Kovelau v Saemanea [2012] SBHC 64; HCSI-CC 288 of 2008 (24 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 288 of 2008.

BETWEEN:

SERA KOVELAU
Claimant.

AND:

CHARLES SAEMANEA, SIMON NGOLI
NELSON MATAI, LUKE TAUTO & DANIEL
KOTI. (Trustees of Perpetual Estate in PN 192-008-86,
192-008-87 and 192-008-88).
First Defendant.

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles).
Second Defendant.

Date of Hearing: 9th July, 2012.

Date of Ruling: 24th July, 2012.

Mr. M. Tagini for the Claimant.
Mr. T. Kama for the First Defendants.
Mr. R. Firigeni for the Second Defendant.

RULING.

1.	Faukona J: A claim under Category A was filed on 1st September 2008 for a number of Orders and Declarations including an order for rectification of the land register in respect of three parcels of land where it was alleged that the registration was obtained by fraud. The three parcels of land are 192-008-86, 192-008-87 and 192-008-88 and are located at the Guadalcanal Plains, North Guadalcanal.
2.	Further a declaration that the decision of the Guadalcanal Local Court in respect of Tetere customary land made on 25th June, 1993, super cedes the judgment of the High Court in Civil Case No. 295 of 1997, made on 17th May, 2001 and damages be assessed.
3.	In denying the claim the first Defendant filed this application seeking orders that the claim be struck out on the grounds; that it is frivolous and vexatious and does not disclose any reasonable cause of action; that the Claimant has no locus standi; and that the claim is statute bar. Further that paragraphs 9-11, 14, and 16-17 of the claim be struck out on the ground that they are inadmissible and embarrassing.
	Background facts.
4.	In the Colonial Administration era, certain lands within the Guadalcanal Plains, in particular Tetere land was sold to the Residential Commissioner who represented the British Solomon Islands Protectorate Administration. Those lands were sold by various people who were identified as original landowners.
5.	At independence, the Government of the independent state of Solomon Islands adopted a policy that all alienated land sold in the colonial era to the Colonial Administration be reverted back to the original land owners. The process of transfer was a Government policy and not an enactment.
6.	The procedure is that application would be submitted to the commissioner of lands through the Guadalcanal Provincial Government for allocation of specific land area. The Provincial Government endorses the application and forwards the same to the commissioner of lands who grant approval and made an offer to the applicant. The applicant would either accept the offer and pay consideration for transfer and related costs for sub-division, if any, or refuse. Transfer would then be executed by parties and applications for registration lodged.
7.	The procedure may not be the most effective and safest process to apply. It would seem the only evidence to proof the applicant's relationship to the original vendor was a genealogical table attachment. Apart from that there was nothing, not that this Court is informed of. And then the application has to be endorsed by a political decision, a Provincial Minister for Lands before onward submission to the Commissioner of Lands. One of such anomaly was done by Mr. Manedetea whose title was later rectified by an order of the High Court in CC No. 295 of 1995. However the first Defendant had successfully challenged Mr. Manedetea and others of their title on 17th April, 2002. The land then was registered in the names of the first Defendant.
8.	In this case the Claimant claims that Tetere land is hers and comprises land between Metapona river to the west of Nini creek (Tetere eto). Parcel Numbers identified in paragraph 1 above are within this land. Those lands were sold to the Commissioner of lands in 1904 under a deed of Conveyance with Lova, Kogana and S. Ragan. In reality there is no deed of conveyance dated 1904, executed by Lova, Kogana and Ragan, but there was in 1916.
9.	In or around 1992 there was a litigation instituted in the Chiefs hearing to settle a dispute between the Claimant and James Kogana the descendant of Kogana 1 who involved in the deed of conveyance in 1916. The boundary of that customary land in dispute was the remaining area of the land sold. It was from the beach to the boundary of the registered land. See Sarah's sworn statement filed on 28th October, 1998 paragraph 5.
10.	It would be appreciative to examine the deeds of conveyance to identify which party is the descendant of the original vendors. There are three deeds of conveyance. The first one was executed on 4th July, 1912 by G. Toli and seven others who sold a land to the District Commissioner. The area of land was Tetere on Guadalcanal without any mention of demarcated boundaries. The second deed of Conveyance was executed on 7th March 1916, where S. Ragan, Kogana, and C. Lova sold 160 acres of land also named Tetere adjoining the northern boundary of the occupation grant to Burns Philip and Co. Ltd, lying between Muvia creek and Metapona river. The third deed of conveyance was a sale of 2000 acres by J. Meudoa and five others on 28th October, 1916. The land was Tetere fronting the coast between Metapona river and a point near Tetere village along the coast.
11.	From the documents it is apparent the lands sold by the original vendors were not well documented, in particular demarcation of boundaries.
12.	It has been pointed out by the Claimant that the land she won in the High Court, which confirmed the decision of the Local Court, was the remaining customary land and was outside of the land sold by Ragan, Kogana and C. Lova. And that the lands being the subject of this dispute were not located within the land sold by Kogana and two others as well. In fact they are quite a distance away.
13.	It would appear that the Claimant's ultimate cause of action is to proof that Kogana, C. Lova and Ragan had sold to the Colonial Administration land located between Nini creek to Metapona river. Mr. Tagini has reinforced in his submissions by referring to a deed of conveyance at page 19 of Mr. Saemanea's sworn statement filed on 21st July, 2011. By successfully winning the case against Kogana, a descendant of Kogana 1, would entitled her the rights of ownership in the customary land portion which Kogana had lost, inclusive the land which Kogana 1 and C. Lova and Ragan sold to the colonial administration including the three parcels of lands now being the subject of this case.
14.	Unfortunately the Claimant is of a mistaken belief that because she won a claim over customary ownership of land against Kogana that will give her leeway some impact and rights of ownership on land Kogana had sold and had been registered in the names of others. In Karahu V Paeva[1] the Court profoundly states that the ownership of any registered land would be a matter beyond the jurisdiction of the Local Court and the customary Land Appeal Court. Simply put, that the decision of the Court the claimant rely on has not affected registered land because it has a different legal status in law, unless the process under section 242 of the land and Titles Act has qualified so.
15.	In reality the deed of conveyance refers to by Mr. Tagini executed by Charles Lova and others concern an area of land situated between Muvia creek and Metapona river. It is crystalline clear from the deed, which cannot be disputed, that Muvia creek originates from Nguvia plantation down Ghavagha and further down to Ghavagha 1 and then to the sea.
16.	There can be now doubt that the land Kogana and others sold does not include the three parcels of land which located east of Muvia creek which are some distance away. Worst still the Nini creek which the claimant claim as a natural western boundary of the land sold by Kogana and others is unconvincing. Actually the Nini creek run through one third of Parcel Number 192-008-88, and has never placed on the western end of the creek Parcel Numbers 192-008-0086 and 192-008-0087.
17.	I see no logic or any reasonable ground for the claimant to extend her assertion of right to claim the three parcel numbers which are totally different, distinctive and totally exclusive from the land Kogana and others sold and the land the Claimant won in the High Court. The titles of those lands are totally secured by those who registered them in their names respectively.
18.	It boils down to the legal applicability of the jurisdictional strength of the local court decision which affects and benefits the parties to it and not the whole world. Mr. Kama has righty submitted that it is a decision inter parte. See Talasasa V Paia[2]. That leads to the fact that the Claimant has no reasonable cause of action, affirming that she has no right or locus standi to institute this proceeding.
19.	However, Tetere land describe by the deeds of conveyance was broad in natural sense without proper demarcation boundaries. One can assume that the customary had located at Tetere beach and submitted by Mr. Kama as Parcel Number 192-008-N could possibly put the matter to rest with the assurance that the local Court decision has never encroached into any registered land and the Claimant is well versed with that.
	Land dealing with Parcel Number 192-008-88.
20.	On 13th January 1995, the perpetual estate title in Parcel Number 192-008-88 was transferred to William Manedetea and two others. By High Court CC No. 295 of 1995 the First Defendant successfully applied for rectification and eventually had the land registered in their names on 17th May, 2001. It was the process of application for rectification that the Claimant alleged that it was done by fraud because the First Defendants had resort to wrong representation coercing the Claimant to swear an affidavit supporting the First Defendant's case.
21.	From evidence the Claimant agreed to swear an affidavit in support of the First Defendant. Later she denied signing the affidavit but his son did. I see there is nothing wrong about that.
	Statute bar.
22.	In determining the issue of statute bar the question is has the Claimant aware or having knowledge of the subsequent transfer by the Commissioner of Lands to Mr. Manedetea and others on 13th January, 1995. By paragraphs 7 and 8 of the statement of claim the Claimant indicated that around late 1980s the Commissioner of Lands displayed three months' notice pertaining to the aforementioned parcels of land which subsequently Mr. Manedetea fraudulently acquired the title of those lands.
23.	Apparently it denotes a clear position of having knowledge of what actually went on. If the Claimant knew of Mr. Manedetea fraudulent action at that time, why should she fail to challenge the transfer of the title to Mr. Manedetea and others. Why waited until 15th September, 2008, when this action was filed. I would perceive that she was keener in indulging in a customary land dispute with James Kogana, descendant of Kogana 1 which subsequently she won; thinking by winning her case she would be entitled to all the lands that Kogana 1had sold which is an elusive thinking and dream.
24.	It is apparent that rather than commencing a case of fraud against Mr. Manedetea and others for using her family genealogy to acquire the title, she indulged herself in customary land dispute. Unfortunately time has caught up with her. In the case of Billy V Daokalia[3] which clarify that a claim of fraud or mistake must necessary be linked to the time when registration was obtained, made or omitted. The knowledge refers to is subsection (2) accordingly, must also be confined to the time period when registration was obtained or made.
25.	13 years and 8 months after the Commissioner had transferred the estate to Mr. Manedetea and others, she commenced this action. Apparently this action is statute bar under section 9 (2) of the Limitation Act which clearly states an action to recover any land must be brought within 12 years and bars from seeking legal remedy under section 33 of the Act. The right to apply for an order for rectification under section 229 (1) of the Land and Titles Act rose from the first transfer from the Commissioner to Mr. Manedetea and others, but the Claimant had failed to apply at the first instance, though she had knowledge as in paragraph 7 and 8 of the statement of case. After more than 13 years she is not allowed by law to commence this action. She has been sitting on her right since then.
	Parties to this action.
26.	Mr. Kama submits that claim for rectification of parcel numbers 192-008-86 and 192-008-87 is not a valid claim. The registered owner is Guadalcanal Plains Resources Development Co. Ltd which is not a party to the current proceedings. I agree with Mr. Kama, being the registered owner of the estates, by law the Company must be afforded the right to be heard. In doing so the company must be a party to this proceeding by right. The Court cannot proceed and make determination in the absence of the owner. The principle of law was discussed by Ridge V Baldwin[4] where Lord Sucks stated on page 73, paragraph 4;
		"... the power was a subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard..., Miles J said that the rule was of universal application and founded on the plainest principles of justice".

27.	With no application on record to amend the claim, the claim cannot sustain a cause of action against the Defendants.
	Conclusion.
28.	Having said all that, the claim and cause of action instituted by the Claimant cannot sustain any cause of action or any remedy the Claimant may have sought. And must be stuck out for the following grounds; that the claim is frivolous and vexations and does not disclose any reasonable cause of action. That the Claimant has no standing in this action and is statute barred from bringing this cause of action. Suffice to say reasons for arriving at this decision are enough. It is not necessary to consider the question of admissibility of certain paragraphs contain in paragraph 3 of this ruling.
	Orders.
	1.Application granted and claim with all relief sought is hereby strike out.
	2. Costs are awarded to the first Defendants on standard basis.
	The Court.

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^[1] (1999) SBHC 7; CC; 179 of 1998 ( 5 February 1999).
^[2] [1986 – 1981] 59 LR 93.
^[3] [1995] SBCA 5 CA CAC 001 of 1995 (25 October 1995).
^[4] [1963) 2 All For 66