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Maetoloa v Tata [2011] SBHC 50; HCSI-CC 270 of 2009 (12 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 270 OF 2009

BETWEEN:

EDDIE MAETOLOA Snr and EDDIE MAETOLOA Jnr
Claimants
[as Joint Owners of the Fixed Term Estates In Parcel
Number: 192-002-186]

AND:

ROSE TATA, JOSEPH OLISANAU
All Occupants of the Fixed Term Estates
Parcel Number: 192-002-186
First Defendants

AND:

ATTORNEY-GENERAL
Second Defendant
[Representing the Commissioner of Lands and
[Registrar of Titles]

Date of Hearing: 6 June 2011
Date of Judgement: 12 July 2011

Dwane Tigulu for Claimant
Donald Marahare for First Defendants
Daniel Damilea for Second Defendant

JUDGMENT

Mwanesalua J:

1. The Claimants are joint owners of Parcel Number. 192-002-186. Relief sought in the Amended claim filed on 24 April 2010 are:
   
   • (1) Damages for trespass limited to $25,000 to be assessed.
     
   • (2) An Order that the Defendants give vacant possession of Fixed Term Estate in Parcel No. 192-002-186.
     
   • (3) A permanent order restraining the Defendants, their Agents, Servants, Wantoks and family members or otherwise from entering and maintaining their presence on the Land.
     
   • (4) An Order that anything permanently fixed to the Land by the Defendants belong to the Claimants.
     
   • (5) Alternatively, an Order that the Defendants shall be entitled to take down their residential buildings erected on the Land within 60 days from the date of the judgment.
     
   • (6) Costs of the action.
     

The Facts

2. The Claimants applied for Parcel No. 192-002-186 to the Commissioner of Lands (The Commissioner) since 8 September 1997. They received written approval to acquire the Land from the Commissioner on 15 January 1999. They paid all the relevant fees for the offer of the Land from the Commissioner. They received a formal offer from the Commissioner on 30 January 2003. They executed a Grant of Fixed Term Estate over the Land with the Commissioner on 7 October 2007. The Registrar of Titles registered their title to the Land on 21 February 2008. On that date, no other interests were noted on the Lands Register to prevent their names being registered as title holders to the Land. The First Defendant have acknowledged them obtaining grant and registration of title but failed to challenge them by judicial review and were therefore barred[1]. This is also established by the fact that the First Defendants attempted to lodge a Caveat on 8 February 2006 but failed to formally lodge it. The Claimants are not limited by time to exercise their rights to the Land and are entitled to evict the Defendants and obtain possession of the Land.
   

The Defendants' Defence and Counterclaim

3. The First Defendants' Defence and Counterclaim raised following matters: First, the First Defendants had applied for the same land since 2002 but the officers of the Commissioner were negligent in misplacing the First Defendants' application; second, the Defendants had occupied the Land since 2002 on the personal advice of certain officers within the Lands Department; and Third, First Defendants have an over-riding interest on the Land.
   

Considerations of Issues in this Case

4. Over-riding Interest of the First Defendants
   

The Claimants Land is a Fixed Term Estate for a period of fifty years beginning from 1 September 2007. The First Defendants' claim that the Claimants hold their estate subject to their overriding interest under Section 114(g) of the Land and Titles Act (Cap.113) "The Act". Section 114 of the Act covers over-riding interests. Section 114(g) covers "the rights of a person in actual occupation of the Land." I consider that paragraph (a) be read with Section 224(1) of the Act which states, "224(1)....The ownership of an estate........may be acquired.......against the person registered as owner of the estate.....by peaceable, overt and uninterrupted possession of the Land comprised in the estate...... for a period of twelve years: Provided that......(b)....no person shall so acquire the ownership of estate......vested in or owned by the Commissioner.."

4.1 It is clear that the First Defendants claim that their interest over the land was acquired by adverse possession before the Commissioner granted the estate in the Land to the Claimants. But it is obvious from Section 224 (1) (b), above of the Act, that any interest acquired by adverse possession does not apply for the period the Land is owned by the Commissioner.

4.2 Any claim on adverse possession against the Claimants would only start to run from the time of the registration of the title. Registration in this case occurred on 17 October 2007. The case of Butala –v- Maelifia HCSI CC: No. 133 of 2008 does not apply to this case because overriding interest and the adverse possession in that case were beyond 12 years, while in this case is well below 12 years required by Law.

5. The First Defendants have no estate recognized in Law in this case. They have not pointed to any interest on the Land which would enable the Court to consider relief in the counter-claim
   

The Temporary Occupation Licence (TOL)

6. TOL is the only valid in Law for three years (see S.248 of the Act). The Court is not sure whether one was ever issued to the First Defendants to live on the Land.
   

There was no formal offer from the Commissioner to grant an estate to the First Defendants.

There is no evidence of any valid documents between the Commissioner and the First Defendants under which to determine the grant of the orders sought in the counter-claim.

Order:

1. Grant the orders sought by the Claimants.
2. Counter-claim dismissed.
3. Parties to pay their own costs.

Dated this 12th day of July 2011.

THE COURT

^[1] Rule 15.3.8 SI Courts (Civil Procedure) Rules 2007