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Timol Enterprises Ltd v Feneda [2025] SBHC 134; HCSI-CC 553 of 2022 (31 October 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 553 of 2025

BETWEEN:
.
TIMOL ENTERPRISES LIMITED
Claimant/Counter-Defendant

AND:

ISAIAH FENEDA
(including those living under his authority on the land)
Defendant/Counter-Claimant

Date of Hearing: 15 November 2024
Date of Decision: 31 October 2025

Mr Bitibule Kaehuna for the Claimant/Counter-Defendant
Miss Lilly Ramo for the Defendant/ Counter-Claimant

JUDGMENT

Bird PJ:

1. This is a case about a registered property in Parcel Number 192-004-0310 (Lot 744) (the land) located at Lunga in Honiara. Timol Enterprises Limited (Claimant) is the registered owner of a Fixed Term Estate therein. Isaiah Feneda (Defendant) is an occupier of the land.
2. A trial was conducted by the court on the 15^th November 2024. During the trial, it became obvious that the Defendant’s counter-claim for adverse possession and rectification were futile to be pursued. Counsel for the Defendant, Ms Ramo had conceded to the legal issue affecting her client’s defence and counter-claim. The court consequently dismissed the Defendant’s counter-claim and entered judgment for the Claimant. I now publish the reasons.
3. The Claimant’s claim is simple. It is the registered owner of the land. The Fixed-Term Estate was registered in its name on the 30^th January 2021 for a term of 75 years. The transfer consideration for the transfer was $27,544.00. The former registered owner was Levers Solomons Limited.
4. The Defendant and his family occupied the land since the 17^th July 2004 before the Claimant became the registered owner. He was authorised by the Claimant’s General Manager to occupy the land and to look after it on its behalf. On the 3^rd October 2017, the Claimant paid to the Defendant the sum of $70,000.00 to assist him and his family to vacate the land.. Nevertheless, the Defendant continued to reside and plant crops on the land.
5. On the 31^st October 2019, the Claimant through its lawyers served the Defendant with a Notice to Vacate the land. On several occasions, the Defendant was also verbally instructed by the Claimant’s Director to vacate the land. At the time of the filing of this proceeding, the Defendant and his family members were still in occupation of the land.
6. I have perused and noted the Defendant’s defence that he and his family have been in continuous occupation of the land for about 15 years. He relied on the principle of adverse possession and a claim for overriding interest over the land. He nonetheless admitted not having any consent from the Claimant to occupy the land.
7. The right to adverse possession is provided for under section 225 of the Land and Titles Act (cap 133) (LTA). Section 225 is connected to section 224 of the Act. Overriding interest is prescribed under s.114 of the Act. There are also numerous case authorities on the respective rights.
8. In respect of the right to adverse possession, the cut-off period under section 224 is one of twelve years. In this proceeding, the Defendant occupied the land in August 2004. From about March 2007, the Claimant’s new Director, Mr Chachabule Amoi had fully purchased the land for $3,000,000.00. Ownership of the Claimant was then transferred to Mr Amoi and his daughter Ms Chanella Amoi.
9. In about the same time, Mr Amoi saw the Defendant on the land and told him to vacate it. He has an intention to develop the said land. The Defendant assured him that he will vacate on the following week. From the years, 2011, 2013, 2014 and numerous other occasions, Mr Amoi has continued to inform the Defendant to vacate the land.
10. In about October 2017 and upon request by the Defendant, Mr Amoi paid to him the sum of $70,000.00 to assist him move out from the land. Even after receiving the payment, the Defendant had either neglected and or refused to vacate. Even at the date of trial, the Defendant has yet to vacate.
11. In light of the above circumstances, the only period of time that the defendant might be entitled to claim having quiet enjoyment of the land is from 2004 to on or about 2007. That is only a period of about 3 years. The Defendant is therefore not entitled to the right of adverse possession under section 225 as read with section 224 of the LTA.
12. In respect of a claim for overriding interest under section 114 of the Act, it is trite law that in order for a person to qualify, the person must have lawful permission from the registered owner to so occupy it.
13. In paragraph 7 of the Defendant’s defence, he admitted that he did not have consent from the Claimant to occupy the land. That position basically means the Defendant does not have any right to rely on section 114 of the Act on his right for an overriding interest. In support of my view is the Court of Appeal case of Paza v Sivoro [2018] SBCA 2 – SICOA – CAC 16/2017.
14. In view of the above discussion, the Defendant has no valid defence in law to defend the Claimant’s claim. The Claimant’s claim succeeds against the Defendant. I hereby enter judgment in the Claimant’s favour as follows:-
    • (i) An order for vacant possession of the Fixed-Term Estate in Parcel Number 192-004-0310 (Lot 744) against the Defendant, his associates and or anyone living under his authority.
    • (ii) An order that in the event the Defendant refuses to remove any erections or buildings on the land, the ownership follows the land.
    • (iii) A permanent restraining order against the Defendant, his servants and agents from remaining and or re-entering, constructing any buildings within and or inside P/N 192-004-0310 (Lot 744).
    • (iv) The Defendant’s counter-claim filed on the 14^th April 2023 is dismissed.
    • (v) Cost against the Defendant.

THE COURT
Justice Maelyn Bird
Puisne Judge