Gulf Five Ltd v Malanga [2024] SBHC 53; HCSI-CC 145 of 2022 (14 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gulf Five Ltd v Malanga
Citation:
Date of decision:	14 February 2024
Parties:	Gulf Five Limited, Meriwhite Choko v Joseph Aleve Malanga, Registrar of Titles, Commissioner of Lands
Date of hearing:	7 February 2024
Court file number(s):	145 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga, Commissioner
On appeal from:
Order:	1) The application for summary judgment by the Second and Third Defendants for dismissal of the claim is granted. 2) In consequence hereof, the claim in Category A filed on 26th April 2022 is dismissed summarily pursuant to rule 9.64 (a) (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for it does not have any prospect of succeeding at the trial. 3) The decision of the Second Defendant regarding the cancellation of the Grant of Profit made on 8th June 2020 over the land in PE No. 144-011-1 situated in Vangunu in the Marovo Lagoon, remains valid and executory. 4) Cost of this proceeding is to be paid by the Claimants on standard basis.
Representation:	Mr Phillip Tegavota for First and Second Claimants No Appearance for First Defendant Mr Nickson Ofanakwai for Second and Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 233, S 139, S 66, S 66 (2), Solomon Island Court (Civil Procedure) Rule, r9.58, r9.64 (a) –(c), r9.64 (a) (b) and (c)
Cases cited:	QQQ Holdings Limited v Honiara City Council [2003] SBHC 18, Hona v Sive [2023] SBHC 239, Solomon Islands Ports Authority v Korean Enterprises Limited [2015] SBHC 33, Duko v Kile [2019] SBCA 41, Laro v Attorney General [2020] SBHC 125, Vikasi v Vunagi [2016] SBCA 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 145 of 2022

BETWEEN

GULF FIVE LIMITED
First Claimant

AND:

MERIWHITE CHOKO
Second Claimant

AND:

JOSEPH ALEVE MALANGA
First Defendant

AND:

REGISTRAR OF TITLES
Second Defendant

AND:

COMMISSIONER OF LANDS
Third Defendant

Date of Hearing: 7 February 2024
Date of Ruling: 14 February 2024

Mr Phillip Tegavota for the First and Second Claimants
No Appearance for First Defendant
Mr. Nickson Ofanakwai for Second and Third Defendant

RULING

Commissioner Aulanga

1. Claimants filed a claim Category A on 26^th April 2022. The main reliefs sought, amongst others, are for declaratory orders that the registration of the Registrar’s caveat over the land in PE No. 144-011-1 situated in Vangunu in the Marovo Lagoon, is null and void and for rectification of the Grant of Profit granted by the Third Defendant which was cancelled by the Second Defendant on 8^th June 2020.
2. That Grant of Profit was given to the First Claimant on 19^th July 2017, for 5 years. It was already expired on 20^th July 2022. The Claimants did not renew it after the expiry date and now becomes an issue of whether the reliefs sought in the claim can be practically granted if the claim succeeds at the trial. The action of the Second Defendant in the cancellation of the Grant of Profit gave rise to the filing of this claim.
3. The Second and Third Defendants detected the claim was filed out of the 6 months statutory prescribed time under section 233 of the Land and Titles Act (“LTA”). That proviso requires any person aggrieved by the decision of the Registrar of Titles made under the LTA to lodge an appeal to the High Court within 6 months of the date of the decision. It is on the basis of the claim filed about 22 months after the cancellation of the Grant of Profit by the Registrar of Titles, herein the Second Defendant, that the application for summary judgment was filed.
4. The Claimants in their reply filed on 7^th February 2024 did not dispute the 6 months statutory time required under section 233 of the LTA for filing of an appeal. They however said that, other than the letter dated 8^th June 2020 advising of the cancellation of the Grant of Profit, they did not receive the copy of the cancellation of the Grant of Profit well in time. They received it after the 6 months period has lapsed. By implication and based on the explanations, their right to appeal can be extended under section 233 of the LTA.
5. The Claimants also denied any obsolete cancellation of the Grant of Profit to carry out logging operation in the land and urged the court to refuse the granting of the summary judgment sought by the Second and Third Defendants. This argument in my view fails to take into account that the letter dated 8^th June 2020 annexed as “MW4” in the Second Claimant’s sworn statement filed on 26^th April 2022 in fact constitutes the decision appealable under section 233 of the LTA. The reasons for the cancellation of the Grant of Profit were clearly expressed in the relevant section of the letter as follows:
   • “1 TO: Meriwhite Choko and Gulf Five Limited, your Grant of Profit (GP) – 751/17 dated 19^th July 2017 and registered for a term of 5 years from 20^th July 2017 has been cancelled with effect today’s date – 9h June 2020. Further, you Meriwhite Choko and Gulf Five Limited are hereby directed to settle an amount of SBD$2,242,508.40 (Two million two hundred and forty two thousand five hundred and eight dollars and forty cent in the lawful currency of Solomon Islands) to the Inland Revenue Division, Ministry of Finance and Treasury within 30 days from the date of this letter. Failure to do so, further instructions will be issued to the Commissioner of Inland Revenue Division to initiate legal proceedings against you.”^[1]
6. That letter in fact is a formal advice or notification of the cancellation of the Grant of Profit effective as of 8^th June 2020 as made by the Second Defendant. If the Claimants are prudent and serious to challenge that decision, they should have filed an appeal to the High Court within the 6 months as of the 8^th June 2020. Nothing has been done so the Claimants’ excuse of the need to wait for the cancellation document of the Grant of Profit before any appeal can be taken is unmeritorious and must be rejected.
7. For this application, I begin on the premise that a claim for declaration has to be decided on evidence during the trial proper. This is the position in QQQ Holdings Limited v Honiara City Council^[2] and Hona v Sive.^[3] However, the nature of this application goes to the validity or root of the claim which is determinative of whether this court has the jurisdiction to hear this matter at all as required by section 233 of the LTA. For it is considered pointless to try a matter at the trial that is invalidated by the law.
8. The evidence which I accept and largely undisputed is that the cancellation of the Grant of Profit by the Second Defendant took place on the 8^th June 2020. The claim effectively to challenge that decision was filed on the 26^th April 2022, which was 22 months significant period after the decision was made. The ultimate question is whether the claim is time barred and that the Grant of Profit which the Claimants seek this court to rectify does not exist as it had already expired and not renewed.
9. During the hearing, I asked counsel Ofanakwai whether the word “appeal” in section 233 of the LTA also includes the filing of a claim. I raised this question because it appears that this is one of the important elements of the section. Counsel submitted that it has the similar meaning as “application” referred to under section 139 of the LTA and this can be by way of filing of a claim.
10. I have looked at the LTA and the Interpretations and General Provisions Act but could not find any definition of appeal as referred to under the LTA. In the search for this legal solution, I have comfort to rely on the decision of this court in Solomon Islands Ports Authority v Korean Enterprises Limited^[4] where a proceeding commenced under section 233 of the LTA against the decision of the Registrar of Titles can be commenced at the High Court by way of filing of a claim in Category A. Based on the approach taken in that case, I am satisfied of the appropriateness of this proceeding by way of filing of a claim at the High Court.
11. Section 233 of the LTA requires an appeal against the decision of the Second Defendant pursuant to its powers under the LTA, to be commenced within 6 months of the date of the decision. This comes to the question of whether or not this court can accept any appeal or proceeding filed outside the prescribed statutory time.
12. There is a copious body of authority in this jurisdiction that plainly states that once an appeal or proceeding is not taken during the period prescribed by a statute, the appellate court is ousted of jurisdiction to deal with the matter. For example, in Duko v Kile,^[5] the Court of Appeal considered the issue of an appeal filed out of time as required under the LTA and made these eminent statements “We further emphasizes that the right to appeal is not a natural right or part of due process. It is purely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law when the language of the statute is unambiguous. Well-rooted is the principle that perfection of an appeal within the statutory period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory, and deprives the appellate court of jurisdiction to act or the final judgment as there is no appeal matter to entertain the appeal.”^[6] Despite this case deals with an appeal arising from the decision of the acquisition officer under section 66 of the LTA, the principles regarding the need to comply with filing of the appeal within the prescribed statutory time remains the same.
13. Also, in Laro v Attorney General^[7], this court was confronted with a similar issue of whether the matter can be dismissed due to an appeal against the decision of the Magistrates Court on an acquisition matter was filed out of the 3 months duration as required under section 66 (2) of the LTA. The court upheld the application and dismissed the matter by following the Court of Appeal decisions of Vikasi v Vunagi^[8] and Duko v Kile^[9]. The court expressed and upheld the same view held in those two Court of Appeal cases that any appeal filed out of time under the provision of the LTA is invalid and will deprive the appellate court from having the jurisdiction over the matter.
14. It is clear that the LTA provides that any commencement of proceeding against the decision of the Registrar of Titles has to be made within 6 months of the date of the decision. Unfortunately, it does not provide for an extension of time. The authorities from the Court of Appeal cited earlier also concluded that no extension of time can be given once the statutory time for the appeal has lapsed.
15. For this application, the decision reached here is simple and that is, the claim filed by the Claimants herein was out of time. That is, it was filed 22 months after the decision was made by the Second Defendant herein. Unfortunately, this was way out of the 6 months appeal time required under section 233 of the LTA. Premised on this reason, this court therefore lacks the jurisdiction to hear the matter.
16. Rule 9.58^[10] on which this application is premised gives the right to the defendant to apply for summary judgment to be entered against the claimant if the defendant considers the claim has no real prospect of succeeding. The main gist of consideration determinative of whether or not this court can adjudicate this case is the issue that the claim herein was time barred. This, in my view, is an inherent defect that cannot be cured by this court and consequently, the reliefs sought therein cannot have any real prospect of succeeding at the trial.
17. The other troubling issue detected in the claim is on the impracticality of granting the reliefs for rectification of the Grant of Profit since it was not renewed after it had been expired on the 20^th July 2022. If this matter is to be proceeded for trial, it will certainly be an academic exercise which will yield an unrealistic result. In the absence of evidence of any application for renewal of the Grant of Profit, I do not see any logic to proceed with this case for rectification of the Grant of Profit that does not exist anymore as of the 20^th July 2022. On this basis, I agree with counsel Ofanakwai that there is no arguable case for the court to consider during the trial on the basis that what the Claimants seek this court to rectify does not exist anymore.
18. The application to dismiss the claim is granted. Accordingly, the claim in Category A filed on 26^th April 2022 is dismissed summarily pursuant to rule 9.64 (a) – (c) for it does not have any prospect of succeeding at the trial. I order that the appealed decision of the Second Defendant regarding the cancellation of the Grant of Profit over the land in PE No. 144-011-1 situated in Vangunu in the Marovo Lagoon remains valid and executory. Cost of this application is to be paid by the Claimants on standard basis.

Orders of the Court

1. The application for summary judgment by the Second and Third Defendants for dismissal of the claim is granted.
2. In consequence hereof, the claim in Category A filed on 26^th April 2022 is dismissed summarily pursuant to rule 9.64 (a) (b) and (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for it does not have any prospect of succeeding at the trial.
3. The decision of the Second Defendant regarding the cancellation of the Grant of Profit made on 8^th June 2020 over the land in PE No. 144-011-1 situated in Vangunu in the Marovo Lagoon, remains valid and executory.
4. Cost of this proceeding is to be paid by the Claimants on standard basis.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court

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^[1] Page 4 of “MW4” annexed in the Second Claimant’s sworn statement filed on 26^th April 2022.
^[2] [2003] SBHC 18.
^[3] [2023] SBHC 239.
^[4] [2015] SBHC 33.
^[5] [2019] SBCA 12.
^[6] At paragraph 41.
^[7] [2020] SBHC 125.
^[8] [2016] SBCA 16.
^[9] See footnote 3.
^[10] Solomon Islands Courts (Civil Procedure) Rules 2007.