Katalake v Seleboe [2024] SBHC 141; HCSI-CC 247 of 2022 (11 November 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Katalake v Seleboe
Citation:
Date of decision:	11 November 2024
Parties:	John Katalake and Choylin Douglas v Charles Seleboe
Date of hearing:	30 September 2024 and 16 October 2024
Court file number(s):	247 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Claimants shall have possession of the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment. 2. The Defendant, his agents, family, servants, employees or any other person acting under the purported authority of any of them are evicted from the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment. 3. The Defendant, his agents, family, servants, employees or any other person acting under the purported authority of any of them are restrained from entering the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment or constructing any developments on the lease estate parcel no 191-048-25 after the date of this judgment. 4. The Defendant is to pay the costs of the Claimant if not agreed to be assessed.
Representation:	Mr D Nimepo for the Claimant Mr M Hauirae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Limitation Act S 9 (2), S 32 (1) and (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 247 of 2022

BETWEEN

JOHN KATALAKE AND CHOYLIN DOUGLAS
Claimants

AND:

CHARLES SELEBOE
Defendant

Date of Hearing: 30 September 2024 and 16 October 2024
Date of Judgment: 11 November 2024

Counsel
Mr D Nimepo for the Claimants
Mr M Hauirae for the Defendant

Lawry; PJ

JUDGMENT

1. On 5 June 1997 Saviano Laugana and Vincent Kurilau leased a parcel of land to Loiala Katalake and John Katalake. The lease was in respect of parcel number 191-048-25. It contained 23.8878 hectares and the lease period was for 75 years commencing on 7 May 1997.
2. Loiala Katalake has since died. The lease then passed to John Katalake and Choylin Douglas. The lease register indicates that the transfer of ownership of the lease was by mutation on 25 June 2019.
3. John Katalake and Choylin Douglas brought this claim seeking the following orders against the Defendant:
   • “1. An eviction order against the Defendants, their agents, families, servants, employees or any other person acting under their purported authority from entering, construct developments on Lease Estate PN 191-048-25 (“the Property”).
   • 2. A permanent restraining orders against the Defendants, their agents or any other person acting under their purported authority from entering, reside and or develop the Property.
   • 3. An order for possession of FTC Property No. 191-048-25
   • 4. Costs.”
4. The Defendant initially disputed that he resided on the property. He has since died and the defence of the claim has been taken over by his son who shares the same name. By the time of trial the Defendant’s position had changed. He alleged that the transfer to the Defendants was obtained by fraud and that he and his family were entitled to reside on the land as they did so with the consent of the customary owners of the land.
5. In the defence filed on 10 August 2022 the Defendant set out the following in paragraph 1.
   • “The Claimants’ Registration of 191-048-25 is only for 70 acres of Kogulai land sold to Loiala Katalake by Saviano Laugana, Vincent Kurilau, Simon Mavi, Renato Kavichava and Nicolas Visona who are Trustees and owners in custom of the land known as Kongulai land.
   • On 28 March 1979, Saviano Laugana, Vincent Kurilau, Simon Mavi, Renato Kavichava and Nicolas Visona who are Trustees and owners in custom of the land known as Kongulai land sold only 70 acres of the parts of Kongulai land to Loiala Katalake for SBD$1,165.20. Loiala Katalake pleaded and admitted this in CC 302 of 1994 in his Statement of Case.
   • It is worth noting that the Claimants in this proceeding now claims and expand the boundaries of 191-048-25 and has elastically pulled beyond the only 70 acres paid by Loiala Katalake for only SBD$1,165.20 together with a chupu. Their Claimants’ claim of boundary is baseless and must not to be entertained by this court because it is fraud, fabricated and is false and does not align with the 70 acres paid.
   • In any event, the Claimants since then have elastically pulled the boundary of the land and assume it to be 191-048-25 in their claim which is an issue up to this very day because it is wrong and the correct land paid by Loiala Katalake is only 70 acres.”
6. In the claim the Claimants allege that the Defendant had been selling portions of the land the Claimants leased, being parcel 191-048-25. In response the Defendant set out at paragraph 4 of his defence, the following:
   • “4. As to paragraph 4, is denied and say that there is no selling of land by the defendants, the invitation of people into the property by the defendant was not within the 70 acres paid by Loiala Katalake but is outside of that boundary, the sale by Tasima nephew of the claimants has gone beyond the 70 acres paid by Loiala Katalake.”
7. It is apparent that when the defence was filed the allegation by the Defendant was that the area of land sold to Loiala Katalake was only 70 acres and now the boundaries have moved beyond that. When there were pre-trial hearings concerning this case it was pointed out to the Defendant that the land had been surveyed so the boundaries were fixed and that the area of land within the parcel was only 23.8878 hectares being nearly 5 hectares less than the 70 acres the Defendant said was sold to Loiala Katalake.
8. On 3 July 2023 the Defendant filed an amended defence changed the allegation from expanding the boundary to increase the area beyond 70 acres to one alleging the land was acquired by fraud.
9. The fraud alleged was that there was no transfer to the Claimants. At paragraph 7 of the amended defence the Defendant alleged that a person named Mr Tasima, a nephew of John Katalake and Loiala Katalake sold the land to them without any colour of right in custom or law.
10. Although the Defendant has alleged the transfer to the Claimants was obtained by fraud I understand from the submissions that the allegation actually relates to how the land came to be leased to Loiala Katalake and John Katalake in 1997. In the second sworn statement of the Defendant (the son of the original Defendant) filed on 13 January 2023, he referred to proceedings concerning the land brought in civil case 302 of 1994. The Defendant also alleged that in 2018 Chief Vincent Kurilau consented to the Commissioner of Lands transferring the property to the Defendant’s wife.
11. What has become clear from the evidence is that around 1979 Loiala Katalake entered into an agreement to purchase 70 acres in Kongulai area. The purchase included payments of cash and there was a ‘chupu’ in around 1991. There is an allegation that a further sum of money was demanded and paid. However, by 1994 the land had not been transferred. Loiala Katalake then brought a claim for specific performance of the transfer in civil case 302 of 1994. He sought an order to prevent sales of parts of the land to other persons.
12. In 1995 there was an order of the High Court restraining the Defendants in that case, being the trustees of the land, one of whom was Chief Vincent Kurikau, from selling or disposing of any parts of the land until further order.
13. The leasehold estate was created in 1997. Whether that was a result of the High Court proceedings in 302 of 1994 is not known. However the trustees being those through whom the Defendant claims his interest in the land must have known of the creation of the leasehold estate from 1997.
14. From 1997 there has been no application to rectify the title in respect of the parcel 191-048-25. Those having an interest in the land would have been entitled to bring such a claim if they wished. The Limitation Act provides at section 9(2):
    • “(2) No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person:
    • Provided that if the cause of action first accrued to the Crown or a public authority, through whom the person bringing the action or commencing the arbitration claims, the action may be brought or the arbitration may commence at any time before the expiration of the period during which the action could have been brought or the arbitration could have commenced by the Crown or the public authority or before the expiration of twelve years from the date on which the cause of action accrued to some person other than the Crown or the public authority, whichever period first expires.”
15. The proviso does not apply in the circumstances of this case. Therefore any claim for the rectification of title was required to be commenced before 12 years had passed since the cause of action arose, that is since the granting of the leasehold estate to Loiala Katalake and John Katalake in 1997. Twelve years from the grant of that estate was 7 May 2009.
16. In cases where fraud is alleged, the Limitation Act extends that time in section 32(1) and (2) which provides as follows:
    • “32. (1) In this section, “fraud” means a false representation made knowingly, or without honest belief in its truth, or recklessly without care whether it be true or false, and includes such unconscionable or blameworthy act or omission as amounts to fraud in equity.
    • (2) Subject to subsection (4)-
    • (a) where a claim in an action or arbitration is based on fraud of the defendant; or
    • (b) where a claim in an action or arbitration is based on any fact relevant to the plaintiff’s cause of action which has been deliberately concealed from him by the defendant, or
    • (c) where a claim in an action or arbitration is based on a relief from the consequences of a mistake,
    • the prescribed period for such action or arbitration, as the case may be, shall not begin to run until the plaintiff has discovered such fraud, concealment or mistake, or could with reasonable diligence have discovered it.”
17. In this case because of the litigation between the parties, the trustees of the land must have known of the transfer in 1997. I find that the time for bringing a claim commenced in 1997. The owners of the leasehold estate by 2019 were Loiala Katalake and John Katalake. They had not been removed from that status and the time for doing so had well and truly passed.
18. In 2016 John Katalake served an eviction notice on those occupying parcel no 191-048-25. The ‘trustees’ of the former customary bland then replied to that letter in which they said there was “a restraining order or stop order that they were not to make any land sales including the 70 acres of land that Loiala bought” It was two years after this letter that Chief Vincent Kurilau is said to have consented to a transfer to the wife of the Defendant.
19. At paragraph 16 and following of the submissions the Defendant asserted that the transfer to the Claimants was obtained by fraud because the Defendant asserted the Registrar of Titles had no records of the whole land. Whether there are records or not is unknown as the Defendant asserting the fraud did not call any witness from the Office of the Registrar of Titles to prove the issue or to produce any documentation. There has been nothing put forward to me that satisfies me that there has been any fraud or mistake shown to have occurred in the change of ownership of the lease from Loiala Katalake and John Katalake to the Claimants. The particulars relied on have not had any admissible evidence put forward to support the allegation.
20. At paragraph 28 of the Defendants submissions he said:
    • “There is no evidence to disprove whether fraud or mistake had taken place.”

Having raised the allegation of fraud the onus is on the Defendant to provide the particulars of that fraud and to prove the allegation of fraud. He has not done so. More significantly he has made no counter claim. There is no basis for this Court to rectify the title for land. Even the material filed on behalf of the Defendant makes it clear that land was sold to Loiala Katalake more than 30 years ago. Even had there been evidence of fraud and there is not, the time to bring a claim for rectification of title passed many years ago.

21. I am satisfied that the lease was then transferred to the Claimants in 2019. There is no evidence before me that the transfer to the Claimants in 2019 was the result of any mistake or fraud. There is no challenge to the evidence that the land being occupied by the Defendant is within the area that is registered as parcel no 191-048-25.
22. The Defendant’s claim that he is entitled to remain on the land because of permission being given by customary land owners has no merit as the land is not customary land it is registered land. Those who are entitled to occupy the land are the holders of the registered estate, in this case the holders of the leasehold estate. It follows that the Claimants are entitled to the orders sought.

Orders

1. The Claimants shall have possession of the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment.
2. The Defendant, his agents, family, servants, employees or any other person acting under the purported authority of any of them are evicted from the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment.
3. The Defendant, his agents, family, servants, employees or any other person acting under the purported authority of any of them are restrained from entering the lease estate parcel no 191-048-25 after the expiration of 30 days from the date of this judgment or constructing any developments on the lease estate parcel no 191-048-25 after the date of this judgment.
4. The Defendant is to pay the costs of the Claimant if not agreed to be assessed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge