Liligeto v Commissioner of Lands [1997] SBHC 98; HCSI-CC 166 of 1996 (24 January 1997)

CC 166 96 HC

IN THE HIGH COURT OF SOLOMON ISALNDS

Civil Case No. 166 of 1996

WILSON LILIGETO, D. TIGULU, A. REDLEY, M. ENOCK & K. ROGA

-v-

COMMISSIONER OF LANDS, GEORGE HILLY & REGISTRAR OF TITLES

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 166 of 1996

Hearing: 23 January 1997
Ruling: 24 January 1997 (delivered)
[Reasons published 25 February 1997]

A. Nori; for Plaintiffs
No appearance by Defendants who were served

MURIA CJ: On 24 January 1997 I ruled that the plaintiffs’ action in this matter is not time-barred and that it should proceed. I also ordered that the Estate of the late George Hilly be made the second defendant in place of George Hilly. I said I would give my reasons later and that I now do so.

The plaintiffs in this case seeks the Court to determine that their action is not time-barred or that if it is, then the Court should exercise its power under section 39 of the Limitation Act of 1984.

The action was commenced by an Originating Summons seeking declaratory orders that the first defendant, the Commissioner of Lands, was wrong in law and fact in granting or transferring the perpetual title in Parcel No. 079-007-4 LR 213 to the second defendant George Hilly. Consequently the plaintiffs seek rectification of the Land Register to allow them and their tribe to be registered as owner of the perpetual title in the said land.

History of the land.

The land at Koreovuku Harbour sometime known as Emu Harbour more particularly described as Parcel No. 079-007-4 LR213 was sold to the Government on 8 April 1912 by Vete and Ghoaba who were members of the plaintiffs’ tribe called Maluku Tribe. It appeared that the land had to be taken by the Government before it could be given to an expatriate to develop. In this case the land was given by the Government to one Peter Pratt (according to the plaintiff) who was a trader. The perpetual title vested in the Government.

Following the adoption of the Government policy of transferring undeveloped alienated land to original landowning tribes, the government gave notice to have the land registered so that those claiming to be entitled to be registered as holders of the perpetual title to the land representing the original owners of the land could put in their claims. The representative of the original owners by the name of Masakolo sent in his claim on 3 August 1975. Mr. Masakolo’s claim was rejected as being made out of time.

On 21 April 1981 the perpetual interest in the land was registered in the name of George Hilly. Although the plaintiffs knew that George Hilly lived on the land all along, prior to his death, they understood him to be just living on the land holding only a fixed term title. The plaintiffs submitted that it was only in the beginning of 1996 that they learned that he was actually the owner of a perpetual title to the land. Hence they now commenced this action.

The issue to be determined in this application is not that who should have the land but rather as to whether the plaintiff’s action is time-barred. Secondly, if it is, should the Court exercise its discretion under section 39 of Limitation Act and allow the plaintiffs to pursue their action? To these questions I shall now turn.

Provisions of the Limitation Act.

The starting point is the provisions of the Act. In so far as it relates to this case, it is worth observing, firstly, section 4 of the Act which provides as follows:

“4. The period of limitation prescribed under the provisions of this Chapter shall have effect subject to the other provisions of this Act”.

Thus, the limitation periods mentioned in the various provisions in Chapter II though shall have effect, must be without prejudice to the other provisions of the Act. Section 9 in Chapter II contains the provisions which specify the period of limitation within which to recover land. Subsection (1) of the section applies to the Crown and public authority. Subsection (2) is the one applicable to our concern in this case and it provides as follows:

(2) 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 on which the cause of action accrued to him or, if it accrued to some person through whom he claims, to that person:

Thus an action to recover land after the expiration of 12 years from the date the cause of action accrued would be time-barred. The effect of that is that the title of the person claiming the land is extinguished (section 35) after that prescribed period.

We then have to ascertain the date when the cause of action accrued and that is crucial in determining when the period of limitation expires. In this connection let us turn to section 17 of the Act. That section provides:

17. Subject to the other provisions of this Act, cause of action shall deemed to accrue on the date on which the right to relief sought by an action first arises:

Provided that where the cause of action is found on a continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.

By section 17, the cause of action is taken to have accrued when the right to relief sought first arises. In the context of the present case one may ask, when was that date? Was it the date when the land was registered in the name of the late George Hilly or was it some other date? If it is the former, then the date must be 21 April 1981.

For argument sake let us take 21 April 1981 as the date when the cause of action was deemed to have accrued and as such the date when the right to relief sought action first arose. This action was filed on 10 June 1996 which was a little over 15 years since the cause of action accrued if we take 21 April 1981. Section 17, however, does not stop there because the proviso then goes on to add that if the wrong upon which the cause of action is founded, is a continuing wrong, then a new cause of action shall be deemed to accrue on each day the wrong continues. Thus if the alleged wrong is not a continuing wrong, then clearly the plaintiffs’ action is out of time. The argument for the plaintiffs, however is that they understood the late George Hilly to be occupying the land up until his death not as an owner in perpetuity but only for a fix term.

The Act does not define what “continuing wrong” is but in my view it must mean an act alleged to be a wrong which is continuous and is of the same kind which gave rise to the action. In the present case the alleged “continuing wrong” must be taken to be the continuing possession of the land by the deceased until his death as a perpetual title holder. Whether that “continuing wrong” is established or not is not the subject of this application now before the Court. But I think for the purpose of ascertaining the date on which a cause of action is deemed to accrue it is sufficient to identify the “continuing wrong” as mentioned in section 17 of the Act.

In this case I feel, there is room for concluding that there is a continuing or at least, an alleged continuing wrong, founding a cause of action, despite the fact that the land was registered in the deceased’s name as perpetual owner on 21 April 1981, some 15 years ago.

On the other hand if the cause of action is said to have arisen once and for all on 21 April 1981, the circumstances as disclosed in the affidavit supporting the plaintiffs’ application are such that this Court can exercise its powers under section 39 of the Act and allow the action to proceed. Section 39(1) provides:

“39. (1) If it appears to the court that it would be equitable to allow an action to proceed or an arbitration to commence having regard to the degree to which -

(a). the provisions of this Act prejudice the plaintiff; and

(b). any decision of the court under this subsection would prejudice the defendant,

the court may direct that those provisions shall not apply to the action, or arbitration or shall not apply to any specified cause of action to which the action or arbitration relates.”

Subsection (2) goes on to provide for the circumstances to be taken into account when exercising the powers under subsection (1). I have taken into consideration the circumstances specified in subsection (2) in particular the length of and the reason for the delay on the plaintiffs’ part as well as the extent to which the plaintiffs acted promptly and reasonably once they became aware of the fact that the deceased was actually registered as a perpetual owner and not as a fixed term owner which was what the plaintiffs believed the deceased to be. Having done so, I feel, as this is a Court of law as well as that of equity, that I should exercise the equittable jurisdiction of the court under section 39 and direct that the action should proceed despite the provisions of section 9 which bars the, bringing of actions such as the present one after the expiration of 12 years from the date the cause of action accrued.

For all the reasons that I have stated I come to the conclusion that the action is not time-barred and should proceed.

I feel the estate of the late George Hilly should be joined as a party in this case as clearly the estate’s interest would be affected by these proceedings. I therefore substitute the Estate of late George Hilly for the second defendant in this action.

Costs in the cause.

(GJB Muria)
CHIEF JUSTICE