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Moveni v Cheffers [2014] SBCA 14; SICOA-CAC 34 of 2013 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT – COURT OF APPEAL

Counsel were in agreement that the Court of Appeal should deal with this appeal on the written submissions of counsel in accordance with rule 21(3) of the Court of Appeal Rules.

The first question raised by this appeal is whether for purposes of section 229(2) of the Land and Titles Act (Cap 133) "possession" means actual possession

Counsel for the appellants contends that possession is an attribute of ownership and that it is sufficient that the person in question is registered as the owner; in other words the statutory provision is satisfied by proving registration as owner.

The argument of counsel for the appellants must be rejected. If it was correct the words "who is in possession" would be superfluous and add nothing to the meaning of the provision. In the circumstances "possession" must mean actual possession.

That construction is confirmed by the authorities. The genesis of the section is s. 82(3) the Law of Property Act 1925 (U.K.) which spoke of the "title of the proprietor who is in possession. "The Court of Appeal in Chowood v Lyall (1930) 2 Ch. 158 held possession meant actual physical possession. (See also Epps v Esso Petroleum Co LTD (1973) 1 WLR 1071, Safeway Stores PLL v Terco Stores Ltd (2003) Scot CS 17, and Turquoise Limited v Kalsuak and Others (2008) VU CA22).

In his submission is reply counsel for the appellants submitted that the authorities referred to in the previous paragraph were no longer binding given the decision of the Court of Appeal in Kingsalton Ltd & Anor v Thames Water Developments Ltd & ors (2001) EWCA Civ. 20. That is not so. Section 82 (3) of the 1925 Act (which is in terms of s.229 (2)) was substantially amended in 1977. But in any event the case was not decided on that provision. However, the court did consider that the other matters referred to therein (for example, valuable consideration and knowledge) were still relevant to the exercise of the discretion to order rectification.

Further, the decision in Trading Company (Solomons) Limited v PKR Pacific Sales Ltd (1980 – 1981) SILR 172 does not assist the appellants because there the person registered as owner had entered into actual possession.

The learned trial judge was correct in holding that the appellants were not in actual possession of the subject land and were not therefore afforded the protection granted by s. 229(2) of the Land and Titles Act.

The learned trial judge, after a careful review of the evidence before him (mainly documentary) held that the registration of the appellants as owners of the land in question was a "mistake" within s. 229, and that the register should be rectified to record the first respondent as registered owner.

As the appellants are not able to avail themselves of the added protection afforded to a registered owner in actual possession, they rely on their remaining grounds of appeal. Essentially the contention is that the learned trial judge failed to take into account the submissions of counsel for the appellants and the findings made were against the weight of evidence.

In 1997, the first respondent (together with her now deceased husband) applied for the subject land. At that time, they were the owners of adjoining blocks. They were told they could acquire the land and in 1997-8 paid survey and other fees. They then erected a semi-permanent building on the subject land. Nothing was then done to register them as owners; it seems documents relating to 1997-8 events were lost or misplaced.

New officers began "sorting out" the position in 2010; there was concern there was a building on the land but no title. The Acting Commissioner of Lands wrote to the Cheffers on 28 July 2010 saying inter alia:

"With regard to your application for Parcel Number 19-009-119 be informed that this is not approved on the basis that you already have allocations and therefore will not be considered for any more land.

Counsel for the appellants on appeal contended that letter revoked approval previously given. As the subsequent exchange of correspondence between the Commissioner and the Cheffers demonstrates, the Commissioner directed further investigation into the position of the Cheffers and that ultimately led to the Commissioner of Lands writing to them on 17 December 2010 as follows:

"There are confusions regarding dealings over the land. Records in the file showed that there is double allocation. The first allocation to you was never withdrawn before re-allocation by the office of the Commissioner of Lands. Allocation to you is still legal and as such my office shall facilitate formalities to have title to the land registered under your names. Letter of offer shall be issued upon completion of valuation.

By letter dated 24 January 2011 the Commissioner formally offered the subject land to the Cheffers on paying certain fees. Those fees were paid the following day.

By letter dated 20 December 2010 under the hand of Olofoa Fatai, an officer in the Department of Lands, the subject land was offered to the appellants subject to the payment of fees. Those fees were paid and the appellants were registered as owners on 8 February 2011.

It is true to say that the general policy of the Land and Titles Act is that the title of the person registered is paramount and rectification should only be awarded in the clearest of cases.

Here, as is substantially conceded by the Second Respondent in upholding the decision of the trial judge, there was confusion in the office of the Commissioner of Lands, which led to the land being offered to two different people. The fact that the Commissioner and his legal advisers accept the correctness of the decision of the trial judge carries some weight.

A reading of the reasons for judgment of the trial judge in the light of the written submissions below and in this court does not establish that, as contended for by the appellants, he misdirected himself on the evidence, or that he failed to give due weight to the appellants' submissions and the evidence.

The reasoning of the trial judge took into account all the evidence, confusing as it was, and all the findings he made were open to the trial judge.

It is unfortunate that this situation has arisen; both the appellants and the first respondent were innocent victims of a bureaucratic bungle.

It has not been shown that the learned trial judge erred in reaching the conclusion he did.

The appeal must be dismissed with costs.

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Justice Goldsbrough
President

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Justice Williams J.A
Member

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Justice Ward J.A
Member