Saemanea v Manedetea [2001] SBHC 112; HC-CC 295 of 1997 (17 May 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 295 of 1997

CHARLES SAEMANEA

-V-

WILLIAM MANEDETEA, TIMOTHY VURIA
AND JOHN SURA AND OTHERS

High Court of Solomon Islands
(Palmer J.)

Hearing: 08th May 2001
Judgement: 17th May 2001

Sol-Law for the Plaintiff
A. Talasasa for the First Defendant (did not attend)
The Commissioner of Lands Second Defendant (No appearance)
The Registrar of Titles Third Defendant ( )
Solomon Islands Plantation Limited Fourth Defendant ( )

Palmer J.: The Plaintiff filed Writ generally endorsed on 9th December 1997. Its Statement of Claim was filed on 11th March 1998. Plaintiff represents the Buru sub-tribe of Thogo Tribe of Gaobata Ward in Guadalcanal Province. Plaintiff claims that the Buru sub-tribe were the original owners of what was formerly the Livorere customary land, a portion of what is now comprised of the land areas in parcel numbers 192-008-86, 192-008-87, 192-008-88. On or about 13 January 1995, the perpetual estate in parcel number 192-008-88 was transferred by the Commissioner of Lands (“Commissioner”) to the First Defendants as joint owners (see copy of perpetual estate register marked as Exhibit “CS2” annexed to the affidavit of Charles Saemanea filed 9th December 1997). The Plaintiff claims the transfer and registration were obtained by fraud and fraudulent misrepresentation. Particulars are set out in paragraph 6 of the Statement of Claim. Regarding fraud, the Plaintiff claims the First Defendants committed fraud when they asserted that:

(i) they were descendents of Tole and Gagau who sold the land to the colonial government in 1904 when they were not;

(ii) Gagau of Gaobata tribe was their common ancestor;

(iii) they will hold joint ownership of the estate under a statutory trust for and on behalf of the beneficiaries who were descendants of Tole, Gagau or both; and

(iv) upon registration they will distribute the benefits such as rental to the beneficiaries.

The true facts misrepresented were:

(a) that Tole was a member of the Buru sub-tribe of the Thogo tribe who sold the land generally described as folio 16 on Crown Book A which was and still is located on the eastern bank of the Nini Creek;

(b) that Gagau was a member of a different Kogamotha sub-tribe of the Gaobata tribe and not from the First Defendants’ sub-tribe;

(c) that the original landholding group which own the land prior to the sale in 1904 was the Buru sub-tribe of the Thogo tribe;

(d) that though Gagau appeared as one of the vendors, he actually sold the land generally described as folio 17 on the Crown Book A and located on the western bank of the Nini Creek.

On 9th December 1997, Plaintiff filed Notice of Motion (ex parte) for restraining orders, inter alia against the first Defendants from demanding rentals and dividends in respect of parcel 192-008-88 from the fourth Defendants and for the fourth Defendant from paying out any rentals to the first Defendant pending determination of the issues. Restraining orders were granted by His Lordship Sir John Muria CJ on same date. On 11th March 1998 Plaintiff filed Notice of Motion for orders inter alia, that the perpetual estate title in respect of parcel no. 192-008-88 be rectified in favour of the Plaintiff. The first Defendant filed defence on 7th September 1998. On 12 February 2001, Plaintiff filed Summons for directions. On 21st February 2001, orders for directions were issued by the Registrar. This included an order for discovery by list within 14 days. Plaintiff claims the first Defendant had failed to comply with the orders for discovery and now comes to Court by Summons filed 9th April 2001 for orders to have the first Defendant’s Defence struck out for non-compliance with order for direction and for judgment to be entered against all the Defendants in this action.

Plaintiff relies on the affidavit in support of Thomas Tonavi Kama filed on 9th April 2001. At paragraph 2 of said affidavit Mr Kama deposes that he sent a copy of the order for directions to the first Defendants through their solicitor Mr A Talasasa by letter to his postal address at Munda, Western Province. On 23rd March 2001, a further letter was sent, enclosing the Plaintiff’s list of documents with a request that the first Defendant file his list of documents within 14 days, failing which an application would be made to the Court to have the first Defendant’s defence struck out and judgment entered against it (para. 3 of same affidavit of Thomas T Kama). On 26th March 2001 the first Defendant’s solicitor was personally served with a letter to the effect that failure to file and serve list of documents within 14 days would result in the Plaintiff applying to the court for Orders to strike out first Defendant’s Defence (para. 4 and exhibit “TTK-3”). No list of documents has been filed by the first Defendant. Plaintiff now asks to have the first Defendant’s Defence struck out and Judgment entered against all the Defendants.

Has there been non-compliance? In my respectful view, this must be answered in the affirmative. First Defendant’s Counsel did not appear during hearing of this application. I am satisfied however service had been effected. This is confirmed by the affidavit of service of Robert Andrew Dofe filed 8th May 2001 in which he deposes at paragraphs 2 and 3, that the Summons and supporting affidavit were served personally on Mr Talasasa on 23rd April 2001 at 1.50 p.m. at Anthony Saru Building and Notice of Hearing on 27th April at 3.05 p.m. also at Anthony Saru Building. Order 1 requesting Defence of the first Defendants to be struck out for non-compliance with order for direction should be granted. This would include the affidavit material filed in support of the Defence.

The second order sought is for judgement to be entered against all the Defendants in this action. In order for this Court to grant such order the claim of fraudulent misrepresentation has to be proven on the evidence before this Court to the requisite standard; which is proof on the balance of probabilities.

In paragraph 3 of the first affidavit of Charles Saemanea filed 9th December 1997 it is deposed that parcel number 192-008-88 was formerly part of Livorere customary land sold by Joshua Tole and Gagau in 1904 under a Deed of Conveyance. Saemanea deposes that when he did a search at the National Archives in 1985 he sighted a copy of said Deed. Unfortunately when he did a search later it had gone missing. At paragraphs 3 and 4 of his second affidavit filed on 11th March 1998, Saemanea was able to exhibit copies of documents consistent with his claim that the land had been sold by Tole. I am satisfied on the affidavit evidence before this Court that it had been proven on the balance of probabilities that the parcel 192-008-88 had been part of Livorere customary land and sold by Tole and Gagau. The only difference which Plaintiff has sought to point out is that though two vendors were mentioned they were responsible for the sale of two separate lands identified by the folio numbers 16 and 17; Tole being responsible for the sale of folio 16 and Gagau for folio 17. Plaintiff claims folio 16 includes parcel 192-008-8. There being no defence (it having been struck off) I accept that this is correct. The other material matter for assessment is the question whether the Plaintiff is a descendent of Tole. Again this has been established on the evidence before me (see paragraph 5 of second affidavit of Charles Saemanea and exhibit “CS 8”).

Fraudulent Misrepresentation is established when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth or (3) recklessly, careless whether it be true or false (see Derek v. Peek (1889) 14 App. Cases 337 at page 374 per Lord Herschell). Plaintiff alleges the first Defendant made false representations to the Commissioner that they were descendents of Tole and Gagau when in fact they were not. At paragraph 12 of his first affidavit Charles Saemanea points out that the membership relied on by the first Defendants of the Kogamotha sub-tribe of the Gaobata tribe, did not own Livorere customary land. Instead they were attached to other sub-tribes of the Gaobata tribe which owned Binu land south of the said land. At paragraphs 7 - 12 of his third affidavit Charles Saemanea further clarifies the sale of said land from other lands and the persons responsible and their respective sub-tribes. Plaintiff claims that the first Defendants knew at the time they made representations to the Commissioner that the Plaintiff’s tribe were the original owners of Livorere customary land, which included parcel 192-008-88.

I am satisfied the Plaintiffs affidavit evidence establishes on the balance of probabilities that the transfer was obtained by fraudulent misrepresentation and that judgment should be granted in favour of the Plaintiff against the first Defendant. As to the other Defendants, all have indicated that they would abide decision of the Court. Accordingly the appropriate order in the circumstances would be to grant judgment against all Defendants.

ORDERS OF THE COURT:

1. Strike out first Defendant’s Defence for non-compliance with order for directions.
   
2. Enter judgment against all Defendants in this action.
   
3. Costs in this action in my respectful view should be borne by the first Defendants and not second Defendant.
   

THE COURT