Sikua v Eta [2013] SBHC 142; HCSI-CC 205 of 2011 (30 October 2013)

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

Civil Case No. 205 of 2011.

Between:

DR. DEREK SIKUA AND DORIS SIKUA
Claimants

And:

DANIEL JEFFREY ETA
1st Defendant

And:

ATTORNEY-GENERAL
2nd Defendant

Dates of Hearing: 14th June 2013; 3rd July, 2013;
13th September 2013; 16th September,
2013; 11th October, 2013

Date of Judgment: 30th October, 2013.

Mr J. Keniapisia for the Claimants.
Mr M. Pitakaka for the 1st Defendant.
Mrs R. Soma for the 2nd Defendant.

JUDGMENT.

Faukona J: This claim was originally filed in relation to common access road that runs through the Claimants and the 1st Defendant's property, at East Kolaridge, Honiara. It started as an easement issue or right of way. Having aware that right of way or easement are issues that have a process or procedure to resolve under S.114 and S.115 of Lands and Titles Act, the Claimants then abandoned the issue and parties should pursue final resolution through the Commissioner of Lands. Any party aggrieved can appeal to the High Court. Accordingly, the issue of access is removed on the ground of lack of jurisdiction. That leaves the issue of fraud and mistake raised in the counter claim by the 1st Defendant. It is confirmed by the Claimants they will pursue resolution of the issue through the appropriate forum. The Claimants also claim permanent injunction prohibiting the 1st Defendant and all his associates from interfering with them whatsoever.

2. The Claimants and the 1st Defendant are neighbours. The 1st Defendant holds a fixed term estate in PN 191-036-50, which is also known as Lot No. 1137. The Claimants were the registered owner of fixed term estate in PN 191-036-58, also known as Lot 1136.

3. The 1st Defendant acquired his land since 17th September, 1987, and the Claimants acquired their property around 1st January, 1998.

4. On 28th February 1992, the 1st Defendant applied to the 2nd Defendant for an extension to the boundary of his property.

5. On 5th August 1992, the Physical Planning Division sent memoranda to the 2nd Defendant with a recommendation that contain three things; one of it was that the 1st Defendant's application be granted.

6. On 22nd October, 1992, George Hoatamauri [Lands Officer] on behalf of the 2nd Defendant approved the 1st Defendant's application for extension.

7. On 14th January 1993, the 2nd Defendant instructed the Surveyor General to carry out survey work on 1st Defendant's application for extension.

8. On 25th January 1993, the Surveyor-General approved the survey work that was requested.

9. As a result of the survey work, Lot 2461 and Lot 2462 were created. For the work done the 1st Defendant had paid the requisite fees.

10. On 4th June 1999, the Claimants acquired fixed term title to Lot 1136/V1/H, which includes Lot 2461 and Lot 2462.

11. The registration of the land did not go down well, and came as a surprise to the 1st Defendant. No reason could possibly conclude as to what had happened. He had applied for extension and was approved 5 years back. Subsequently was allocated to the Claimants. What had been done was by reason of mistake and or fraud. That perhaps prompted reaction, which led to barricading and restraining orders that follow suit.

12. The Common law principle, which now widely applied in most jurisdictions that he who alleges must proof. Simply put, that the 1st Defendant must proof the allegation of fraud or mistake on the balance of probability.

13. The Claimant denies being aware or part of any fraud or mistake as alleged.

The Law on fraud or mistake:

14. Section 229(1) of Land and Titles Act gives the power to the High Court to order rectification of the land register be cancelled or amended upon being satisfied that registration was obtained by fraud or mistake. Subsection (2), that the register cannot be rectified to affect the title of the owner who has acquired interest for valuable consideration unless the owner had knowledge of omission, fraud or mistake or cause such fraud or mistake, or substantially contributed to it by his act.

15. From February 1992, when the application for extension was submitted, there were indeed positive responses from the Departments under the Ministry of Lands. What had transpired can only be verified by letters as part of the evidence. After the survey was done two new Lots were created, Lot 2461 and 2462. The two new Lots were supposedly the new extension, which 1st Defendant said he applied for. Amazingly, after the survey, Lot 1136 was affected instead of Lot 1137 of which extension was required. See map Exh. Av8. As a result, Lot 1136 expanded to include Lots 2461 and 2462, which physically subsumed into it.

16. I noted there is evidence related to references made to concern Lots by the Deputy Commissioner of Lands in paragraph 9 and 10 of his sworn statement. Again concerning Lot 2463 was a letter from Westpac Pacific Bank from which the Claimants wish to acquire a loan, a map exhibit on page 103 of the Court book, a building permit on page 114 of the Court book, which quoted Lot 2463, which the Claimants submitted. The problem is that there was no parcel number (PN) given. What could have occurred that the two Lot numbers were yet to be registered by Registrar of Titles? It drops back to the argument advance by the Claimants that what happened had been done merely reached surveying stage where the proposed Lot numbers were given. After surveying, a recommendation was submitted to the Commissioner of Lands. The Commissioner of Lands after approval should be forwarded to the Registrar of Title for registration and parcel numbers were given. There is no evidence the Commissioner of Lands had made submission to the Registrar of Titles. As a result, the Commissioner of Lands had never at any time in possession of any parcel numbers corresponding to Lots 2461 and 2462. Therefore, there was nothing that could be applied for and be offered. The 1st Defendant is claiming land that never really actually existed. The mutation process had never been completed.

17. Was there is any application by the 1st Defendant for those two lands which could have prompted any offer? There was none at all. The reason being that 1st Defendant expected that the Commissioner of Lands would inform him after the mutation process. That expectation eventually prolonged for five years. It would appear the 1st Defendant is someone that after he played his part sit back and expect others to come back. This age and generation is different. You have to make follow ups to ascertain what stages of progress as you advance.

18. Five years waiting should trigger some respond by the 1st Defendant to check. He had done nothing except for his patience. Unfortunately at the end of all that, the lands were allocated to the Claimants. Was the allocation, which prompted registration, done by fraud or mistake?

19. The truth about this case is that there was no formal application and no offer made to the 1st Defendant for the lease of those lands. The approval granted on 22nd October 1992 for application for extension was to kick start to the mutation process. The fees that were paid were survey fees. If there was no application, no offer, then there was nothing to consider, and nothing to expect from the 2nd Defendant. As a result, there was never been a binding and legal contract which will allow the parties to sue for breaches of the terms. Alternatively, it would be wrong to assume that expectation must be done, if not, tantamount to fraud or mistake.

20. A simple common understanding is that administration of crown land by the Commissioner is quite to a tiring job. Tens of thousands of people want land and are queuing for it. As it may, lands become scarce. No one would deny there is competition. Less the 1st Defendant forget that allocation of crown land is done by discretion exercised by the Commissioner of Lands. He either allocates to the applicant or refuses or allocate to someone else. They are all discretionary powers vested upon him and no one else. His action should not be fettered by any influence from outside and from any one.

Rectification:

21. Section 229(1) of Land and Titles Act provides that the Court may order rectification of the land register by directing that the registration be cancelled or amended, where it is satisfied that the registration was done by fraud or mistake. The gist of that statement, that there ought to be evidence to proof to the satisfaction of the Court, that the registration was done by fraud or mistake. The power of the Court is clearly outlined in number of authorities including the case of Maukera V AG and Others[1], which emphasized almost the exact wordings as in Subsection (1) above. However, in the case of Billy V Daokalia and Others[2], it provides a protective clause, which is consistent with the doctrine of indefeasibility as contain in Section 100 of the Lands and Titles Act, thereby protective of the title of the owner. To unlock it is to proof the elements alleging the owner has knowledge of, omitted or caused, or substantially contributed to fraud or mistake. The Court of Appeal discussed the time period required for the knowledge of the mistake to be effective so as to open the register for rectification. At page 30 the Court said,

"A crucial question which must be clarified relates to the time period when such owner had knowledge of the mistake. It is inclusive knowledge after registration, that is when registration has been obtained and the interest acquired for valuable consideration? To give it the former meaning in our view would make the protective arm of the sub-section meaningless. Secondly, it must be read with subsection (1). The claim for fraud and mistake must necessarily be linked to the time when registration was obtained, made or omitted by fraud or mistake. The knowledge referred to must also confine to that time period when registration was obtained or made. If the registered owner had obtained possession and acquired the interest for valuable consideration without knowledge of the omission, fraud or mistake, then he is entitled to rely on the protection of subsection (2)".

21. The argument advance by the 1st Defendant is that as a reasonable Commissioner of Lands ought to have offered the two lots to him because they were created by his initiatives with requisite fees paid. He should be informed of the reasons by the Commissioner's preference. And that offer and registration was contrary to advice, that after the mutation process a formal offer be made to him. That has been omitted, hence, an inference can be drawn that the granting of the two lots to the Claimants were tainted with fraud and mistake.

22. It is further argued that there is evidence that Mr Neson Nesa was the Commissioner of Lands in 1998, and was renting the Claimants property in 1998. Therefore, at the time of registration of the Claimants lands, the 2nd Defendant knew about the fraud or mistake and the Claimants had knowledge of it.

23. The problem with the allegation of knowledge of fraud is the Claimants acquired their property in January, 1998, the year Mr Neson was the Commissioner of Lands.

24. It is expected that ground work could have been started prior to January, 1996. There is no evidence that Mr Neson was the Commissioner of Lands in 1997, except in 1998. To link the Claimants to Mr Neson in a tenancy relationship to verify knowledge of fraud is quite difficult. Presumption must be omitted, only evidence is accepted. If the Claimants had acquired their property in January 1998, Mr Neson could have moved in months after January 1998. At that time registration had already being done. The question is had Mr Neson involved in omission, fraud or mistake by advising the Registrar of Titles to register the two blocks in the names of the Claimants, of which the Claimants had knowledge of or cause to happen or substantially contributed to it.

25. The Claimants deny having any knowledge, cause, or substantially contributed to any fraud or mistake or omission. They deny having any knowledge of the 1st Defendant's dealings. Perhaps, all they knew was that the lands were vacant and were not allocated to any person. Any vacant land is subject to the exercise of discretionary power of the Commissioner of Lands to allocate.

26. From evidence I would able to deduce that the 1st Defendant relies on the counter-claim premise on expectations because of his initiatives, and forget about the discretionary powers of the Commissioner of Lands in allocation.

27. By Section 229(1) the 1st Defendant is obliged to proof on the Civil standard that the Claimants had caused, or had knowledge of or contributed to the fraud or mistake at the time of allocation followed up by registration. It has to be noted that allocation and registration are follow up processes, which are closely associated with one another. In the case of Tikani V Motui[3], the Court stated,

"... the Plaintiff need to show how in what way this failure is fraudulent or amounts to mistake. What are the circumstances, or the particulars of fraud or mistakes relation to this failure? When did it occur, where, who were involved, what actually transpired, what were the representations that transpired, what were fraudulent or amount to mistake".

28. It is quite difficult to assess whether the Claimants were aware that the 1st Defendant had interest on the same land and had made a move to acquire it. All I could ascertain is that enquiries could have been made as in normal circumstances. Even so, the fact stands, that the lands were vacant and were subject to allocation to any person. In the case of Liko Association V Commissioner of Lands[4] should be distinguish from this case. In Liko case, there were two registrations in respect of the same land. It has a different feature and set of facts which am afraid cannot be a precedent to apply here.

29. I find the Claimants may have some knowledge of the 1st Defendant's attempt but nothing could stop them applying. In all cases, applicants may be many but the allocation depend on the Commissioner of Lands discretion. That discretion is perfectly exercised in this case without proof of being tainted with fraud or mistake. Indeed, the Claimants had acquired interest for valuable consideration and therefore are protective of their titles.

Counter claim barred by Limitation Act:

30. Section 9(2) of the Limitation Act (Cap. 18) provides that;

"No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or it accrued to some person through whom he reclaims to that person"

31. Ascertaining the date when the cause of action accrued is crucially important to determine when the period of limitation expires. The 1st Defendant says in evidence, that he was surprised to note that the Claimants acquired PN 58, their property which include the propose Lots 2461 and 2462 in 1998. In answer to one of Courts question the 1st Defendant says, "the Commissioner of lands is still processing his application and that in spite of long wait, he still has faith and belief, an offer or response would be forthcoming".

32. By having knowledge of the Claimant's allocation and registration in 1998, would that cause of action accrued from that date or is he saved by Section 17 of the Limitation Act which states that a cause of action is deemed to have accrued on the date or which the right to relief sought by an action arises, except for cause of action based on continuing wrong which shall be deemed to accrue on each day the wrong continues. Is this case where wrong is continued?

33. The 1st Defendants had knowledge of the registration of the Claimants' properties in 1998. He filed counter-claim alleging fraud or mistake in 2012 in respond to the Claimants case in category A. It was 14 years thereafter. His excuse is in paragraph 27 above.

34. In my opinion, this is not a case of continuing wrong. The 1st Defendant did not show that he knows of the wrong only in 2012 when he was prompted to file the counter-claim. He knows exactly what happened in 1998 and yet sat on his rights. I do not think law of equity will provide saving grace under S. 39 of Limitation Act either. Equity will only help those who help themselves. The counter-claim is definitely barred by the Limitation Act. In the case of Bird V Registrar of Titles[5] the Court stated,

"The basis of the doctrine of limitation is that, after a period of time which a person during which a person has failed to exercise his high rights, that person is prevented from applying to a Court to enforce those rights and therefore his rights are lost".

35. From the submission, the 1st Defendant cannot bring the counter- claim against the Claimants and the 2nd Defendant because it is time barred. The counter-claim was filed 14 years after the 1st Defendant had known of the wrong.

Orders:

1. The 1st Defendant's counter-claim fails.
2. Restraining orders previously granted to continue in operation.
3. Cost is paid to the Claimants and 2nd Defendant.

The Court.

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^[1] CC 14 of 2003, Unreported.
^[2] CAC No. 1 of 1995, Unreported.
^[3] [2002] SBHC 10.
^[4] [1999] SBHC 120.
^[5] [1980] SBHC 6.