Drane v Evangelou [1978] 1 WLR 455. For a useful review of the decision of Rookes v Barnard, see the Solomon Island case of Alliance Trading Association Solomon Island v Sanau [1999] SBHC 27. The application of the Rookes limitation is considered in the Vanuatu case of Tahi v Kwemoli [2001] VUSC 90. 102 This test derives from the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388. Other elements of negligence are drawn from Donoghue v Stevenson [1932] AC 562. 103 This was a principle developed from the case of Re Polemis and Furness, Withy and Co Ltd [1921] 3 KB 560, and is broader than the later principle of foreseeable loss.

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money terms and the compensation paid is adequate. 104 In cases of nuisance, including where the damage is caused by animals which escape, the question of liability will usually depend on causation rather than fault.105

11.3.1.2 Damages in contract Where a person hopes to acquire interests in property as a result of a contract and either those interests are not acquired, or the property is not as expected, then damages on the grounds of breach of contract may be claimed. The calculation of damages in such cases is slightly different from that of torts, in as much as the damages are determined by matters contemplated by the contracting parties and are to put the plaintiff in the position he or she would have been in had the contract been performed properly. This is determined more subjectively than in the case of tort. In contract, damages will be recoverable except where the contract is to pay a debt or specific sum of money. In such cases the remedy lies in an action for the agreed sum. Sometimes the damages payable in the case of breach of contract will have been agreed as part of the contract.106 Where such damages are agreed then, even if the loss is greater, only the agreed amount can be claimed.107 Any provision for such damages in a contract must be express and will not be implied into the contract.108 Where there are no agreed damages then damages must be assessed by the court, and this will be done on the basis of ordinary damages and special damages. Ordinary damages are those that could be expected to arise from the loss in question, provided they are not too remote.109 The calculation of damages is based on three principles: loss based on the expectation of the benefit of the contract, for example, the profit; loss based on reliance on the contractual agreement; and consequential loss. Special damages will be awarded on the basis of the special circumstances of the contract. Occasionally, nominal damages will be awarded. This indicates the court’s recognition of the claim but there is no actual damage.110

104 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. 105 In the case of animals the owner or keeper of the animal may also face statutory penalties. See, eg, s 4 Dogs Act, Cap 168 (Fiji). Also Dogs Registration Act 1986 (Cook Islands); Dogs Act Cap 150 (Tonga); and Dogs Registration Act 1966 (Niue). In some cases a power to destroy the animal(s) may be conferred by statute. See Dog Registration and Control Ordinance (Western Samoa) 1955, and its Amendment, 1971, No 28. 106 These are called ‘liquidated damages’ clauses and are permitted so long as they are not punitive in nature. 107 For illustration, see the Fijian case Baram Sen v Govind Swamy Naidu and Another (1979) 25 FLR 42. 108 In the Tongan case of Tenefufu & Others v Squash Export Co Ltd & Others [1993] Tonga LR 81, no such clause existed so the deduction of moneys owing for squash was wrong. Only general damages for actual loss could be claimed. 109 Contract law in island countries of the South Pacific follows the common law principles established in Hadley v Baxendale (1854) 9 Exch 341, 156 ER 145, which looks at the natural consequences of the breach of contract which the defendant could have foreseen, and the refinement of this in Victoria Laundry v Newman Industries [1949] 2 KB 528, which extends damages claimable to include those which the parties had in contemplation at the time of the contract – even if they were unusual. 110 For an extensive review of the law of contract in island countries of the South Pacific, see Corrin Care, J, South Pacific Contract Law, 2001, London: Cavendish Publishing.

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11.3.2 Criminal damages It should be noted that compensation may also be ordered in criminal cases relating to property – such as theft or criminal damage – in order to try to avoid a further civil action by the wronged property owner.111 Also, in Vanuatu, where a civil action may be joined to a criminal one, compensation for damage may be allowed, as in the case of Public Prosecutor v Jean Denis Noses, where an aggrieved husband had set fire to considerable personal property of the applicant and was charged with and convicted of malicious damage, the applicant succeeded in an action for monetary compensation for her lost property.112

11.3.2.1 Trespass to goods Trespass is an historical cause of action which protects possessory interests. A party in possession of a chattel can sue in trespass for a deliberate, direct inference with it, even though the property (ownership) in the chattel may be in another at that time.113

This tort relates to movables and can include animals as well as other goods. Originally, trespass to goods required the carrying off of the goods, but later was modified to include damage to goods or unauthorised use of goods, even if they were returned undamaged. There has to be a direct link between the conduct of the defendant and the goods, and the act complained of must be wilful, although the motive may be irrelevant, so that where goods are removed for safekeeping, this will not be a valid defence.114 For an action in trespass to goods to succeed, there need not be proof of any special damage; the tort is actionable by itself. Damages payable may be nominal, or may be based on what the plaintiff might have earned from the property if it had not been interfered with: for example, the fares a taxi might have earned if not removed from the premises. This represents damages for loss of use or loss of profit arising from deprivation of the goods. Where the goods are carried off and the plaintiff is deprived of them, the plaintiff is entitled to the value of the goods. As indicated in the quotation above, the right to bring an action for trespass to goods is grounded in possession rather than ownership, so, for example, a bailee of goods would have the right to bring an action against a third party. Whether a right to immediate – as opposed to actual – possession is sufficient, is unclear. The Australian High Court has held that actual possession is required,115 whereas English case law

111 See R v Inwood (1974) 60 Cr App R 70. See also Public Prosecutor v Firiam [1998] VUSC 85, in which the accused were found guilty of the theft of trochas shells and were sentenced to a fine and, in default of payment, imprisonment, and ordered to pay compensation to their employer from whom they had stolen the shells. Similarly in Ligairi v State [2001] FJHC 24, the accused damaged a police camera. He was found guilty of criminal damage to property, fined, and ordered to pay compensation for the costs of the camera. Provision for the making of compensation payments also exists under statute, eg, s 250(3) Crimes Act 1969 (Cook Islands), s 45 Penal Code, Cap 8 (Tuvalu). Customary compensation payments may be taken into account by the courts in criminal cases: see R v Asuanu [1990] SILR 201. 112 Public Prosecutor v Noses [1991] VUSC 1. Provision for this linking of actions falls under ss 213–217 Criminal Procedure Code, Cap 136. 113 ANZ Bank (Vanuatu) Ltd v Marchand [2001] VUCA 5. 114 If contact with the property is inadvertent or unintentional then an action may still lie in the tort of negligence. 115 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

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has suggested that a right to immediate possession may be sufficient.116 Perhaps a pragmatic approach would be for the court to ask whether the exercise of legal rights will be frustrated by denying the action. For example, in the case of executors waiting for letters of probate, there may be a need to retrieve documents wrongfully removed from the estate of the deceased by way of an action of trespass. Here, although the executors are not yet in actual possession, to deny them the action would mean it would be very difficult for them to carry out their duties.117 It is interesting to note that the tort of trespass to goods may be claimed to protect civil liberties, or to challenge the actions of the police under search warrants118 or the state in taking property in times of emergency.119

11.3.2.2 Trespass to land The remedy sought in the case for trespass to land will usually be damages and an order of some sort from the court to restore possession of the land to the plaintiff.120 This might be by way of an order of re-entry, a writ of ejectment, or an injunction. Trespass is actionable without having to prove harm, so the plaintiff is entitled to an award of damages. These may only be nominal if no actual harm has been done, but may be more substantial and in some cases may be compensatory or exemplary. In the Vanuatu case of Kippion Harry and Others v Attorney-General and The China Chang Jiang Energy (Group), a claim for trespass and damages was upheld in the context of a hydro-electricity scheme.121 The case illustrates some of the problems in determining damages for trespass in the case of customary land, and the challenges of calculating damages – here to trees – when there is no established basis for such calculations in island countries of the South Pacific. It should be noted that trespass to land can be committed by humans or animals.122

11.3.3 Money payments based on property interests Although there will often be a contractual or tortious foundation for a claim to a money remedy, there are some situations that are specific to property interests and so which are dealt with separately here.

116 Wilson v Lombank [1963] 1 WLR 1294. 117 Examples of regional cases where trespass to goods has been claimed include Bank of Tonga v Peacock [1996] Tonga LR 175, where the bank wrongly seized three freezers, one fridge/freezer and a tractor, believing them to be secured by the bank; ANZ Bank (Vanuatu) Ltd v Francois Marchand [2001] VUCA 5, where there were claims for loss of earnings on the basis of trespass to goods in the case of a seized caterpillar bulldozer; and Reef Pacific Trading Ltd v Price Waterhouse [1997] SBHC 14. 118 Zalao v Attorney-General [1996] SBHC 45. 119 Considered in the Solomon Island case of Ulufa’alu v Attorney-General [2001] SBHC 81. 120 A typical example of the type of remedy used can be seen in the case of Bopi v Pasa [1990] SBHC 1, in which the plaintiff was awarded damages and the defendant was issued with a restraining order preventing him from entering or remaining on the plaintiff’s land – where he had made a garden – without the express permission of the plaintiff. 121 [1994] VUSC 1. 122 See Funua v Cattle Development Authority [1983] SILR 55.

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11.3.3.1 Damages for repudiation of a lease In English common law, although leases were originally regarded as belonging to the law of contract, certainly since the early part of the 20th century leases have been regarded as conferring an interest in land. Consequently it has been held that where a lease is repudiated, damages are not available under the normal contractual principles.123 However, other common law jurisdictions have rejected this approach and held that a contract of lease is like any other contract, and that therefore where the contract is repudiated, damages for loss of prospective profits are available.124 This approach seems to have been followed in island countries of the South Pacific: for example, in the case of Simon Dorsen v Frederick Brysten, where the landlord’s bad treatment of the tenant was accepted as being sufficient to amount to a repudiation of the contract and damages were allowed not only for actual lost profits, but also for prospective profits which would have accrued had the tenant been able to see out the remainder of the lease.125

11.3.3.2 Mesne profits If a person suffers loss through being out of possession of the land, for example, loss of profits or income derived from the land, he or she may sue for mesne profits.126 The remedy is compensatory – for deprivation of use and occupation of the land – and may be claimed as well as damages for trespass. The calculation of compensation is assessed according to the rental value of the land.127 This is based on a very ancient action in common law and enables the plaintiff to claim profits taken by the defendant and to claim damages for any deterioration plus costs of getting possession.128 The remedy – despite its ancient and now outdated origins – has been introduced into the island countries of the South Pacific129 and raised in a number of cases.130 For example, in the case of Irene Bongnaim v Government of Vanuatu,131 the appellant claimed he had a lease of land, which was disputed by the government. It turned out that a lease had never been properly granted and that the appellant had not paid the moneys which would have been due under a lease or under a contractual licence of some sort. The details of the arrangement were too vague for the court even to find a contract, and therefore the appellant was a squatter or trespasser. On appeal, an order to vacate the premises and pay outstanding rent, mesne profits and costs was made.

123 See Lord Denning MR in Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318 at 324. 124 See, eg, Shevill v Builders’ Licensing Board (1982) 149 CLR 620. 125 [2001] VUCA 6. 126 The term used goes back to the feudal structure of land holding in England and refers to the rights of the tenant to take the rents and profits from the land in order to be able to pay, in turn, his dues to the overlord. 127 Clifton Securities v Huntley [1948] WN 267. 128 Fifita v Fie’eiki (No 2) [1995] Tonga LR 187. 129 See, eg, reference in s 5(2) Order 3, the Western Pacific (Courts) Order in Council 1961. 130 See, eg, Ching v Elisara [2000] WSSC 40; Kiere v Han Sin Construction Ltd [1999] SBHC 113; Singh v Bhadra [1995] FJCA 13. 131 [2001] VUSC 2. See also AG v Yaviong [1995] VUMC 1.

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11.3.3.3 Liability to account This is a remedy available to a person who has been deprived of property, to which that person is entitled, as a result of a breach of fiduciary duty. Often this will arise in the context of trusts, but it is not limited to this. It is a personal remedy against the defendant and overlaps with the proprietary remedy attaching to the unauthorised profits made by the defendant as a result of a breach of fiduciary duty. Where the defendant has funds then the personal remedy will be sufficient, but where the defendant is insolvent or bankrupt, or possibly out of the country, then a proprietary remedy may be preferred. Liability to account may also be used where property is lost as a result of a breach of a fiduciary duty, for example, where a trustee has invested in unauthorised investments, or where there has been wilful default on the part of the trustee in carrying out the tasks and duties expected of him. Liability to account may be a useful remedy in intellectual property cases, for example, where there has been a breach of confidence and profits have been made from this;132 in employment relationships, for example, where an agent has accepted a bribe – and this could include a government agent;133 and in fiduciary situations, for example, where a trustee has obtained a personal advantage or benefit from a breach of trust – whether that trust is an express trust or a constructive one.134

11.3.4 Compensation In certain circumstances the payment of compensation is provided for as a remedy under statute, including under the constitutions of island countries of the South Pacific, especially in the case of the compulsory acquisition of property – not just land – by the State.135 As has been indicated previously, in all jurisdictions of island countries of the South Pacific there is provision for the acquisition of property by the State,136 either for public purposes or for emergency purposes,137 and also the constitutions of island countries of the South Pacific confer protection on property rights under the fundamental right provisions. Where fundamental rights are breached then it has been established that compensation is payable by the State.138 In most jurisdictions, where property is acquired compulsorily, compensation is payable, although this will not always be in money and may not be to all the

132 Seager v Copydex Ltd [1967] 1 WLR 923. 133 In English law see Lister & Co v Stubbs (1890) 45 Ch D 1, CA, and more recently AG for Hong Kong v Reid [1994] 1 AC 324. In island countries of the South Pacific such conduct might also amount to a breach of the leadership code and attract criminal sanctions, see the Solomon Islands case of R v Musuota [1997] SBHC 7. 134 See, eg, the Solomon Island case of Kanaifiolo v Umai [1996] SBHC 49, where trustees of a family fund wrongfully directed monies from logging into accounts other than the trust account. 135 See, eg, s 40 of the amended 1997 Constitution (Fiji); s 5(5) of the Constitution of Marshall Islands, 1988. 136 Eg, Expropriation for Public Utility Act Cap 36 (Vanuatu), Taking of Land Act 1964 (Samoa), Neglected Lands Ordinance Cap 62 and State Acquisition of Lands Ordinance Cap 95B (Kiribati). 137 See Chapter 7. 138 Maharaj v AG of Trinidad and Tobago [1947] AC 385.

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beneficiaries of the land. 139 The formulae for calculating compensation vary considerably. For example, in Kiribati, where the High Court is involved in the assessment of compensation if this cannot be agreed by negotiation, the court must take into account the value of the land, the damage suffered by landowners regarding loss of the use of trees and crops, the costs of removal from the land and the costs of relocation.140 In Samoa, if the land is burdened by a mortgage then compensation can also be directed towards paying off the mortgage.141 There are a number of difficulties with compensation payments in island countries of the South Pacific besides the difficulty of calculating compensation for land which until acquired and developed may not have a market value.142 There is also the difficulty of to whom compensation is to be paid. For example, in Tuvalu, when land was required for the airport on the island of Fanafuti in 1963, compensation was paid to heads of families for distribution. This mechanism works, provided all the members of the family are present or ascertainable and the head of the family can be relied on to distribute the benefit. Where a lump sum compensation is paid then it is not uncommon in countries of the South Pacific for disgruntled successors in title to want to reopen the calculation of compensation. Some arrangements for compensation allow this. For example, in the Marshall Islands there is provision to review the lump sum payments made as compensation for land taken for American military purposes. The consequence of this has been that the number of applicants has escalated and the sums payable have risen considerably.143 Where compensation is paid not as a capital sum but as annual rental, changes in numbers of claimants and successors in title may be more easily accommodated, but the review of rentals may lead to a situation where custom owners can demand very high prices from governments seeking to maintain public utilities and services such as airports, hydro-electricity dams, roads and wharves. Where land is taken in breach of fundamental rights and compensation to which a plaintiff is entitled is not paid, there is authority to suggest that an order may be made against the State. This was done in a recent case from the Commonwealth, Gairy v Attorney General of Grenada,144 where property had been taken by the State during a period of political unrest. The property had subsequently been returned, but compensation payments were still outstanding. The Privy Council, in considering the

139 Eg, in Tonga compensation is payable only to those with land interests and excludes those who may have the mere use or occupation of the land – Land Act Cap 132. 140 State Acquisition of Lands Ordinance Cap 95B. For a detailed schedule relating to the calculation of compensation see the Lands Act 1976 of Nauru. 141 Taking of Land Act 1964. Compensation may also take the form of the granting of an easement – ss 52–53. 142 See Angelo, AH, ‘Compulsory Land Acquisition in Small Pacific Communities – thoughts on Land Valuation’ (1995) 23 MLJ 183. 143 Eg, the lump sum payment for one lease in 1964 was $US750,000. It was renegotiated in 1970 and the sum was $US420,000 per year for the next five years, ie, $US2,100,100. In 1976 this sum was again renegotiated, to $US704,000 per year, and in the early 1980s had risen to $US49 million per year. Between 1970 and the 1980s the number of claimants had risen from 1,470 to 5,000. Mason, L, ‘Tenures from Subsistence to Star Wars’ in Crocombe, R (ed), Land Tenure in the Atolls, 1987, Suva, Institute of Pacific Studies: University of the South Pacific, p 23. 144 [2001] 4 LRC 671 (PC). It has previously been suggested in Privy Council decisions that ‘property’, where protected by fundamental rights, need not be narrowly construed and could, for example, include choses in action – AG of the Gambia v Jobe [1985] LRC (Admin & Const) 556 (PC).

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matter, accepted that there had been a breach of a constitutional right protected under the 1976 Constitution of Grenada, and there was a right to an effective remedy. An order was made against the Minister of Finance of the State, the court holding that the State was not above the law in such matters.

11.3.5 Conversion and detinue 11.3.5.1 Conversion A claim based on conversion is available where a person deals with goods belonging to another without the owner ’s consent.145 Whereas trespass to goods is mere interference with the goods physically, conversion is the denial of the plaintiff’s title to them – either by taking them and using them, or, more usually, by selling them. Conversion protects ownership as well as possession. Trespass to goods only protects possession. However, an owner who has no right to immediate possession will not be able to sue in conversion. Conversion can take a number of forms, for example, refusal by the bailee of goods to return them,146 altering the nature of goods, damaging goods in such a way as to make them unreturnable, dealing with goods in a prohibited way,147 or destroying goods completely. Damages for conversion are calculated so that the plaintiff recovers the market value of the thing plus special damages. The measure of damages is calculated at the date of the conversion.148 Alternatively the defendant may be ordered to hand back the goods plus special damages, less any improvements made to the goods by the defendant. Conversion is not applicable where the taking of the goods is only temporary and there is no intention to assert rights over the goods. However, taking something for temporary use where there is intention to deprive the owner of the goods – even if only temporarily – is conversion; for example, where a car is taken for ‘joy-riding’.149 Taking something by mistake is still conversion. 150 However, the involuntary reception of goods is not conversion,151 nor is an attempted disposition of goods not in possession of the person attempting to dispose of them, although the disposition may be void. The destruction or alteration of goods belonging to another in the possession of the person who alters or destroys them – for example, a pledgee – is conversion,152 even if the defendant is only an agent, for example, of the pledgee. Originally negligence was not sufficient for conversion, although it was for detinue. In English law, however, since 1977 the tort of conversion has included acts of negligence, so that the negligent bailee, for example, can be liable for the loss of the 145 See for a definition Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJKB 601, cited with approval by Scrutton LJ in Oakley v Lyster [1931] 1 QB 148. 146 As where a partner refuses to hand over partnership assets to the other partner – Tangitau v Paunga [1974–80] Tonga LR 92. 147 Opet v Mobil Oil Micronesia Inc [1987] SPLR 77, in which Mobil succeeded in an action for conversion against employees who had systematically embezzled money by using irregular accounting practices. 148 Rormy Posada v Miika Talanga [1988–89] Kiribati Law Reports 1. 149 Aitken v Richardson [1967] 2 NZLR 15. 150 Morris Hedstrom (Samoa) Ltd v H & J Retslaff Ltd [1980–93] WSLR 521. 151 Eg, when a thief slips a purse into a third party’s pocket, or unsolicited goods are sent to a person who did not order them. 152 Eg, if a hire car is used for smuggling, that is conversion: Moorgate Mercantile v Finch [1962] 1 QB 701.

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goods.153 Where a third party acquires goods from a seller who has no authority to sell them, the buyer may be liable in conversion even if he or she is innocent.154 Sometimes conversion and trespass to land are claimed together. For example, in the case of Stephen Seokovolomo v Eagon Resources Development Company Ltd and Others, there was a dispute over land that had been resolved in favour of the plaintiff, who now brought an action in trespass and conversion. The latter related to rights to timber which the defendants had logged. The court held: In the facts of this case, it cannot be denied there had been a dealing with the property (trees) of the Plaintiff which is inconsistent to his rights of ownership. The fact it had been done purportedly under cover of a valid licence and timber rights agreement is no defence.155

Damages for conversion and trespass were accordingly awarded.156 Conversion is an action against the wrongful retention of property. In island countries of the South Pacific conversion is also found in criminal law. For example, in the Solomon Islands, conversion falls under the Penal Code,157 and in the case of R v Adachi Requeo158 the accused was found guilty of the offence as a result of retaining a commission on freight charges for baggage handled by Solomon Airlines for his organisation, because he ‘converted the sum to his own use and benefit’.159 In such a case either the property may be confiscated by the State, or the accused may be ordered to return the property. Overlapping with conversion, but developed as a special form of it, is an action in trover. This is rarely used today, but reference to it can be found in cases of finders. The requirements for trover were that the plaintiff had been in possession of the property, had accidentally lost it, that the defendant had found the property and then converted it to his own use. The remedy, if the action was successful, was to restore the found property to the true owner.

11.3.5.2 Detinue Detinue was originally a remedy to cover the situation where a person voluntarily put his goods in the hands of another and the latter then refused to hand them back. Often the goods would have been transferred under contract or bailment. The right of the plaintiff was based on the right to claim immediate possession of the goods or their value. The circumstances which gave rise to detinue were different from trespass, because in trespass the wrong complained of – especially where there is trespass to goods – is interference with actual possession. If the plaintiff was successful in the 153 154 155 156

S 2(2) Torts (Interference with Goods) Act 1977. Ingram v Little [1961] 1 QB 31. [1999] SBHC 115, per Palmer J. Cf Tada v Usa [1996] SBHC 7, in which claims for trespass and conversion were unsuccessful. See also Usuli v Gagame [1997] SBHC 15, and Karezama v Jesina Ltd [1997] SBHC 26. In the UK and countries where this legislation applies, such as Tonga, since the Torts (Interference with Goods) Act 1977, it is probably not necessary to distinguish between an action in trespass and conversion. 157 S 271(1)(c)(ii). 158 [1998] SBHC 35. 159 See also s 160 Criminal Offences Act, Tonga, and s 279(1)(c) Penal Code Fiji Cap 17, which was applied in the case of Benefield v the State [1992] FJCA 19.

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action in detinue, the goods might be restored or damages awarded in lieu of them – for example, if they had perished. The advantage of detinue was that a plaintiff might sue for the return of specific goods, although the making of such an order was always discretionary. In English common law, detinue was abolished by the Torts (Interference with Goods) Act 1977. In English law, trespass to goods is also covered by this same Act, which is applicable in the South Pacific region in Tonga.160 Where the cut-off date is prior to 1977, however, it can be argued that detinue remains a separate remedy available in the region.

11.3.6 Equitable remedies A number of references have been made throughout this book to the parallel system of courts and law in the English legal system that developed in order to accommodate the changing needs of the times and people: the system of common law and common law courts and the system of equity and courts of equity. The two systems were brought together at the end of the 19th century and there has been one system of law and courts in England since then, and it was this unified system which was introduced into island countries of the South Pacific, so that there have never been separate courts of common law and equity in the South Pacific. However, this historical separation of common law and equity had various consequences, some of which are still relevant today. One of these is that besides the remedies offered by the common law, there are also equitable remedies. Equitable remedies will always be discretionary and the court is not bound to award them. Its decision to do so will be determined by the circumstances and such considerations as whether or not there has been delay, whether the party seeking an equitable remedy deserves it, and whether the award of such a remedy would be prejudicial to an innocent third party.

11.3.6.1 Damages An aggrieved successful plaintiff will usually be entitled to damages in common law. However, equitable damages may also be awarded. These may be awarded in place of an order of specific performance – another equitable remedy. The courts of the South Pacific region have the jurisdiction to make such an award. The advantage of such an award is that there may be greater flexibility in the process of assessment in order to ‘do equity’. For example, it was suggested in the English case of Wroth v Tyler that the calculation of equitable damages would be based on the value of the property at the date of judgment, rather than at the date of the breach – which is the normal point of assessment in common law – in the case of a contract for the sale of land.161

11.3.6.2 Orders of specific performance In a number of property cases where the matter is contractual, an order of specific performance may be sought. The requirements for this in the context of property will be the same as for other contractual situations. There must be an enforceable contract 160 Where the Act was followed in the case of Li v Katoa [1996] Tonga LR 195. 161 [1974] Ch 30. This case would only be persuasive in many of the island countries of the South Pacific, and has in fact been doubted in later English case law, namely, in the decision of the House of Lords in: Johnson v Agnew [1980] AC 367.

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and the award of damages must be regarded as insufficient in the circumstances.162 In particular, such an order may be made in the buyer’s favour where the contract is for the sale of a specific area of land, or for the sale of specific and unique goods.163 Where the contract is one involving money – such as a contract of loan – then an order of specific performance is unlikely to be made, unless damages would only be nominal, or the assessment of such damages is impossible.164 Where a contract in relation to certain property has to comply with formalities before it is enforceable then an order of specific performance will also not be available. Similarly, if the plaintiff has delayed in seeking a remedy or is at fault then such an order is unlikely to be awarded.165 If an order is likely to cause hardship to the defendant, entail supervision by the court, compel the performance of a personal service or be inequitable – as in the case of a contract with a minor – it will not be made. Where property has passed to a third party then an order of specific performance will not usually be made, provided the third party has acquired the property bona fide.166

11.3.6.3 Injunctions Injunctions, although always at the discretion of the court, will often be sought in property cases, either by themselves or in conjunction with other remedies. For example, where the tort of passing off has been committed, and one trader has suffered financially as a result of the passing off of goods by another trader, it is likely that an injunction to stop the practice will be sought as well as damages calculated in terms of loss of trade profits during the period of the tort.167 In many cases an injunction will be the most effective remedy, even if damages can be claimed. This is the case in trespass, where, although damages may be claimed as of right, if there is no physical damage to the land then the damages awarded may be nominal.168 Similarly in the case of nuisance, an injunction is likely to be sought to stop the nuisance. Often an injunction will be sought as an interlocutory measure pending the final outcome of litigation to put a temporary stop to the infringement of a property right. For such an injunction to be ordered, the court will have to be satisfied that there is at least a case to answer or a serious question to be tried, and that granting the injunction – which remains discretionary – will not be out of proportion 162 See Gulam Rasul v Native Land Trust Board, 91/1975 Fiji (unreported) www.vanuatu.usp.ac.fj/ paclawmat/Fiji_cases. In this case land subject to a lease agreement had been leased to a third party and divided in a manner which was inconsistent with the original grant. The court was only able to award damages, although it recognised that to do so defeated the just and reasonable expectations of the party. 163 Adderley v Dixon (1824) 2 LJOS Ch 103. 164 Eg, a contract to transfer an insurance policy where the value of such a policy is unknown or unascertainable with any certainty. 165 See the Fiji case of Ram Narayan and Another v Richard Hussain Shah (1975) 21 FLR 139 relating to a contract for the sale of land. Compare this case with that of Ram Shankar (Suva Bowling Club) v Suva City Council (1982) FLR 148, where an order of specific performance was granted to give effect to a sub-lease despite some delay. 166 Eg, in the case of Beti v Aufiu [1991] SBHC 1, the plaintiff failed in the claim for an order of specific performance of an oral contract relating to land because the land had been sold to a bona fide third party. 167 See, eg, the Fiji case of Diary Farm Co Ltd, Australian Dairy Farm Ltd and Dairy Farm Ice and Cold Storage Co Ltd v Dairy Farm Ice Cream Co Ltd (1980) 26 FLR 28. 168 See, eg, the Samoa case of West Samoa Trust Estate Corporation v Leoteleifaleese Tuionoula et al [1987] SPLR 437.

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to the harm complained of.169 If it is unlikely that the matter will proceed to trial then an interlocutory injunction is unlikely to be granted.170 Two forms of interlocutory injunctions having an impact on property and property rights are Anton Piller orders and Mareva injunctions.171 An Anton Piller order is used to stop the defendant destroying evidence which is deemed to be vital for pursuing an action against the defendant. The order allows the plaintiff to enter the defendant’s premises to look for and remove or copy items specified in the order. The justification for such an order is to facilitate the administration of justice. This type of order has been particularly useful in pursuing intellectual property rights.172 Because an element of surprise is required if the purpose of the order is not to be frustrated by the destruction of material, an application is made ex parte on the basis that there is a strong prima facie case that the applicant faces serious potential damage if the case cannot be supported by necessary evidence, that there is a real possibility that such evidence will be destroyed, and that to grant such an order will not cause any real harm to the defendant or his case. The order has to be served by a lawyer, who must accompany the plaintiff or the plaintiff’s representative to the premises of the defendant and explain to the defendant the nature of the order. The defendant, or the defendant’s representative, must be present on the premises during the search and no items can be removed unless inventoried. Such a search can take place only during normal business hours and the plaintiff has to give an undertaking as to any damages the defendant suffers as a result of the order, and if the court decides that these are payable. Failure to comply with these requirements may be fatal to the original application, or may lead to the setting aside of an order which has been granted.173 A Mareva injunction operates to freeze the assets of the defendant to litigation. Usually the purpose is to keep these ‘frozen’ assets within the jurisdiction of the court, but a Mareva injunction may also be used to reach assets beyond the physical area of the court’s jurisdiction. The purpose of this is to ensure that if the plaintiff is successful, there are assets which can be used to meet the orders of the court. To apply for such an injunction the applicant must show, first, that it is likely that there will be a successful judgment against the defendant for a sufficiently certain sum and, secondly, that there are reasonable grounds for believing that the defendant has assets within the jurisdiction of the court which he will seek to put out of the reach of the applicant 169 As Palmer J stated in the Solomon Island case of AG v Super Entertainment Centre Ltd [1996] SBHC 24, there must be ‘triable issues’. If it appears that damages would be sufficient or if there has been undue delay – both relevant in this case – then an injunction will not be ordered. Compare the case of Nelson Kile v Maga Corporation Ltd and Others [1996] SBHC 5, in which an interlocutory injunction was granted to restrain the felling of timber. 170 Eg, in the case of Carmel v Satya [1996] SBHC 39 & 48 179/1996, the plaintiff who was a tenant of property, sought an interlocutory injunction to prevent the sale of the premises. There was insufficient evidence to establish that there had ever been an agreement in favour of the plaintiff. 171 The labels are taken from the cases in which these injunctions were granted: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 and Nippon Yusen Kaisha v Kaageorgis and Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509 (CA). 172 Eg, the pirating of videos and records. It can also be used in cases of passing off, as was done in Fiji where a soft drinks company used a well known brand of bottles to sell their produce – Carlton Brewery (Fiji) Ltd v Bubble Up Investments Ltd [1998] FJHC 70. 173 As happened in the Fiji case of Television Broadcast Ltd v Yee Ting Man [1998] FJHC 3. This is a pirate video case and has some interesting discussion on the origins and development of the Anton Piller order drawn largely from the writing of Lord Denning.

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before judgment is given. Before an order is granted, the court must be persuaded that there is at least a good arguable case.174 The applicant will also have to assure the court that, should the case be unsuccessful, the applicant has sufficient assets to meet any damages awarded against him. The applicant himself must disclose all relevant information to the court. If this is not done then an order may be refused.175 English courts have held that a Mareva injunction may be global in effect.176 Within island countries of the South Pacific such an approach seems to make good sense, and it has been adopted with approval in cases such as Merchant Bank of Fiji Ltd v Girdhar Lal Raniga & Suresh Maharaj.177 A Mareva injunction will not be available to freeze assets being sought under criminal proceedings brought either within the jurisdiction or outside, nor for freezing assets claimed under separate civil proceedings.178 Because of the difficulties and costs of pursuing property outside the jurisdiction of the court, even if a Mareva injunction is applied globally, a court may well prefer to see a payment into court rather than grant a Mareva injunction.179

CONCLUSION Because there can be so many forms of property and such a variety of interests in property, it is not surprising that there are a great many remedies available, depending on the nature of the property and the interest which the plaintiff claims has been infringed. Most of the remedies, apart from self-help, which have been considered above are imposed as a result of court intervention. Consequently, although one party may be satisfied with the outcome because a remedy is available, the other party may not be, as they may see the remedy as unfair or inequitable. The only way to avoid this situation is to arrive at a compromise or negotiated settlement where both parties are happy with the outcome and both parties think it is fair. This sometimes happens when matters are settled outside the formal court structure either in traditional ways, or by way of more modern alternative dispute resolution methods. The difficulty with this latter solution is that although both parties are satisfied with the outcome at the time, later parties, such as successors in title to land, may want to reopen the dispute because they do not, with hindsight, feel that the remedy obtained was the best possible. Even where a dispute has been resolved by the courts and is regarded as res judicata, there may still be an urge to reopen the matter and seek a more satisfactory remedy. The role of the law, whatever its source, is to provide the means whereby those claiming property interests may seek to protect those interests by recourse to 174 This is more onerous than simply establishing a prima facie case. For a useful discussion of the development of Mareva injunctions in English law, see the Samoan case of US Attorney’s Office for the Western District of Washington v Private International Development Bank of American Samoa [2000] WSSC 35. 175 As was the case in Australian Competition and Consumer Commission v Golden Sphere International Inc [1998] VUSC 24, in which both a Mareva injunction and an Anton Piller order were refused on the grounds that the applicants had committed an abuse of process by not first asking the court to recognise an Australian court order involving the same defendants. 176 Credit Suisse Fides Trust v Cuoghi [1998] QB 818. 177 [1993] FJHC 4. 178 See the unreported Samoan case of US Attorney’s Office for the Western District of Washington v Private International Development Bank of American Samoa [2000] WSSC 35, in which this was considered. 179 See, eg, Chan Wing (Vanuatu) Ltd v Motis Pacific Lawyers [1998] VUCA 6.

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remedies and enforcement procedures. If the remedies are rejected or cannot be enforced then property interests are threatened. If the people of island countries of the South Pacific are to exercise and enjoy their property rights, they need to be able to do so knowing that there are effective remedies available to them to meet changing needs and changing times.

INDEX Abandonment . . . . . . . . . . . . . . . . . . . 183, 206 Abatement . . . . . . . . . . . . . . . . . . . . . . . 92, 270 Account, liability to . . . . . . . . . . . . . . . . . . 279 Acquisition of property additions to property human-made . . . . . . . . . . . . . . . . . . 172–74 natural . . . . . . . . . . . . . . . . . . . . . . . . 171–72 adverse possession . . . 14, 133, 166–67, 169 capacity to acquire . . . . . . . . . . . . . . 149–51 age . . . . . . . . . . . . . . . . . . . . . . . . . . . 150–51 nationality. . . . . . . . . . . . . . . . . . . . . 149–50 compulsory . . . . . . . . . . . . . . . . . . . . 170–71 equitable interest charge . . . . . . . . . . . . . . . . . . . . . . . . 177–78 constructive trusts. . . . . . . . . . 180–81, 182 estoppel. . . . . . . . . . . . . . . . . . . . 45–47, 181 express trust . . . . . . . . . . . . . . . . . . . . . . 177 lease . . . . . . . . . . . . . . . . . . . . . . . . . . 178–79 liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 mortgage. . . . . . . . . . . . . . . . . . . . . . 178–79 operation of law. . . . . . . . . . . . . . . . 179–81 equitable rights . . . . . . . . . . . . . . . . . 176–81 intermixture of goods . . . . . . . . . . . . . . . 174 legal rights . . . . . . . . . . . . . . . . . . . . . 151–76 liens possessory. . . . . . . . . . . . . . . . . . . . . 174–75 purchaser’s . . . . . . . . . . . . . . . . . . . 180, 182 trustees . . . . . . . . . . . . . . . . . . . . . . 180, 182 vendor’s . . . . . . . . . . . . . . . . . . . . . 180, 182 never owned property . . . . . . . . . . . 159–63 new property artistic, dramatic, literary or musical work. . . . . . . . . . . . . . 153–54 goodwill . . . . . . . . . . . . . . . . . . . . . . . . . 154 industrial designs . . . . . . . . . . . . . . 154–55 new movable object . . . . . . . . . . . . 151–53 trade marks. . . . . . . . . . . . . . . . . . . . 154–55 operation of law . . . . . . . . . . . . . . . . 171–77 original occupation . . . . . . . . . . . . . . 160–62 possessory liens . . . . . . . . . . . . . . . . . 174–75 property owned by another. . . . . . . 163–67 adverse possession. . . . . . . . . . . . . 14, 133, 166–67, 169 currency . . . . . . . . . . . . . . . . . . . . . . 163–64 finders . . . . . . . . . . . . . . . . . . . . . . . . 164–65 lengthy possession . . . . . . . . . . . . . 165–67 prescription . . . . . . . . . . . . . . . . . . . 165–67 time limit for recovery proceedings . . . . . . . . . . . . . . . . . 167–69 succession dissolved corporations . . . . . . . . . . . . . 176 on intestacy. . . . . . . . . . . . . . . . . . . . 175–76 taking possession without grant . . . . . . . . . . . . . . . . . . 159–69 transfer by owner effect of grant . . . . . . . . . . . . . . . . . . 156–58 form of grant . . . . . . . . . . . . . . . . . . 155–56 setting aside grant . . . . . . . . . . . . . . 158–59 wild creatures . . . . . . . . . . . . . . . . . . 162–63

Adverse possession . . . . 14, 133, 166–67, 169 Agency advantages . . . . . . . . . . . . . . . . . . . . . . . . 111 disadvantages. . . . . . . . . . . . . . . . . . . 111–12 flexibility. . . . . . . . . . . . . . . . . . . . . . . . . . 109 management of property . . . . . . . . . 109–12 powers of agent . . . . . . . . . . . . . . . . . 110–11 privity of contract . . . . . . . . . . . . . . . . . . 111 Air space. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Alienation See also Gifts; Sale abandonment . . . . . . . . . . . . . . . . . . 183, 206 bankruptcy compulsory. . . . . . . . . . . . . . . . . . . . 203–04 voluntary . . . . . . . . . . . . . . . . . . . . . 202–03 constructive trust. . . . . . . . . . . . . . . . 205–06 forfeiture. . . . . . . . . . . . . . . . . . . . . . . 204–05 intestate succession . . . . . . . . . . . . . . . . . 205 involuntary. . . . . . . . . . . . . . . . . 183, 203–05 operation of law . . . . . . . . . . . . . . . . 205–06 to State . . . . . . . . . . . . . . . . . . . . . . . . 204–05 voluntary . . . . . . . . . . . . . . . . . . . . . 183–203 Allotments . . . . . . . . . . . . . . . . . . . . 46, 89, 230 Annexation . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Anton Pillar orders . . . . . . . . . . . . . . . . . . 285 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Australia criminal possession. . . . . . . . . . . . . . . . . . 75 equitable ownership . . . . . . . . . . . . . . . . . 43 intellectual property . . . . . . . . . . . . . . . . 216 liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . 125 ownership of land . . . . . . . . . . 34, 35, 39, 40 sale of choses . . . . . . . . . . . . . . . . . . . . . . . 193 Bailment. . . . . . . . . . . . . . 15, 20, 21, 69, 70–71 Banaba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Bankruptcy compulsory . . . . . . . . . . . . . . . . 170, 203–04 preferences . . . . . . . . . . . . . . . . . . . . 195, 199 voluntary . . . . . . . . . . . . . . . . . . . . . . 202–03 Beneficial rights . . . . . . . . . . . . . . . . . . 140–41 Bikini Atoll . . . . . . . . . . . . . . . . . . . . . . . . . 144 Bills of sale . . . . . . . . . . . . . . . . . . . . . 156, 188 Bribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 British Guinea. . . . . . . . . . . . . . . . . . . . . . . . 34 See also Papua New Guinea British Solomon Islands Protectorate dispute resolution . . . . . . . . . . . . . . 240, 249 intellectual property . . . . . . . . . . . . 154, 215 land trust boards . . . . . . . . . . . . . . . . . . . 120 ownership of land . . . . . . . . . . . . . . . . 38, 48 Burial rights. . . . . . . . . . . . . . . . . . 101–02, 138

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Capacity to acquire property . . . . . . . . . . . . . . 149–51 to manage property. . . . . . . . . . . . . . 105–21 Carriers maritime lien . . . . . . . . . . . 9, 85–86, 261–62 possession of chattels . . . . . . . . . . . . . 73–74 registration . . . . . . . . . . . . . . . . . . . . 227, 228 Ceremonial rights. . . . . . . . . . . . . . . . . . . . 139 Charges See also Mortgages fixed and floating . . . . . . . . . . . . . . . . . . 117 Chartered corporations . . . . . . . . . . . . 115–16 Chattels See Goods and chattels Chiefly rights . . . . . . . . . . . . . 48, 122–24, 140 dispute resolution . . . . . . . . . 17–18, 233–35 fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 matai . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 141 as property . . . . . . . . . . . . . . . . . . . . . . . . . 18 Chiefly titles dispute resolution . . . . . . . . . . . . . . . . . . 252 matai . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 141 as property . . . . . . . . . . . . . . . . . . . . . . . 2, 18 Children See Minors Choses in action . . . . . . . . . . . . . . . . . . . . . 4, 5 gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . 190–93 Choses in possession . . . . . . . . . . . . . . . . . . . 4 Christmas Island . . . . . . . . . . . . . . . . . . . . 144 Claim of right . . . . . . . . . . . 15, 77–79, 271–72 Co-operative societies . . . . . . . . . . . . 118, 176 Co-ownership co–parcenary . . . . . . . . . . . . . . . . . . . . . . 29n in common . . . . . . . . . . . . . . . . . . . . . . 29, 30 conditional . . . . . . . . . . . . . . . . . . . 27, 31–33 customary. . . . . . . . . . . . . . . . . 30–31, 36, 37 joint ownership . . . . . . . . . . . . . . . . . . 29, 30 management of property . . . . . 105, 107–08 survivorship. . . . . . . . . . . . . . . . . . . . . . . . 30 tenancy by entireties . . . . . . . . . . . . . . . . . 29 unconditional. . . . . . . . . . . . . . . . . . . . 27, 31 Co-parcenary. . . . . . . . . . . . . . . . . . . . . . . . 29n Colour of right . . . . . . . . . 15n, 77–79, 271–72 Commissions dispute resolution . . . . . . . . . . . . . . . 240–41 Fiji Native Land Commission . . . . . . . . . . . . . . . . 30, 33, 241 Common rights . . . . . . . . . . . . . . . . . . . 137–38 Communal land See also Customary land alienation . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Companies chartered corporations . . . . . . . . . . . 115–16 goodwill . . . . . . . . . . . . . . . . . . . . . . . . 8, 154 limited or restricted rights . . . . . . . . . 11–12

management of property . . . . . . . . . 116–17 property after dissolution . . . . . . . . . . . 176 registration . . . . . . . . . . . . . . . . . . . . . . . . 227 Compensation. . . . . . . . . . . . . . . . . . . . 279–81 market value . . . . . . . . . . . . . . . . . . . . . . 280 Compulsory acquisition . . . . . . . 170–71, 212 Compulsory bankruptcy (liquidation) . . . . . . . . . . . . . . . . . . . 203–04 Conciliation. . . . . . . . . . . . . . . . . . . . . . 237–38 Constructive trusts . . . . . . . . . 45, 180–81, 182 alienation of property . . . . . . . . . . . . 205–06 beneficial interest in property . . . . . 264–65 bribes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 intermeddler . . . . . . . . . . . . . . . . . . . . . . 264 matrimonial property . . . . . . . . . . . . 265–66 as remedy . . . . . . . . . . . . . . . . . . . . . . 262–66 Contract, possession of chattels . . . . . . . . 79 Control over land chiefs and councils . . . . . . . . . . . . . . . . . 145 customary land . . . . . . . . . . . . . . . . . . . . 145 development . . . . . . . . . . . . . . . . . . . . . . 143 environmental considerations. . . . . 144–45 global considerations . . . . . . . . . . . . 144–45 natural resources . . . . . . . . . . . . . . . . 143–44 neighbours . . . . . . . . . . . . . . . . . . . . . 142–43 nuisance . . . . . . . . . . . . . . . . . . . . . . . 142–43 planning . . . . . . . . . . . . . . . . . . . . . . . . . . 143 sustainability of resources . . . . . . . . . . . 144 Conversion claim . . . . . . . . . . . . . . . . . 281–82 Cook Islands acquisition of property . . . . . . . . . . . . . 149, 150, 161, 162 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 burial rights . . . . . . . . . . . . . . . . . . . . . . . 101 carriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 chiefly rights . . . . . . . . . . . . . . . . . . . . . . . 18 corporations . . . . . . . . . . . . . . . . . . . . . . . 115 courts. . . . . . . . . . . . . . . . . . . . . 242, 243, 245 covenants . . . . . . . . . . . . . . . . . . . . . . . . . 100 Crown land . . . . . . . . . . . . . . . 34, 36, 38, 39 customary land . . . . . . . . . . . 41, 42, 43, 108 customary rules . . . . . . . . . . . . . 122–23, 124 dispute resolution . . . . . . . . . . . . . . . . . . 240 easements . . . . . . . . . . . . . . . . . . . . . . . . . . 97 environmental considerations . . . . . . . . . . . . . . . . . . . . 145 gifts . . . . . . . . . . . . . . . . . . 196, 197, 199, 200 hire-purchase . . . . . . . . . . . . . . . . . . . 21, 187 intellectual property . . . . . . . . . . . . 215, 216 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 limitation on recovery . . . . . . . . . . 168, 169 malicious damage . . . . . . . . . . . . . . . . . . 213 management. . . . . . . . . . . 105, 107, 108, 115 minister of lands . . . . . . . . . . . . . . . . . . . 119 ownership land . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 40 original and derivative . . . . . . . . . . . 47, 49 pearls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Index

possession of land . . . . . . . . . . . . . . . . . . . 53 preservation of documents . . . . . . . . . . 210 registration . . . . . . . . . . . . . . . . . . . . . . . . 220 sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 choses . . . . . . . . . . . . . . . . . . . . . . . . 191, 192 land . . . . . . . . . . . . . . . . . . . . . 188, 189, 190 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . . . . . 175 theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Corporeal property. . . . . . . . . . . . . . . . . . . . . 1 land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5 rights in. . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5 Courts appellate . . . . . . . . . . . . . . . . 242–43, 250–51 dispute resolution . . . . . . . . . . . . . . . 241–48 jurisdiction . . . . . . . . . . . . . . . . . . . . . 243–44 modified ordinary courts . . . . . . . . . 245–46 ordinary . . . . . . . . . . . . . . . . . . . . . . . 241–44 second–tier appellate . . . . . . . . . . . . . . . 243 special . . . . . . . . . . . . . . . . . . . . . . . . . 246–47 subordinate . . . . . . . . . . . . . . . . . . . 241, 243 superior. . . . . . . . . . . . . . . . . . . . . . . 242, 243 tribunals . . . . . . . . . . . . . . . . . . . . . . . 247–48 Covenants . . . . . . . . . . . . . . . . . . . . . . . 97–100 alteration. . . . . . . . . . . . . . . . . . . . . . . . . . 100 common law. . . . . . . . . . . . . . . . . . . . . 98, 99 in equity . . . . . . . . . . . . . . . . . . . . . . . 99–100 extinguished by agreement . . . . . . . . . . 100 freehold land . . . . . . . . . . . . . . . . . . . 98–100 leasehold land . . . . . . . . . . . . . . . . . . . . . 100 restrictive . . . . . . . . . . . . . . . . . . . 98, 99–100 successors in title. . . . . . . . . . . . . . . . 98–100 Credit unions . . . . . . . . . . . . . . . . 118–19, 176 Criminal damage trespass to goods . . . . . . . . . . . . . . . . 276–77 trespass to land . . . . . . . . . . . . . . . . . . . . 277 Criminal possession . . . . . . . . . . . . . . . 74–79 theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76–79 Crop lien . . . . . . . . . . . . . . . . . . . . 22, 259, 260 Crown land British colonies . . . . . . . . . . . . . . . . . . 34–37 colonies of cession. . . . . . . . . . . . . . . . 35–36 colonies of settlement . . . . . . . . . . . . . 34–35 customary land . . . . . . . . . . . . . . . . . . 36, 37 indigenous inhabitants. . . . . . . . . . . . 35, 36 land not British colonies. . . . . . . . . . . 37–38 prerogative . . . . . . . . . . . . . . . . 27–28, 33–39 modified . . . . . . . . . . . . . . . . . . . . . . . 36–37 not introduced . . . . . . . . . . . . . . . . . . 38–39 Crown property . . . . . . . . . . . . . . . . . . . . . 6, 7 Cultivation rights . . . . . . . . . . . . . . 12, 132–34 Custom, proof of. . . . . . . . . . . . . . . . . . 251–52 Customary land alienation . . . . . . . . . . . . . . . . . . . . . . . . . . 88 controls of chiefs and councils . . . . . . . 145 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 199, 200 mortgages. . . . . . . . . . . . . . . . . . . . . . . 88–89 multiple rights . . . . . . . . . . . . . . . . . . . . . . 16

291

original occupation . . . . . . . . . . . . . . 160–62 ownership. . . . . . . . . . . . . . . . . . . . . . . 30–31 by custom landowners . . . . . . . . . . . 41–43 co-ownership . . . . . . . . . . . . . 30–31, 36, 37 sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . 189–90 usufructuary rights . . . . . . . . . . . . . . . 13, 16 Damages. . . . . . . . . . . . . . . . . . . . . . . . . 272–75 compensatory . . . . . . . . . . . . . . . . . . . . . 273 in contract. . . . . . . . . . . . . . . . . . . . . . . . . 275 criminal. . . . . . . . . . . . . . . . . . . . . . . . 276–77 equitable . . . . . . . . . . . . . . . . . . . . . . . . . . 283 exemplary. . . . . . . . . . . . . . . . . . . . . . . . . 273 insurance . . . . . . . . . . . . . . . . . . . . . . . . . 273 nominal. . . . . . . . . . . . . . . . . . . 272, 275, 284 repudiation of lease. . . . . . . . . . . . . . . . . 278 in tort. . . . . . . . . . . . . . . . . . . . . . . . . . 273–75 Designs. . . . . . . . . . . . . . . . . . . . . . 154–55, 216 See also Intellectual property Determinable rights conditions . . . . . . . . . . . . . . . . . . . . . . . 10–11 protective trusts. . . . . . . . . . . . . . . . . . . . . 10 statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 void conditions . . . . . . . . . . . . . . . . . . 10–11 Detinue. . . . . . . . . . . . . . . . . . . . . . . . . . 282–83 Development controls . . . . . . . . . . . . . . . . 143 Dispute resolution ad hoc arrangements . . . . . . . . . . . . . . . . 249 appeals . . . . . . . . . . . . . . . . . . . . . . . . 250–51 chiefly decisions . . . . . . . . . . . . . . . . 233–35 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 combinations of methods. . . . . . . . . 248–49 commissions. . . . . . . . . . . . . . 30, 33, 240–41 conciliation . . . . . . . . . . . . . . . . . . . . . 237–38 costs. . . . . . . . . . . . . . . . . . . . . . . . . . . 249–50 courts See Courts custom, proof of. . . . . . . . . . . . . . . . . 251–52 expenses . . . . . . . . . . . . . . . . . . . . . . . 249–50 government administrators . . . . . . . 239–40 introduced institutions . . . . . . . . . . . 239–48 multiple interests in property . . . . . . . . 250 physical violence . . . . . . . . . . . . . . . . 235–37 standing arrangements. . . . . . . . . . . . . . 249 traditional processes . . . . . . . . . . . . . 233–38 Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 dominant tenement. . . . . . . . . . . . . . . . . . 93 ending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 legal or equitable . . . . . . . . . . . . . . . . . 94–95 prescription . . . . . . . 94, 95–96, 165–66, 166 public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 quasi-easements . . . . . . . . . . . . . . . . . 94, 96 rights becoming easements . . . . . . . . 96–97 servient tenement . . . . . . . . . . . . . . . . . . . 93 Wheeldon v Burrows rule . . . . . . . . . . . . . . 96

292

South Pacific Property Law

Ellice Islands See also Gilbert Islands; Tuvalu acquisition of property . . . . . . . . . . . . . . 161 Crown land . . . . . . . . . . . . . . . . . . 34, 35, 36 dispute resolution . . . . . . . . . . . . . . 239, 240 intellectual property . . . . . . . . . . . . 154, 215 ownership of land . . . . . . . . . . . . . . . . . . . 40 Enjoyment right . . . . . . . . . . . . . 6, 62, 141–48 Environmental controls. . . . . . . . . . . . 144–45 Equitable interest, acquisition charge . . . . . . . . . . . . . . . . . . . . . . . . . 177–78 constructive trusts . . . . . . . . . . . 180–81, 182 estoppel. . . . . . . . . . . . . . . . . . . . . 45–47, 181 express trust . . . . . . . . . . . . . . . . . . . . . . . 177 lease. . . . . . . . . . . . . . . . . . . . . . . . . . . 178–79 mortgage. . . . . . . . . . . . . . . . . . . . . . . 178–79 operation of law . . . . . . . . . . . . . . . . 179–81 Equitable remedies damages . . . . . . . . . . . . . . . . . . . . . . . . . . 283 injunctions . . . . . . . . . . . . . . . . . 126, 284–86 specific performance. . . . . . . . . 126, 283–84 Equitable rights . . . . . . . . . . . . . . . . . . . . . 2, 3 Estoppel . . . . . . . . . . . . . . . . . . . . . . 45–47, 181 Express trust . . . . . . . . . . . . . . . . . . 44–45, 177 Federated States of Micronesia courts. . . . . . . . . . . . . . . . . . . . . . . . . 242, 246 intellectual property . . . . . . . . . . . . . . . . 215 Kosrae State . . . . . . . . . . . . . . . . 55, 124, 246 liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 possession of land . . . . . . . . . . . . . . . . 55, 59 remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 255 restitution . . . . . . . . . . . . . . . . . . . . . . . . . 267 Fiji acquisition of property . . . . . 149, 150, 152, 160, 161, 162, 166–67 agency . . . . . . . . . . . . . . . . . . . . . . . . . 109–10 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 burial rights . . . . . . . . . . . . . . . . . . . . . . . 101 ceremonial gifts . . . . . . . . . . . . . . . . . . . . 139 chiefly rights . . . . . . . . . . . . . . . . . . . . . . 140 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 ‘clevers’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 co-operative societies . . . . . . . . . . . . . . . 118 constructive trusts . . . . . . . . . . . . 45, 264–65 courts. . . . . . . . . . . . . 241, 242, 243, 247, 248 credit unions. . . . . . . . . . . . . . . . . . . . . . . 118 criminal possession. . . . . . . . . . . . . . . . . . 75 crop lien . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Crown land . . . . . . . . . . . . . . . . . . . . . 34, 35 customary land . . . . . . . . . . . . . . . . . . 41–42 customary law . . . . . . . . . . . . . . . . . . . . . 126 customary rules . . . . . . . . . . . . . . . . . . . . 123 derivative ownership . . . . . . . . . . . . . . . . 49 dispute resolution . . . . . . . . 233n, 235, 236, 237, 239, 240, 241, 249

easements . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Electricity Authority . . . . . . . . . . . . . . . . 211 equitable interests . . . . . . . . . . . . . . 179, 181 equitable ownership . . . . . . . . . . . . . . . . . 46 forfeiture. . . . . . . . . . . . . . . . . . . . . . 205, 269 gifts . . . . . . . . . . . . . . . . . . 197, 199, 201, 202 hire-purchase . . . . . . . . . . . . . . . . 21, 187–88 intellectual property . . . . . . . . . . 6, 154, 216 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 liens . . . . . . . . . . . . . . . . . . . 22, 83, 84, 85–86 limitation on recovery . . . . . . . . . . . . . . 168 malicious damage . . . . . . . . . . . . . . 213, 214 management of property . . . . . . . 105, 107, 109–10, 113 minister of lands . . . . . . . . . . . . . . . . . . . 119 Museum Trust Board . . . . . . . . . . . . . . . 210 Native Land Commission . . . . . 30, 33, 241 Native Land Trust Board. . . . . . . 30, 33, 46, 60, 113, 120, 123, 140–41, 179 ownership of land . . . . . . . . . . . . 29, 30, 33, 38, 39, 40, 48 physical violence . . . . . . . . . . . . . . . . . . . 236 possession of land . . . . . . . 53, 58, 60, 62–63 prescription . . . . . . . . . . . . . . . . . . . . 166–67 preservation of documents . . . . . . . . . . 210 registration . . . . . . . . . . . 155, 219, 220, 221, 222, 224, 225, 226, 227, 228, 229, 230 ritual or symbolic rights . . . . . . . . . . . . . 102 sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 choses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 land . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 setting aside . . . . . . . . . . . . . . . . . . 194, 195 succession upon intestacy . . . . . . . . . . . 175 tapa designs . . . . . . . . . . . . . . . . . . . 104, 134 theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 tribunals . . . . . . . . . . . . . . . . . . . . . . 247, 248 Finders . . . . . . . . . . . . . . . . . . . . . . . . . 7, 67–69 abandoned property . . . . . . . . . . . . . . . . 166 lost property. . . . . . . . . . . . . . . . . . . . 165–66 obligation to hand in. . . . . . . . . . . . . . . . . 69 possessory rights . . . . . . . . . . . . . . . . . . . . 14 treasure trove . . . . . . . . . . . . . . . . . . . . . . 164 Fishing rights . . . . . . . . . . . . . . . . . . . . 135–37 Fixed charge. . . . . . . . . . . . . . . . . . . . . . . . . 177 Fixtures and fittings. . . . . . . . . . . . . . . 172–74 Floating charge . . . . . . . . . . . . . . . . . . . . . . 177 Flying freehold . . . . . . . . . . . . . . . . . . . . . . . . 7 Foraging rights . . . . . . . . . . . . . . . . . . . 135–37 Foreclosure . . . . . . . . . . . . . . . . . . . . . . . 87, 89 Foreshore . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 Forfeiture leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 proceeds of crime . . . . . . . . . . . . . . . 204–05 relief from . . . . . . . . . . . . . . . . . . . . . . . . . 269 remedy . . . . . . . . . . . . . . . . . . . . . . . . 268–69

Index

Fraudulent preferences . . . . . . . . . . . 195, 199 Freehold land . . . . . . . . . . . . . 98–100, 196–97 German New Guinea . . . . . . . . . . . . . . . . . 38 Gifts by will . . . . . . . . . . . . . . . . . . . . . . . . 199–201 choses in action . . . . . . . . . . . . . . . . . . . . . 197 customary land . . . . . . . . . . . . 197, 199, 200 dependants. . . . . . . . . . . . . . . . . . . . . . . . 201 duress . . . . . . . . . . . . . . . . . . . . . . . . 198, 200 freehold land . . . . . . . . . . . . . . . . . . . 196–97 future goods . . . . . . . . . . . . . . . . . . . . 197–98 gratuitous transfer. . . . . . . . . . . . . . 183, 196 inter vivos . . . . . . . . . . . . . . . . . . . . . . 196–98 mortis causa . . . . . . . . . . . . . . . . . . . . . 201–02 preferences . . . . . . . . . . . . . . . . . . . . . . . . 199 public policy . . . . . . . . . . . . . . . . . . . . . . 201 setting aside . . . . . . . . . . . . . . . . . . . . 198–99 undue influence. . . . . . . . . . . . . . . . 198, 200 Gilbert Islands See also Ellice Islands; Kiribati acquisition of property . . . . . . . . . . . . . . 161 Crown land . . . . . . . . . . . . . . . . . . 34, 35, 36 dispute resolution . . . . . . 233, 237, 239, 240 intellectual property . . . . . . . . . . . . 154, 215 ownership of land . . . . . . . . . . . . . . . . . . . 40 Goods and chattels. . . . . . . . . . . . . . . . . . . . . 4 See also Choses in action bailment . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 chattel security. . . . . . . . . . . . . . . . . . . . . 188 future choses . . . . . . . . . . . . . . . . . . . . . . . 198 future goods . . . . . . . . . . . . . 192–93, 197–98 intermixture of goods . . . . . . . . . . . . . . . 174 trespass to goods . . . . . . . . . . . . . . . . 276–77 Goodwill . . . . . . . . . . . . . . . . . . . . . . . . . 8, 154 Government administrators. . . . . . . . 239–40 Government ministers or departments . . . . . . . . . . . . . . . . . 119–21 Hire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19–20 Hire-purchase . . . . . . . . . . . 15, 20–21, 186–88 Human bodies. . . . . . . . . . . . . . . . . . . . . . . . . 6 body samples . . . . . . . . . . . . . . . . . . . . . . . . 9 Hunting rights . . . . . . . . . . . . . . . . . . . 135–37 Inchoate rights birthrights. . . . . . . . . . . . . . . . . . . . . . . . . . 10 inherited titles . . . . . . . . . . . . . . . . . . . . . . 10 maritime lien . . . . . . . . . . . 9, 85–86, 261–62 mortgages. . . . . . . . . . . . . . . . . . . . . . . . 9–10 Incorporated associations . . . . . . 117–19, 176 Incorporeal property . . . . . . . . . . . . . . . 1, 5–6 controls over . . . . . . . . . . . . . . . . . . . 146–48 goodwill . . . . . . . . . . . . . . . . . . . . . . . . 8, 154 money transfers . . . . . . . . . . . . . . . . . . . . . 80 possession. . . . . . . . . . . . . . . . . . . . . . . 79–80 reputation . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

293

Incorporeal rights. . . . . . . . . . . . . . . . . . . . 5–6 ritual rights. . . . . . . . . . . . . . . . . . . . . 102–04 symbolic rights . . . . . . . . . . . . . . . . . 102–04 taboos . . . . . . . . . . . . . . . . . . 102–04, 147–48 Individual ownership . . . . . . . . . . . 27, 28–29 Injunctions . . . . . . . . . . . . . . . . . . 126, 284–86 Anton Pillar orders . . . . . . . . . . . . . . . . . 285 Mareva injunctions . . . . . . . . . . . . . . 285–86 Intellectual property . . . . . . . . . . . . . . . 1, 5–6 artistic, dramatic, literary or musical work. . . . . . . . . . . . . . . . 153–54 copying . . . . . . . . . . . . . . . . . . . . 209, 214–16 designs . . . . . . . . . . . . . . . . . . . . 154–55, 216 image. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 indigenous music, song and dance . . . . . . . . . . . . . . . . . . . 147 trade marks . . . . . . . . . . . . . . . . . . . . 154–55 Intermeddler . . . . . . . . . . . . . . . . . . . . . . . . 264 Intestate succession . . . . . . . . . . . . . . . . . . 205 Kiribati See also Gilbert Islands acquisition of property . . . . . . . . . . . . . 149, 150, 160, 161 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 burial rights . . . . . . . . . . . . . . . . . . . . . . . 101 co-operative societies . . . . . . . . . . . . . . . 118 compensation. . . . . . . . . . . . . . . . . . . . . . 280 courts. . . . . . . . . . . . . . . . . 241, 242, 243, 245 customary land . . . . . . . . . 42, 110, 159, 160 customary law . . . . . . . . . . . . . . . . . . . . . 126 customary rules . . . . . . . . . . . . . . . . . . . . 122 dispute resolution . . . . . . . . . . . . . . 237, 240 easements . . . . . . . . . . . . . . . . . . . . . . . . . . 97 environmental considerations . . . . . . . . . . . . . . . . 144, 145 gifts . . . . . . . . . . . . . . . . . . 197, 199, 200, 201 hire-purchase . . . . . . . . . . . . . . . . . . . . . . 187 intellectual property . . . . . . . . . . . . 215, 216 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 limitation on recovery . . . . . . . . . . 168, 169 management of property . . . . . . . . . . . . 110 minister of lands . . . . . . . . . . . . . . . . . . . 119 ownership land . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 159 original and derivative . . . . . . . . . . . . . . 47 prerogative . . . . . . . . . . . . . . . . . . 36–37, 38 proof of custom . . . . . . . . . . . . . . . . . . . . 252 registration . . . . . . . . . . . . . . . 220, 221, 222, 225, 228, 229 sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 choses . . . . . . . . . . . . . . . . . . . . 190, 191, 192 land . . . . . . . . . . . . . . . . . . . . . 188, 189, 190 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . 175, 176 theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Kosrae State. . . . . . . . . . . . . . . . . . . . . . 55, 124

294

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Lagos Island . . . . . . . . . . . . . . . . . . . . . . . . 172 Land See also Freehold land; individual types (eg, Customary land) corporeal property . . . . . . . . . . . . . . . . . 4–5 tenure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5 Leases . . . . . . . . . . . . . . . . . . . . . . . . . 19, 61–63 damages for repudiation . . . . . . . . . . . . 278 exclusive possession . . . . . . . . . . . . . . . . . 54 licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Legal rights . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 Licences . . . . . . . . . . . . . . . . . . . . 12, 59–61, 60 Liens . . . . . . . . . . . 15, 21–22, 69, 73–74, 81–86 carriers . . . . . . . . . . . . . . . . . . . . . . . . . 73–74 crop lien . . . . . . . . . . . . . . . . . . . 22, 259, 260 equitable . . . . . . . . . . . . . . . . . . . . 82–83, 259 exercise of . . . . . . . . . . . . . . . . . . . . . . 260–61 maritime . . . . . . . . . 9, 73–74, 85–86, 261–62 possessory . . . . . . . . . . . . . . 174–75, 258–59 purchaser’s. . . . . . . . . . . . . . . . . . . . 180, 182 recognition of . . . . . . . . . . . . . . . . . . . . . . . 82 statutory . . . . . . . . . . . . . . . . . . . . 84–85, 260 trustee’s. . . . . . . . . . . . . . . . . . . . . . . 180, 182 unpaid seller . . . . . . . . . . . . . . . . . . . 22, 260 vendor’s . . . . . . . . . . . . . . . . . . . . . . 180, 182 Light, rights relating to . . . . . . . . . . . . . . . . . 7 Limited partnerships . . . . . . . . . . . . . . 112–13 Limited or restricted rights. . . . . . . . . . 11–12 common law principles . . . . . . . . . . . . . . 12 companies. . . . . . . . . . . . . . . . . . . . . . . 11–12 licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 permission . . . . . . . . . . . . . . . . . . . . . . . . . 12 planning controls . . . . . . . . . . . . . . . . . . . 12 Lost modern grant . . . . . . . . . . . . . . . . 95, 166 Lost property . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 finders . . . . . . . . . . . . . . . . . . . . . . . . 7, 67–69 possessory rights of finder. . . . . . . . . . . . 14 trespassers . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Magic formulas. . . . . . . . . . . . . . . . . . . . . . . . 2 Management of property agents . . . . . . . . . . . . . . . . . . . . . . . . . 109–12 beneficial rights . . . . . . . . . . . . . . . . . 140–41 chartered corporations . . . . . . . . . . . 115–16 common law rules. . . . . . . . . . . . . . . 124–26 companies. . . . . . . . . . . . . . . . . . . . . . 116–17 controls incorporeal property. . . . . . . . . . . . 146–48 movables . . . . . . . . . . . . . . . . . . . . . . . . . 146 over land . . . . . . . . . . . . . . . . . . . . . . 142–48 use and enjoyment . . . . . . . . . . . . . 141–48 corporate bodies . . . . . . . . . . . . . . . . 115–19 credit unions. . . . . . . . . . . . . . . . . . . . 118–19 customary rules . . . . . . . . . . . . . . . . . 122–24 equitable rules . . . . . . . . . . . . . . . . . . 124–26 government ministers or departments. . . . . . . . . . . . . . . . . 119–21

incorporated associations. . . . . . . . . 117–19 multiple owners . . . . . . . . . . . . 105, 107–08 neighbours . . . . . . . . . . . . . . . . . . . . . 142–43 nuisance . . . . . . . . . . . . . . . . . . . . . . . 142–43 owners . . . . . . . . . . . . . . . . . . . . 105, 106–07 partnerships . . . . . . . . . . . . . . . . . . . . 112–13 public interest . . . . . . . . . . . . . . . . . . 105–06 restricted management. . . . . . . . . . . 122–28 semi–governmental corporations . . . . . . . . . . . . . . . . . . . 120–21 trusts . . . . . . . . . . . . . . . . . . . . . . . . . . 113–15 unrestricted freedom . . . . . . . . . . . . 121–22 use of property See Use of property Mareva injunctions . . . . . . . . . . . . . . . 285–86 Marine resources . . . . . . . . . . . . . . . . . . . . 144 Maritime lien . . . . . . . . . . . . 9, 85–86, 261–62 Market value . . . . . . . . . . . . . . . . . . . . . . . . 280 Marshall Islands. . . . . . . . . . . . . . . . . 137, 144 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 compensation. . . . . . . . . . . . . . . . . . . . . . 280 courts. . . . . . . . . . . . . . . . . . . . . 241, 242, 245 customary rules . . . . . . . . . . . . . . . . . . . . 122 malicious damage . . . . . . . . . . . . . . 213, 214 mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . 89 Matai . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 141 Medicinal formulas . . . . . . . . . . . . . . . . . . . . 2 Medicinal plants. . . . . . . . . . . . . . . . . . . . . . . 9 Mesne profits . . . . . . . . . . . . . . . . . . . . 90, 278 Minerals . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7–8 meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Minors acquisition of property . . . . . . . . . . . . . . 150 capacity to acquire property . . . . . . 150–51 limited or restricted rights . . . . . . . . . . . . 11 management of property . . . . . . . . . . . . 106 trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Mortgages . . . . . . . . . . . . . 9–10, 63–65, 86–89 custom owned land . . . . . . . . . . . . . . 88–89 discharge . . . . . . . . . . . . . . . . . . . . . . . . . . 89 equitable . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 equitable right to redeem . . . . . . . . . . . . . 87 equity of redemption . . . . . . . . . . . . . . . . 88 foreclosure . . . . . . . . . . . . . . . . . . . . . . . . . 87 formalities. . . . . . . . . . . . . . . . . . . . . . . 88, 89 legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 right to redeem . . . . . . . . . . . . . . . . . . . . . 87 Multiple rights . . . . . . . . . . . . . . . . . . . . . . . . 7 Native land . . . . . . . . . . . . . . . . . . . . . . . . . 136 Natural resources . . . . . . . . . . . . . . 17, 143–44 Nauru acquisition of property . . . . . . . . . . 160, 161 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 courts. . . . . . . . . . . . . . . . . . . . . 241, 242, 244 customary land . . . . . . . . . . . . . . . . . 43, 159 gifts . . . . . . . . . . . . . . . . . . 197, 199, 200, 201

Index

intellectual property . . . . . . . . . . . . . . . . 216 intestate succession . . . . . . . . . . . . . . . . . 205 limitation on recovery . . . . . . . . . . . . . . 169 ownership land . . . . . . . . . . . . . . . . . 29, 38, 39, 48, 159 original and derivative . . . . . . . . . . . . . . 47 proof of custom . . . . . . . . . . . . . . . . . . . . 252 sale choses . . . . . . . . . . . . . . . . . . . . . . . . 191, 193 property. . . . . . . . . . . . . . . . . . . . . . . . . . 184 succession upon intestacy . . . . . . . 175, 176 taking without permission. . . . . . . . . . . 214 Neglected land . . . . . . . . . . . . . . . . . . . . . . . . 8 Neighbours . . . . . . . . . . . . . . . . . . . . . . 142–43 Nemo dat principle . . . . . . . . . . . . . . 156, 157 New Hebrides See also Vanuatu co-operative societies . . . . . . . . . . . . . . . 118 dispute resolution . . . . . . . . . . . . . . . . . . 239 intellectual property . . . . . . . . . . . . 154, 215 land trust boards . . . . . . . . . . . . . . . . . . . 120 ownership of land . . . . . . . . . . . . . . . . 38, 48 New property artistic works . . . . . . . . . . . . . . . . . . . 153–54 goodwill of business . . . . . . . . . . . . . . . . 154 industrial designs . . . . . . . . . . . . . . . 154–55 trade marks . . . . . . . . . . . . . . . . . . . . 154–55 New South Wales . . . . . . . . . . . . . . . . . . 34, 35 New Zealand acquisition of property . . . . . . . . . . . . . . 150 courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 criminal possession. . . . . . . . . . . . . . . . . . 75 Crown land . . . . . . . . . . . . . . . 34–35, 36, 39 customary land . . . . . . . . . . . . . . . . . . . . 108 equitable ownership . . . . . . . . . . . . . . . . . 43 finders . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69 limitation on recovery . . . . . . . . . . . . . . 168 ownership of land . . . . . . . . . . . . . . . . . . . 40 sale of choses . . . . . . . . . . . . . . . . . . . 193, 194 Niue acquisition of property . . . . . . . . . . 150, 161 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 carriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 corporations . . . . . . . . . . . . . . . . . . . . . . . 115 courts. . . . . . . . . . . . . . . . . . . . . 242, 243, 245 covenants . . . . . . . . . . . . . . . . . . . . . . . . . 100 Crown land . . . . . . . . . . . . . . . . . . 34, 36, 38 customary land . . . . . . . . . . . . . . . 41, 42, 43 derivative ownership . . . . . . . . . . . . . . . . 49 family guardian . . . . . . . . . . . . . . . . . . . . 110 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 199, 200 intellectual property . . . . . . . . . . . . 215, 216 limitation on recovery . . . . . . . . . . 168, 169 management of property . . . . 105, 107, 115 mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . 89 ownership of land . . . . . . . . . . . . . 29, 39, 40 reef resources . . . . . . . . . . . . . . . . . . . . . . 136 registration . . . . . . . . . . . . . . . . . . . . 220, 225

295

sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 choses . . . . . . . . . . . . . . . . . . . . . . . . 191, 192 land . . . . . . . . . . . . . . . . . . . . . 188, 189, 190 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . . . . . 175 Nuisance . . . . . . . . . . . . . . . . . . . . . 12, 142–43 Occupation actual. . . . . . . . . . . . . . . . . . . . . . . . . . . 54–55 non-occupation . . . . . . . . . . . . . . . . . . 55–56 Ocean Island . . . . . . . . . . . . . . . . . . . . . . . . . 44 Ocean level . . . . . . . . . . . . . . . . . . . . . . 17, 144 Ownership co-ownership See Co-ownership customary land See Customary land derivative . . . . . . . . . . . . . . . . . . . . . . . 47–49 equitable . . . . . . . . . . . . . . . . . . . . . . . . 43–47 estates in fee simple . . . . . . . . . . . 33, 39–40 estoppel. . . . . . . . . . . . . . . . . . . . . . . . . 45–47 express trust . . . . . . . . . . . . . . . . . . . . . 44–45 gender and . . . . . . . . . . . . . . . . . . . . . . 28–29 individual . . . . . . . . . . . . . . . . . . . . 27, 28–29 legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 management of property . . . . . 105, 106–08 meaning . . . . . . . . . . . . . . . . . . . . . . . . 26–28 original . . . . . . . . . . . . . . . . . . . . . . . . . 47–49 of rights. . . . . . . . . . . . . . . . . . . . . . . . . 25–26 substantive, by estate holders and custom landowners. . . . . . . 33, 39–43 of things . . . . . . . . . . . . . . . . . . . . . . . . 26–27 trusts constructive . . . . . . . . . . . . . . . . . . . . . . . 45 express. . . . . . . . . . . . . . . . . . . . . . . . . 44–45 Papua New Guinea acquisition of property . . . . . . 149, 150, 160 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 co-operative societies . . . . . . . . . . . . . . . 118 corporations . . . . . . . . . . . . . . . . . . . . . . . 115 courts. . . . . . . . . . . . . . . . . . . . . 241, 242, 246 covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 98 crop lien . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Crown land . . . . . . . . . . . . . . . . . . . . . 37, 38 customary land . . . . . . . 41, 42, 43, 108, 159 dispute resolution . . 236, 238, 239, 240, 241 equitable interests . . . . . . . . . . . . . . . . . . 179 equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 express trust . . . . . . . . . . . . . . . . . . . . . . . . 44 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 199, 201 hire-purchase . . . . . . . . . . . . . . . . . . . 21, 187 hunting, fishing and foraging . . . . . . . . 135 intellectual property . . . . . . . . . . . . . . . . 215 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 limitation on recovery . . . . . . . . . . . . . . 168

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management of property. . . . . . . . 108, 110, 111, 114, 115 ownership of land . . . . . . . . . 39, 40, 48, 159 physical violence . . . . . . . . . . . . . . . . . . . 236 proof of custom . . . . . . . . . . . . . . . . . . . . 252 registration . . . . . . . . . . . . . . . 220, 221, 222, 224, 225, 228 sale choses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 land . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 property . . . . . . . . . . . . . . . . . . . . . 184, 185 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . 175, 176 trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 usufructuary rights . . . . . . . . . . . . . . . 13, 16 voluntary bankruptcy. . . . . . . . . . . . . . . 202 Partnerships. . . . . . . . . . . . . . . . . . . . . . 112–13 Patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5–6 See also Intellectual property Pearls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Phosphates. . . . . . . . . . . . . . . . . . . . . . . . . . 7–8 Planning controls . . . . . . . . . 12, 127, 128, 143 Pledges . . . . . . . . . . . . . . . . . . 15, 18–19, 22–23 possession. . . . . . . . . . . . . . . . . 69, 70, 71–73 Possession . . . . . . . . . . . . . . . . . . . . . . . . 51–52 adverse . . . . . . . . . . . . . 14, 133, 166–67, 169 of chattels See Possession of chattels incorporeal property. . . . . . . . . . . . . . 79–80 of land See Possession of land Possession of chattels . . . . . . . . . . . . . . 66–67 bailment . . . . . . . . . . . . . . . . . . . . . 69, 70–71 carriers . . . . . . . . . . . . . . . . . . . . . . . . . 73–74 contractual . . . . . . . . . . . . . . . . . . . . . . . . . 79 criminal possession. . . . . . . . . . . . . . . 74–79 finders . . . . . . . . . . . . . . . . . . . . . . . . . . 67–69 liens . . . . . . . . . . . . . . . . . . . . . . . . . 69, 73–74 pledges . . . . . . . . . . . . . . . . . . . 69, 70, 71–73 salvage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Possession of land . . . . . . . . . . . . . . . . . 52–54 actual occupation . . . . . . . . . . . . . . . . 54–55 consensual . . . . . . . . . . . . . . . . . . . . . . 59–63 leases . . . . . . . . . . . . . . . . . . . . . . . . . . . 61–63 licences . . . . . . . . . . . . . . . . . . . . . . . . . 59–61 mortgages. . . . . . . . . . . . . . . . . . . . . . . 63–65 non-consensual . . . . . . . . . . . . . . . . . . 56–59 non-occupation . . . . . . . . . . . . . . . . . . 55–56 recovery of possession . . . . . . . 167–69, 267 ‘sleeping on rights’ . . . . . . . . . . . . . . . 55–56 squatters . . . . . . . . . . . . . . . . . . . . . . . . 56–59 tenants. . . . . . . . . . . . . . . . . . . . . . . . . . 61–63 torts and . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 trespassers . . . . . . . . . . . . . . . . . . . 56–59, 66 Possessory rights . . . . . . . . . . . . . . . . . . 14–15 adverse possession . . . 14, 133, 166–67, 169 claim of right . . . . . . . . . . . . . . . . . . . . . . . 15 finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

instalment payments . . . . . . . . . . . . . . . . 15 property held as security . . . . . . . . . . 14, 15 storage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Preferences . . . . . . . . . . . . . . . . . . . . . 195, 199 Prescription . . . . . . . . . . . . . . . . . . . . . . 165–67 Preservation of property . . . . . . . . . . . 209–10 Primary rights . . . . . . . . . . . . . . . . . . . . . . . . 18 Profits à prendre . . . . . . . . . . . 90–93, 165, 166 prescription . . . . . . . . . . . . . . . . . . . . 165–66 Property chiefly titles . . . . . . . . . . . . . . . . . . . . . . 2, 18 corporeal. . . . . . . . . . . . . . . . . . . . . . . . 1, 4–5 future goods . . . . . . . . . . . . . 192–93, 197–98 goods and chattels. . . . . . . . . . . . . . . . . . . . 1 incorporeal See Incorporeal property intellectual property . . . . . . . . . . . . . . . . . . 1 medicinal formula. . . . . . . . . . . . . . . . . . . . 2 personal . . . . . . . . . . . . . . . . . . . . . . . . 1, 4–5 real . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 as rights See Rights in property as things . . . . . . . . . . . . . . . . . . . . . . . . . . 1–2 Protection of property physical preservation . . . . . . . . . . . . 209–10 prohibitions copying of property . . . . . . . . 209, 214–16 criminal damage . . . . . . . . . . . . . . . 213–14 unlawful physical interference. . . . . . . . . . . . . . 209, 210–14 wilful burning of house . . . . . . . . . . . . 213 registration See Registration safe custody . . . . . . . . . . . . . . . . . . . . . . . 210 Quasi-easements . . . . . . . . . . . . . . . . . . 94, 96 Quiet enjoyment. . . . . . . . . . . . . . . . . . . . . . 62 Re-entry remedy . . . . . . . . . . . . . . . . . . 270–71 Reclaimed land . . . . . . . . . . . . . . . . . . . . . . . . 8 Recovery of possession . . . . . . . . 167–69, 267 Registration allotment holders . . . . . . . . . . . . . . . . . . 230 commercial purposes . . . . . . . . . . . . . . . 218 compulsory . . . . . . . . . . . . . . . . . . . . 219–20 conclusiveness of register . . . . . . . . 225–26 credibility of register. . . . . . . . . . . . . 225–26 details of property. . . . . . . . . . . . . . . 223–24 fiscal purposes . . . . . . . . . . . . . . . . . 218, 219 legal consequences non-registration . . . . . . . . . . . . . . . . 229–30 registration . . . . . . . . . . . . . . . . . . . . 226–29 multi-purposes . . . . . . . . . . . . . . . . . 218–19 multiple registers . . . . . . . . . . . . . . . 222–23 official . . . . . . . . . . . . . . . . . . . . . . . . . 220–22 preservation purposes . . . . . . . . . . . . . . 218 private . . . . . . . . . . . . . . . . . . . . . . . . . 220–22 process . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

Index

proprietary purposes . . . . . . . . . . . . . . . 218 regulatory purposes . . . . . . . . . . . . . . . . 218 statistical purposes . . . . . . . . . . . . . . . . . 217 trade marks . . . . . . . . . . . . . . . . . . . 228, 229 voluntary . . . . . . . . . . . . . . . . . . . . . . 219–20 Remedies abatement . . . . . . . . . . . . . . . . . . . . . . 92, 270 compensation. . . . . . . . . . . . . . . . . . . 279–81 constructive trusts . . . . . . . . . . . . . . . 262–66 conversion claim . . . . . . . . . . . . . . . . 281–82 criminal damage . . . . . . . . . . . . . . . . 276–77 damages See Damages detinue . . . . . . . . . . . . . . . . . . . . . . . . 282–83 equitable . . . . . . . . . . . . . . . . . . . 126, 283–86 forfeiture. . . . . . . . . . . . . . . . . . . . . . . 268–69 injunctions . . . . . . . . . . . . . . . . . 126, 284–86 liability to account. . . . . . . . . . . . . . . . . . 279 liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 258–62 mesne profits . . . . . . . . . . . . . . . . . . . . . . 278 money payments . . . . . . . . . . . . . . . . 277–79 personal rights . . . . . . . . . . . . . . . . . . 272–86 recovery of possession . . . . . . . 167–69, 267 repudiation of lease damages . . . . . . . . . . . . . . . . . . . . 278 restitution . . . . . . . . . . . . . . . . . . . . . . 266–67 rights to property . . . . . . . . . . . . . . . 255–69 self-help . . . . . . . . . . . . . . . . . . . . . . . 269–70 specific performance. . . . . . . . . 126, 283–84 tracing . . . . . . . . . . . . . . . . . . . . . . . . . 256–58 Reputation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Res nullius . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Resolving claims See Dispute resolution Restitution . . . . . . . . . . . . . . . . . . . . . . . 266–67 Restricted rights See Limited or restricted rights Rights in personam. . . . . . . . . . . . . . . . . . . . . 3 Rights in rem . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Rights in property absence of rights . . . . . . . . . . . . . . . . . 6, 7–9 acquisition See Acquisition of property air space . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 chiefly rights . . . . . . . . . . . . . . . . . . 2, 17–18 communal rights . . . . . . . . . . . . . . . . . . . . . 3 corporeal property . . . . . . . . . . . . . . . . . 4–5 creation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Crown ownership . . . . . . . . . . . . . . . . . . 6, 7 determinable . . . . . . . . . . . . . . . . . . . . 10–11 equitable . . . . . . . . . . . . . . . . . . . 2, 3, 176–81 full . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15–16 inchoate. . . . . . . . . . . . . . . . . . . . . . . . . . 9–10 incorporeal See Incorporeal rights legal . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 151–76 limited . . . . . . . . . . . . . . . . . . . . . . . . . . 11–12 multiple . . . . . . . . . . . . . . . . . . . . . . 7, 16–17 ownership. . . . . . . . . . . . . . . . . . . . . . . 25–26

297

possessory . . . . . . . . . . . . . . . . . . . . . . 14–15 primary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 property as rights . . . . . . . . . . . . . . . . . . 2–6 ranges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 restricted . . . . . . . . . . . . . . . . . . . . . . . . 11–12 ritual rights. . . . . . . . . . . . . . . . . . . . . 102–04 secondary . . . . . . . . . . . . . . . . . . . . . . . . . . 18 spatial division . . . . . . . . . . . . . . . . . . . . . . 7 State ownership . . . . . . . . . . . . . . . . . . . . 6, 7 support . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 temporal division . . . . . . . . . . . . . . 7, 18–23 temporary enjoyment . . . . . . . . . . . . . . . . . 6 types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6–7 usufructuary . . . . . . . . . . . . . . . . . . 6, 12–13 Ritual rights. . . . . . . . . . . . . . . . . . . . . . 102–04 River banks . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Romalpa clause. . . . . . . . . . . . . . . . . . . 151–52 Rylands v Fletcher doctrine . . . . . . . . . . . . 12 Sale . . . . . . . . . . . . . . . . . . . . . . . . . 183, 185–95 bill of sale . . . . . . . . . . . . . . . . . . . . . 156, 188 chattel security. . . . . . . . . . . . . . . . . . . . . 188 choses in action . . . . . . . . . . . . . . . . . . 190–93 conditional sale . . . . . . . . . . . . . . . . . . . . 185 credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 customary land . . . . . . . . . . . . . . . . . 189–90 future goods . . . . . . . . . . . . . . . . . . . . 192–93 hire-purchase . . . . . . . . . . . . . . . . . . . . . . 187 legislation . . . . . . . . . . . . . . . . . . . . . 184, 185 movable property . . . . . . . . . . . . . . . 185–88 non-customary land . . . . . . . . . . . . . 188–89 oral or written contract. . . . . . . . . . . . . . 184 preferences . . . . . . . . . . . . . . . . . . . . . . . . 195 setting aside . . . . . . . . . . . . . . . . . . . . 193–95 true hire-purchase . . . . . . . . . . . . . . . 186–87 undue influence. . . . . . . . . . . . . . . . . . . . 194 Samoa acquisition of property . . . . . . 149, 150, 161 appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 burial rights . . . . . . . . . . . . . . . . . . . . . . . 101 chiefly titles . . . . . . . . . . . . . . . . . 10, 18, 252 co-operative societies . . . . . . . . . . . . . . . 118 constructive trust. . . . . . . . . . . . . . . . . . . . 45 courts. . . . . . . . . . . . . . . . . . . . . 241, 242, 246 covenants . . . . . . . . . . . . . . . . . . . . . . . . . 100 credit unions. . . . . . . . . . . . . . . . . . . . . . . 118 Crown land . . . . . . . . . . . . . . . . . 37, 38, 161 customary land . . . . . . . . . . . . . . . . . . 42–43 customary rules . . . . . . . . . . . . . . . . 123, 124 dispute resolution . . . . . . . . . . . . . . 240, 251 easements . . . . . . . . . . . . . . . . . . . . . . . . . . 97 environmental considerations. . . . . . . . 145 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 199, 201 grant of right . . . . . . . . . . . . . . . . . . . . . . 157 intellectual property . . . . . . . . . . . . . . 6, 215 liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 259 limitation on recovery . . . . . . . . . . 168, 169

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malicious damage . . . . . . . . . . . . . . . . . . 213 management of property . . . . 105, 107, 112 matai . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 141 ownership land . . . . . . . . . . . . . . . . . . . . . 29, 39, 40, 48 original and derivative . . . . . . . . . . . 47, 48 partnerships . . . . . . . . . . . . . . . . . . . . . . . 112 registration . . . . . . . . . . . . . . . 220, 221, 222, 224, 227, 228, 229 restitution . . . . . . . . . . . . . . . . . . . . . . . . . 267 ritual or symbolic rights . . . . . . . . . . . . . 102 sale choses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 land . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . 175, 176 Sea shore . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 ocean level . . . . . . . . . . . . . . . . . . . . . 17, 144 Secondary rights. . . . . . . . . . . . . . . . . . . . . . 18 Self-help remedies . . . . . . . . . . . . . . . . 269–70 abatement . . . . . . . . . . . . . . . . . . . . . . 92, 270 colour of right defence . . . . . . . . . . . 271–72 necessity defence. . . . . . . . . . . . . . . . . . . 270 re-entry and ejectment . . . . . . . . . . . 270–71 Shell money. . . . . . . . . . . . . . . . . . . . . 103, 139 ‘Sleeping partner’. . . . . . . . . . . . . . . . . 112–13 Solomon Islands acquisition of property . . . 150, 160, 166–67 ‘Big Men’ . . . . . . . . . . . . . . . . . . . . . 102, 124 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 ceremonial gifts . . . . . . . . . . . . . . . . . . . . 139 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 co-operative societies . . . . . . . . . . . . . . . 118 conversion . . . . . . . . . . . . . . . . . . . . . . . . 282 corporations . . . . . . . . . . . . . . . . . . . . . . . 115 courts. . . . . . . . . . . . . . . . . 241, 242, 244, 246 credit unions. . . . . . . . . . . . . . . . . . . . . . . 118 customary land . . . . . . . . . . . . . . . . . 43, 159 customary law . . . . . . . . . . . . . . . . . . . . . 126 dispute resolution . . . . . . . . . 234, 236, 237, 238, 239, 240, 249 easements . . . . . . . . . . . . . . . . . . . . . . . . . . 97 foraging on reefs . . . . . . . . . . . . . . . . . . . 136 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 200, 201 hire-purchase agreements . . . . . . . . . . . 187 intellectual property . . . . . . . . . . . . 215, 216 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 limitation on recovery . . . . . . . . . . . . . . 168 management of property . . . . . . . . . . . . 115 native land . . . . . . . . . . . . . . . . . . . . . . . . 136 ownership of land . . . . . . 29, 38–39, 48, 159 physical violence . . . . . . . . . . . . . . . . . . . 236 possession of land . . . . . . . . . . . . . . . . . . . 52 prescription . . . . . . . . . . . . . . . . . . . . 166–67 preservation of documents . . . . . . . . . . 210 proof of custom . . . . . . . . . . . . . . . . . . . . 252 registration . . . . . . . . . . . . 156, 219, 220–25, 227, 228

remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 255 ritual or symbolic rights . . . . . 102, 103, 104 sale choses . . . . . . . . . . . . . . . . . . . . 190, 191, 192 land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 property. . . . . . . . . . . . . . . . . . . . . . . . . . 184 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 shell money . . . . . . . . . . . . . . . . . . . 103, 139 succession upon intestacy . . . . . . . 175, 176 timber rights. . . . . . . . . . . . . . . . . . . 134, 135 use of property . . . . . . . . . . . . . . . . . . . . 132 South Pacific Regional Environment Programme . . . . . . . . . . . 145 Space. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Specific performance. . . . . . . . . . 126, 283–84 Squatters . . . . . . . . . . . . . . . . . . . . . . . . . 56–59 State See also Crown land alienation of land to . . . . . . . . . . . . . . . . 204 forfeiture of property to . . . . . . . . . . 204–05 ownership of property . . . . . . . . . . . . . . 6, 7 Strata-titles . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Succession, intestate . . . . . . . . . . . . . . . . . 205 Support right. . . . . . . . . . . . . . . . . . . . . . . . . 15 Sustainability of resources. . . . . . . . . . . . 144 Symbolic rights. . . . . . . . . . . . . . . . . . . 102–04 Taboos. . . . . . . . . . . . . . . . . . . . 102–04, 147–48 Tapa cloth. . . . . . . . . . . . . . . . . . . 104, 134, 139 Tasmania . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Tenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 61–63 Terra nullius . . . . . . . . . . . . . . . . . . . . . . . . . 159 Theft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76–79 Timber rights. . . . . . . . . . . . . . . . . . . . . 134–35 Time immemorial. . . . . . . . . . . . . . . . . 96, 166 Titles See also Chiefly titles earned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 flying freeholds . . . . . . . . . . . . . . . . . . . . . . 7 inherited . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 strata-titles . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tokelau acquisition of property . . . . . . . . . . . . . . 161 carriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Crown land . . . . . . . . . . . . . . . . . . 34, 36, 38 customary land . . . . . . . . . . . . . . . 41, 42, 43 gifts . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 199 intellectual property . . . . . . . . . . . . . . . . 215 management of property . . . . . . . . 105, 107 ownership of land . . . . . . . . . . . . . . . . 39, 40 sale of land . . . . . . . . . . . . . . . . . . . . . . . . 189 sale of property . . . . . . . . . . . . . . . . . . . . 184 Tombs . . . . . . . . . . . . . . . . . . . . . . . . . . . 101–02

Index

Tonga acquisition of beneficial interest . . . . . . . . . . . . . . . 181 of property . . . . . . . . . . . . . . . 150, 151, 161 bailment . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 ceremonial gifts . . . . . . . . . . . . . . . . . . . . 139 chiefly rights . . . . . . . . . . . . . . . . . . . 18, 140 co-operative societies . . . . . . . . . . . . . . . 118 courts . . . . . . . . . . . . . . . . . . . . 241, 242, 243, 246, 247 credit unions. . . . . . . . . . . . . . . . . . . . . . . 118 Crown lands. . . . . . . . . . . . . . . . . . . . . . . . . 8 customary land . . . . . . . . . . . . . . . . . . . . . 43 customary rules . . . . . . . . . . . . . . . . . . . . 123 detinue . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 dispute resolution . . . . . . . . . . . . . . . . . . 236 equitable ownership . . . . . . . . . . . . . . 43, 46 estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . 181 finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 gifts . . . . . . . . . . . . . . . . . . . . . . . . . . 200, 201 hire-purchase . . . . . . . . . . . . . . . . . . . . . . 187 intellectual property . . . . . . . . . . 6, 154, 215 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 limitation on recovery . . . . . . . . . . . . . . 168 malicious damage . . . . . . . . . . . . . . 213, 214 management of property . . . . 105, 107, 111 ownership land . . . . . . . . . . . . . . . . . . 29, 37, 39, 40, 48 original and derivative . . . . . . . . . . . 47, 48 physical violence . . . . . . . . . . . . . . . . . . . 236 preservation of documents . . . . . . . . . . 210 registration . . . . . . . . . . . . . . . . 156, 220–22, 226, 229, 230 ritual or symbolic rights . . . . . . . . . . . . . 102 sale choses . . . . . . . . . . . . . . . . . . . . . . . . 191, 192 land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 property. . . . . . . . . . . . . . . . . . . . . . . . . . 184 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 self–help remedies. . . . . . . . . . . . . . . . . . 270 succession upon intestacy . . . . . . . . . . . 175 tapa cloth . . . . . . . . . . . . . . . . . 104, 134, 139 theft . . . . . . . . . . . . . . . . . . . . . . . . . 76, 77–78 Torrens System . . . . . . . . . . . . . . . . . . 132, 224 Tracing . . . . . . . . . . . . . . . . . . . . . . . . . . 256–58 Trade marks . . . . . . . . . . . 5–6, 154–55, 215–16 See also Intellectual property registration . . . . . . . . . . . . . . . . . . . . 228, 229 Trade names. . . . . . . . . . . . . . . . . . . . . . . . 9–10 Treasure trove . . . . . . . . . . . . . . . . . . . . . . . 164 Trespass . . . . . . . . . . . . . . . . . . . . 12, 56–59, 66 finders as trespassers . . . . . . . . . . . . . . . . . 7 to goods . . . . . . . . . . . . . . . . . . . . . . . 276–77 to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Tribunals . . . . . . . . . . . . . . . . . . . . . . . . 247–48

299

Trusts beneficial rights . . . . . . . . . . . . . . . . . 140–41 constructive . . . . . . . . . . . . . 45, 180–81, 182 express . . . . . . . . . . . . . . . . . . . . . 44–45, 177 management of property . . . . . . . . . 113–15 Tuvalu See also Ellice Islands acquisition of property . . . . . . 149, 150, 160 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 co-operative societies . . . . . . . . . . . . . . . 118 compensation. . . . . . . . . . . . . . . . . . . . . . 280 corporations . . . . . . . . . . . . . . . . . . . . . . . 115 courts . . . . . . . . . . . . . . . . . . . . 241, 242, 243, 244, 245, 246–47 Crown land . . . . . . . . . . . . . . . . . . 36–37, 38 customary land . . . . . . . . . 42, 110, 159, 160 customary law . . . . . . . . . . . . . . . . . . . . . 126 customary rules . . . . . . . . . . . . . . . . . . . . 122 dispute resolution . . . . . . 237, 238, 240, 249 gifts . . . . . . . . . . . . . . . . . . 197, 199, 200, 201 hire-purchase . . . . . . . . . . . . . . . . . . . . . . 187 intellectual property . . . . . . . . . . . . 215, 216 limitation on recovery . . . . . . . . . . . . . . 168 malicious damage . . . . . . . . . . . . . . 213, 214 management of property . . . . 110, 114, 115 minister of lands . . . . . . . . . . . . . . . . . . . 119 ownership of land . . . . . . . . . . . . 39, 40, 159 proof of custom . . . . . . . . . . . . . . . . . . . . 252 registration . . . . . . . . 220, 221, 222, 225, 228 rising sea levels . . . . . . . . . . . . . . . . . . . . 144 sale choses . . . . . . . . . . . . . . . . . . . . . . . . 190, 192 land . . . . . . . . . . . . . . . . . . . . . 188, 189, 190 property. . . . . . . . . . . . . . . . . . . . . . . . . . 184 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . 175, 176 trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 village council . . . . . . . . . . . . . . . . . . . . . 124 Undue influence. . . . . . . . . . . . . . . . . . . . . 194 Unjust enrichment . . . . . . . . . . . . . . . . . . . 181 Use of property See also Control over land common law rules. . . . . . . . . . . . . . . 124–26 control of use and enjoyment . . . . . 141–48 movables . . . . . . . . . . . . . . . . . . . . . . . . . 146 customary rules . . . . . . . . . . . . . . . . . 122–24 enforceability . . . . . . . . . . . . . . . . . . . . . . 128 equitable rules . . . . . . . . . . . . . . . . . . 124–26 incorporeal property. . . . . . . . . . . . . 146–48 prescription . . . . . . . . . . . . . . . . . . . . 127–28 prohibition . . . . . . . . . . . . . . . . . . . . . 127–28 statutory rules . . . . . . . . . . . . . . . . . . 127–28 Usufructuary rights . . . . . . . . . . 6, 16, 131–40 burial rights . . . . . . . . . . . . . . . . 101–02, 138 ceremonial rights. . . . . . . . . . . . . . . . . . . 139 chiefs and councils . . . . . . . . . . . . . . . . . 140

300

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common rights. . . . . . . . . . . . . . . . . . 137–38 cultivation . . . . . . . . . . . . . . . . . . 12, 132–34 customary land . . . . . . . . . . . . . . . . . . . . . 13 fishing . . . . . . . . . . . . . . . . . . . . . . . . . 135–37 foraging. . . . . . . . . . . . . . . . . . . . . . . . 135–37 grant . . . . . . . . . . . . . . . . . . . . . . . 13, 131–32 harvesting crops . . . . . . . . . . . . . . . . . . . . 12 hunting . . . . . . . . . . . . . . . . . . . . . . . . 135–37 meaning . . . . . . . . . . . . . . . . . . . . . . . . . . 131 timber . . . . . . . . . . . . . . . . . . . . . . . . . 134–35 Vanuatu See also New Hebrides acquisition of property . . . . . . 150, 151, 160 appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 bill of sale . . . . . . . . . . . . . . . . . . . . . . . . . 188 burial rights . . . . . . . . . . . . . . . . . . . . . . . 101 ceremonial gifts . . . . . . . . . . . . . . . . . . . . 139 chiefly powers . . . . . . . . . . . . . . 122, 123–24 chiefly rights . . . . . . . . . . . . . . . . . . . 17, 140 chiefly titles . . . . . . . . . . . . . . . . . . . . . . . 252 co-operative societies . . . . . . . . . . . . . . . 118 constructive trust. . . . . . . . . . . . . . . . . . . . 45 courts. . . . . . . . . . . . . . . . . 241, 242, 245, 247 credit unions. . . . . . . . . . . . . . . . . . . . . . . 118 customary land . . . . . . . . . . . . . . . . . 43, 159 customary law . . . . . . . . . . . . . . . . . . . . . 126 customary rules . . . . . . . . . . . . . 122, 123–24 dispute resolution . . . . . . . . . 234, 235, 236, 239–40, 249–51 finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 forfeiture of proceeds of crime . . . . . . . . . . . . . . . . . . . . . . . . . . 205 gifts . . . . . . . . . . . . . . . . . . . . . . 197, 200, 201 hire-purchase . . . . . . . . . . . . . . . . . . . . . . 187 intellectual property . . . . . . . . . . . . . . 6, 215 land diving . . . . . . . . . . . . . . . . . . . . . . . . 138 legislation . . . . . . . . . . . . . . . . . . . . . 127, 128 liens . . . . . . . . . . . . . . . . . . . . . . . . 84–85, 259 limitation on recovery . . . . . . . . . . . . . . 168 management of property . . . . . . . . . . . . 113 minister of lands . . . . . . . . . . . . . . . . . . . 119 ownership of land . . . . . . 11, 29, 39, 48, 159 physical violence . . . . . . . . . . . . . . . 236, 238

preservation of documents . . . . . . . . . . 210 proof of custom . . . . . . . . . . . . . . . . . . . . 252 registration . . . . . . . . . . . . . . . 156, 220, 221, 222, 224–25, 227–28 restitution . . . . . . . . . . . . . . . . . . . . . . . . . 266 ritual or symbolic rights . . . . . . . . . 102, 104 sale choses . . . . . . . . . . . . . . . . . . . . 190, 191, 192 land . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190 property. . . . . . . . . . . . . . . . . . . . . . . . . . 184 setting aside . . . . . . . . . . . . . . . . . . . . . . 195 succession upon intestacy . . . . . . . 175, 176 tribunals . . . . . . . . . . . . . . . . . . . . . . 247, 248 trust boards . . . . . . . . . . . . . . . . . . . . . . . 141 trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Ventilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Voluntary bankruptcy (winding-up) . . . . . . . . . . . . . . . . . . . 202–03 Water rights . . . . . . . . . . . . . . . . . . . . . . . . 6, 16 Western Samoa . . . . . . . . . . . . . . . . . . . . . . . 78 Wheeldon v Burrows rule . . . . . . . . . . . . . . 96 Wild creatures acquisition . . . . . . . . . . . . . . . . . . . . . 162–63 ownership. . . . . . . . . . . . . . . . . . . . . . . . . 162 property rights. . . . . . . . . . . . . . . . . . . . . 6, 8 right to kill or catch. . . . . . . . . . . . . . . . . . 16 unlawful physical interference . . . . . . . 213 Wills dependants. . . . . . . . . . . . . . . . . . . . . . . . 201 formalities. . . . . . . . . . . . . . . . . . . . . 199–200 gifts by will. . . . . . . . . . . . . . . . . . . . 199–201 intestate succession . . . . . . . . . . . . . . . . . 205 safe custody . . . . . . . . . . . . . . . . . . . . . . . 210 undue influence or duress . . . . . . . . . . . 200 wrongful action of claimant. . . . . . . . . . 201 Winding-up compulsory . . . . . . . . . . . . . . . . 170, 203–04 voluntary . . . . . . . . . . . . . . . . . . . . . . 202–03