Ilabae v Sifoni [2011] SBHC 148; HCSI-CC 196 of 2010 (6 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 196 of 2010

BETWEEN:

DEROL ILABAE, BEVERLY TALO
AND RANDAL ANIPOENI
(Representing Lonely Hill Community)
Claimants

AND:

DOUGLAS SIFONI
First Defendant

AND:

ATTORNEY GENERAL
(Representing Registrar of Titles)
Second Defendant

Date of Hearing : 17 October 2011
Date of Ruling : 6 December 2011

Dr. P Tagini for Claimants
Rano for First Defendant
Kii for Second Defendant

RULING

1. This is an application by the First Defendant filed on 7 September 2011 on a preliminary issue. The First Defendant seeks:
   
   • (1) An order that in the event the Claimants' claim is statute barred they have no justiciable claim against the First and Second Defendants.
     
   • (2) An order in the event the Claimants are statute barred by limitation of time, the claim filed on 27 May 2010 be dismissed.
     
   • (3) In the event that the Claimants are not limited by time this matter should be put to trial.
     
   • (4) Cost in the event.
     
2. The issue in this application is whether or not the claim filed by the Claimants is time barred under the limitation Act [cap 18] ("the Act"). The First Defendant's case is that the claim was filed out of time and in that regard it should be dismissed with costs. On the contrary, the Claimants' contend that as the claim is for recovery of land it is perfectly in order and not statute barred.
   
3. The brief background facts of the claim are that: The late Sipae Sifoni was a registered owner of the Fixed Term Estate in PN 192-004-66 ("the Land"). This land was registered in his name on 26 October 1993. He passed away on 10 October 1996. The land was then transferred to his Son, the First Defendant on 6 August 2002.
   
4. The time bar provisions under the Act for purposes of this application are Sections 5 and 9 (2). Section 9 (2) of the Act states that action for recovery of land is twelve years. The Claimants submit that their claim is one for recovery of land. They say that even though they are staying on the land, the register of the land needs to be rectified to show that they, the Claimants, are trustees of the land.
   
5. There is evidence that the Claimants were in legal occupation of the land since the land was registered in the name of late Sipae Sifoni. There is also evidence that other members of the Sifoni family contributed towards the purchase price of the land. A bank loan was also made by a number of persons as their contribution towards the price of the land. The total price of the land was $30,000.00.
   
6. The dispute between Claimants and the First Defendant became obvious after First Defendant became the registered owner of the land on 6 August 2002. The Claimants filed a claim against him and others on 27 May 2010. This claim covers replacement of the First Defendant on the Register of the land. That would obviously mean the recovery of the land from the First Defendant who is the current registered owner of the land. That may well apply to parts of the land sold to other persons by the First Defendant. This case involves, among other things, issues of recovery of land. The cause of action here arose when the First Defendant became the registered owner of the land on 6 August 2002. The cases cited by the First Defendant have been perused but I consider that they are not quite relevant to the facts of this case. This is a case where the time limitation of 12 years applies, and not the 6 year period under section 5. The application therefore fails.
   

Order: This application is refused and accordingly dismissed with costs.

THE COURT