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Lee v Kaituu [2013] SBHC 171; HCSI-CC345 of 2011 (24 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case 345 of 2011

BETWEEN:

KIM DURK LEE
Claimant

AND:

LEONARD KAITUU
1st Defendant

AND:

ATTORNEY GENERAL
2nd Defendant

Mr. N. Laurere for the Claimant.
Mr. A. Radclyffe for the 1st Defendant
Mr. E. Kii for the 2nd Defendant.

Date of hearing: 22nd November and 13th December 2013.
Date of Judgment: 24th December 2013.

JUDGMENT

Apaniai, PJ:

1. By a claim filed on 29 August 2011, the Claimant, Kim Durk Lee, claims against the 1st Defendant, Leonard Kaituu, the following remedies:-
   

[a] damages for trespass limited to $50,000.00;

[b] an order that the 1st Defendant, his relatives or agents, remove their leave house from the Claimant's land within 14 days;

[c] an order restraining the 1st Defendant, his relatives or agents from entering the Claimants land without consent;

[d] an order restraining the 1st Defendant, his relatives or agents from interfering with, or preventing the erection of a fence along the Claimant's boundaries;

[e] such further or other order as the court thinks fit;

[f] interest;

[g] costs.

2. In the claim, the Claimant asserts that he is the owner of the fixed term estate in parcel number 191-003-135 ("Lot 1049") situated at Tandai Ridge, Honiara. He claims that the 1st Defendant and his relatives have constructed a leaf hut within Lot 1049 without his consent and that despite his demands for the removal of the hut, the 1st Defendant and his relatives have consistently refused to dismantle it. The Claimant further alleges that the 1st Defendant and his relatives have also prevented him from constructing a fence around Lot 1049. As a result, he filed this case and seeks the remedies mentioned above.
   
3. In his amended defence, the 1st Defendant admits that the Claimant is the owner of Lot 1049. In his testimony in court, he also admits that his leaf hut is located within the registered boundaries of Lot 1049. He marked by an asterisk in exhibit "C1" the location of the leaf hut, which shows that the hut is well inside Lot 1049.
   
4. Despite these admissions, he denies that the Claimant is entitled to the remedies claimed. His argument, in a nutshell, is that the registered boundary between his land, namely, parcel number 191-003-175 ("Lot 1453"), and the Claimant's Lot 1049 is wrong and had been relocated through corrupt dealings by officers of the Lands Department. He says that had the boundary not been fraudulently relocated, the leaf hut would have been located within his Lot 1453.
   
5. The trial of this case occurred on 22 November 2013 and final submissions were made on 13 December 2013. On 6 December 2013, the 1st Defendant filed an application seeking to re-open the case in order to have a view of the area in dispute. The purpose of the view, he argues, is to see the position of the public road being currently used by residents of the area, the position of the leaf hut, the location of the boundary pegs as they used to be before the Claimant became owner of Lot 1049, and the direction of the fence proposed to be erected by the Claimant.
   
6. The application was also heard on the 13 December 2013 along with the closing submissions on the case. I refused the application and said I would give reasons later. I do so now.
   
7. I do not think it can be doubted that the court has inherent jurisdiction to re-open a case and allow parties to call fresh evidence after the conclusion of evidence for the parties and to order a view where justice requires. The basic function of the court in any proceeding before it is to find a just solution to the dispute. In order to arrive at such solution, the court must be able to do whatever is necessary for the proper conduct of proceedings. Calling fresh evidence and having a view of the object or place which is the subject of the proceedings are parts of the processes necessary for the proper conduct of the proceedings. However, whether or not to re-open a case and allow fresh evidence or to carry out a view of an object or place are matters for the discretion of the court and the court will permit fresh evidence or order a view only if the circumstances of the case require it[1].
   
8. In the present case, the 1st Defendant agrees that the Claimant is the owner of Lot 1049. He also agrees that his leaf hut is located within the registered boundaries of Lot 1049. His only argument is that the current boundary between his Lot 1453 and the Claimant's Lot 1049 is wrong and should not be where it is now. He has raised a number of issues, which caused him to believe that the currently registered boundary between his Lot and the Claimant's Lot is wrong. I will discuss those issues later. However, for the moment, suffice to say that in the light of his admissions, I fail to see how a view or calling of fresh evidence would serve the interests of justice or would serve any useful purpose at all. For those reasons, I have rejected the application for a view and for the calling of fresh evidence.
   
9. I now turn to the 1st Defendant's third party notice in which he claims against the Commissioner of Lands and Nester Maelanga, a senior officer in the Lands Department, for rectification of the boundary. There is no counter claim against the Claimant. The Commissioner and Nester thereby became the 2nd Defendants.
   
10. As I understand from his evidence, the 1st Defendant's argument about the correct boundary stems from the fact that Lot 1049 was previously a part of a big plot of land known as parcel number 191-003-120 ("Lot 409") owned by Mr. Noel Poloso and was zoned for motel development. He said the boundaries of Lot 409 were fixed and identifiable then. He said when Mr. Poloso subdivided Lot 409 into smaller plots, the boundaries were fraudulently changed by Nester Maelanga thereby causing that part where the leaf hut is now located to be severed from his land and added to the Claimant's land. He also claims that the Minister for Lands, Housing and Survey had approved by letter dated 17 October 2008 an easement over Lot 1049 and that letter constituted a legitimate expectation of an easement, which ought to be registered in favour of him and those who are currently using Lot 1049 as access way to their properties.
    
11. He therefore seeks rectification of the boundary of Lot 1049 on the ground of mistake and an order that a new boundary to be determined in respect of Lot 1049. Furthermore, he also seeks rectification of the boundary of his Lot 1453 on the ground of mistake. Finally, he seeks a declaration that the Minister's letter dated 17 October 2008 granting a right of way over Lot 1049 and his continuous use of Lot 1049 as an access way constituted a legitimate expectation of an easement over Lot 1049, which ought to be registered.
    
12. Clearly, the 1st Defendant's counter claim against the Commissioner and Nester in his third party notice is a dispute as to the position of the boundaries of Lots 1049 and 1453. As such, it is my view that section 97 of the Land & Titles Act (Cap. 133) ("Act") applies to the counter claim. Section 97 provides as follows:-
    

"97. – (1) Where any uncertainty or dispute arises as to the position of any boundary, the Registrar, on application of any interested party, shall, on such evidence as the Registrar considers relevant, determine and indicate the position of the uncertain or disputed boundary.

(2) Any fees payable in relation to, and the costs of and incidental to, an application under subsection (1), shall be paid by the applicant and may be required by the Registrar to be paid in advance.

(3) Where the Registrar exercises the powers conferred by subsection (1), he shall make a note to that effect on the registry map and in the register, and shall file such plan or description as may be necessary to record his decision.

(4) No court shall entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in this section."

13. In the present case, the 1st defendant did not make any application to the Registrar for a determination as to the position of the boundaries of Lots 1049 and 1453 which he claims to be wrong or to have been fraudulently relocated. He has, instead, decided to seek the court's power to order rectification of the boundaries on the ground of mistake. Under section 97(4), the court has no power to entertain the 1st Defendant's counter claim. Furthermore, there is no provision in the Act giving the court the power to rectify boundaries on the ground of mistake. The counter claim is misconceived and is dismissed.
    
14. There is a further reason why the counter claim should be dismissed. Part VI of the Act has laid down an elaborate procedure for registration of land and demarcation of land boundaries. What is clear from the provisions of Division 3 (Maps, Parcels and Boundaries) is that the Surveyor General prepares or supervises the preparation of registry maps. It is the registry map that shows the boundary of each of the lots or parcels of land and parcel number allocated for the lot or the parcel of land. These information are kept by the Registrar, hence, the requirements of section 97 of the Act for disputes or uncertainties as to land boundaries to be referred to the Registrar for determination before any proceeding is brought to the court in relation to boundary disputes.
    
15. In the present case, it must be presumed that all the statutory requirements for the fixing of the proper boundaries of Lots 1049 and 1453 have been duly and properly complied with[2]. The burden is therefore on the 1st Defendant to prove otherwise[3].
    
16. Unfortunately, in the present case, the 1st defendant has not discharged that burden to the required standard. Contrary to the assertions of the 1st Defendant, Nester produced a map (exhibit "NM2") which showed the boundaries of Lot 409 when owned by Mr. Poloso. The boundary marks were NPM1, NPM2, NPM3, NPM4, NPM5, NPM6, NPM7, NP1, A1, D and C. Nester says that the boundaries of Lot 409 never changed even after the subdivision of the Lot into 8 smaller plots by Mr. Poloso. She produced a map (exhibit "NM4") which showed that the 8 smaller plots, including Lot 1049, were still within the boundary described as NPM1, NPM2, NPM3, NPM4, NPM5, NPM6, NPM7, NP1, A1, D and C. I am satisfied there has not been any alteration to the boundaries of Lot 1049 or 1453 as claimed by the 1st Defendant.
    
17. The final issue raised by the 1st Defendant is whether or not the Minister's letter dated 17 October 2008 and the 1st Defendant's continuous use of Lot 1049 as an access road have created an easement over Lot 1049 which ought to be registered in favour of the 1st Defendant and other users of the access road as claimed by the 1st Defendant.
    
18. As to the issue of an easement over lot 1049, there is no evidence that such easement exists. Under section 179(4) of the Act, an easement exists only upon its registration. No evidence has been produced to show that the easement claimed by the 1st Defendant has been registered. In any event, the evidence shows that there is an access way that separates lot 1049 from Lot 1453. There is absolutely no justification for the 1st Defendant to claim any right of way over Lot 1049 when he could still use the access way separating Lot 1049 from Lot 1453 to access his land.
    
19. The issue whether the Minister's letter of 17 October 2008 has created an easement over lot 1049 can also be dealt with briefly. The case of DJ Graphics v Commissioner of Lands; DJ Graphic v Attorney General; Solomon Islands Ports Authority v Commissioner of Lands[4] has made it clear that the Minister has no powers to deal in interests in land without the approval of the Commissioner of Lands. At page 6 of his judgment, His Lordship, Justice Albert Palmer (as he then was) said:-
    

"It is the COL (Commissioner of Lands) who has been specifically given those powers to deal in interests in land, not the MOL (Minister of Lands)."

20. At page 7, His Lordship continued:-
    

"So what of the power of the Minister to allocate land, or fixed-term estate in land, capable of being binding on the Government?

I have pondered over the provisions of subsection (4), and cogitated over the submissions of Mr. Traczyk, but with respect have not been able to accede to the submission that he had the power to make a valid allocation capable of having a binding effect on the Government, or conferring rights on the allocate. He may have been making allocations in the past but the qualification that must be added is that until they were taken up by the COL and acted upon, they would not, in my respectful view, have been binding on the Government."

21. It follows therefore that the Minister's letter of 17 October 2008 confers no easement or any other registrable interest over Lot 1049 as claimed by the 1st Defendant.
    
22. For these reasons, the 1st Defendant's counter claim must fail and judgment granted in favour of the Claimant in terms of the remedies sought in the claim filed on 29 August 2011.
    
23. The orders are:-
    

[1] The 1st Defendant shall pay the Claimant damages for trespass limited to $50,000.00.

[2] The 1st Defendant, his relatives or agents, shall remove their leave house from the Claimant's land within 14 days from the date hereof.

[3] The 1st Defendant, his relatives or agents are restrained from entering the Claimants land without consent.

[4] The 1st Defendant, his relatives or agents are restrained from interfering with, or preventing the erection of a fence along the Claimant's boundaries.

[5] The 1st Defendant shall pay interest on the $50,000.00 at 5% per annum commencing on the date hereof.

[6] The 1st Defendant shall pay the costs of the Claimant and the 2nd Defendant on standard basis to be assessed if not agreed.

THE COURT

James Apaniai
Puisne Judge

^[1] Sections 64(2) and 72(1), Evidence Act 2009; Abeai v Basifari & Others [1997] SBHC 107; HCSI-CC 323 of 1995 (30 July 1997).
^[2] Wilover Nominees Ltd vs Inland Revenue Commissioners [1973] 1 WLR 1393.
^[3] Clynch vs Inland Revenue Commissioners [1973] 2 WLR 862.
^[4] [1995] SBHC 111; HCSI-CC 102 of 1995; 40 of 1995; 164 of 1995 (11 December 1995).