Rua v Olofia [2014] SBHC 14; HCSI-CC 240 of 2013 (18 March 2014)

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

Civil Case No. 240 of 2013

BETWEEN:

JEREMY RUA
Claimant

AND:

AARON OLOFIA
Defendant

Date of Hearing: 27th February, 2014
Date of Ruling: 18th March, 2014.

Mr. A. Radclyffe for the Claimant.
Ms E.Garo for the Defendant.

RULING.

Faukona J: This application is brought to Court pursuant to Rule 3:15. It is an application for leave of the Court, for the grant of third party notice be served on Charles Nado, BartholomewPeroa, Andrew Mateluvu, BaranadoBatholomeu, SiprianoKavihauand William Maelaua who assert customary ownership of vasahorocustomary land, a part of which was registered as PN192-016-47, 192-016-58 and 192-016-135 which were purchased by the Claimant in 2010 and June 2012.

2. The rationale for seeking leave is because the Defendant claims contribution and indemnity against those above named persons. Therefore they ought to become a party, if not already party from the date of service with the same rights and obligations in the proceedings as if the Defendant had started a proceeding against them.

3. The facts that surround the basis of this litigation commence when the Defendant and the vendors, two of which are named in the application for third party notice, executed a written agreement for land purchased on 10th August, 2012. What transpired on that date is not of an immediate occurrence but materialised perhaps after days of negotiations.

4. That agreement clearly verified the total sale is $60,000.00 with first payment of $20,000.00 transacted on 10th August 2012; hence paved the way for further payments of outstanding amount of $40,000.00 on instalment basis with unfixed amounts and dates.

5. It would appear at the time of transaction that parties to that agreement were not aware of any prior ownership to the land whether lawfully by way of registration or any customary transaction. Whether that contention is true or not, the Defendant who is a director c/- P. O. Box 349 and based in Honiara could have taken reasonable steps to find out whether he was dealing with the true customary landowners and whether the land has been subject to registration. A person with calibre as the Defendant is expected to search wide before indulged in actual purchase transactions. He is expected to be self-satisfied to the fullest having explored all options before actual giving away of his money.

6. The truth which is not denied is that the land being the subject of this dispute had been part of the land registration made in the names of Gabriel Uni, Brian Uni, Florence Olofiaand OlofiaFatai and had been subdivided into parcels, parcel number 192-016-47 in 2009 and parcel numbers 192-016-58 and 192-016-135 in 2012. Those parcel numbers were then sold to the Claimant in 2010 and in June 2012 respectively. By December, 2013 after part payments of $32,200.00 was paid the Defendant entered into PN 192-016-135 constructed or cause to be constructed houses and other buildings and cultivated the soil.

7. The Claimant then filed this case on 12th July, 2013 for trespass, damages and order for possession of the land. The issue is very clear. However, the Defendant attempted by extending the core of argument to includethe process of registration of the estates. That the registration was done without consultation with the true customary landowners who hold beneficial interest over the estates. It would be proper to suggest at this stage that if the Defendant wishes to engage in questioning the process of registration then his counterparts have liberty to commence proceedings for rectification of the lands register. Meanwhile the length of this particular litigation does not in any way reach that far.

8. The question to ask in this application is how the Defendant would benefit out from the process of third party notice. To be frank I am conceivably belief, though the Defendant claims contribution and indemnity he may not benefit from the process at the end of the day. If for instance the application is granted and third party notice is issued then the issue of rectification of lands registry will be the substantive cause of action to litigate. That would be a different issue altogether unrelated to this cause of action. It will involve other parties as well.

9. If at the end of the day the Claimant succeeds then the Defendants is expecting double jeopardy. I accept Mr. Radclyffe's submission that if the Defendant wishes to question the registration process then commences a fresh action by rightful persons. Alternatively, he is at liberty to file proceedings for recovery of monies against those who had received the payments.

10. From evidence the Defendant seems to firmly stand on the fact that the claim by vendors are valid and totally ignore the legal right of ownership acquired through a sale by registered owners. It has to be noted that the rights of an owner of registered interest acquired subsequently for valuable consideration shall not be defeated except as provided by the Act. It would be absolutely incorrect to say that a claim (assertion) of ownership to customary land can defeat a right of an owner of the registered interest. Alternative options have been suggested above.

11. Ms Garo relies on the case of Manehamosa V Kelly[1]. I have the privilege to read the case. In that case, the Court was asked to grant order to rectify the register of perpetual estates by removing from the register the names of the first defendants as owners of the estate and substituting the names of the plaintiff. The issuesare at that time when the Commissioner allocated the land to the first defendants was he deliberately acting within his mind that the defendants need not be original owners? The Court found that the Commissioner allocated the land to the first defendants, at that time he was deliberately acting within his mind that the defendants need not be original owners. The Court also found the Commissioner had in mind the government policy to return alienated land reverted to original land owners when he decided to allocate the land to the first defendants. He believed he was returning the land to the original owners of the customary land. The court finally found the Commissioner was mistaken according to facts and that is false and the register be rectified.

12. Ms Garo argues that because the Defendant and his compatriots did not aware of the registration process, the case of Manehamosa will assist their contention. The case of Manehamosa does not concern with lack of knowledge of what was actually done by the Commissioner, but concern rectification of the register. Lack of knowledge plays minor note. The significant evidence adduce by the plaintiffs apart from having any knowledge is that their predecessors had raised their claim to customary right to the land at various fora, even produce judgments of Local Court and High Court in their favour. In this case, for time being perhaps not yet may be later when appropriate time comes. Unarguably the plaintiffs in Manehamosa had very strong evidence to proof they are the original landowners. It boils down to the fact that legal reasoning for decision in Manehamosa case cannot assist the Defendant in this case. Even by distinguishing those legal reasoning from the case of Ross Mining (SI) V Roni[2] would not change the circumstance as well. Ross Mining case concern with some kind of legal advice and press release which subsequently emerge into argument base on technical aspect of serving documents outside of jurisdiction and that there was no cause of action disclosed which is fundamental upon which the orders of the Registrar was set aside.

13. In all that I say, I must dismiss the application with costs.

Orders.

1. Application for issue of third party notice dismissed.
2. Cost of this application be paid to the Claimant by the Defendant.

The Court.

---

^[1] [2002] SBHC 16, HC-CC 196 (26 April 2000)
^[2] [1998] SBHC 64; HC-CC 294 of 1997 (11 November 1998).