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Simikera v Ragoso [2000] SBHC 33; HC-CC 368 of 1999 (11 August 2000)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 368 of 1999

MAXWELL SIMIKERA

V

HERRICK RAGOSO, ZEROLYN VIURU, MILTON TONA, TEDDIE ALU AND LORRAINE BOSO, COMMISIONER OF LANDS AND REGISTRAR OF TILES

High Court of Solomon Islands
(Kabui, J)

Date of Hearing: 11th August, 2000
Date of Ruling: August, 2000

G. Suri for the Plaintiff
Nori for the 1st Defendants
J. Keniapisia for the 2nd and 3rd Defendants

RULING

(KABUI, J): The Plaintiff is Maxwell Simikera who represents the Sisoro Tribe known also as Zimbo Tribe of Mbava Island also known as Bagga Island. The Plaintiff filed a Writ of Summons against the Defendants on 4^th October, 1999 in which the Plaintiff sought a number of declarations. True copies of the Writ of Summons were served upon the Defendants on 16^th December, 1999. The 2^nd and 3^rd Defendants filed a Memorandum of Appearance on 2^nd March, 2000 and their Defence on 8^th August, 2000. There is no record of a Memorandum of Appearance in respect of the 1^st Defendants nor of their Defence. The 1^st Defendants were however able to file a Notice of Motion on 25^th January, 2000 seeking the following orders -

1. The action be struck-out on the grounds that –
   
   • (a) the Plaintiff has no locus stand;
     
   • (b) the action is time barred;
     
2. the Plaintiff is barred in that the action is res judicata; and
   
4. Costs to be paid by the Plaintiff.

Item 4 should really have been 3 in the first place. This is obviously a typing error. At the hearing of this Motion, the 1^st Defendants abandoned 2 above and only proceeded with 1(a) and (b).

The Background

Mbava also known as Bagga Island is situated near Vella La Vella in the Western Province. One Joseph Binskin, a white settler, acquired it many years ago. After that, the then British Colonial Government in Solomon Islands acquired it and became its owner. The then Commissioner of Lands transferred the perpetual title to part of the Island to the 1st Defendants on 5th February, 1988 for the sum of $2,000 as consideration for that transfer of title. The Parcel Numbers in the names of the 1st Defendants are 079-006-2 and 079-006-4. The Lot Numbers are Lot 3 and Lot 341 respectively. There are other sub-divisions which are not relevant to this case. The 1st Defendants held these as joint owners. The road to the ultimate registration of Parcel Numbers 079-006-2 and 079-006-4 above in the joint names of the 1st Defendants was not without challenge. By letter dated 15th July, 1987, the Plaintiff protested to the then Minister of Agriculture and Lands, Daniel Sade, about the involvement of the then Honourable Seth Lekelalu, (M.P.) in matters affecting the Island and threatened to impose a caveat. The Plaintiff lodged the caveat on 16th July, 1987 but was later removed on 14th October, 1987. In 1989, the Plaintiff filed a civil case (HC-CC 208/89) against the Attorney-General and the 1st Defendants seeking certain declarations in relation to the validity of the transfer of title of Parcel Numbers 079-006-2, 3 and 4. C.J. Ward in a judgment delivered on 20th March, 1990, refused the declarations sought by the Plaintiff. The Plaintiff now seeks a Court Order to upset that registration on the ground that the registration was obtained by fraud or mistake.

The Defendants’ Case

Counsel for the 1st Defendants, Mr. Nori attacked the Plaintiff’s Writ of Summons and Statement of Claim on two grounds. First, Mr. Nori argued that the Plaintiff had no locus standi or standing to bring his action to the Court. Mr. Nori pointed out that at no time had the Plaintiff established that he represented the Sisoro Tribe in the Statement of Claim. Mr. Nori further pointed out that his argument was reinforced by paragraph 3 of the Plaintiff’s prayer at page 5 of his Statement of Claim. That is to say, according to Mr. Nori, there was no evidence that the Plaintiff was the original owner of the Island and yet was asking the Court to make an order requesting the Commissioner of Lands to find out through the Local Court the original owners of the Island. Not only that the Plaintiff’s approach was wrong, said Mr. Nori, but that the High Court would not have jurisdiction to order the Commissioner of Lands to find out who the original owners were because the Commissioner of Lands could cause an enquiry himself in an administrative manner without a Court Order. Mr. Nori therefore argued that paragraph 9 of the Plaintiffs Statement of Claim should be struck-out because it raised customary ownership which was a matter outside the jurisdiction of the High Court. Mr. Nori argued that with paragraph 9 struck-out, the Plaintiff would be left “naked” in that the Plaintiff would have no standing in this case.

As to the second ground, Mr. Nori, argued that the Plaintiff was caught by section 5 of the Limitation Act (Cap. 18) which imposed 6 years time limit on all actions wherein the cause of action accrued after the expiration of 6 years. Mr. Nori pointed out that the Plaintiff knew about the registration of Parcel Numbers as far back as 1989 and therefore the Plaintiff’s action should be dismissed as being statute-barred. Mr. Nori further argued that even section 14 of the Limitation Act would not apply to the Plaintiff’s case. That is to say, according to Mr. Nori, there was no evidence to suggest that the Plaintiff was a beneficiary under that section of the Limitation Act. Mr. Nori also pointed out that although section 32 of the Limitation Act could be invoked by the Plaintiff, it should not be the case in this case because the Plaintiff ought to have known about any alleged fraud or mistake in 1989 and should have taken any action on that basis that time. Mr. Nori, on the basis of these arguments, asked the Court to strike-out the Plaintiff’s case. Counsel for the 2nd and 3rd Defendants, Mr. Keniapisia, supported the arguments made by Mr. Nori but added that the Plaintiff’s case could also be dismissed under Order 27, rule 4 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). That is to say, the Plaintiff’s Statement of Claim disclosed no cause of action or alternatively, the Plaintiff’s action was frivolous and vexatious and must therefore be dismissed.

The Plaintiff’s Case

Counsel for the Plaintiff, Mr. Suri, in response to the Defendants’ case, argued the opposite. On the question of there being no locus standi or standing on the part of the Plaintiff, Mr. Suri argued that there was evidence to point towards the existence of sufficient interest on the part of the Plaintiff. Mr. Suri argued that the Plaintiff’s case was based upon fraud or mistake and the remedy being sought was rectification of the register. Mr. Suri pointed to the Plaintiff’s affidavit filed on 3rd March, 2000 and that by Mr. Dick filed on 26th July, 2000 as being the evidence supporting the Plaintiff’s case. Mr. Suri also argued that locus standi was to be found in the Government’s policy statement on the transfer of perpetual estates to Solomon Islanders which gave the right to persons who considered themselves “original owners” of any Government Land to prove themselves to be so and be able to acquire title of ownership from the Government through the Commissioner of Lands. Mr. Suri pointed out that this was a case of fraud or mistake allegation and that being so, the Court must bear in mind the serious nature of the fraud or mistake allegation so as not to defeat the Plaintiff’s case by striking-out the Plaintiff’s action simply on the basis of locus standi. Mr. Suri concluded by saying that the Plaintiff’s Statement of Claim did show, in particular paragraph 9, that the Plaintiff was not a busy body meddling with other people’s affairs.

On the question of time limitation, Mr. Suri argued that section 9 (2) of the Limitation Act would apply to the Plaintiff’s action. That is to say, the time limit for the recovery of land was 12 years and not 6 years. Mr. Suri also cited section 3(3) of the Limitation Act as supporting the Plaintiff’s case. That is to say, the provisions of the Limitation Act do not apply to claims arising out of or relating to a claim to any customary land or falling within the jurisdiction of the Local Court. Mr. Suri made the point that section 3(3) of the Limitation Act was wide enough to cover the facts of the Plaintiff’s case. Mr. Suri further argued that section 32 of the Limitation Act would apply to the Plaintiff in that the allegation of fraud or mistake made against the 1st Defendants was only made after the Plaintiff had consulted him and therefore the Plaintiff’s case based upon fraud or mistake was well within the meaning of section 32(2) of the Limitation Act. That is to say, the discovery of fraud or mistake was recent and was therefore not statute-barred.

Consideration of the Defendants’ Application and Conclusion

Whether or not the Plaintiff has locus standi or standing in this case must necessarily be discovered in the facts in this case. Paragraph 1 of the Plaintiff’s Statement of Claim states “The Plaintiff represents the Sisoro (Zimbo) Tribe of Mbava (Gagha) Island which claims original ownership in custom of the Mbava (Bagga) Island, situated near Vella La Vella Island in the Western Province.” This Statement speaks for itself. Furthermore, paragraph 9 of the same Statement of Claim states –

“The Plaintiffs ownership in custom stems from the following customary facts –

(i) the Plaintiff’s Sisoro (Zimbo) tribe was and is the principal land-owning tribe of the Mbava (Bagha) Island. The correct name of the island is Bagha not Mbava as registered in the land registry.

(ii) the Plaintiff’s tribe have customary burial and sacred sites on the Mbava (Bagha) Island. The First Defendants or their respective tribes do not have any burial or sacred sites on the island.

(iii) in or about 1850 the people of Vella La Vella, Ranongga, Roviana and other tribes in the now Western Province massacred the original people of Mbava (Bagga) island in retaliation for the death of Ngese son of Olopago, the Priestess of Malaku Tribe of Ranonga. The survivors escaped to other islands. The Plaintiffs tribe are the descendants of the original landowners of Mbava (Bagga) island who survived and escaped to live in Dovele on Vella La Vella and then later settled on Ranonnga Island.

(iv) the Mbava (Bagga) island was then vacant and remained unoccupied until about 1925 when unknown persons by names of Joni and Baija wrongly claimed ownership of the island and sold the same to the then government of British Solomon Islands Protectorate (BSIP).

(v) Any indenture or contract made between the said Joni and Baija and the Resident Commissioner of BSIP was, therefore, null and void;

This paragraph describes the events that have led to the Plaintiff’s present connection with the Island in so far as the allegation of being “original owners” of the Island is concerned. This connection is of course unproven as yet and the Plaintiff would like to have the opportunity to prove it. As far back as 1987, the Plaintiff had made his voice heard in the then Ministry of Agriculture and Lands about his interest in the Island. The Plaintiff went as far as lodging a caveat in July 1987 to stop any dealing in the Island (though the caveat was removed again), filing a civil case (No. 208/89) and lodging a complaint to the then Ombudsman’s Office in 1988. In paragraphs 3 and 54 of Mr. Liligeto’s affidavit filed on 11^th February, 2000, Mr. Liligeto denied the Plaintiff being a member of the Mbava tribe on Mr. Liligeto’s own words alone. Mr. Liligeto repeated this in paragraph 9 of his affidavit filed on 28^th April, 2000. The only piece of evidence against the Plaintiff is Exhibit “HR” attached to the affidavit filed by Mr. Ragoso on 23th May, 2000, which in my view is inconclusive as constituting res judicata and rightly withdrawn by Mr. Nori at the start of this hearing. In my view, the Government’s policy statement attached to Mr. Simikera’s affidavit filed on 3^rd March, 2000 as Exhibit “SMI” does not bar the Plaintiff asserting his ownership rights in custom in terms of being the descendants of the original inhabitants of the Island prior to its acquisition as registered land by the then Government and subsequently held by the Commissioner of Lands. The door is still open to the Plaintiff to claim ownership of the Island by first occupation of his Sisoro Tribe also known as Zimbo Tribe. As I have said, there is no bar against the Plaintiff in terms of the application of the principle of res judicata in this case. In my view, the Plaintiff does have sufficient interest in bringing his action to the Court for a hearing. The Plaintiff is not a busy body meddling in other people’s affairs. (See Kenilorea v Attorney General SILR 61). This is however not the end of the matter. The Plaintiff still has to overcome the time-bar hurdle erected by the Defendants. The nature of the Plaintiff’s claim goes further behind the title held by the 1^st Defendants in that whilst the Island is no longer customary land, Government policy allows persons who claim to be the descendants of the first inhabitants to prove that claim so as to be entitled to the transfer of title. That is to say, the Plaintiff in this case must prove original ownership of the Island as customary land prior to its acquisition by the then Government resulting in the change of status from customary land to registered land. It is a kind of going back and proving customary ownership of customary land prior to acquisition by the then Government. It is the determination of customary rights over customary land in the reverse in that Government policy allows the shield of indefeasibility to be transferred to other persons on the basis that in custom, those persons are the descendants of the original inhabitants of that land whilst it was still customary land. I labour this point because if the Plaintiff’s action does fall within the ambit of section 3(3) (e) and (f) of the Limitation Act, the Plaintiff would obviously defeat the time-bar of 6 years and that hurdle erected by the 1^st Defendants is removed. Section 3(3) (e) and (f) of the Act are in these terms –

“3 Except as otherwise provided in subsection (2), the provisions of this Act shall not apply to an action or arbitration –

(e) arising out of or relating to any claim to a customary land as defined in the Land and Titles Act; or

(f) falling within the jurisdiction of a local court established under the Local Courts Act.

In my view, the Plaintiff’s action does not fall within section 3(3) (e) and (f) above because the remedies being sought in the prayer in the Plaintiff’s Statement of Claim do not include the determination of the Plaintiff’s customary rights over the Island prior to Government acquisition. That is yet to be determined and how soon no one knows. I do not also think that section 9 of the Limitation act would apply to this case as urged upon me by Mr. Suri because there is no evidence in this case to suggest that the Plaintiff’s action is for the recovery of land and therefore the time limit is 12 years as opposed to 6 years under section 5 of the Limitation Act. However, one of the claims against the 1^st Defendants is based upon fraud or mistake. This leads me to the consideration of section 32(1) and (2) and (3) of the Limitation Act as urged upon me by Mr. Suri. Section 32(1), (2) and (3) are in these terms -

“(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.

(3) For the purposes of subsection (2) deliberate commission of a breach of a legal duty in the circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.

Clearly, in actions based upon fraud etc, time begins to run from the time the Plaintiffs discovers the fraud, concealment or mistake. In this regard, the Plaintiff’s Writ of Summons and Statement of Claim speak for themselves. The Plaintiff’s action was commenced only on 4^th October, 1999. The Plaintiff’s cause of action must have been discovered sometime prior to that date. Mr. Nori in his submission only referred to Civil Case No. 208/89 in which the Plaintiff challenged the validity of the transfer documents executed by Mr. Rence, the then Commissioner of Lands. The point in issue was the allegation that Mr. Rence as Commissioner of Lands executed the transfer documents after he had already resigned as Commissioner of Lands and therefore those documents could well have been invalid on that basis. That was not a case based upon fraud or mistake as in this case. Apart from pointing to civil case No. 208/89 above, the Defendants failed to produce any other evidence to sustain their point that the Plaintiff was aware of fraud or mistake as far back as 1989 and therefore the Plaintiff’s action was statute-barred. In fact Mr. Suri pointed out in his submission that the Plaintiff’s cause of action was formulated only after he instructed the Plaintiff to search the Files in the custody of the Commissioner of Lands. Whilst that remark was not strictly evidence on oath, it is consistent with the date of the Plaintiff’s Writ of Summons and Statement of Claim. In my view, the balance of probability is clearly in favour of the Plaintiff. That is to say, the Defendants have not satisfied me on the balance of probability that the Plaintiff had discovered fraud or mistake as far back as in 1989 which was about 10 years ago by the date the Plaintiff filed the present action. The Plaintiff’s action is therefore not statute –barred on this score. I need not consider section 39 of the Limitation Act as the Plaintiff clearly had no reason to invoke the application of this section. In response to Counsel for the 2^nd and 3^rd Defendants, Mr. Keniapisia’s argument that the Plaintiff’s Statement of Claim disclosed no cause of action or that it is frivolous and vexatious, I would say I do not accept that argument. Section 229 of the Land and Titles Act (Cap. 133) does empower the High Court to order rectification of the register if the Court is satisfied that the registration has been obtained by fraud or mistake. I find that the Plaintiff’s Statement of Claim does disclose a cause of action as pleaded. In the result, I refuse the Defendants’ application by Notice of Motion filed on the date stated above with costs. The Defendants’ application is therefore dismissed accordingly.

F.O. Kabui
Judge