Sesomo v Takakolo [2024] SBHC 94; HCSI-CC 206 of 2023 (6 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sesomo v Takakolo
Citation:
Date of decision:	6 September 2024
Parties:	Moses Sesomo, Dale Kevu, Nelson Kolovatu v Chief Ben Takakolo, Samson Qalo, Dalson George, Runny Tanakasu, Sonic Phase (SI) Company Limited, Attorney General, Attorney General
Date of hearing:	14 August 2024
Court file number(s):	206 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I therefore could not exercise my discretion under that section to condone Messrs Sesomo, Kevu and Kolovatu’s delay in filing their Claim. Consequently, the relief sought in paragraphs 1, 2 and 3 of the Attorney General’s application filed on 16 July 2024 are hereby granted with cost.
Representation:	Mr Joses Duddley for the Claimants/First Respondent Ms Angeline N Tongarutu for the First Defendants/Second Respondent Mr Allen L Harara for the Third and Fourth Defendants/Applicants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133], S 233, S 229 Limitation Act [cap 18] S 3 (2),S 32 (1), and (2), S 9 (3), S 39, S 39 (2) Solomon Islands Courts (Civil Procedure) Rule 2007, r 15.3.8
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 206 of 2023

BETWEEN

MOSES SESOMO, DALE KEVU, NELSON KOLOVATU
(Representatives of Topara Clan of Azaka Tribe of Sosoko customary land)
Claimants

AND:

CHIEF BEN TAKAKOLO, SAMSON QALO, DALSON GEORGE, RUNNY TANAKASU
First Defendants

AND:

SONIC PHASE (SI) COMPANY LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
(representing the Registrar of Titles).
Third Defendant

AND:

ATTORNEY GENERAL
(representing the Commissioner of Lands)
Fourth Defendant

Date of Hearing: 14 August 2024
Date of Decision: 6 September 2024

Mr Joses Duddley for the Claimants/First Respondent
Ms Angeline N Tongarutu for the First Defendants/ Second Respondent
Mr Allen L Harara for the third and Fourth Defendants/Applicants

RULING

Bird PJ:

1. This case was commenced by Messrs Moses Sesomo, Dale Kevu and Nelson Kolovatu against Chief Ben Takakolo, Messrs Samson Qalo, Dalson George and Runny Tanakasu, together with Sonic Phase (SI) Company Limited and the Attorney General. They sought various declaratory orders pursuant to section 229 of the Land and Titles Act (Cap 133) (LTA). They claim that the registration of parcel number 049-002-1 in the name of Chief Takakolo, Messrs Qalo, George and Tanakasu was coupled with fraud, mistake and omission.
2. The claim of Messrs Sesomo, Kevu and Kolovatu is denied by Chief Takakolo, Messrs Qalo, George and Tanakasu as well as the Attorney General. They have filed their respective Defences to the Claim setting out their positions.
3. After pleading was closed, the Attorney General filed an application for determination of preliminary issue of law. A hearing was conducted upon the application and I must determine it.

The issue

4. The only issue that I shall determine in respect of the application of the Attorney General is:
   • ‘Is the Claim of Messrs Sesomo, Kevu and Kolovatu time barred?’

The position of the Attorney General

5. The Attorney General asserts that the Claim filed against them is time barred. They also seek a declaration that the Claim was filed under the wrong category and consequently the Claim must be struck out for abuse of the court’s process.
6. The land in parcel number 049-002-1 was registered by the Registrar of Titles (RT) in the joint names of Chief Takakolo, Messrs Qalo, George and Tanakasu on 22 August 2018. Messrs Sesomo, Kevu and Kolovatu filed their Claim on 11 May 2023. The Attorney General says that Claim is time barred.
7. The Attorney General based their legal argument under section 3 (2) of the Limitation Act (Cap 18) (LA), section 233 of the LTA and rule 15.3.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR).
8. I need not state the actual contents of these provisions in this ruling but the summary of the legal requirements are as follows:
   • The effect of s. 3(2) of the LA as read with s. 233 of the LTA is the period limited by which an action or arbitration against the decision of the COL and RT to effect registration on a certain parcel of land is six (6) months.
   • R. 15.3.8 of the CPR limits the time of filing a Claim for Judicial Review at 6 months.
9. The combined effect of the three provisions relied upon by the Attorney General in their legal argument is that the correct cause of action that should have been brought by Messrs Sesomo, Kevu and Kolovatu was a Claim for Judicial Review. The period limited for filing that claim had lapsed.
10. As a consequent of the above submission, the Attorney General is further of the view that the Claim Category A filed by Messrs Sesomo, Kevu and Kolovatu is not the correct process to file a claim of the nature it is filed. The Claim as filed had fallen short of seeking an order for rectification of the register under section 229 of the LTA. The Claim should be struck out for an abuse of the process of the court.

The position of Chief Takakolo, Messrs Qalo, George and Tanakasu

11. Mrs Tongarutu on behalf of Chief Takakolo, Messrs Qalo, George and Tanakasu did not file any written submission. She told the court during hearing that she consents to the application of the Attorney General and do not wish to make any further submission.

The position of Messrs Sesomo, Kevu and Kolovatu

12. On the contrary, Messrs Sesomo, Kevu and Kolovatu did not validly address the issue raised in the application of the Attorney General. They instead raised the issue of section 32 (1) and (2) of the LA. The issue that they addressed was whether that provision could be applied in their favour in light of their allegation of fraud, concealment or mistake in relation to the registration of parcel number 049-002-1.
13. They argue that since they have raised the issues of fraud, mistake and omission, their Claim as filed is not time barred. The court can proceed to hear and determine the issues raised in their claim under s. 32 (1) and (2) of the LA. They failed to discuss whether section 3 (2) of the Limitation Act (Cap 18) (LA), section 233 of the LTA and rule 15.3.8 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR) applies to their claim.

Discussion

14. The starting point of the legal argument raised by the Attorney General is that registration of land is part of the powers given to the RT under the LTA. Flowing from that power is the requirement of s. 233 of the Act. Any person aggrieved by a decision of the RT may within 6 months appeal to this court which may confirm, quash or vary the decision of as it thinks just, the court may further order rectification of the land register under s. 299 of the Act.
15. That section is further supported by s. 3 (2) of the LA. This particular section of the LA precludes the general limitation period provided under s. 5 of the Act. The evidence provided by the Attorney General confirmed registration was effected on 28 August 2018. The Claim was filed on 11 May 2023, some 4years, 18 months and 14 days later. The late filing contravened s. 233 of the LTA as read with s. 3 (2) of the LA.
16. I have noted that Messrs Sesomo, Kevu and Kolovatu had not assisted the court in making any submissions on the legal requirements of s. 233 of the LTA as read with s. 3 (2) of the LA. The court is therefore unable to understand their position. They had used s. 32 (1) and (2) of the LA to cure their omission.
17. They say that the provision of s. 32 (1) and (2) should be used by the court in their favour. They further say that because they are claiming remedy under s. 299 of the LTA, they have relied upon the issue of fraud, mistake and omission.
18. I have had the opportunity to peruse their Claim filed on 11 May 2023. The reliefs sought are in the form of various declaratory orders. I have seen and noted that those declaratory orders have fallen short of seeking orders for rectification of the land register pursuant to s. 229 of the LTA.
19. I have also perused the content of their statement of case. I have seen and noted that apart from saying in paragraph 21 that the registration was occasioned by fraud, mistake and omission, there is no further pleading on the actual particulars. I have enquired of counsel during hearing on the particulars but I have received very little assistance from him.
20. If I have to use s. 32 (1) and (2) of the LA in Messrs Sesomo, Kevu and Kolovatu’s favour, I must be satisfied of the particulars of fraud, mistake and omission in their statement of case. I have found no assistance from the statement of case to use my discretion in their favour under that section. I must also remind myself of the provision of s. 9 (3) of the LA. That subsection reiterates the requirement of s.233 of the LTA, s. 3 (2) of the LA and r. 15.3.8 of the CPR.
21. The legal argument raised by the Attorney General is not a new issue before this court. There have been previous cases decided by this court on the application of s. 223 of the LTA as read with s. 3 (2) of the LA as well as the effect of r. 15.3.8 of the CPR.
22. The Court of Appeal in SICOA-CAC 27/17 has discussed the legal principle applicable in non-compliance of statutory requirements under the LTA. Similarly in this case, it relates to non-compliance of the statutory requirement of the LTA, the LA and the CPR. I am of the view that the same legal principle enunciated in that case is equally applicable in this case. I can therefore hold that that the Claim of Messrs Sesomo, Kevu and Kolovatu filed on 11 May 2023 is time barred.
23. Having said that, I will further discuss my duty as the court in relation to the provision of s. 39 of the LA. Under that section, the court can condone the delay in filing a claim late. In any event, the condonation can only be exercised if I am satisfied of the requirements specified in subsection (2) therein.
24. For that purpose, I have perused and noted the contents of the Claim filed on 11 May 2023 and the sworn statement of Mr Sesomo filed in support of the claim on 22 May 2023. I can find nowhere in the Claim as well as the sworn statement that the requirements of s.39 (2) of the LA has been pleaded or stated in evidence. I therefore could not exercise my discretion under that section to condone Messrs Sesomo, Kevu and Kolovatu’s delay in filing their Claim. Consequently, the relief sought in paragraphs 1, 2 and 3 of the Attorney General’s application filed on 16 July 2024 are hereby granted with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge