Nole v Bina Talifu Land Interim Trust Board [2022] SBHC 34; HCSI-CC 478 of 2018 (12 May 2022)

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Case name:	Nole v Bina Talifu Land Interim Trust Board

Citation:

Date of decision:	12 May 2022

Parties:	Nelson Nole and John Dai v Bina Talifu Land Interim Trust Board, Hellen Samosia, Boniface Falafulu, Nickson Ma’aria, Attorney General

Date of hearing:	25 March 2022

Court file number(s):	478 of 2018

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota; PJ

On appeal from:

Order:	The claim is strike out. Cost for the defendants to be tax if not agreed.

Representation:	Dr Tagini P for the Applicant/Second Defendant Kako I for the Respondent Damilea D for the Third Defendant

Catchwords:

Words and phrases:

Legislation cited:	Solomon Islands (Civil Procedure) Rule r 9.75 Land and Titles Act S66 (2), S 254 [cap 133], S 62, 63, 64, 65 and 66, S 229 Local Court Act [cap 19]

Cases cited:	Tikani v Motui [2001] SBHC, 10,

NELSON NOLE AND JOHN DAI
(Representing themselves and Members of the Anomola Tribe)
Claimants/ Respondent

HELLEN SAMOSIA, BONIFACE FAFALULU, NICKSON MA’ARIA,
Second Defendant/ Applicant

Dr Tagini P for the Applicant/Second Defendant
Kako I for the Respondent
Damilea D for the Third Defendant

This is an application by the second defendant, the applicant in this proceeding seeking to strike out a category (A) claim filed by the claimant/respondent on 3^rd December 2018 and further amended claim filed on 27^th September 2021.

This application was made pursuant to rule 9.75 of the SI Court Civil Procedure Rules 2007.The rule states “If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings;

The court may, on application of a party or on its own initiative, order that the proceeding be dismissed generally or in relation to that claim.

The use of the word “or” in the rule means the applicants does not have to show all conditions set out in paragraphs (a) (b) (c) are present. If it appears to the Court that one of the things set out in paragraphs (a) (b) or (c) is present that is enough to dismiss the claim.

The claim which is the subject of this application relates to the Bina/Talifu Customary Land in the Bina Harbour area in West Kwaio, Malaita Province. The area is where successive Solomon Islands governments have been saying for a long time will develop into a Fisheries centre, a Tuna cannery and an international seaport.

A number of people and tribes including the claimant in the present case and their Anomola Tribe have being claiming ownership of the Bina/Talifu Customary Land and have adjudicated their claims in a number of forums, before the Chiefs, in the Malaita Local Court, in the MCLAC, through the Acquisition process under part V of the Lands and Title Act and in the High Court.

On 25^th March 2018 an Acquisition Officer was appointed under Part V of the Lands and Title Act to conducted acquisition process to acquire the land for government’s intended developments. The parties in the present case took part in the acquisition process. The Acquisition officer’s determination was dated 1^st December 1999. The applicant and respondent in this proceeding and others have appealed the decision of the Acquisition Officer to the Malaita Magistrates Courts. Their appeals were dismissed by the Magistrates Court.

The applicant and some other parties aggrieved by the decision of the Magistrates Court appealed to the High Court pursuant to section 66 (2) of the Land and Titles Act. The respondent did not appeal to the High Court. They instead took their claim of ownership of Bina/Talifu Customary Land back to the chiefs. First to the Central Kwara’ae Chiefs and second to the Mandara Chiefs of East Kwara’ae. On two occasions the chief’s decision was in their favour.

With regard to those who appealed to the High Court all their appeals were consolidated and heard together and were all dismissed. After this, the land was registered as Perpetual Estates in the name of the first defendants. Later some parcels of land were transferred and registered in the name of the second defendant, the applicant in this proceedings.

The respondent on 12^th October 2018, filed a category (A) claim against the defendants alleging mistake in the registration of the PEs in the name of the defendants. Respondent say they were determine as owners of the Bina/Talibu Land by two chief’s decision and should be considered when the registration was done. Such argument is a misconstrued because a registration of customary land as Perpetual Estates are done following an acquisition process under the second scheme not under the first scheme although a final decision obtained under the first scheme can be used as proof of ownership in an acquisition process. For the respondent, this was not the case.

In this jurisdiction there are two regimes under which the rights to customary land or ownership can be determined, both are provided by legislations namely;

Determination of ownership of customary land under the first regime are commenced pursuant to section 254 of the LTA, Cap 133 and the provisions of the Local Court Act, Cap 19.

Counsel for the applicant Dr Tagini submitted that the respondent’s referral of the ownership of Bina/Talifu Customary Land to the Central Kwara’ae and the Madari chiefs of East Kwara’ae was a nullity because the Central Kwara’ae and East Kwara’ae chiefs are not chiefs residing within the locality of the land in dispute.

Counsel for the respondent Mr Kako on the other hand submitted that originally both the West Kwara’ae, Central Kwara’ae are chiefs within the locality of the land in dispute.

It is a general knowledge to many adult Malaitans that geographically Bina Harbour area is in West Kwaio close to the border of Central Kwara’ae and West Kwaio. I have been to the area myself and I think I can take judicial notice of the location of where Bina Harbour is situated. In so doing I am inclined to accept the submission of Dr Tagini. I consider the respondents referral to the West Kwara’e and Madari chief of East Kwara’ae contradicts the Local Court Act, (Cap 19) hence it is a nullity because these chiefs are not chiefs within the locality of customary land in dispute and as such have no jurisdiction to deal with any dispute in relation to the ownership or interest in Bina/Talifu Customary Land.

The second regime is under Part V, Division 1 of the Land and Title Act, sections 62, 63, 64, 65 and 66 of the Lands and Title Act. This process is followed when the Commissioner of Lands or a Provincial Assembly wish to lease or purchase customary land.

In the present case the government wanted to acquire the land so the parties were engaged in an acquisition process under part V of the Act in respect of Bina/Talifu Customary Land. The Acquisition Officer made his decision and they appealed against the determination of the Acquisition Officer to the Magistrate Court pursuant to section 66(1) of the LTA. Their appeals were dismissed by the Magistrate’s Court.

Some of the parties appealed to the High Court against the decision of the Magistrate Court pursuant to section 66 (2) of the LTA. The respondent did not appeal to the High Court but instead turned around and went back to the chiefs with his tribes’ claim of ownership of Bina/Talifu Customary Land. In doing so the respondent failed to utilize the legal avenues provided under Part V of the Act to the end. The respondent in effect opted out halfway through the process. Counsel for the applicant Dr Tagini submits this amount to an abuse of the process.

Counsel Kako for the respondent on the other hand submits that the respondent went back to chief because that is the avenue provided by law under the Local Court Act.

While the Local Court Act provide such an avenue, Mr Kako’s submission is flawed in some aspects. First the parties were in a middle of a process provided under Part V of the Lands and Title and should have pursued their claim using the legal avenues provided under Part V of the LTA. I had considered the facts and I must agree with Dr Tagini’s submission that the respondent going back to the chiefs and then coming to this court with a claim based on the chief’s decision was an abuse of the process of the court. It would be different if the respondent had a final decision in their favour before the acquisition process. Counsel Dr Tagini submitted that the respondent referring his tribes claim to the chiefs was done contrary to provisions of the Local Court Act as those chiefs were not chiefs residing within the locality of the Bina/Talibu Customary Land hence the chiefs decision was a nullity and as such the respondent cannot rely on the two chief’s decisions as basis for their claim. After considering the facts I must agree with Dr Tagini’s submission.

Dr Tagini’s also submitted that the respondent’s pleading is defective in that the alleged mistake was not properly pleaded. Dr Tagini submitted a mistake should be pleaded as a mistake made by the Commissioner of Lands or the Registrar of Titles in the registration of the Estates. Counsel Tagini referred to the view expressed by Palmer DCJ (as he then was) in Tikani v Motui [2001] HSBC 10, HC –CC 029 of 2001, his Lordship said” The mistake stipulated in section 229 of the LTA must necessary refer to any mistake committed by the acquisition officer or the Commissioner of Lands or the Registrar of Titles in the exercise of their functions to effect registration. It would be wrong to rely on registration of an instrument that was obtained through mistake. The mistake alleged however must be set out in clear terms.
In the present case the registration of the land in the name of the applicants was made after a due process under Part V of the LTA was exhausted. As such I accept the submission of Counsel Dr Tagini that there was no evidence of mistake in the process of registration. In the circumstances a claim for mistake cannot be sustained

After considering the facts I find that the respondent’s claim is frivolous and vexatious and as such is an abuse of the process of the court. That is enough to strike out the claim but I feel it is pertinent to consider what was stated by Brown J in the appeals to the High Court of parties who were parties to the same acquisition proceeding together with the respondent up to the Magistrate’s Court. The appeals are, Orkley Ramolelea v Talauburi & anors, Alpheus Samosola v Renald Walesua, Elijah Toloau v Attorney General. (Consolidated Appeals 296/2009, 324/2009 & 428/2009. These appeals to the High Court are by persons who were aggrieved by the Magistrate’s decision in their appeal against the decision of the Acquisition Officer from which the present claim also arises. Brown J said “In John Unufana’adalo v Renaldo Walesua and Alphius Samosia^[1] Chief Justice Muria heard an appeal regarding the subject land from the decision of the Customary Land Appeal Court which had conclusively decided on the 7^th April 1994, that Walesua and Samosia were the primary owners of the land in question, [Bina/Talifu Land] and Toloau had secondary rights in the same land, upholding the decision of the CLAC and following earlier court decisions to the same effect. It does not matter that different named appellants have come now, the findings in rem upheld by Muria CJ lay to rest the issues in the appeals’

The decision referred to by Brown J means that the ownership of Bina/Talibu Customary Land has already finally been decided and laid to rest. In that respect the respondent cannot go back to the chiefs and re-litigate the ownership of Bina/Talibu Customary Land. The issue has been settled.

After considering the materials before the Court and the submissions of counsel and in applying various tests expounded by this court in relation to applications to strike out a claim or proceedings, I find the claimant’s claim is frivolous and vexatious and amounts to an abuse of the process of the court. I come to this conclusion because the registration of the Perpetual Estates in the name of the defendants were done after a due process under Part V of the Lands and Title Act and on the basis that the ownership of Bina/Talifu Customary Land has been finally been disposed of by Muria CJ’s finding in rem in John Unufana’adalo-v- Renald Walesu and Alphius Samosia^[2]. For these reasons I am satisfied the respondent’s claim is unsustainable and is therefore frivolous and vexation and an abuse of the process of the court.

High Court of Solomon Islands

Nole v Bina Talifu Land Interim Trust Board [2022] SBHC 34; HCSI-CC 478 of 2018 (12 May 2022)