Leua v Commissioner of Lands [2014] SBHC 78; HCSI Civil Case 282 of 2012 (18 August 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

PETER LEUA & DAVID ANIALO
(representing the Lathithaliudani tribe
of North Guadalcanal).
Claimants

And:

COMMISSIONER OF LANDS
1st Defendant

And:

KAUTOGA LAND PURCHASE
CO-OPERATIVE SOCIETY LTD
2nd Defendant

And:

GUADALCANAL PLAINS PALM OIL LTD
3rd Defendant

No appearance for the claimants/Respondents.
No appearance for the 1st defendant.
D. Marahare for the 2nd defendant.
T. Kama for the 3rd defendant/Applicant.

Date of hearing: 9 July 2014.
Date of Judgment: 18 August 2014.

RULING

Apaniai, PJ:

Introduction.

1. This is an application by the 3rd defendant to have this claim struck out on the grounds that the claim is frivolous and vexatious and discloses no reasonable cause of action; that the claimant has no standing to lodge the claim; and, that the claim is statute barred.
   
2. The application was filed on 14 December 2012 and has been adjourned on a number of occasions in 2013 and 2014 due to non-appearance by some of the solicitors for the parties in the case and for various other reasons.
   
3. The application was finally set down for hearing on 15 April 2014. Unfortunately, the solicitor for the claimants, Mr. Dausabea Getu Longara Samani, again did not appear on that date. However, one of the claimants, Mr. David Anialo, was present in court and informed the court that Mr. Samani had advised him to engage a new solicitor to pursue his claim. He said he was yet engaged a new solicitor and asked for time to do so. I adjourned the hearing to 9.30am on 15 May 2014 for mention and to give the claimants time to engage a new solicitor. At the same time, I also referred the application to the Registrar to fix a new date for the hearing of the application.
   
4. On 15 May 2014, the application came on for mention. At the mention, counsel for the 1st defendant, Ms. Taeburi, informed the court that she had received a call from Mr. Martin Hauri'i who told her that he now acts for the claimants and that he wanted 14 days adjournment.
   
5. I adjourned the application and fixed the hearing at 9.30am on 9 July 2014. I made an order that no more adjournment would be granted and that the hearing of the application would proceed in the absence of any party who did not appear.
   
6. When the application came on for hearing at 9.30am on 9 July 2014, only the 2nd defendant's counsel, Mr. Marahare, appeared. Mr. Marahare stated that he supported the application to dismiss the claim and relies on the submission filed by the 3rd defendant. He requested that, in the light of the court's directions that no further adjournment would be granted, the court to consider the 3rd defendant's submission and make its ruling.
   
7. I agreed with Mr. Marahare's suggestion and reserved judgment on the application. This is the judgment.
   

The claim.

8. In this proceeding, the claimants seek rectification of the perpetual estate register in relation to parcel number 192-011-2 (the "Land"). The perpetual estate in the Land was registered in the name of the Commissioner on 17 October 1980[1]. That is 31 years, 9 months and 28 days to the date of filing of this claim (28 August 2012). The grounds for rectification are said to be mistake and fraud.
   

Whether there was mistake.

9. The mistake is said to have been based on a number of transactions which have occurred in relation to the Land since 1902. According to the claimants, the transactions are as follows:-
   

[1] On 26 December 1902, the claimants' ancestors first sold 2,000 acres of their tribe's Tombabau customary land to a Mr. O Drausen (a foreigner). The claimants' tribe is Lathithaliudani tribe of North Guadalcanal. The ancestors were uneducated and had no access to legal advice. In selling the 2,000 acres, the ancestors had acted to their detriment. This was a mistake.

[2] On 7 September 1951, another sale/purchase agreement was signed between John Cecil Williamsen and Gwenyeth Wilfred Williamsen (also, foreigners) with a Joseph Bryan (another foreigner) whereby the Land was further sold to Joseph Bryan. The claimants allege that when the Land was sold to Joseph Bryan, the area was increased to 2,457 acres instead of the 2,000 acres previously sold to Mr. O Drausen. This was a mistake.

[3] The claimants further allege that the Land was subsequently acquired by the Commissioner, again without the consent of the claimants' tribe, who then gave a fixed term estate in the Land to the 2nd defendant, Kautoga Land Purchase Co-operative Society Ltd ("Society"), again without the claimants' consent. They further allege that the Commissioner and the Society then granted a lease of the Land to the 3rd defendant ("GPPOL"), again without their tribe's consent, between 1999 and 2003. This was a mistake.

10. Unfortunately, I am not satisfied that any of the above instances amount to mistake. In Walter Billy -v- Paul Daokalia[2], the Court of Appeal held that where mistake is alleged that mistake must necessarily be confined to the exercise of the functions of the Commissioner of Lands under the Land &Titles Act (Cap. 133) because registration was made in exercise of those functions. The Court said that the question to ask when mistake is raised is "has there been an error committed by the COL in the exercise of his functions under the Land &Titles Act?" I am not satisfied that the Commissioner had made any mistake when he registered the perpetual title in the Land in his name on 17 October 1980.
    

Whether there was fraud.

11. The claimants have also alleged that fraud was committed in registering the Land in the name of the Commissioner. They say the fraud is based on the following factors:-
    

[1] The 1st, 2nd and 3rd defendants were not bona fide purchasers of value without notice of the said additional 2,000 acres obtained without the consent of the claimants' tribe.

[2] The 1st, 2nd and 3rd defendants participated in the execution of the transfer documents and/or lease agreements despite access to legal advice to ascertain the authenticity of the document to show whether or not the consent of the claimants were obtained for the 2,000 additional acres.

[3] The 1st, 2nd and 3rd defendants knew about the claimants' tribe equitable interest in the land of the said additional 2,000 acres obtained without the claimants tribe consent and that they were holding the property in trust for the said claimants tribe they continued to break the fiduciary relationship between the trustees and beneficiaries and to displace the claimants tribe and its members and their survival on the said reserve lands in the interest of commercial purposes.

[4] The formulation of the transfer instruments and the execution of the same including the lease agreement was a joint collaboration between the 1st, 2nd and 3rd defendants with afore knowledge and malice intention to deceive the claimants tribe and is equivalent to fraud. The claimants tribe had no independent legal advice, were uneducated and were at the mercy of the 1st, 2nd and 3rd defendants.

12. Again, I am not satisfied that the above instances amounted to fraud. To prove fraud, the claimants must show that false representations were made knowingly or were made without belief in their truth or were made recklessly or that the maker of the statements was careless whether the statements be true or false[3] and that these false statements have led to the registration of the Land in the name of the Commissioner. In other words, some element of dishonesty must be present in the making of the statements[4]. I find none here.
    

Finding.

13. I find no mistake or fraud has been committed in the registration of the Land in the name of the Commissioner. As such, this claim should be struck out as disclosing no reasonable cause of action.
    

Whether claim is statute barred.

14. That, however, is not the end of what I have to say. The application to dismiss the claim is also based on the assertion that the claim is statute barred. I agree.
    
15. As stated in paragraph 8 above, the registration of the perpetual title of the Land in the name of the Commissioner was made on 17 October 1980[5]. In my view, that was the date when the cause of action arose. This claim was filed on 28 August 2012, which is 31 years, 9 months and 28 days after the date on which the cause of action arose. That means the claim is now statute barred by virtue of section 9(2) of the Limitation Act (cap. 18) which provides that no action shall be brought to recover any land after the expiration of twelve years from the date on which the cause of action accrued.
    

Decision and orders.

16. It follows that this claim is dismissed and the claimant shall pay the costs of the defendants to be taxed if not agreed. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] See annexure ‘BT-01’ to the sworn statement by Baddley Tabiru filed 14/12/12.
^[2] [1995] SBCA 5; CA-CAC 001 of 1995 (27 October 1995).
^[3] Derry v Peek (1889) 14 App. Cas. 337 at 374; see also R v Customary Land Appeal Court (Western) ex parte Pitakaka [1985] SBHC 27; [1985-86] SILR 69 (5 June 1985).
^[4] Assets Co. Ltd -v- Mere Roihi & Others [1905] UKLawRpAC 11; [1905] AC 176; see also Waimiha Sawmilling Co. Ltd -v- Waione Timber Co. Ltd [1925] AC 101.
^[5] See annexure ‘BT-01’ to the sworn statement by Baddley Tabiru filed 14/12/12.