Meleuto v Commissioner of Lands [1998] SBHC 83; HCSI-CC 96 of 1997 (13 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 96 of 1997

JOHN MELEUTO

-v-

COMMISSIONER OF LANDS, REGISTRAR OFTITLES, TEMOTU PROVINCIAL ASSEMBLY

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 96 of 1997

Hearing: 12 May 1998
Ruling: 13 May 1998

A. Nori for Plaintiff
G. Samuel for Defendants

MURIA CJ: This is an application for extension of time by the plaintiff to prosecute his claim

By his originating summons, the plaintiff seeks a number of declarations and orders one of which is for rectification of the land register so as to have him registered as perpetual owner of the land in question, namely, Parcel Number 277-002-1, Graciosa Bay, Santa Cruz. This land was acquired by the Government on 22 February 1972 and registered in the name of the Commissioner of Lands on 5 February 1973.

It is submitted on behalf of the plaintiff that, although he was aware that in the early 1970s there had been discussions between the Government and the people in the area over the question of obtaining water from the water source in the area for the purpose of supplying it to Lata Station, he thought it was to be with his people whom he said were the landowners. He did not think that the land would be acquired and turned into a registered land to be owned by the Commissioner of Lands. All along he thought the land was still a customary land until early 1997 when he found out that the land was registered in the Commissioner of lands’ name and that in 1984, it was transferred to the Temotu Provincial Assembly. It was also argued on his behalf that his tribe did not sell the land to the government but it was sold by one John Mepwali. Hence the plaintiff now seeks to have the land register rectified so that he and his people will hold the perpetual title to the land.

On the face of the materials before the Court, Mr. Nori agreed that his client might well have been out of time to bring these proceedings. He therefore seeks the court to exercise its discretion and grant the plaintiff extension of time to prosecute his claim.

Mr. Samuel opposes this application. In fact, the defendants in their defence seek orders to strike out and dismiss the plaintiff’s originating summons as being out of time pursuant to the Limitation Act, 1984.

By his application seeking an extension of time, the plaintiff is in effect conceding that he is out of time to bring his claim in this case. That being so he now seeks the discretionary power of the Court to allow him to prosecute his claim outside the time fixed by law.

Counsel for the plaintiff referred to the case of Liligeto and Ors -v- Commissioner of Lands & Ors (HC) CC166/96 which I think is distinguishable from the present case. In that case, no concession had been made by the plaintiffs as to being out of time and in fact the action was held to be within time on the basis of an alleged “continuing wrong” on the part of the defendants. That is not the case here. In this case, having accepted that he is out of time, the plaintiff is really now seeking the discretion of the Court to allow him to bring his claim despite being out of time.

The power of the Court to allow an action to proceed despite being out of time can be found in section 39(1) of the Act which 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.”

Under that provision, two things which affect the exercise of the discretionary power of the Court must be established. Firstly, the degree to which the provisions of the Act, and in this case, those relating to time limits, prejudice the plaintiff and secondly, the degree to which any decision of the Court under section 39 would prejudice the defendant. Any prejudice to the plaintiff in this case would be a matter of degree only. In this regard the Court takes into account the fact that the plaintiff does not object to the supply of water into the Township of Lata, nor does he object to the whole project of acquiring the land by the Government in order to supply water to Lata Town. His main concern is that the land register should be rectified so that he and his people hold the perpetual title to the land.

The purpose of the declaration is to acquire the land for public purpose and all interests in or affecting the land vests in the Commissioner of Lands on behalf of the government (see s.74 Land and Titles Act). In that regard the perpetual title in the land must vest in the Commissioner of Lands. The only way to challenge that is by way of an application to the High Court within 6 months after the declaration was published.

That had not been done here.

There is the suggestion that the plaintiff did not know of the Gazette Notice in this case. There is however evidence to suggest that the plaintiff was aware of the negotiation and discussions prior to the acquisition of the land. At least reasonable diligence would demand that the plaintiff could have done something or had taken steps to enquire what was going on soon after the acquisition of the land and water being supplied from the water source into Lata Town. To wait until 24 years later before taking any steps over the matter certainly place a great onus on the plaintiff and the court would not treat it lightly. Each case must of course, be decided on its own facts bearing in mind that the relief is always a matter for the discretion of the Court.

In the present case, I feel that the degree of prejudice to the plaintiff to allow the provisions of the Act on the time limits to take effect would be such that would not affect the exercise of the Court’s discretion to refuse extension of time. On the other hand there will certainly, in my view, be substantial prejudice to the defendants if the court were to decide to allow the plaintiff to proceed with his claim at this very late stage, 24 years after the Commissioner of Lands and later, the Temotu Provincial Assembly, acquired title over the said land.

All in all, I feel that in the exercise of the Court’s discretion, I will have to refuse the application for extension of time in this case.

Order: Extension of time to prosecute the claim is refused.

(GJB Muria)
CHIEF JUSTICE