Vuria-Kapini L. T. Trust Board Inc. v Mona [2015] SBHC 50; HCSI-CC 84 of 2014 (5 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 84 of 2014

BETWEEN:

VURIA-KAPINI L.T TRUST BOARD INC.
(Representing members of the trust and Lathi Tribe of North Guadalcanal).
First Claimants

AND:

MEROLYN LUKISI, HENSLEY MAKEI, SHADRACK
GHALAGAH, DAVID THURI, JOHN MANEDETEA, JOHN MANETHA, FRANCIS BULO
(Trustees and Board Members of the Trust)
Second Claimant

AND:

MOFFAT MONA, CHRISTIAN POMANE, JACOB OSOA, AGNES SIKUA & DAISY RIWA
First Defendant

AND:

ATTORNEY-GENERAL
(Representing the Commissioner of Lands, and the Registrar of Titles)
Second Defendant

Date of Hearing: 11th May 2015.
Date of Decision: 5th June 2015

Mr D. Lidimani for First and Second Claimants
Mr A. Radcliffe for the First Defendant
Mr D. Damilea for the Second Defendant.

DECISION ON PRELIMINARY FACTS AND LAW.

Faukona PJ: An amended claim (Category A) was filed on 14th May 2014. The Claimants sought three declaration orders; an order for rectification of title, an order for accounting of all monies received as rentals in respect of Okea land, and an order for surrendering of PE title to the land to the first Claimant.

2. This application concern preliminary issue of fact and law. The court has power under Rule 12.11 to hear and determine legal issues and if it appears the issues can be resolved at this stage then there is no need for trial.

The dispute concern registered land describe as PN 192-066-1 or Okea land. The original trustees and lessors of Okea land in the Deed were Timothy Vuria, Paul Turavolo and Paul Popora. Paul Popora's trusteeship was disqualified in 1965 investigation, therefore was replaced by Allan Loe and Patterson Bana as new trustees in about 1966.

3. There is no dispute that the trustees with the status as joint-owners of the land were held as statutory trust for the beneficial interest of members of gaubata, lathi and thimbo tribes.

4. A trustee Mr Popora, after his name being relinquished as trustee and was replaced by Loe and Bana in 1966, Mr Popora's name resurfaced in the transfer instrument on 12th March 1971 at ravu village. The transfer instrument was executed by Mr Popora, Mr Turavolo and Mr Vuria. As a result of the transfer, the land now superseded by Parcel No. 192-006-3 and was transferred unto the joint ownership of Paul Basale, Catherine Tapalia, Joseph Pali, Rebecca Voghe and Agnes Bokia. On the date of transfer, the transferors Popora, Turavelo and Vuria knew that the new trustees were not the members of the lathi, thaliudangi and baghea Ulunibeti (LTB) Clan, but were members of thaliudangi vighona clan, and they held the land in trust for their vighona clan. For reasons unknown or which cannot be verified was the cross transfer from clan to clan.

5. On 31st July 2012, the sole surviving trustee Catherine Tapalia transferred the Perpetual Estate title in the parcel land to the first Defendants. According to the instrument of transfer, it was done with a consideration of $10,000.00 payable to the sole surviving trustee on 19th February 2013.

6. The first Defendant's case as pleaded in paragraph 8, that the Claimant's claim in the amended claim in regards to the registration of the land in the 1960's, and the transfer in 1971 was time barred. The limitation period described by the Limitation Act for recovery of land is 12 years. These proceedings were commenced in 2014 more than late.

7. In the amended claim filed on 17th April 2014, the Claimants seek to challenge the registration in the 1960's and the transfer in 1971. Indeed the Claimants are relying on those events on the basis for rectification of title. The Claimants are saying that the transfer in 1971 could not have taken place. One of the transferor and trustee Mr Vuria was not seen at ravu village at the signing ceremony. Another trustee who also executed the transfer instrument Mr Popora had relinquished his title as trustee some years back and had been replaced by Mr Bana and Mr Loe.

8. From materials available I could able to gather that the true and full facts about the transfer in 1971 have not fully surfaced. May be over many years documents had been lost or memory faded away. A significant fact which I can draw inference from is, that on the date the trustees executed the transfer instrument they knew and fully acknowledged that the transferees were members of another clan. It would sound awkward for members of another clan to have a constructive trust on behalf of the beneficiaries who are members of a different clan. The only logical conclusion to draw is that when the land was transferred to the transferees in 1971, there being no doubt, that the status of the transferees was joint owners and they held the land in trust for their vighona clan of lathi tribe, and not on behalf of the Claimants Clan.

9. Counsel for the Claimants submits that if they pursue their claim to 1971 occasion of transfer, and 1960's event of registration, then indeed their claim is statute barred. However S.32 of the Limitation Act provides for exception, where limitation can be extended in the case of fraud, concealment or mistake. Prescribe period for such action shall begin to run until the Claimant has discovered such fraud, concealment or mistake, or could with reasonable diligence have discovered it.

10. The Counsel relies on paragraph 30 of the sworn statement of Mrs Merolyn Noni filed on 6th May 2015, that they became aware of the 1971 transfer and 2012 transfer in March 2013 upon being approached by the Management of GPPOL for lease arrangement relating to the land. They were first learned of the documents produced to them by GPPOL management in respect of the transfers.

11. It is perceivable that any challenge to the 2012 transfer of title, as a most recent event, cannot be isolated of its own. The occasion in 2012 directly linked and hinged on the 1971 transfer. It was the 1971 transfer that the land was transferred from one clan to another.

12. I have noted from evidence that the 1971 transfer occasion was a public event, governmental officials attended together with the transferors who executed the instrument, and many other members of the Claimant's and the first Defendant's clan attended. It was not an occasion that was conducted secretly. I presume there could have been notices issued. The involvement of government officials implicated that the transfer was done according to the Land and Titles Ordinance 1968, and was formally done and conclusive.

13. Undoubtedly members of both clans were formally informed and fully aware of the reasons for the transfer. And the trustees (transferors) who represented the Claimants had executed the transfer instrument freely without undue influence or secrecy. Should there be doubt of any irregularity, the members of LTB Clan could have raised on that day or following the occasion, before twelve years had passed. There was no record or evidence to reveal there was complaint or challenge made or file in Court. Even the likes of Steven Kukiti, Robert Luvu and Shadrack Galagha who deposed sworn statements and had attended the occasion at ravu village, did not challenge the transfer with in limitation period, if it was done by fraud, concealment or mistake, or any irregularities which they can able to identify.

14. From 1971 to 21st march 2014 when the claim was first filed, is about forty three (43) years. It is more than twelve (12) years allowable under S.9 (2) of the Limitation Act to recover any land or to resume a process to recover land. That was the date (1971) the cause of action accrued. Exception provision S. 32 (2) provides for extension of the limitation period which shall begin until the Claimant has discovered fraud, concealment and mistake cannot be accepted. I have profoundly admonishes in paragraphs 11, 12 and 13 above the probable truths of what had actually occurred on 12th March 1971. Without filing a complaint or a claim to challenge the transfer within twelve (12) years but waited for forty three (43) years is absolutely time barred. This conclusion is supported by the authority in Leua V Commissioner of Lands[1]

Orders:

1. It follows therefore this claim is dismissed.

2. Claimants to pay the cost of the Defendants.

The Court.

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^[1] (2014) SBHC 78.