Maru v Seketala [2007] SBHC 116; HCSI CC 179 of 2007 HCFJ 135 of 2007 (27 September 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 179 of 2007

BEN MARU JUNIOR
AND BEN MARU SENIOR
(Representing themselves and members of the Sili Malaghai tribe the original landowners of Perpetual Estate land parcel 192-008-79, 192-008-80 and 192-008-93)

-v-

JOHN SEKETALA, ALFRED MAEKE;
ATTORNEY-GENERAL (Representing the Commissioner of Lands); REGISTRAR OF TITLES AND
GUADALCANAL PLAINS PALM OIL LIMITED

Date of Hearing: 14 September 2007
Date of Ruling: 27 September 2007

Mr. Nori for the Plaintiff/Applicant
Mr. Kama for the 2nd and 4th Defendant

JUDGMENT on summons for declarations for rectification of the land register.

Brown, J: By originating summons the plaintiff’s who claim on their own behalf and members of the Sili Malaghai tribe, seek declarations affecting 3 perpetual estate land parcels, especially a declaration that the court order rectification of the land register for that registration was obtained in favour of the 1st defendant by fraud or mistake.

The statement of claim pleads factual matters which go, the plaintiff’s say, to show fraud on the part of the 1st defendants.

The particulars of fraud are

(a) making a false representation to the Commissioner of Lands in a statutory declaration that the descendants of Besu Mamata tribe were the owners of Perpetual Estate land parcel number 192-008-093 when they were not;

(b) falsely representing to the Commissioner of Lands that he and others have consulted all the persons beneficially interested in the land when he did not; and

(c) by stating that the consent of all persons beneficially interested in the land was obtained to act as trustees, which is untrue.

I should say at once that I am not satisfied, on balance any fraud has been shown whether as a consequence of a statutory declaration that the descendants of Besu Mamata tribe were the owners of Perpetual Estate land parcel 192-008-093 or otherwise. In the words of Chief Justice, the plaintiff’s claim is mere assertion and cannot amount to evidence of fraud. The disputation over this land and land adjacent has a long history but the 3 parcels in issue, no’s 192-008-79; 192-008-80 and 192-008-93 were transferred to the 1st defendants many years ago, in December 1998 (and later no 192-008-93 in May, 1999).

A custom hearing before the Gaobata House of Chiefs took place in July 1991 when the 2nd named plaintiff, Ben Maru (Senior) took part. The issue of the 1st defendants rights became registered as representatives of the landowners was not challenged by Ben Maru for that decision was effectively subsumed in the registration of the 3 land parcels by transfer. The rights of the plaintiff to challenge registration after this length of time reflect on their bona fides in challenging on the basis of fraud or mistake for the uncontested House of Chiefs decision stood for some 16 years, unchallenged.

I do not accept the plaintiff’s evidence. It seeks to contradict the fact of the registration of these transfers of the 3 parcels which followed exhaustive enquiry before registration could be effected. The presumption of regularity on registration by the Commissioner of Lands has not been displaced.

Delay until July 2005 (before asserting an interest) has not been satisfactorily explained.

The plaintiff’s assertions now, smack of mala fides and this court should not countenance use of its process in this fashion.

The registered proprietors of the perpetual estate are owners in their representative capacity. If the plaintiff’s cannot convince the representatives of their claim to a share or interest in the benefits flowing from the land, it is either because they have none, or by virtue of their behaviour, the representatives have acted to exclude them from a share. In either event, the question is one for the customary forum, not the High Court.

They have, in terms of the principles in the judgment of the Court of Appeal no more than mere assertions to customary rights in the land. (Steven Veno v. Oliver Jino anors – CAC 2/04 dated 12 April 2006). Their rights, if any to come to this court have been extinguished by laches. They have no locus standi to now seek, by summons, relief which needed necessarily to have been brought by way of prerogative writ of certiorari since the Land Commissioner must be presumed to be aware of the fraud or mistake, on the plaintiff’s case.

Certainly on the evidence as it stands, without need to make findings of fact, what is plain is that the owners of the parcels have openly pursued the procedures which led to registration and there is no evidence to suggest the plaintiff’s cannot rely on that open process to refute the plaintiff’s recent allegations.

The time available to complain of the Commissions of Lands act in registering the transfer has long passed.

Order 61 r3 provides that an application for leave to institute proceedings for a prerogative writ must need be instituted with in 6 months of the act of registration. This took place in 1998 and 1999.

The claim has no merits. As I say it smacks of mala fides.

I have no hesitation in striking it out for that the plaintiffs have no standing, are estopped by the provisions of the HC Rules from now seeking redress to overturn the Commissioner acts, evidences no fraud or mistake in the fact of the process, are guilty of laches and cannot be believed on the evidence. The cause is struck for being frivolous and vexatious.

Mr. Kama’s written argument cogently and carefully satisfies me on very many other precedents to strike which would justify my acting in this case but I rely on the simple few which he pleads in his summons to strike and accept the arguments which I rely on above. The plaintiff’s shall pay the 1 & 4th defendants costs and I certify the proper increase in charges set out in scale I shall be 800%, or such other amount as the taxing officer deems appropriate having regard to the guidance given in Yam v Leong (Court of Appeal 17/1999)

THE COURT