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No'amasahu v Atorney General [2024] SBHC 171; HCSI-CC 371 of 2017 (1 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 371 of 2017

BETWEEN:

BUDDY W NO’AMASAHU
Claimant

AND:

ATTORNEY GENERAL
(Representing the Land Acquisition Officer)
First Defendant

AND:

OBED SAUEHA AND SILVANIA KAIPUA, DICTER MAITAKI AND WILLIAM TINO
Second Defendant

Date of Hearing: 15 October 2024
Date of Ruling: 1 November 2024

Counsel; Ms. Kukura for the Claimant/Respondent.
Counsel; Mr. Suri for the Second Defendant/Applicant.
No Appearance for the First Defendant.

RULING ON APPLICATION TO STRIKE CLAIM

1. On 18/8/2017, the claimant filed a Category A claim, which can be classified as a customary land claim. However, the ultimate relief(s) sought will tamper with a registered parcel of land on Rennell Island, Rennell and Bellona Province.
2. Claimant, Mr. Baddy No’amasahu represents himself (personal capacity) and also acts on behalf of his Taupi tribe. The claimant seeks the following reliefs: -
   • (i) Registered Parcel Number 298-005-1 (“PN1”) be rectified.
   • (ii) PN1 sub-divided to mirror the customary portion called Taupi land belonging to the claimant’s Taupi tribe, prior to registration.
   • (iii) Claimant and his Taupi tribe to appoint a trustee over their Taupi tribe’s portion within PN1 to replace the current trustee William Tino.
   • (iv) Costs and further orders deemed fit.
3. PN1 comprised of various customary plots of land that exited through an acquisition process conducted in Ward 6, West Rennell in year 2014. That acquisition proceeding was duly completed resulting in the determination of trustees and registration of PN1 in year 2015.
4. Upon reading the pleadings, we can safely conclude that the claim is seeking to unwrap the acquisition proceedings, which led to the registration of PN1. First, the claimant seeks to prove his customary ownership of a former customary plot of land that is now part of PN1 called Taupi allegedly belonging to Taupi tribe.
5. Second, the claimant complains that his late father did not have notice of the acquisition proceedings.
6. Third, due to lack of notice, the claimant’s father or his Taupi tribe did not attend the acquisition meetings and hence lost the opportunity to put forward their customary claims and determination of their tribal trustee representative in the eventual determination of trustees for the registration of the perpetual estate in PN1.
7. One of the core reliefs the claimant seeks is to sub-divide PN1, to reflect the prior customary plot of land comprised in PN1 called Taupi land. That PN1 be demarcated to reflect Taupi customary land and the claimant’s tribe to appoint its trustee to represent them, replacing the current trustee William Tino.
8. For the court to grant the core reliefs the claimant pursues in this claim, it will one way or the other do the following: -
   • (i) Enquire into claimant’s customary ownership over Taupi land within PN1.
   • (ii) Go behind the registration veil and enquire into or unwrap the duly completed acquisition process. The acquisition process was duly completed with the determination of customary land claims and trustees to represent the customary tribes or land groups concerned and the final registration of the perpetual estate in PN1.
   • (iii) Rectify and or demarcate the registry map of PN1, to reflect claimant’s Taupi portion by removing trustee William Tino and replace him with a trustee appointed by the claimant’s tribe.
9. I cannot enquire into the customary ownership of Taupi land for lack of jurisdiction. Even if the claimant or his tribe can produce to me, they have a binding decision from the land courts and tribunals, I cannot grant any relief that will affect the “registered perpetual estate title” of PN1. The status of PN1 has changed from customary ownership to a registered perpetual estate.
10. I cannot go behind and rewind the wheels in the acquisition proceeding that was duly completed utilizing the relevant provisions of the Lands and Titles Act (Cap 133), as amended in 2014 particularly Part V. There is an appeal process in Part V, which requires an appeal against the acquisition officer’s determination to go to the Magistrate Court and then the High Court. That appeal process is duly closed to the claimant, having failed to make an appeal to the Magistrate Court within the 3 months of the acquisition officer’s determination.
11. I cannot assume legal powers to usurp that process of the law. To do so will be tantamount to trespassing and interfering into a due process of the law invoked under the Lands and Titles Act (Cap 133) as amended in 2014; hereafter called “the LTA”.
12. This is a normal Category A claim on customary land. I cannot grant the reliefs sought, the effect of which would be to go behind the registration veil and make orders which will tamper with the sacredness of the perpetual estate register. Once customary land is registered, custom ownership exits under the Torrens system where the register guarantees indefeasibility of title. That sacredness of the register can only be affected by rectification order of the High Court, pursuant to Section 229 of the LTA. However, this claim fails to lay the foundation due to lack of properly pleaded particulars on fraud and or mistake.
13. The sacredness of the register even to be affected by any sub-division to the registered map is protected by the LTA. By virtue of Section 96 (1) of the LTA, the right to alter the registry map is the right of the owner of the perpetual estate and the person(s) shown on the register (second defendants in here). Altering the registry map will eventually result in cancelling PN1 and replacing with a new parcel number (Section 96 (2) of the LTA). Only the second defendants can initiate such drastic change utilizing the proper procedure under the LTA. Claimant does not have the right. Hence claimant does not have standing or locus to sub-divide PN1’s registry map.
14. I do not have the power to grant the major reliefs sought in this claim. I thought hard and long about, whether the pleadings are defective and can be cured by amendment. Counsel for the claimant holds instructions to amend the claim. Counsel was making an oral application to that effect. I do not know the exact scope and extent or details about the amendments counsel orally applied for pursuant to Rule 5.34 (a) – (c).
15. Counsel Kukura submitted she has instructions disclosing fraud and or mistake, upon which she intends to amend the claim to lay the foundation for the Court to order rectification under Section 229 of the LTA. I do not know what issues, mistake or better facts about the issues in the current claim, counsel was referring to in order to justify the amendments under Rule 5.34 (a) – (c). I am not fully assisted to grant leave to amend the current claim due to lack of proper application and supporting materials, inclusive of the draft amendments. Without the supporting materials, I am not wholly assisted to grant leave to amend the current claim in terms of the requirements for amendment in Rule 5.36 (a) – (c) read with Rule 5.34 (a) – (b).
16. If counsel truly feels she has a strong case to rectify PN1, on the grounds of fraud and or mistake, as recently discovered, then there is nothing to stop the claimant pursuing a new claim. Fraud is a serious allegation. Court will listen attentively to any new claim on fraud.
17. For the current claim, I do not have the powers to grant the core reliefs sought in view of the foregoing reasons. The core reliefs sought are not tenable in law. The reliefs sought does not disclose a reasonable cause of action. There is no chance of success at trial because the cause of action is certain to collapse in law. As a result, this claim should be struck out under Rule 9.75 (b) for disclosing no reasonable cause of action pursuant to the dismissal application filed 15.12.2017. This claim is struck out accordingly. Cost on standard basis against the claimant.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE