IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name: 	Public Trustee v Maesua 	
		
Citation:		
		
Decision date: 	30 September 2021	
		
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Faukona J) 	
		
Court File Number(s):	17 of 2020	
		
Parties: 	Public Trustees v Casper Ludae Maesua 	
		
Hearing date(s): 	Paper Hearing August 2021	
		
Place of delivery: 		
		
Judge(s): 	Goldsbrough P
Hansen JA
Gavara-Nanu JA	
		
Representation: 	Muaki R for Appellant 
Upwe B for Respondent 	
		
Catchwords: 	Limitation Act 	
		
Words and phrases:		
		
Legislation cited:	Limitation Act [Cap 18], S 12 and 14,S 17 S 39, S 39 (2), Land and Titles Act S141 (1), S162 (1) and (2)	
		
Cases cited:		
		
ExTempore/Reserved:	Reserved 	
		
Allowed/Dismissed:	Dismissed 	
		
Pages:	1-8	

JUDGMENT OF THE COURT 
1. 	This claim started as an application by the Public Trustee for letters of administration in the estate of Jack Ufi, late of the Fishing Village, Honiara, deceased. It also sought that the claim-objection of Casper Ludi Maesua be dismissed. The claim was filed in 2019.
2. 	In December 2019 the objector sought an application for determination of preliminary points of law relating to the effects of the Limitation Act [Cap 18]. That was heard by Faukona PJ and determined in favour of the objector.
3. 	The Public Trustee appeals from that determination. The appeal is as unmeritorious as the original application for letters of administration.
Background
4. 	The late Jack Ufi died on 23 July 1983 without leaving a will. At that date he had an interest in the fixed term estate (FTE) of a property in the Fishing Village. The FTE expired on 1 October 1985, some 27 months after the deceased’s death.
5. 	No steps were taken by those entitled to obtain letters of administration or to deal with the estate of Mr Ufi in any way, and in particular in relation to the FTE in Parcel Number 191-038-024. After considerable time passed, the grandson of Mr Ufi sought, and was granted, an offer to buy the FTE for an amount of $27,675. This then led to the flurry of activity, including the proceedings at the heart of this matter.
6. 	It must be said at the outset that no evidence was adduced whatsoever on behalf of the applicant for letters of administration to satisfactorily explain the delay of 36 years. However, remote the possibility of success was, at the very least, there was an obligation on the applicant for letters of administration to explain the delay.
The application for preliminary point of law
7. 	This application sought an order that the application for letters of administration were statute barred pursuant to ss 12 and 14 of the Limitation Act. Alternatively, the objector sought an order for a declaration that the delay of 36 years is to be condemned, as there are no reasons given by the applicant for the long delays to warrant the approval to proceed pursuant to s 39 of the Limitation Act.
8. 	Faukona PJ first considered the powers of the Commissioner of Lands to repossess a vacant title. The applicant for letters of administration argued that the Commissioner had power to re-enter the land pursuant to s141 (1) of the Land and Titles Act; a process similar to forfeiture of land. However, counsel for the objector submitted that s141 related to the process of forfeiture, which was quite different from the current case where the owner of the estate died intestate and the FTE expired 27 months thereafter, during which time no steps were taken by those so entitled by the intestate death of Jack Ufi. The Judge accepted that the provisions gave the right to the Commissioner to re-enter land when a fixed term estate ceased.
9. 	The Judge then went on and considered the Limitation Act, noting that s12 states that any claim to the personal estate of the deceased person cannot be brought or filed after the expiration of 12 years from the date on which the right to receive the claim accrued. He noted that the appropriate time to make an application for letters of administration in this case was on the death of the deceased and before the FTE expired. The Judge found that the rights to interests by beneficiaries arises from the date of death of the legal owners, and the 12 years had expired. He referred to authorities to support his conclusion, and found the application on the point of law succeeded, and dismissed the application by the Public Trustee for letters of administration.
Submissions
10. 	The appellant submits that the Judge was in error when he did not consider s141 (1) of the Land and Titles Act as requiring the Commissioner of Lands to lawfully enter and become the registered owner. It is also submitted he erred in holding ss162 (1) and (2) of the Land and Titles Act as not applicable in the High Court proceedings, when in fact it is a requirement that termination of leases must be registered on application to the Registrar of Titles. It is further submitted that the rights to letters of administration is a continuous right which can be exercised any time after the death of the deceased.
11. 	The respondent, of course, supported the decision of the Judge and the reasoning that led to those orders.
Discussion
12. 	In this case we are satisfied that the Limitation Act is a complete answer to the application to be grated Letters of Administration.
13. 	For present purposes, the relevant provisions of the Limitation Act are ss 12, 17 and 39:
Limitation for claims to personal estate of deceased persons
12.	Subject to section 14-
(i) 	no action shall be brought, nor any arbitration shall commence in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate (whether under a will or on intestacy) after the expiration of twelve years from the date on which the right to receive the claim accrued; and
(ii) 	no action shall be brought, nor any arbitration shall commence to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, after the expiration of twelve years from the date on which the interest became due.
…
Cause of action when accrues
17.	Subject to the 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.
…
Condonation by court of the delay in actions
39.	(1) If it appears to the court that it would be equitable to allow an action to proceed or an arbitration to commence having regard to the degree to which-
(a) 	the provisions of this Act prejudice the plaintiff; and
(b) 	any decision of the court under this subsection would prejudice the defendant,
	the court may direct that those provisions shall not apply to the action, or arbitration or shall not apply to any specified cause of action to which the action or arbitration relates.
(2)	In acting under this section the court shall have regard to all the circumstances of the case and in particular to-
(a) 	the length of, and the reasons for, the delay on the part of the plaintiff;
(b) 	the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought or the arbitration had commenced within the prescribed period; or
(c) 	the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) 	the duration of any disability of the plaintiff, if any, arising after the date of the accrual of the cause of action;
(e) 	the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the cause of action was attributable, might be capable at the time of bringing an action or commencing an arbitration;
(f) 	the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(Our emphasis)
14. 	Section 12 is clear in stating that no application can be brought in respect of any claim to the personal estate of the deceased after the expiration of 12 years from the date on which the rights to the claim accrued. That is so whether there is a will or the deceased died intestate.
15. 	Section 17 is equally plain in providing that a cause of action shall be deemed to accrue on the date on which the right to relief sought by an action first arises. There is a proviso 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. We are quite satisfied the proviso has no application in this case.
16. 	The simple difficulty confronting the appellant is that the cause of action accrued on the death of the deceased intestate. From that day forward the appellant had the right to apply for letters of administration which would include the right to deal with the remaining period of the fixed term of interest.
17. 	Nor can s39 assist the appellant. It would not be equitable to allow this action to proceed after the enormous time delay that has occurred. Subsection (2) of 39 sets out the matters that the Court should take into account, in particular any reasons for the delay on the part of the plaintiff. In this case there has been no evidence placed before the Court to explain the delay, and such significant delay would be almost impossible to explain in the circumstances of this case. The difficulties with evidence, foreshadowed in s39 (2) are also self-evident.
18. 	Like the Judge, we are satisfied that the provisions of ss 12 apply, and the application now brought before the Court is prohibited by the effects of the Limitation Act.
19. 	We do not consider it necessary to address the matters relating to the Land and Titles Act that the Judge addressed in any detail. In the circumstances of this case where no steps were taken following the death of the deceased for over 36 years, and where the fixed term estate expired approximately 35 years ago, the Commissioner has acted entirely properly.
The FTE lapsed and no steps were taken in relation to this. We agree with the judge that this is the very type of situation that would be covered by the latter part of s 141(1) that states:
 “or for any other reason has become entitled to be registered as the owner thereof”.
20. 	The appeal is dismissed. There will be costs to the objector, to be taxed if not agreed.
Goldsbrough (P)
Hansen (JA)
Member
Gavara-Nanu (JA)
Member