HIGH COURT OF SOLOMON ISLANDS

Case name: 	Ararona v Waena	
		
Citation:		
		
Date of decision: 	21 September 2023	
		
Parties: 	Charlyoth Taramae Ararona, Michael Harara, Jimmy Sautehi v Nathaniel Waena, Michael Owen Ou’ou 	
		
Date of hearing: 	6 September 2023	
		
Court file number(s): 	478 of 2022	
		
Jurisdiction: 	Civil	
		
Place of delivery: 		
		
Judge(s): 	Bird; PJ	
		
On appeal from:		
		
Order:	1) The First and Second Claimants Claim filed on 13 October 2022 is statute barred pursuant to s. 9 (2) of the Limitation Act and is struck out.
2) The said Claim is also struck out pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
3) Cost against the First and Second Claimants on the standard basis	
		
Representation: 	Mr William Jonga for the First and Second Claimants 
Mr Barnabas Upwe for the First and Second Defendants	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule, r 12.11
Limitation Act S 9 (2), S 9 (2), S 14 and S 39 [cap 18]
Land And Titles Act S 229 (1)[cap 133]	
		
Cases cited:	Solomon Islands Mission of the Seventh Day Adventist Church v Feratelia [2018] SBCA 22	

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 478 of 2022

BETWEEN

CHARLYOTH TARAMAE ARARONA, MICHAEL HARARA
(Representing the Pehuaraou’ou Tribe)
First Claimant

AND: 

JIMMY SAUTEHI 
(Representing the Sulieuwo Tribe)
Second Claimant

AND:

NATHANIEL WAENA 
First Defendant 

AND:

MICHAEL OWEN OU’OU
Second Defendant 

Date of Hearing: 6 September 2023
Date of Decision: 21 September 2023

Mr William Jonga for the First and Second Claimants
Mr Barnabas Upwe for the First and Second Defendants 
RULING
Bird PJ:
1. 	The issue that the court must determine in this proceeding is the application by the First and Second Defendants filed on 8 February 2023 for determination of preliminary point of law pursuant to rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). That rule provide:
	r. 12.11The court may hear legal argument on preliminary issues of fact and law between the parties if it appears likely that, if the issues are resolved, the proceeding or part of the proceeding will be resolved without a trial, or the costs of the proceedings or the issues in dispute are likely to be substantially reduced.
2. 	The question of law that is referred to this court for determination are the following viz:
1.	(a)Whether the Category C Claim filed on 13 October 2022 in respect of PE in parcel number 226-005-1 seeking removal and replacement of the Defendants after 32 years is statute barred pursuant to section 9 (2) of the Limitation Act;
b)The ‘abuse of fiduciary obligation’ is not a valid ground to remove and replace any registered trustees of perpetual estate number 226-005-1 as 	required by section 229 (1) of the Land and Titles Act;
2.	In consequence to orders 1 (a) and (b) and if the answers are in the affirmative, an order that the Claim filed on 13 October 2022 be struck out for having no cause of action;
3.	Cost on indemnity basis against the 1st and 2nd Claimants;
4.	Any other orders the court deems fit.
3. 	In support of his clients position, Mr Upwe of counsel relies upon his application filed on 8 February 2022, exhibit “JS2” to the sworn statement of Jimmy Sautehi filed on 3 October 2022. The Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR), the Limitation Act (cap 18) and the Land and Titles Act (cap 133).
4. 	The subject land in this proceeding being parcel number 266-005-1 was acquired and registered in the joint names of Nathaniel Waena, John Palmer Haununumania, Simon Cyrene Manungausau and Daniel Ho’ota on 3 September 1990. The said land was so registered upon the joint owners’ names in trust for the Pehuaraou’ou and Sulieuwo Tribes.
5. 	On the first question for determination, Mr Upwe of counsel discussed the provision of s. 9 (2), 14, and 39 of the Limitation Act (cap 18) and how they would affect this proceeding. Section 9 (2) of the Act provides:
	s. 9 (2)	No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through he claimed to that person.
6. 	The general application of the law therefore is that any action or arbitration on land issues must be brought and commenced by the affected person within 12 years from the date on which the cause of action accrued. In this proceeding, the subject land was registered on 3 September 1990 and it is submitted by counsel that the date on which the cause of action would have accrued is that date. So from the date of registration to the date of the filing of the Claimants’ Claim is a period of more than 32 years. 
7. 	It is further submitted that s.14 of the Limitation Act is of no assistance to the Claimants because there is no allegations of fraud against the Defendants in their Claim filed in this cause. It is further the Defendants’ submission that the Claimants are not entitled to use the court’s discretion to condone the delay of 32 years because no reasons were given by the Claimants in the various filed sworn statements on the very long delay in the pursuance of their claim. It is therefore submitted on behalf of the Defendants that the Claim of the Claimants is statute barred under s. 9 (2) of the Limitation Act and should be struck out. 
8. 	On the second question referred to this court for determination, it is the case for the Defendants that the alleged abuse of fiduciary obligation of the registered trustees is no ground for rectification under s. 229 (1) of the Land and Titles Act (cap 133). That section provides:
	s. 229 (1)Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake. 
9. 	It is submitted by Counsel Mr Upwe that the only legal basis for rectification of the register is pursuant to the above provision of the LTA. Without any allegation of fraud or mistake, this court is not entitled to rectify the register in favour of the Claimants. On that note there is no provision under s.229 (1) of the LTA that an abuse of fiduciary obligation is one of the legal basis for rectification of the register. The claim of the Claimants is misconceived and should be struck out.
10. 	In support of his clients position, Mr Upwe of counsel had cited several case authorities. One such case is the case of Solomon Islands Mission of the Seventh Day Adventist Church v Feratelia [2018] SBCA 22; SICOA-CAC 9005 0f 2018. On the issue of time limitation under s. 5 and s. 39 of the Limitation Act, the Court of Appeal stated on paragraph 16 of their judgment “we do not accept this is a proper basis for allowing a lengthy waiver of the period of limitation. No court will decide whether to exercise such a discretion without considering the merits of the claim or the chance of success as the judge did in this case but he has, with respect only fleeting consideration to the matters in subsection (2)”.
11. 	On that basis it is submitted by Mr Upwe of counsel that a delay of more than 32 years bearing in mind the circumstances stated under s. 39 (2) of the said Act, the discretion of the court should not be exercised in favour of the Claimants.
12. 	On the contrary, it is submitted by Mr Jonga of counsel for the Claimants that his clients claim is not for the recovery of land in parcel number 226-005-1 but for the change of the names of trustees therein to the names of the Claimants. The reason of the order for the change of trusteeship is based on an alleged breach of fiduciary obligation by the Defendants to the beneficiaries. It is therefore submitted by counsel that the provision of s. 9 (2) of the Limitation Act does not apply to his clients’ case. \
13. 	In respect of the second legal issue, it is submitted by counsel that s. 229 (1) also does not apply in this case and so it cannot resolve any of the issues pertaining to the claim. It is submitted that the First Defendant is merely a lease holder in trust for the Pehuaraou’ou Tribe. He does not personally own parcel number 266-005-1. 
14. 	Mr Jonga for the Claimants also submits that the third issue that the court must deal with in relation to the proceeding is whether or not the Pehuaraou’ou and Sulieuwo Tribes have the authority to remove the First and Second Defendants as trustees. It is submitted by counsel that the two tribes have the mandate to remove the two trustees. It is submitted that members of the respective tribes have convened meetings in which they have decided to remove the Defendants and replace their names with the Claimants in this proceeding. It is submitted that the beneficiaries have chosen the Claimants to replace the First and Second Defendants and the court can make such orders pursuant to the court’s inherent jurisdiction under section 77 of the Constitution. 
Discussion
15. 	This is a Category C Claim filed by the First and Second Claimants on 13 October 2022 for certain declaratory orders. The reliefs sought by the First and Second Claimants are the following:
1) 	An order pursuant to the meeting of the Pehuaraou’ou Tribe (First Claimant) on the 30th March 2022 that the Defendant be removed as a trustee of the tribe for abuse of its fiduciary obligations as a trustee of Pehuaraou’ou tribe over Ararona Airstrip parcel number 266-005-1, Makira/Ulawa Province;
2) 	 An order pursuant to the meeting of the Sulieuwo Tribe (Second Claimant) on the 19th April 2022 that the Defendant be removed as a trustee of the tribe for abuse of its fiduciary obligations as a trustee of Pehuaraou’ou tribe over Ararona Airstrip parcel number 266-005-1, Makira/Ulawa Province;
3) 	A declaration order that the new trustees for Pehuaraou’ou Tribe are Charlyoth Taramae, Michael Harara and Polycarp Haununu; 
4) 	A declaration order that the new trustees for Sulieuwo Tribe are Jimmy Sautehi and Michael Tapoholoiesi Ho’ota;
5) 	Orders as to cost;
6) 	Any other orders the court deems meet.  
16. 	The court have heard submissions from both the Claimants and the Defendants. On the outset, I will say that the Claimants’ Claim filed in this cause is caught under s. 9 (2) of the Limitation Act. The Claimants reliefs sought in paragraphs 1 and 2 above are for the removal of the Defendants names from the title register. By reliefs under paragraphs 3 and 4 therein is for the registration of the named persons in place of the First and Second Defendants. That process in effect is rectification of the register under s. 229 (1) of the LTA. 
17. 	Having held that view, the next question to be asked is when does the cause of action accrue to the First and Second Claimants. On the title register annexed as “JS2” to the sworn statement of Jimmy Sautehi filed on 13 October 2022, registration of parcel number 266-005-1, was effected on 3 September 1990. According to that PE register, no further registration of any other interest was made except the caveat which was later removed. On the basis of that registration, I could take it that the cause of action could have accrued to the First and Second Claimants on 3 September 1990. To this date, there is a time lapse of more than 32 years. I also wish to state in this ruling that the Claimants submission to the effect that the Defendants are just lease holders is in error. The PE register document marked “JS2” to the sworn statement of Jimmy Sautehi is evidence that the First Defendant is a PE title holder over parcel number 266-005-1. He is not a lease holder as alleged by the Claimants.
18. 	Section 39 of the Limitation Act gives the court discretion to condone delay but must take into account the provision of s. 39 (2) of the Act. I have perused the Claim of the First and Second Defendants as well as the sworn statement filed in support of their claim and have found no reason for the late filing of this claim. In that regard, I am not entitled to use my discretion under s. 39 (2) to condone the delay of more than 32 years.
19. 	In view of the above discussion in relation to paragraph 1 (a) of the application filed on 8 February 2023, I am able to determine that the First and Second Claimants’ Claim filed on 13 October 2022 is statute barred pursuant to section 9 (2) of the Limitation Act (cap 18).
20. 	In as far the issue 1 (b) is concerned, I will refer to my earlier discussion in paragraph 16 above. The Claimants were saying that they do not seek rectification of the register. That is a misconception by the Claimants. When you seek orders of this court to replace the names of the registered title holders to other persons, you are in fact seeking the court’s powers under s. 229 (1) of the LTA to order rectification of the register. The only circumstances under which this court is empowered under the Act to rectify the register is upon instances of fraud and or mistake. The First and Second Claimants have failed to plead fraud and or mistake in their claim and therefore the provision of s. 229 (1) of the Act cannot be invoked. I can therefore determine issue 1 (b) that an abuse of fiduciary obligations is not a valid ground for rectification of the register under s. 229 (1) of the Land and Titles Act (cap 133) because it does not hinge on or affect the original registration of the estate on 3 September 1990.
21. 	The third issue as alluded to by Counsel Mr Jonga is whether or not the Pehuaraou’ou and Sulieuwo Tribes have the authority to remove the First and Second Defendants as trustees to parcel number 266-005-1. In relation to that issue, the trustees are supposed to hold the property or any proceeds thereof for and on behalf of the Pehuaraou’ou and Sulieuwo tribal members as the beneficiaries of that trust. This is where the principle of trusteeship comes into play.
22. 	If there are alleged abuse of fiduciary obligations of a trustee, that is an issue that could be litigated before this court upon proper footing and proper legal basis. The claim if filed must plead issues of trusteeship and the alleged abuse in accordance with the law on trusteeship. Only then can the court deal with such issues not under a claim in the nature of the Claim now before this court.
23. 	Secondly is that the issue of trusteeship in accordance with custom is a issue that relates to the custom of the affected persons. This court lacks the jurisdiction to choose and to replace trustees who are trustees according to custom, even under its inherent jurisdiction under section 77 of the Constitution. The proper channel in my considered view to replace and choose trustees in accordance with custom, is the Chiefs Forum or the Local Court. Owing to these reasons, this court lacks jurisdiction to deal with issues of trusteeship as pleaded in this proceeding. 
24. 	I hereby make orders in the following terms:
1) 	The First and Second Claimants Claim filed on 13 October 2022 is statute barred pursuant to s. 9 (2) of the Limitation Act and is struck out.
2) 	The said Claim is also struck out pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
3) 	Cost against the First and Second Claimants on the standard basis.
THE COURT
Justice Maelyn Bird
Puisne Judge