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Beto v Kera [2003] SBHC 111; HC-CC 315 of 2002 (18 July 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 315 of 2002

BILLY BETO

–V-

NATHAN KERA & ANOTHER

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 14^th July 2003
Date of Judgment: 18^th July 2003

A.N. Tongarutu for the Plaintiff
T. Kama for Defendants

MURIA, CJ: By his submissions filed on 20^th May 2003 the defendant basically seeks the following orders namely:

1. Paragraph 4 and 6 of the Statement of Claim and paragraph 1 of the claim be stayed on the ground that the Plaintiff has no authority to institute this action for the estate of the late Lillian Apusai under the provisions of the Wills, Probate and Administrations Act (Cap. 33).
   
2. Further and/or, in the alternative, paragraphs 4 and 6 of the Statement of Claim and paragraph 1 of the claim be struck out on the grounds that any claim by the estate is statute barred under the provisions of the Limitations Act (Cap. 18).
   
3. Haggai Keraeke and Pentani Belapeza be joined as defendants in this action.
   

He also asks the Court for other orders as the Court sees fit to grant and for costs of the application.

Brief background

The background to the defendants’ as well as that of plaintiff’s applications, is that following a logging agreement entered into between first and second defendants, logs had been extracted from Saikile customary land. The first agreement was made on 29^th March 1984 and there were subsequent logging agreements made between the company (second defendant) and the Saikile landowners. More recently, the second defendant entered into a timber rights agreement with the representatives of the landowners of Saikile on 27^th March 2002 to fell, harvest extract logs on Tagosage land. Referred to also by counsel for the parties are the Consent Order dated 27^th July 2000 between Frank Dia, representing the Soloso Tribe and first and second defendants, and a Deed of Agreement for Advance Against Royalties dated 29^th May 2001 signed between first defendant and second defendant. These various documents have been said to form the basis of the plaintiff’s claim in this case.

Defendant’s argument

Mr Kama contended on behalf of the defendant that paragraphs 4 & 6 of the Statement of Claim and paragraph 1 of the claim ought to be stayed on the ground that the plaintiff has no authority to institute the action for the estate of the late Lilian Apusae. Counsel argued that if the plaintiff intended to bring the action regarding the interest of the deceased, then he ought to comply with the Wills Probate and Administration Act (Cap. 33), in particular sections 60 and 61 of the Act. The former section provides for the vesting of movable and immovable properties of the deceased in the executor appointed under the deceased’s will (subsection (1)) and in the Public Trustee where the deceased died interstate (subsection (2)). Section 61, inter alia, enables any person having an interest in the estate of the deceased to apply for proof or renouncing of probate of the will of the deceased. Mr Kama argued that the plaintiff had not brought himself within any of those provisions and as such he could not bring these proceedings.

With regards to the second or alternative claims under the summons, Mr Kama contended that the plaintiff’s claim is statute barred. Section 5 of the Limitation Act (Cap. 18) prevents action, which are 6 years old from the time they accrued from being brought to the Court. Counsel argued that this was such a case.

The third contention by the defendant in his summons was agreed to by the plaintiff.

The Plaintiff’s argument.

Mrs Tongarutu of Counsel for the Plaintiff, on the other hands, argued that as regard the right of the plaintiff to bring the action, stems from the fact that the plaintiff sues as a representative of the deceased under custom. Counsel argued that under custom the children of the deceased have the right to represent their deceased mother’s interest. Further, it was argued that the financial resources here claimed are done through customary link between the deceased and the plaintiff. There is no need for the plaintiff to pursue the requirements of the Wills, Probate and Administration Act.

As to the question of limitation by statute to bring the action, Counsel for the plaintiff argued that as the consent order made in mid 2000 formed the basis for the distribution of the royalty payments, which are now under contention the period of six years as stipulated in section 5 of the limitation Act does not apply.

The issues

In the circumstances, the issues for the Court to determine are, firstly, whether the Plaintiff is entitled to bring this action, without reference to the requirements of the Wills, Probate and Administration Act; and secondly, whether the Plaintiff’s claim is statute barred under the Limitation Act.

Decision

The answer to the first issue turns on the interpretation of section 60(2) of the Wills, Probate and Administration Act. That section provides:

“(2) Subject to the provisions of subsection (4), where a person dies intestate or dies testate without the will appointing any executor thereof, all of his movable property and any immovable property to which he was entitled for an interest not ceasing on his death shall, until administration is granted, with or without the will annexed as the case may be, vest in the Public Trustee.”

That provision applies to a situation where the deceased died without a will or with a will but without appointing an executor of his movable or immovable property. It must be clearly noted that the properly concurred here is his movable or immovable property. The whole tenor of the Act is, in effect, to provide for the disposition and execution of the deceased’s properties that are his own. Section 60 (2) must be read so as to ensure that the reference to the deceased’s movable or immovable property must be that which is his or which he was entitled to. Here we are concerned with distribution of properties, namely money, flowing directly from land belonging to a tribe. In other words, the properties we are concerned with here are the proceeds (royalties) from the use of customary land. The plaintiff’s late mother was entitled to those royalties, not only personally, but as a representative of her family. Now that she is dead, her role and responsibility as the leader or representative of the family continues and are carried on by those who take over in accordance with custom. Thus the plaintiff’s claim in this case is not on the estate of the deceased as such; rather it is in respect of the family’s claim under customary entitlement once represented by the deceased and now by the plaintiff. This represents the cardinal features of customary land and other rights and entitlements derived there from which the living share with the deceased. Thus the provision of section 60 (2) of WPA Act does not apply in this case. This is a representative action, on that is covered under O.17 r58, High Court Rules. The Order sought in paragraph 1 of the defendant’s summons is refused.

With regard to the argument based on Limitation Act, there is another provision of the Act, which need considering, apart from section 5 upon which the defendant relies. This is section 17. I set out those provisions here. Section 5 provides as follows:-

“5. Except as otherwise provided in this Act, no action shall be brought, nor any arbitration shall commence, after the expiration of six years from the date on which the cause of action accrued.”

And section 17 is expressed in the following terms:

“17. Subject to other provisions of this Act, a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first arises.

Provided that where the cause of action is founded on a continuing wrong, a fresh cause of action shall be deemed to accrue on each day the wrong continues.”

The effect of the above provisions of the Act is that section 5 provides for the general limitation of six years for bringing in action to Court. That period commences from the date the cause of action accrues. This section is made subject to other provisions of the Act. Section 17 then stipulates when a cause of action accrues, and that is, it should be deemed to accrue on the date on which the right to relief sought first arises.

Section 17 goes on to say in the proviso that for a cause of action founded on a continuing wrong, a fresh cause of an action is deemed to accrue on each day of the wrong. Is there a continuing cause of action in this case? The case of Hole –v- Chard Union^[1], provides a useful statement of what is a continuing cause of action. Lindley CJ said in that case:

“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought. In my opinion, that is a continuing cause of action within the meaning of the rule.”^[2]

The present action was brought for non-payment of royalty monies since the year 2000. This is in effect is a claim for breach of fiduciary obligation and the defendant to pay the plaintiff’s family share of the royalty monies whenever the logging company operating in the area paid the royalty. Each of these non-payments since 2000 must, of course, be regarded as separate cause of action. National Coal Board –v- Galley^[3]. So there is no continuing cause of action here.

Is the action statute barred? Mr Kama argued that the basis of the plaintiff arose on 4^th November 1994 when the plaintiff’s late mother was alleged to have signed over the chieftaincy to the defendant. I feel that this is not correct. The basis of the plaintiff’s claim is the non-payment of royalty monies since the year 2000 as stated in paragraph 6 of the Statement of Claim. The alleged signing over the chieftaincy to the defendant under duress is an argument in support of the claim for non-payment of the royalty monies. Thus then action is not statute barred. The order sought in paragraph 2 of the Summons is also refused.

The order sought in paragraph 3 of the Summons is agreed to by the plaintiff. I grant the order sought in that paragraph.

The defendant only succeeds in obtaining one of the orders he sought, but only having been agreed to by the plaintiff. He fails in obtaining the other orders sought. In the circumstances, the defendant is not entitled to his costs against the plaintiff in this application.

Each party to bear his own costs.

Sir John Muria
Chief Justice

^[1] Hole –v- Chard Union [1894] 1 Ch. 293
^[2] Hole –v- Chard Union [1893] UKLawRpCh 170; [1894] 1 Ch. 293, 295 - 296
^[3] National Coal Board –v- Galley [1958] 1 WLR 16 (CA).