Simikera v Ragoso [2007] SBHC 41; HCSI-CC 368 of 1999 (6 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 368 of 1999

MAXWELL SIMIKERA
(Representing the SISORO (ZIMBO) Tribe of MBAVA (BAGGA) ISLAND)

-v-

HERRICK RAGOSO, ZEROLYN VIURU, MILTON TONA, TEDDIE ALU
AND LORRAINE BOSO (As Registered Joint Owners of MBAVA ISLAND, VELLA LA VELLA)
First Defendants, COMMISSIONER OF LANDS (Second Defendant),
REGISTRAR OF TITLES (Third Defendant)

(Mwanesalua, J)

Date of Hearing: 11 March 2005
Date of Ruling: 6 March 2007

G Suri for the Plaintiff
Nenopo for the Defendant
N Moshinski for the 2nd & 3rd Defendants
A N Tongarutu for the Tribe 4th Defendant

RULING on claim for rectification to land register on basis of fraud or mistake

Mwanesalua J. The Plaintiff seeks a determination whether the Plaintiff’s tribe on the 1st defend (and now the 4th defend) tribe leave claim as issuing from the original owner to the land held by the Commissioner as trustee.

Marovo Local Court hear the customary issues regarding the true descendants of customary owners of the island as the Vella La Vella Local Court close to the island may be biased against the Plaintiff.

The Plaintiff and 1st defend already have decisions on ownership.

Mrs. Tongarutu, for the 4th tribe has no objection to joinder but objects to determination of customary ownership to be determined by Local Court for she says the matter has been already set for trial in this court.

The thrust of the Plaintiff’s case is allegation of fraud and mistake by the 1st defendant.

The relief is rectification of the Land Register. The court should determine any issue of fraud and mistake first. Also, as the island is registered land, the Local Court has no jurisdiction to direct rectification of the land register.

The Plaintiffs claim that Marovo Local Court should hear the argument, but it is one properly to be decided in the place of the land dispute.

Mr. Suri says the plaintiff lodged an appeal against 2 chief’s determinations, and confirms appeal against the decision in 1st defendant’s favour.

Mr. Nenopo – has no objection to joinder or referral.

Moshinski said that section 229(1) of the Land & Titles Act empowers this court to rectify the land register if fraud or mistake or proven to show the registration details to be wrong.

The 1st defendant are registered as owners of the Perpetual Estate Parcel No. 079-006-2/34 namely Bagha Island. They were registered on the 5 February 1988.

In this case the Plaintiff claim fraud on mistake.

Moshinski’s argument follows –

"4. In the particulars provided by the Plaintiff of fraud an allegation is made[1] that the First Defendants and/or their relatives fraudulently represented that they were the original landowners in custom of Bagha Island.

5. Also in the particulars provided by the Plaintiff of mistake[2], it is alleged that at the time of the granting of approval and the subsequent transfer of the perpetual estate title by the Second Defendant to the Second Defendant mistakenly believed that the First Defendants represented the only original land-owners of Bagha Island.

6. Thus, in order to establish the allegations of fraud and mistake the Plaintiff, in accordance with his own pleading, must prove that the First Defendants do not represent the original landowners of Bagha Island. It is incorrect to submit (as has been done by counsel for the fourth defendants) that the allegations of fraud or mistake can be proven without the necessity to determine this issue.

7. The Defendants contradict the allegations of fraud and mistake and allege that the First Defendants are the correct representatives of the true owners in custom of Bagha Island.

8. In order to determine this live issue in the trial, the Court will have to receive evidence concerning events occurring as far back as the 1850"s or earlier about circumstances in respect of which there are no written records. Such evidence must be of a hearsay nature and thus become inadmissible in the High Court.

9. It is therefore entirely appropriate that the issue of whether the Plaintiff or the First Defendants correctly represent the original inhabitants of Bagha Island be determined by the Local Court which has power to decide this issue in accordance with the law and custom of Islanders prevailing in the area of the jurisdiction of the court[3]. Further it can have regard to the decisions made by chiefs in connection with the dispute[4].

10. The High Court has power to refer this issue to th4 appropriate Local Court for determination further to2354(2) of the Land and Titles Act (Cap 133). This provision enables the Court to refer "any matter" of a civil nature to a Local Court. Thus, any issue which the Court considers relevant can be determined by the Local Court on the High Court’s reference.

11. It is incorrect to submit that the Local Court can only determine customary land issues. The expression "any matter" is broad enough to include the determination of any question or issue which the High Court considers to be appropriate for determination by a Local Court. Such an issue could include, as in this case whether a group of persons are descended from the original owners or inhabitants of a particular place.

12. Thus, it is submitted that the High Court should order that the question of whether the Plaintiff or the Sisioro Tribe represented by him or whether the First Defendants or the persons represented by them or the Fourth Defendants or Leona, Kuava & Luvarava Bava Tribes represented by them are the true descendants of the original owners or inhabitants of Bagha Island be referred for the hearing and determination of the appropriate Local Court."

Clearly where custom is an issue to be determined, this court is bound by the Statutory imperative in the Local Courts Act. (Neno & Jino, Court of Appeal in April 2006).

I am bound to refer the matter for determination as this court has no jurisdiction to enter upon the investigation. The question for investigation is that posed in para 7 of Mr. Moshinski’s submission.

I accordingly order that this file be referred to the Vella La Vella Local Court for determination of the question posed. The material on this court file may be relevant for the justices’ consideration but their enquiry into custom is unfettered by such referral, and should not be seen as restricting the justices enquiry in any way.

Once the question is answered, the matter will be relisted before this court to determine whether any and if so what rectification under need be made.

It is not appropriate to refer matters such as this to court outside the area of the land dispute. It is wrong, to presume bias in a tribunal. The appropriate tribunal is the Vella La Vella Local Court.

Mwanesalua, J:

THE COURT

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^[1] Paragraph 6(iv) of Statement of Claim
^[2] Paragraph 7(ii) of Statement of Claim
^[3] s16 Local Courts Act (Cap 19)
^[4] s13 Local Courts Act (Cap 19)