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Sipolo v Akau [2022] SBHC 2; HCSI-CC 434 of 2020 (18 January 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 434 of 2020

BETWEEN

ELIZABETH SIPOLO
(Representing the Late Sipolo and his Family)
Claimant

AND:

GIBSON AKAU
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

Date of Hearing: 28 July 2021
Date of Ruling: 18 January 2022

Mr S. Toito’ona for the Claimant
Mr E. Olofia for the First Defendant
Ms P. Rofeta for the Second and Third Defendant

RULING ON APPLICATION TO STRIKE OUT

Faukona, DCJ: A claim category A was filed by the claimant on 28^th August 2020 for rectification of title to the land in PN. 191-038-100 which of unearthly rename of the first defendant. The first defendant filed in defence on 9^th October 2020.

2. On 17^th September 2020 this application was filed on behalf of the second and third Defendants.
3. On 26^th November 2020 on a motion day, the Counsel for the second and third Defendants addressed the court that they would file a defence after their application to strikes out was heard. No other counsels objected. Subsequently, on 28^th July 2021 was set for hearing of this application.
4. The claim was asserted by the Claimant was based or mistake by the second Defendant in granting the land to the first Defendant instead of the Claimant who had been apply for the same land since 1988.
5. This application is to strike out the claim and dismiss on the basis that the proceeding is in chance of process of the court present to R 9.75(c) of the Rules. It is an abuse of court process as it was time barred by virtue of 5.9(2) of the Limitation Act that section prohibits only action brought after the expiration of 12 years after the cause of action occurred.
6. The Counsel for the second and third Defendants contends that the twelve (12) years period in which the claim should have been initiated took effect from 2^nd February 2007, the date the alleged mistake occurred. This claim was filed on 28^th August 2020, after the period of thirteen (13) years and 6 months.
7. The Claimant submits the cause of action is not time barred. The 12 Months limitation period only connected from March 2018 when the Claimant discovered the mistake, and subsequently placed a caveat on the FTE register of the land. The limitation periods did not commence on 2^nd February 2007.The Claimant relies on S. 32(2) of the Limitation Act.
8. The question are those previous notices reserved and received by the Claimant? The Annexure “GA-8” attached to the first Defendant’s sworn statement filed on 9^th June 2021. I noted three notices issued by Honiara City Council for demolition. Those notices were issued on 18^th February 2011, and in respect of three persons. One was issued to Kevin Samani in respect of this concern land. The others were issued to Mr Cecil Willy Vure in respect of land PN. 191-101-117 (Vura 1) and the other was issued to Gilbert Anito’o in respect to PN. 191-038-096. Nothing concern’ the Claimant. There is no clear evidence a letter those notices were served upon concern person or not. There is no sworn statement to affirm the date they were served. What we have are bare notices. That can be said in words or in written form but the important fact is that whoever was addressed to received it.
9. The second notice was a letter written by the first Defendant addressed to Cecil Willy Vure and copied to Mr Tione Sipolo, Kevin Samani and Mr Gilbert Anito’o. Again there is no evidence that the concern persons did receive the letter or copy of it. The content of the letter was basically offering the firs Defendant was the order of FTE and that he cannot develop the land and unless those concern removed their unauthorised development within 60 days.
10. The court expects that by way of evidence as to the date of the letter and copies were given or hand delivered to the persons concern. There was nothing on file.
11. Again there was a letter written by the first Defendant and addressed to Edith Mary Vure on 17^th December 2015. The purpose of the letter was to inform Mr Vure to remove a building erected by Mr Vure which at the material time was rented out.
    3. There was no evidence that Mrs Vure received the letter, if so on what date. These are kind of evidence the court in anticipating when considering the twelve years’ time limit expressed in the Limitation Act. This is very important to ascertain when did the cease of action accrued and start to run?
13. The another exhibit “GA-11” attached to the first Defendant’s sworn statement filed on 9^th June 2021, were interconnect notices issued by the Physical Planning and Building Services of Honiara City Council. The notice was dated 7^th May 2018. It was addressed to Mr. Anito’o, Vure, Sipolo and Samani. There were two notices are concern on other different land.
14. The notice was for the concern people to vacate the land immediately within 14 days, or their developments in the land be demolished or removed. Again the court is looking for a date of service or when the person concern received the notices. There is nothing more than copies of notices on file. Service is important in court. It implicates the notice was received, the content was read and well understood but had done nothing or respond to the notice.
15. To the current case the most important thing is that the Claimant had knowledge that the land was legally owned by the first Defendant, and correlated to that, is when did the Claimant began to have knowledge that the first Defendant owned the land. This is relevant because the calculation of time limit began to run when such knowledge exists. In other words, a cause of action began to accrue when the knowledge of the first Defendant’s ownership was realized.
16. With various of notices issued in various dates and years, yet there was no evidence of service.
17. Calumniation of that can only be gleaned from the caveat that was filed and put in place on 15^th March 2018 by Mr Vure, Tome Sipolo and Steve Rido. The filling of the caveat was probably after the enforcement notices were served in respect of two lands PN 191-038-096 and PN 191-038-100 owned by the first Defendant.
18. The notice in respect of the land is issue was issued on 7^th May 2018, 2 months after the caveat was filed. In any erect the notice on 22^nd February 2018 was in respect of PN. 191-038-096 to the same persons could probably had some impact to stir respond.
    19. As a matter of fact, I noted the two enforcement notices made reference to enforcement notices dated 18^th February 2011 and 5^th July 2011. If the Claimant and others reacted to those notices by filing a caveat, then they would have aware of the first Defendant ownership of the land as of 11^th February 2011. The demolition notice was for later on the date of caveat.
    20. The best for could calculate from those facts is that the Claimant would have aware of the first Defendant’s ownership owned 18^th February 2011. And that should be the date the cause of action occurs. From 18^th August 2011 to date of filing of this case on 28^th August 2020 is 9 years and 6 months, not yet 12 years. Therefore S. 9(i) of the Limitation Act not operate in this case, instead S.32 (2) (b) done come into force.

Orders.

1. Application to strike out based on S. 9(1) of Limitation Act dismissed.
2. Cost of this hearing is to be paid by the second and third Defendant’s to the Claimant.

THE COURT
Hon. Justice Deputy Chief Justice
Hon. Rex Faukona