Eta v Attorney General [2015] SBCA 15; SICOA-CAC 30 of 2013 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona, PJ.)
COURT FILE NUMBER:	Civil Appeal Case No. 30 of 2013 (On Appeal from High Civil Case No. 205 of 2011)
DATE OF HEARING:	5 October 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	Eta - V - Attorney-General Dr. Derick Sikua
ADVOCATES: Appellant: Frist Respondent: Second Respondents;	M Pitakaka for appellant R Soma J Keniapisia
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-6

JUDGMENT OF THE COURT

1. The appellant and the second respondents are neighbours in East Kola Ridge, Honiara. The appellant is the registered owner of the fixed term estate in PN 191-036-050, also known as Lot 1137, and the second respondents are the registered owners of PN 191-036-058, also known as Lot 1136. There is a road which runs beside and through both lands and the second respondents used it for access to their property and regarded it as a common access road. That continued for some years until May 2011 when the second respondents intended to commence construction of a second house on their land and wished to use the common access road to bring a mechanical digger on to level the site of the proposed building.
   
2. On 26 May 2011, the appellant (Mr Eta) refused to let it through and, on 28 May 2011, the second respondents (the Sikuas) found that a metal barrier had been constructed effectively blocking their access.
   
3. On 1 June 2011, the Sikuas filed a claim against Mr Eta for injunctive relief. In the meantime they also applied for interim orders to remove the barrier and allow free passage. The interlocutory application was heard by the learned Chief Justice and, on 26 July 2011, he ordered that the barrier be removed and Mr Eta be restrained from obstructing the Sikuas' access.
   
4. That remained the position until the hearing of the substantive claim commencing on 14 June 2013. In that action, Mr Eta filed his defence and also made a counter claim alleging that the registration of the title to the Sikuas had been obtained by mistake or fraud and seeking a High Court order to rectify the register under section 229 of the Lands and Titles Act.
   
5. On 20 March 2011, an amended defence and counter claim was filed which sought the same remedy and joined the Commissioner of Lands as a second defendant.
   
6. The initial claim was based on an assertion that the road was a common access road used by both parties and other residents in the area and that they had done so "since the 1990s". Clearly the issue for the court was going to include an inquiry into the claimed easement or right of way. However, after the trial had commenced, the Sikuas realised, apparently for the first time, that the power to determine that lay with the Commissioner of Lands under section 115 of the Land and Titles Act. As a result, they abandoned the High Court claim in order to refer their claim to the Commissioner.
   
7. That was effectively the end of the claimants' case but still left the counter claim for rectification of the register under section 229. At the conclusion, the learned judge dismissed Mr Eta's counter claim on the grounds that he had failed to prove any mistake or fraud and his claim was statute barred having been brought outside the period permitted under the Limitation Act. The court also ordered that the previously ordered restraining orders should continue in force. Costs were in favour of the original claimants (the Sikuas) and the second defendant/ counter defendant (Commissioner of Land).
   
8. This appeal is against that judgment. The grounds raise three main challenges which can be summarised as being against (a) the continuation of the interim order when that original claim had been withdrawn for lack of jurisdiction; (b) the failure of the court to find mistake or fraud; and (c) the finding that the counter claim was statute barred. The appellant in consequence also challenges the order of costs against him.
   
9. Mr Eta's case before the High Court was that, long before the Sikuas had acquired the title to their land, he had acquired the right to some land which subsequently became part of the title registered to the Sikuas. The judge set out the undisputed events upon which this claim was based.
   

"Mr Eta acquired his land since 17 September, 1987, and the Sikuas acquired their property around 1 January, 1998.

On 28 February 1992, Mr Eta applied to the Commissioner of Lands for an extension to the boundary of his property.

On 5 August 1992, the Physical Planning Division sent memoranda to the Commissioner of Lands with a recommendation that contain three things; one of it was that Mr Eta's application be granted

On 22 October 1992, the Lands Officer on behalf of the Commissioner of Lands approved Mr Eta's application for an extension.

On 14 January 1993, the Commissioner of Lands instructed the Surveyor General to carry out survey work on Mr Eta's application for extension.

On 25 January 1993, the Surveyor General approved the survey work that was requested.

As a result of the survey work, lot 2461 and Lot 2462 were created. For the work done Mr Eta had paid the requisite fees.

On 4 June 1999, the Sikuas acquired fixed term title to Lot 1136 which includes Lot 2461 and 2462.

10. Having set out that history, the judge continued:
    

"The registration of the land did not go down well and came as a surprise to Mr Eta. No reason could possibly conclude as to what had happened. He had applied for extension and was approved 5 years back. Subsequently was allocated to the Sikuas. What has been done was by reason of mistake or fraud. That perhaps prompted reaction which led to barricading and restraining orders that follow suit."

The continuation of the interim injunction.

11. The original claim brought by the Sikuas arose from the blocking of the common access road and they sought orders to ensure they should have unhindered access and a permanent injunction to restrain Mr Eta from obstructing the road and hindering the Sikuas and others using the road.
    
12. As we have stated, the right to those remedies depended on their establishing that they were the holders of an easement or right of way.
    
13. The interlocutory application they made for an interim order was also premised on the same claim. In any application for interim relief the court must be satisfied that there is or will be a claim brought that will finally determine the issue for which the interim order is sought. The application was heard by the Chief Justice who issued orders, on 26 July 2011, that the defendant remove the barricades forthwith and that they should be restrained from obstructing the claimants from using the disputed access road until further orders of the court. In his determination, the learned Chief Justice found there were two triable issues, namely the dispute over the right of way and the claim for rectification of the register pleaded in the counter claim. The Sikuas withdrew their claim in order to pursue their remedy on the issue of the right of way with the Commissioner of Land under section 115. Although the Sikuas had written to the Town and Country Planning Board mentioning the right of way, they had not, and it appears still have not, made a formal application to the Commissioner to resolve the matter.
    
14. Mr Pitakaka for Mr Eta, has pointed out that, "by the end of the trial, the Sikuas had abandoned their original claim (and the permanent restraining orders sought therein) and there was no application to the Commissioner of Land pursuant to section 115 on foot. In those circumstances, there was no claim or dispute pending (before a court of law or other authority) after judgment to justify the High Court's intervention by way of interlocutory injunctive relief to preserve the status quo. Consequently the trial judge erred in maintaining the interlocutory injunction after judgment."
    
15. The first ground of appeal repeats that assertion without a request for any order and, in this Court, counsel was asked whether he was asking to have the injunction lifted or restricted in time or dependent on an applicant being filed before the Commissioner of Land. Counsel offered no suggestion.
    
16. There was no mention of the interim order in the judge's reasons. The first reference to it was in his pronouncement of the order that it should continue in operation. We see no reason to alter the judge's order that it continue. Its ultimate relevance will depend on the resolution of the right of way - if such a reference is made to the Commissioner under section 115.
    

Rectification of the register on the grounds of mistake or fraud.

17. The counter claim by Mr Eta was that the inclusion of Lots 2461 and 2462 in the title registered to the Sikuas in 1999 was wrong because of the earlier assurances he had received that the application to extend his land to include them would be granted. It was suggested on his behalf that it had reached the stage where the land had been allocated to him and that should have been binding on the authorities to register the title in him.
    
18. We have set out the chronology from the judge's findings which demonstrate the basis of his expectation. We accept as, it would appear, did the judge that Mr Eta truly expected to be given title to the land and, whilst the various communications between early 1992 and his payment of the survey fees in early 1993 would have led most people to assume their application was "home and dry", the fact was that he had been granted no right. Why the position appears to have changed after the survey is unexplained and it is easy to appreciate his frustration when it was then registered to the Sikuas.
    
19. The judge made the point:
    

"Was there any application by Mr Eta for those two lands which could have prompted any offer? There was none at all. The reason being that Mr Eta expected that the Commissioner of Lands would inform him after the mutation process. That expectation eventually prolonged for five years. It would appear that Mr Eta is someone that after he played his part sits back and expects others to come back. This age and generation if different. You have to make follow ups to ascertain what stages of progress you advance.

Five years of waiting should trigger some response by Eta to check. He had done nothing except his patience.

The truth about this case is that there was no formal application and no offer made to Mr Eta for the lease of those lands. The approval granted on 22 October 1992 for the application for extension was to kick start the mutation process. The fees that were paid were survey fees. If there was no application, no offer, there was nothing to consider and nothing to expect from the Commissioner of Lands. As a result there was never a binding and legal contract."

20. It is clear that allocation of the land does not give any right to the title. It is one of a number of preliminary stages in the process of acquisition of title. The suggestion by Mr Eta that it gives a right is incorrect.
    
21. Based on his claim that the land had been incorrectly granted to the Sikuas, Mr Eta claimed that the registration of their title must have been obtained by mistake or fraud. Under Section 229(1) of the Land and Titles Act, the High Court has the power to order rectification of the register by cancelling or amending any registration where the court is satisfied the registration has been "obtained, made or omitted by fraud or mistake". Subsection (2) provides:
    

"(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the commission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default."

22. The case for Mr Eta was that the Commissioner must have made a mistake when he gave the title to the Sikuas instead of acting on the recommendation he had received some five years before and ordering that the title be registered in Mr Eta's name. As has been stated, the judge did not accept that those earlier communications gave any right to Mr Eta and dismissed that part of the case.
    
23. It was also alleged that a previous Commissioner of Lands had been renting the Sikuas' property around the time of the registration of the Sikuas' title. The judge found no evidence that the sole fact of his tenancy could possibly prove fraud in registering the title or that the Sikuas had any knowledge of Mr Eta's claim to the land at the time their title was registered.
    
24. Having directed himself that the burden of proof lay on Mr Eta, the judge concluded:
    

"It is quite difficult to assess whether the Sikuas were aware that Mr Eta had an interest in the same land and had made a move to acquire it. All I could ascertain is that enquiries could have been made as in normal circumstances. Even so, that fact stands that the lands were vacant and were subject to allocation to any person ...I find the Sikuas may have some knowledge of Mr Eta's attempt but nothing could stop them applying. In all cases, the applicants may be many but the allocation depends on the Commissioner of Lands discretion. That discretion is perfectly exercised in this case without proof of being tainted with fraud or mistake. Indeed the Sikuas had acquired interest for valuable consideration and therefore are protected in their title."

25. The judge was clearly correct in dismissing Mr Eta's claim under the counter claim and the second ground fails.
    

Limitation

26. Section 9(2) of the Limitation Act provides:
    

"No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date upon which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person."

27. The learned judge correctly pointed out that the crucial aspect of limitation in this case is the ascertainment of the date the cause of action accrued to Mr Eta. His counsel raised the possibility that section 17 applied in his case:
    

"A cause of action is deemed to have accrued on the date on which the right to relief sought by the action arises, except for a cause of action based on a continuing wrong which shall be deemed to accrue on each day the wrong continues."

28. The judge correctly found that this was not a continuing wrong and the cause of action arose on the date the title was registered in the name of the Sikuas:
    

"In my opinion this is not a case of continuing wrong. The first defendant did not show that he knows of the wrong only in 2012 when he was prompted to file the counter-claim. He knows exactly what happened in 1998 and yet sat on his rights."

29. In light of the period of fourteen years during which the appellant did nothing, that was the correct, and only possible, conclusion.
    
30. The appeal is dismissed with costs to the first and second respondents to be assessed if not agreed.
    

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward JA
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal