Konty v Denabohe [2003] SBHC 71; HC-CC 135 of 2003 (10 October 2003)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 135 of 2003

EUNICE KONTY

-V-

BENAIAH DENABOHE AND ATTORNEY GENERAL

Date of Hearing: 10 October 2003
Date of Judgment: 10 October 2003

Upwei for the Plaintiff
A. Radclyffe for the 1^st Defendant/Applicant

Reasons for Decision

The 1^st defendant is the brother of the plaintiff. He is also the surviving owner, one of three registered proprietors of registered land at Kia, Santa Ysabel in perpetual estate no. 071-001-16 which passed to the proprietors on or about 26 October 1977. The plaintiff pleads that those three named proprietors hold on statutory trust for Zote and Makara lines. I do not understand the basis for this pleading about a “statutory trust” but I need not concern myself with the assertion.

The plaintiff now seeks declarations:

1. Declaration that the said land are not held by statutory trust for Makara line.
   
2. Declaration that the statutory declaration signed on 4^th August 1977 is not valid. Declaration that descendants of Andrew Kera and Henry Savere only have secondary rights.
   

100. Consequential Order that if the Court declares that Makara lines has no ownership over the described parcel of registered land, then direct that the 1^st Defendant transfer the said registered land to himself, the Plaintiff and Augustra Ali, Vesa and Everlyn Tetehu.
     

The Limitation Act (Cap 18) s.9 (2) provides for a limitation period of 12 years in which persons may bring proceedings to recover land from the date on which the cause of action accrued to such persons. Mr. Radclyffe for the 1^st defendant says that the events giving rise to a cause of action, on a reading of paragraph 4 and 6 of the statement of claim, happened in 1977.

In para 8, the plaintiff claims declarations that the land is not held in statutory for Makara line that the statutory declaration on 14 August 1977 is not valid (for it deals with customary rights which are disputed) and a consequential order that this court transfer the registered land to the plaintiff.

So Mr. Radclyffe says, the issues clearly relate to 1977 and hence are statute barred. While the summons touches on allegations of fraud, in fact the pleadings raise matters of custom which are now disputed, and those matters are the facts which have been pointed to as tainting the original registration with fraud.

If, as Mr. Radclyffe says, the plaintiff takes issue with the trusts, if any, on which the surviving registered proprietor the (brothers of the plaintiff) holds the land, then even if the court was to strike out these proceedings, the sister could still institute proceedings seeking declarations of trust in relation to the 1^st defendants land holding in the custom court. But on the pleadings, he says, the case is statute barred.

Mr. Upwei, relied on s. 32(1) and (2) saying that it was not until April this year, that his client discovered, on search of the Land Titles office, the material in the statutory declaration purportedly made on the 26 October 1977 but claimed by the transferees, as having been made on the 4 August 1977. He said the plaintiff in the statement of claim, (pointing to particulars of Fraud) alleges the transferees knew that it was not true, (Makara line was not the owner of the land) but included Makara line as owners on statutory trust.

The Statutory Declaration, a copy of which has been annexed to the applicant’s affidavit, recites a Certificate of Publicity by the witnessing Magistrate that the declaration of trust by the transferee/trustees was made at a public meeting of which reasonable notice had been given to those concerned and to the general public. The Magistrate has dated such certificate 26.10.1977. He has also written 26.10.1977 adjacent to this name in the attestation part of the jurat, where the declaration has stated, “Declared at Kia this 4^th day of August 1977, before me”.

As a consequence, he says, the plaintiff’s interest, as the matrilineal descendant, should be confirmed by the registration of the plaintiff as owner, and the Register so rectified.

Reasons

There is clearly a dispute in custom. This land is registered land. I accept Mr. Radclyffe’s submissions that the fraud or mistake must be clear from the pleadings, before s. 32 (2) can come into play, for the pleadings relate more to an argument over customary inheritances than fraud. Fraud has not been pleaded. Para 7 of the summons makes that very plain. The issue surrounding the execution dated of the statutory declaration does not, on the pleadings raise issues going to fraud or mistake on the face of it.

The land is registered land. It no longer is customary land. Section. 9(2) must be given a fair interpretation but there has not been shown, on the pleadings fraud or mistake in terms of s.32 (1) or (2) sufficient to raise any cause of action, rather there is an argument about custom.

Consequently the 1^st defendant’s application shall succeed. The plaintiff’s proceedings for a declaration and consequential order shall be struck out for they are well outside the limitation period applying to the recovery of land.

Costs

Costs of the application to strike shall follow the event.

BROWN PJ