Sugutia v Attorney General [2020] SBHC 33; HCSI-CC 610 of 2019 (19 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sugutia v Attorney General
Citation:
Date of decision:	19 March 2020
Parties:	Simon Pere Sugutia v Attorney General, Levers Solomon Islands, Russel Islands Plantation Estate Limited
Date of hearing:	16 March 2020
Court file number(s):	610 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Higgins
On appeal from:
Order:	The Claim is struck out with costs. Court will hear the parties as to the form of that costs order
Representation:	J. To’ofilu for the Claimant N. Ofanakwai for the First Defendant A. Willy for the Second and Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act 1978, s 100(1), Limitations Act [cap 18]
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 610 of 2019

BETWEEN

SIMON PERE SUGUTIA
(Representing himself and members of Chacha Clan of the Tandai Ghabata Tribe)
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
First Defendant

LEVER SOLOMON LIMITED
Second Defendant

RUSSEL ISLANDS PLANTATION ESTATE LIMITED
Third Defendant

Date of Hearing: 16 March 2020
Date of Ruling: 19 March 2020

J. To’ofilu for the Claimant
N. Ofanakwai for the First Defendant
A. Willy for the Second and Third Defendant

RULING

Higgins PJ

On 28 October 2019, Simon Pare Sugutia, purporting to represent himself and members of the Chacha Clan of the Tandai Ghabata tribe, claimed declarations and consequential relief that a purported transfer of land, known as “Lunga land” was void having being done “on fraud and or mistake by persons who do not own Lunga land”.
Further (par 2), in the alternative, alleges that a subsequent decision made “on 31^st March 1920”to confirm the original transaction failed for fraud and or mistake as “LPPL” did not comply with its obligation to pay “the Claimant” the “$50 pounds”(sic) ordered by the District Commissioner (the grantee of the land).
It is alleged in par 2 of the Statement of case (Rule 5.3) that

• “... The First Defendant is the Government authority responsible for the administration of land and the authority that acquired Lunga land from the claimants’ tribe on or about 7^th November 1886.

It is then recited that:

(par 6) On or about 31^st March 1920 the then District Commissioner to Solomon Island (sic) held an inquiry into the sale [of] November 1886) and “declared it void”

That is alleged to have been at the suit of then tribal representatives of the claimant. The Commissioner ordered the Levers Plantations Corporation Limited (LPPL) to pay the “Claimants” a total of “$50 pounds”.
Since then it is alleged that the £50/00/00 remains unpaid.
However the interest acquired by LPPL from “the Claimant” was “recorded in the red book under folio 121 and 122” leaving a debt due from LPPL to the claimants but also leaving the transfer of land unaffected.
It is alleged that in 1977 LPPL closed its business but made an arrangement with the then colonial government to transfer its interest in the land to that government. That interest then became vested in the current entity having sovereignty over Solomon Islands.
It is alleged that the Claimants were not consulted about this transfer.
That is somewhat confusing as the allegations themselves recite the transfer of the freehold interest in the land to the then Solomon Islands Government.
There is an allegation (par 11) that

• “... by operation of law, the First Defendant created a perpetual interest in the Lunga land and vested it on itself. There was no acquisition proceeding held to effect this transfer nor were the Claimant consulted or approved of the transfer” (sic)

That the interest of LPPL was converted to a Fixed Term Estate was a consequence of the Land and Titles Act 1978 (L&T Act) s100 (1). It is an assertion of sovereignty under the Constitution, there is no assertion that it is or was beyond power and, on its face it does have the effect the Claimants themselves allege.
There is in the L&T Act no requirement or need for anyone to approve of or be consulted about the operation of this provision.
In par 12 of the particulars of claim there is an allegation that the purpose clause of the original grant of FTE was that the land be used “for agriculture purposes”.
However, even if other activities occurred without the consent of SIG it is not a breach that the Claimants are in a position to complain of. They are not privy to the present FTE (Fixed Term Estate).
It is then recited that the 1^st Defendant (SIG) consented to transfer of the land to the 3^rd Defendant. The 2^nd and 3^rd Defendants are alleged thereafter to have subdivided and sold parts of the land to 3^rd parties. None of those parties are joined as parties to the claim.
The so-called fraud or mistake is pleaded in par 19 as follows:

• “As against the First Defendant –
• (a) It ought not to have acquired the perpetual estate interest in the Lunga land for it was not privy to the illegal deed of sale [in] 1918.
• (b) Given the Lunga land was customary land when acquired; it ought to have consulted the claimants when LPPL closed business.
• (c) The acquisition of the perpetual estate in the Lunga land was based on a void contact of sale as pleased ([sic] pleaded) in paragraph 5 & 6.
• (d) Illegal (sic- “illegally”) allowed the second and third Defendants to sell plots within Lunga land in breach of the grant deed pleaded in paragraph 12 and by not obtaining the consent of the claimants”

The problem with these allegations is that the relevant root of title for LPPL is alleged to have been derived from a determination by the colonial district commissioner in 1920. It is not alleged that was unlawful. It confirmed the acquisition of title by LPPL and ordered it to pay £50.00.00 to the then claimants.
Even if LPPL did not pay that sum, if cannot effect the title it acquired. Indeed, it is alleged to be simply an outstanding debt that the then claimants acquired.
The transfer of title thereafter was, and is alleged to have been, by operation of law.
There are no particulars as to the “fraud or mistake “which would render the transfer of title void” even if that was possible.
It is clear from the cases cited by the Defendants’ counsel that, even apart from the effect of the Limitations Act (Cap 18), the claim is, as pleaded, incapable of successful prosecution.
No reasonable cause of action is demonstrated upon the pleading. Nor could it be.
There is no basis pleaded either, for a customary land claim. The alienation of the land and its acquisition by the Crown would have extinguished any customary land claim from at least 1920.
The claim is stuck out with costs. I will hear the parties as to the form of that costs order.

THE COURT
Justice Terence Higgins
PUISNE JUDGE