Taugnega v Saonuku [2014] SBHC 22; HCSI-CC 162 of 2011 (20 March 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

ZEBULUN TAUGNEGA (representing the Ngakea tribe)
Claimant

And:

GAD SAONUKU and WILLY TUHA
1st Defendants

And:

ATTORNEY GENERAL (representing the Commissioner of Lands, Registrar of Titles and Accountant General)
2nd Defendant

Mr. D. Hou for the Claimant.
Mr. J. Muria Jr. for the 2nd Defendant.
No appearance to the 1st Defendants.
Date of hearing: 5 March 2014.
Date of Judgment: 20 March 2014.

RULING

Apaniai, J:

1. This is an application by the Attorney General to strike out the claim against the Commissioner of Lands ("Commissioner"), the Registrar of Titles ("Registrar") and the Accountant General on the ground that the claim discloses no reasonable cause of action against them.
   
2. I heard the application on 5 March 2014 and gave ex tempore ruling at the close of submissions that there is a cause of action against the Commissioner and the Registrar but none against the Accountant General. I then made the following orders:-
   

[a] the application to dismiss the claim against the Accountant General is granted;

[b] the application to dismiss the claim against the Commissioner and the Registrar is dismissed;

[c] in the light of the undertaking by counsel for the Commissioner and the Registrar to abide the court decision, the Commissioner, the Registrar and their counsel are excused from attendance at the hearing and trial of this claim;

[d] Costs in the cause.

3. I informed counsel that I would give reasons later. I now do so.
   
4. The claim relates to a parcel of land situated on the island of Rennell in the Rennell & Bellona Province. The Tingoa airfield was built on that land. The land was registered in 1971 as Parcel Number 298-002-1. The registered trustees were Malachi Tepai, Timotheus Ngatonga, Gilead Moa, Sadius Tago and Togaka Saova.
   
5. These trustees have all died. However, the title to the land is now registered in the names of the 1st Defendants, Gad Saonuku ("Gad") and Willy Tuha ("Willy"). The registration was effected on or about 5 October 2001.
   
6. The claimant, who claims to be the nephew of the deceased trustees Gilead Moa and Sadius Tago, both of whom the claimant also claims to be members of the Ngakea tribe, now comes to court seeking rectification of the land register in relation to the land so that the title can be registered in the names of representatives of all the beneficiaries of the land instead of it being registered in the names of Gad and Willy only. He claims that the title was registered in the names of Gad and Willy by fraud.
   
7. He said fraud has been committed when the land was transferred to Gad and Willy because:-
   

[a] Gad and Willy have registered the land in their own names whereas the land was previously registered in the names of representatives, and for the benefit, of all the landholding groups, including the claimant's Ngakea tribe;

[b] Gad and Willy did not obtain the consent of the landholding groups or beneficiaries before registering the land in their own names;

[c] registering the land in their own names as sole owners;

[d] obtaining money from the Accountant General in relation to the land for their own use at the exclusion of the rest of the beneficiaries.

8. On those assertions, the Attorney General now comes to court saying that the claim discloses no reasonable cause of action against the Commissioner, the Registrar and the Accountant General.
   
9. Striking out claim, and dismissing a case summarily is a drastic action which should be done only in very clear cases where the claim is baseless and does not disclose cause of action. It should be done only where the statement of claim and the ultimate facts asserted therein do not disclose even an arguable case. It is not in the interest of justice that such a case should be allowed to proceed.
   
10. In this case, no assertion has been made in the statement of the case against the Accountant General of any wrong doing which is capable of giving rise to a cause of action against him. The claim against him is dismissed.
    
11. As regards the case against the Commissioner and the Registrar, it is my view that they should remain a party to the claim. The claimant asserts fraud. Whether the reasons mentioned in paragraph 7 are sufficient to establish fraud is another matter but since this is a claim for rectification of the register, any order made for rectification will bind the Commissioner and the Registrar, hence, they should remain as parties to the case. It may be that the battle will be between the claimant and the 1st defendant (which I think will be the case having regard to the undertaking by the Commissioner and the Registrar to abide the court decision and their request to be excused from attending the hearings and trial in this case).
    
12. It follows therefore that the case will continue as between the claimant and the 1st defendants.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.