Ghemu v Attorney General [2019] SBHC 35; HCSI-CC 132 of 2017 (9 April 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Ghemu v Attorney General
Citation:
Date of decision:	9 April 2019
Parties:	Erick Ghemu and Penah Ghemu v Attorney General, Fredley Kolikeda Jim, James Aquilah and Godfrey Sitongo Qoqoro, Pacific Crest Enterprises Limited of the Solomon Islands Mission of the Seventh-Day Adventist Church
Date of hearing:	19 November 2018
Court file number(s):	CC 132 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	Application filed by the Defendant on the ground of statutory bar is hereby dismissed with costs payable to the Claimant Application filed by the third Defendant to dismiss the claim pursuant R 3.42 hereby dismissed with costs payable to the Claimant
Representation:	Mr. M Pitakaka for the Claimant Mr. G Suri for the Second Defendant Mr. D Marahare for the Third Defendant Attorney General not affected by the Application
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act,s5
Cases cited:	Simikera v Ragoso [2001] SBHC 22, Liligeto v Commissioner of Lands [1998] SBHC 74,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 132 of 2017

CHIEF ERICK GHEMU AND PENAH GHEMU
Claimant
(Representing the Gevala tribe)

V

ATTORNEY GENERAL
First Defendant
(Representing the Commissioner of the Land and the Registrar of Titles)

FREDLEY KOLIKEDA JIM, JAMES AQUILAH AND GODFREY SITONGO QOQORO
Second Defendant
(Trustees on behalf of kua Tribe)

PACIFIC CREST ENTERPRISES LIMITED of the Solomon Islands Mission of the Seventh-Day Adventist Church)
Third Defendant

Date of Hearing: 19 November 2018
Date of Ruling: 9 April 2019

Mr. M Pitakaka for the Claimant
Mr. G Suri for the Second Defendant
Mr. D Marahare for the Third Defendant
Attorney General not affected by the Application

RULING ON APPLICATION TO DISMISS CLAIM

FAUKONA J: There are two applications to be considered. One was filed by the Second Defendants on 27^th September 2017, to dismiss the claim. The other was filed by the third Defendant on 7^th September 2017 to dismiss the claim as well, however on different ground.

2. A claim under category A was filed by the Claimants on 12^th May 2017. The major relief sought was rectification of PN 143-001-13 on the ground of mistake or fraud, and to declare grant of profit executed by the second and third Defendants is null and void, and of course permanent injunction.

Second Defendants application

3. The second Defendants’ application is to dismiss the claim premise on four grounds. However, for the sake of this application the second Defendants only advance one ground that is “statute time bar.”
4. The Counsel relies on S.5 of the Limitation Act that no action be brought after six years from the date the cause of action accrued. And again relies on S-9(2) of the Act that no action is brought or commenced to recover any land after expiration of 12 years from the date the cause of action accrued to him or another person through whom he claims.
5. In S. 20(1) the emphasis is that a person bringing an action is in possession of the land and while entitled to the land been dispersed or discontinued his possession, the cause of action is treated as having accrued on the date of dispossession or discontinuance.
6. Section 32 provides for extending the accrued date where claim is based on fraud, concealment and mistakes. S.32 (2) prescribed the period for such an action shall not begin to run until the plaintiff discovered such fraud, concealment or mistake.
7. The Claimants argue their claim is not time-barred. In fact, the first named Claimant filed a claim HCC No. 231 of 1995 against the first named second Defendant on 8^th August 1995. This was done when the first named Claimant became aware of the transfer of PN 143-001-13, the same land now in contention. To magnify the interest a caveat was lodged on 5^th September 1995.
8. Almost at the same time of filing this case, the Marovo Chiefs gave their decision in favour of Kolikeda’s tribe on the issue of ownership. Based on the decision the interest in PN 143-001-13 was transferred to the said second Defendants.
9. Therefore the Claimants assert that the issue of ownership of poiikusu customary land, where the parcel number was located, was a live issue as it was pending a determination by the Local Court which it did finally decide on 29^th February 2016.
10. Ultimately, by filing this cause of action falls within S. 3(3) (e) of the Limitation Act, which arises out of, or relating to a claim to customary land as envisaged.
11. Further submissions allude to, that since the filing of HCC No. 231 of 1995, there were change of circumstances. For instance, one of the predecessors of the second Defendant had died; determination of poi-ikusu customary land was made, and the grant of profit to the third Defendant was done. Hence, it is those fundamental changes that warrant the Claimants to commence this proceeding in furtherance to the 1995 case.
12. The issue is whether this proceeding is a continuation of 1995 case. This question gives rise to another one. What has become of 1995 case; was there any order for withdrawal, stay or dismissal?
13. In a situation where a registered portion of land is surrounded by a customary land, or where part of a customary land is registered, any dispute in respect of the two statuses of lands is different, but concurrent as to when the disputes arise, depending on the times of commencement.
14. It is not denied that the Claimants commence HCC No. 231 of 1995 in respond, or having aware of the transfer of the registered land to the second Defendants. The fact that the case became disappeared in thin air is a controversy. There is no evidence that it was stayed due to customary land surrounding it is before the Chiefs or the Local Court. However, if it was abandoned because of no other reasons then R 9.7(d) should come into play and strike out the claim because no steps were taken for the matter. It is after 20 years and 5 months from when the case was filed in 1995, until this case was filed on 17^th May 2017. Furthermore, the registration of PE was well acknowledged; hence, Mr Ghemu lodged a caveat on 7the September 1995.
15. Noticeably, which cannot be denied, the parties are the same and the subject matter is the same the major issue is rectification of PN 143-001-13.
16. Apparently the 1995 case was abandoned for more than 20 years, and in fact is now stale, a proper case for striking out, which if not been struck out, must now be so. That cannot mean it was the same case now dragged on until this case was filed. Of course, other customary lands surrounding the parcel number was under continuous litigation but does not mean that the 1995 case can be dragged into it. It was a different case with totally different substantive issue with a different avenue to resolve it. Therefore it would be an abuse of process to file this proceeding to resurface the same issues which had been abandoned and foregone under the condemnation of a striking out shadow. Therefore this case is not a continuation of the 1995 case but a new one.
17. Dispute or litigation concerning poi-ikusu customary land can continue between parties. When it comes to a point that the High Court proceeding be stayed awaiting a land court decision, then there must be an order of Court in place. In this case, there was nothing. The issue of ownership may be a live one until 2016, but the issue being the subject of 1995 case is a dead issue because it was abandoned, stale and fit for striking out.

Section 3(3) (e) of the Limitation Act

18. On the issue of S.3(3)(e) of the Limitation Act the crux of that provision provides that there is no limitation in time to file an action or arbitration arising out of or relating to any claim to a customary land.
19. The Counsel for the Claimant submits that the dispute between parties became obvious when the case was referred to the Local Court on 4^th September 1987. Until finally determined on 29^th February 2016. This claim is different. It concerns registered land. The only and one option left is to untie the process of registration by way of proving fraud or mistake. In taking that option, the Claimants after all, failed to pursue the case to finality.
20. I agree with Kabui J in his judgment in Simikera v Ragoso and Ors^[1]. The case seemed to vest obligation upon the Claimant (Plaintiff) to file a proceeding in an appropriate avenue in preparation for the transfer. The importance as expressed by his Lordship was the determination of customary rights over customary land which he labelled as a reverse hearing. For how many years after the acquisition process and registration of title been, in the name of someone, does not bar the Claimants (Plaintiff) from instituting a proceeding to determine the landownership issue. The date of registration should be fifteen or more years ago. Therefore S.5 and S.9 (2) of the Limitation Act do not apply. I doubt that case could assist the Claimants in this case.
21. From the above perspective, the determination by an appropriate forum of the original ownership does not form the basis for rectification on the ground of fraud or mistake. It only forms the basis to revert the land back to the original landowners, so there is no link to a claim for rectification.

Continuing Wrong Under S.17 of Limitation Act.

22. The claimants also rely on S.17 of the Act to oppose the application. S.17 spells out that a cause of action is deemed to accrue on the date which the right to relief sought by the action first arises. However, where the cause of action is founded on continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.
23. The path taken by the Claimants to support their case under the interpretation of S.17 is that, a wrong act was simply a reference to the registration which continues to persist until today. It was committed by Mr Kolikeka’s contributory act of fraudulent dishonesty, or mistake in the registration. Whilst he had knowledge of the fraud or mistake and him contributed to by his own act of negligent.
24. I noted the case of Liligeto v Commissioner of lands and Ors which the Claimants refer to. The paragraph that was quoted in the submissions (para.41) is an attempt to define “continuing wrong.” Rather than expounding on the true and literal meaning, the court is merely twisting the words in S.17. I find rather disturbing on citing the paragraph as “sloppy,” with respect to His Lordship the Chief Justice.
25. What could have been the real manifestation derived from the facts and evidence is this. The process which progressed up to registration and transfer occurred almost concurrently with the time of filing of HCC No 231 of 1995.^[2] The second Defendant commenced pursuing the process after the Marovo Chiefs’ decision was in favour of Mr Kolikeda Jim.^[3] In the ordinary sense of the legal processes, Mr Kolikeda had the right to pursue his tribes' interest after the Chief's decision was in his favour.
26. The task of pursuing their interest can only be halted when a referral was filed with the appropriate Local Court and an order for stay was in place. After then the Claimant would file a cause of action to restrain the second Defendants not to pursue transfer and registration until the Local Court decided the question of ownership. In a situation where the Claimants had filed HCC No. 231 of 1995, to rectify the title, they would have applied for stay of proceeding until the Local Court determined the ownership issue.
27. Probably at the time of consultation with the Commission of Lands, there was no referral yet filed, and the Commissioner may not have knowledge of such. In any event, the Claimants would have utilised HCC No. 231 of 1995 to seek relief in the nature of restraining orders against the second Defendants from pursuing transfer and registration of the FTE, or to apply for a stay awaiting the Local Court to finally determine the question of ownership if eventually referred. The Claimants had done nothing. In fact, they opted to abandon HCC No. 231 of 1995 and allowed the case to suffer being not prosecuted. Relevantly, in the eyes of law, that case was stale and fit for dismissal.
28. If Mr Kolikeda was to be blamed for being contributory to fraud or mistake, or displaying dishonesty or default, then there must be evidence to proof. At this stage, Mr Kolikeda’s action is perceived as acknowledging that he had won the case hence pursuing the possibility of transferring the PE and registration in the names of the Defendants. Would that be labelled as fraud or mistake? I do not think so. The land was owned by Mr Kolikeda by virtue of the Chief's decision and his right by then was well protected by law.
29. That right was realised up to the time when the Local Court finally determined the ownership of poi-ikusu customary land on 29^th February 2016. By usual application, the effect of the Local Court decision did affect the customary land but not the registered portion located within it.
30. It would be a correct version of interpretation that “continuing wrong” began to realise when the Local Court decision turned over the Chief’s decision. Therefore, this cause of action is a fresh one founded on that realisation. This fresh action is deemed to accrue on each day the wrong continues after the Local Court decision. If so, must be accepted by filing this claim on 12^th May 2017, 15 months after the Local Court decision. Legally this cause of action must be treated as arising from the continuing wrong which then realised. Only then one can conclude that the transfer and the registration of the land must have been done by mistake.
31. The Local court decision was challenged in HCC No. 128 of 2016 but was dismissed. The only issue left is whether the registered land is located within poi-ikusu customary land claim by the claimants, or the land claim by the second Defendants. That issue will definitely be considered at trial.
32. Meantime I must accept S.17 of the Limitation Act as applies in this case. This conclusion is reached premise on factual circumstances of this case. In normal arguments where statutory time bar is an issue, in a simple case just interpret law in its literal sense. However, where complexity arises, each case must be determined on its own set of facts as they were made available to the court. Therefore base on my personal perception of the law, the claim is not statute bar.

Application of S.39 of Limitation Act

33. The Claimants also rely on S.39 of the Act urging the court to consider the evidence of Mr Penah Ghemu in his sworn statement filed on 22^nd February 2018, after which the Court will exercise its powers on equitable grounds.
34. Reliance on S.39 appears as an alternative to three previous grounds. I have decided that S.17 of Limitation Act does apply as in accordance to the circumstances of this case. Having decided so, it is not necessary to venture into considering S.39. However, to give justice to the case, and the fact those provisions are not commonly utilised, I feel legally obligated to briefly analyse the provision’s application.
35. I have read Mr Penah’s sworn statement fully and noted all the facts therein. Not only that but facts provided in other sworn statement by other parties as well including the second Defendants.
36. S.39 provides two significant areas upon which the Court can allow an action to proceed on equitable grounds. One after considering the veracity of evidence to which the provisions will prejudice the plaintiff, and secondly any decision of the Court should not prejudice the defendant.
37. Taken into account those two fundamental interests the Court will consider certain grounds as specified under S. 39(2) (a) – (f) and subsection (3) as well.
38. The first point to consider is will S.5 and S.9 prejudice the Claimants in the light of, and in the application of s.39 of the Act. First and foremost is the fact that the Claimants had taken steps in 1995 to commence HCC No. 231 of 1995 to question the transfer and registration and rectification of the title. Not only that but importantly after realising they have finally won the case in the Local Court on 29^th February 2016. That decision was never appealed.
39. Despite abandoning the 1995 case, that has now have less impact on this case, after what seemed to be reviving the interest by filing this civil suit. Of course, there is delay, not because of the 1995 case was abandoned, but because the Local Court was delayed in hearing and determining the referral case pending before it.
40. Therefore, in reminiscing the facts from the dates of transfer and registration by the second defendants, until the date the Local Court gave its unchallenged decision in favour of the Claimants, would the second Defendants continue to live with and more so with a subconscious mind? Or will they realise and surrender defeat? The fact is that the registered portion is part of poi-ikusu customary land. It was transferred to the second Defendants immediately after Mr Kolikeda won the ownership of the land by the Chief's decision. About 28 years later, the Chiefs decision was turned down by the Local Court. Since 4^th September 1987, when the referral was filed; the ownership issue was a live one until it was finally determined. However, not in respect of the registered portion.
41. Therefore the same fundamental issue can be reiterated again whether the registered portion is located inside poi-ikusu land claimed by the Claimants or the land claimed by the Defendants.
42. In any event, to uphold S.5 and S.9 of the Act and bar the Claimants from pursuing their cause of action, will definitely prejudice their rights. Rights which will eventually be determined when the court shall observe evidence of the true demarcation of the portion within poi-ikusu customary land. Therefore I would agree S.39 applies to the facts of this case.
43. The law in regards to statutory time bar is not so qualified, of course in a simple factual situation. In a complex state of affairs, the Act also provides for exceptions under sections 17 and 39 of the Act. As I have observed the two provisions, my inclination is that they are applied in the circumstances of this case, therefore defeat the time limit expounded in Section 5 and 9 or even S.20 of the Act.

Application under R.3.42

44. This application was filed by the third Defendant on 7^th September 2017.Precisely the application premised on R3.42 and R9.57 (a) to (c) of the Civil Court Rules 2007.
45. The major relief sought in the application was for an order dismissing the Claim filed by the Claimant on 12 the May 2017.
46. Under R 9.75 the court is vested with the power to dismiss a proceeding generally or in relation to the claim that the proceeding is frivolous or vexatious, or no reasonable cause of action disclosed, or the proceeding is an abuse of court process.
47. R 9.76 allows the court to receive evidence and consider the grounds in R 9.75.
48. It is an abuse of court process to institute a proceeding without any legal footing. Similarly, as the Applicants’ submit, the Claimants lack of standing to commence this proceeding by virtue of R 3.42.
49. Rule 3.42 states that any person may be sue or be sued on behalf of, or representing a community, line or tribe. That person is required to provide of entitlement in custom to act as a representative before any further steps in the proceeding may be taken.
50. The relevant requirement to the facts of this case is, the Claimants who sue must provide evidence that they are entitled in custom to represent their tribe. Evidence must be such as authorisation or mandate in a form of document endorsed by the authority of the tribe, and that the Claimants could represent their tribe, the gevala tribe. If such evidence is not available then a minute of the meeting of the tribe authorising or agreed that the Claimants are entitled to represent and institute this proceeding on behalf of gevala tribe.
51. From a simple application of R 3. 42, lack of proof of authorisation mean the Claimants lack standing to come to court and be heard or to represent their gevala tribe.
52. This application is not about a recognisable cause of action in law, but is whether the Claimants were mandated by their tribe to commence this proceeding on their behalf.
53. The Counsel for the third Defendant submits that Mr Sute is the head Chief of the Claimants’ tribe. He had never sanctioned the Claimants to commence this case. Further submits that gevala tribe has no longer any interest to pursue the issue of ownership of the respective customary land.
54. On the other hand the Counsel for the Claimants had gone to the extend revealing the laws in striking out which comprise reasonable cause of action, frivolous and vexatious and an abuse of process.
55. This is a simple application under R 3.42 which proof of evidence is required before the Claimants can represent gevala tribe in this case. If there is no evidence the Claimants will have no standing to come to court and be heard.
56. I noted after thorough perusal of the file there is no documentary evidence to proof the Claimants were authorised by their tribe to represent them in this proceeding.
57. Quite apart from that, the requirement under R 3.42 is not the only relevant pre-request to adhere to before a party can institute a proceeding. There is also a principle provided under the common law, which is very much applicable in this jurisdiction, is whether a claimant has sufficient interest in the subject matter: the subject matter is poi-ikusu customary land.
58. Sufficient interest is an interest a person has which he wishes to protect his right at all cost. I noted the proceeding in HCC 231 of 1995 was necessary because of the caveat lodged by Mr Eric Kituru, was purposely done to protect the interest of his tribe.
59. Again in the Local Court case NO.11 of 1996 Mr Eric Kituru was the plaintiff representing gevala tribe and Mr Fred Kolikeda representing kua tribe. Those two parties are also involve in this case. The decision of the local court on 29^th February 2016, was so clear, that poi-ikusu land is part of the gevala tribal land and was owned by Chief Eric Kituru Ghemu of gevala tribe. A review of that decision was attempted but was dismissed by the High Court Mr Eric Kituru was one of the Defendants in that application.
60. It appears Mr Eric Kituru all along was a party to the previous litigation in respect to this same land. In the local court his father represented gevala tribe. After his death the current first named Claimant took over.
61. I noted from evidence, there may not be a written authorisation but the fact which shines out clear is that Mr Kituru was a party to the previous litigations including the current. He even took over the responsibility after his father died. Mr Penah Ghemu is his brother. This actually signify that the Claimants have sufficient interest in the subject customary land. Therefore to protect their interest they now come to court to challenge those who may wish to interfere with their rights.
62. It could only be proper to describe, that in the best interest of justice, the Claimants have sufficient interest and standing to represent their tribe in this cause of action. I must therefore dismiss the application.

Orders

1. The application filed by the second Defendant on the ground of statutory bar is hereby dismissed with costs payable to the Claimants.
2. The application filed by the third Defendant to dismiss the claim pursuant R .42 is hereby dismissed with costs payable to the Claimants.

The Court.
JUSTICE R. FAUKONA
PUISNE JUDGE

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^[1] [HCC No. 368 of 1999]
^[2] Paragraph (6) of claimant’s submissions.
^[3] Paragraph (9) of claimant’s submissions.