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Maneniaru v Attorney General [2015] SBCA 16; SICOA-CAC 39 of 2014 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL



NATURE OF JURISDICTION:
Appeal from Judgment of the High Court of
Solomon Islands (Faukona J.)

COURT FILE NUMBER:
Civil Appeal Case No. 39 of 2014 (On Appeal
from High Court Criminal Case No. 317 of 2009)

DATE OF HEARING:
THURSDAY 1 OCTOBER 2015

DATE OF JUDGMENT:
FRIDAY 9 OCTOBER 2015

THE COURT:
Goldsbrough P
Sir Ward JA
Lunabek

PARTIES:
John Maneniaru and Matilda B Maneniaru Appellant
-V-
Attorney General, Mr and Mrs Bule Respondents
Advocates:
Appellants:
Respondent:
Michael Pitakaka Appellant
Daniel Damilea 1st Respondent
Wilson Rano 2nd Respondent

Key words
MISTAKE
EX TEMPORE/RESERVED:
RESERVED

ALLOWED/DISMISSED
DISMISSED

PAGES
1 - 10

JUDGMENT OF THE COURT


  1. This is an appeal against a judgment of Faukona J delivered on 13th October 2010 dismissing a claim of the Appellants filed 28th August 2005.
  2. On 28th August 2009, the Appellants (then claimants) filed a claim in the High Court, in which they sought relief, among other matters, that:
  3. In their statement of the case, the appellants advanced, among other matters, the following:
  4. The following is the chronology of events leading up to the dispute between the parties over the Parcel Number 191-041-200 located at Panatina Ridge, East Honiara. It is useful and we set it out for ease of reference:-
13 October 1978
Fixed Term Estate in Parcel Number 191-041-200 (Lot 1639) was granted to Solomon Islands Housing Authority.


13th August 1981
Perpetual Estate in Parcel Number 191-041-200 (1639) created following subdivisions and registered in the name of the Commissioner of Lands (COL).


1 May 1997
Mr Maneniaru registered as owner of Fixed Term Estate in Parcel Number 191-041-122 (Lot 1293) following transfer from Home Finance Corporation.


15 June 1997
Commissioner of Lands gave an offer over Fixed Term Estate in Parcel Number 191-041-200 (Lot 1639) to Mr. and Mrs Bule. Offer accepted by payment of premium.


7 October 1997
Mr Maneniaru applied for Fixed Term Estate in Parcel No. 191-041-200 (Lot 1693) to Home Finance Corporation instead of Commissioner of Lands.


26 February 1998
Grant Instrument executed by COL and Mr and Mrs Bule in respect of Fixed Term Estate in Parcel Number 191-041-200.


04 March 1998
Mr. and Mrs Bule entered into register as owners of the Fixed Term Estate in Parcel No. 191-041-200.


17 July 1998
Mr Maneniaru applied for Land north of Abira Village situated between parcels 2313 and 135.


08 September 1998
Letter of Approval of Land in Panatina by COL (this letter was later disregarded by judge at trial as it relates to another land applied for by Mr Maneniaru).


14 May 1999
Letter from Mr and Mrs Bule to Mr Maneniaru to vacate Parcel No. 191-041-200.


28 May 1999
Letter from HCC Physical Planning to COL recommending offer of Parcel No. 191-041-200 to Mr Maneniaru.


24 July 1999
Letter to COL from Mr Maneniaru follow up on letter from HCC Physical Planning.


22 October 1999
Mr. and Mrs Bule's Application for building permit granted by Honiara Town and Country Planning Board and permit No. 9405 was issued.


25 July 2008
Mr. and Mrs. Bule commenced Civil Claim No. 235 of 2008 for possession of land.

  1. In the High Court, the trial judge heard and considered the evidence before him. He found that the Appellants were in occupation of the land Parcel No. 191-041-200 since 2000, they had constructed a perimeter fence, a semi-permanent kitchen, a store room and had planted three coconut trees.
  2. His Lordship also found that the land was vacant land when the offer was given to the defendants on 15th June 1997. A grant of instrument was executed by the Commissioner of Lands (COL) and the respondents. They were registered as owners of PN 191-041-200 on 4th March 1998.
  3. The Appellants submitted their application for the same land PN 191-041-200 on 6 October 1997 but to a wrong authority with no power to allocate.
  4. The judge further found that prior to 24th July 1999, the Appellants were aware that the land was allocated to someone else.
  5. His Lordship stated:

"First and foremost I have noted that having knowledge of the allocation to the second defendants, was an act the claimants (Appellants) deplored and could not accept – see Mr. Maneniaru's letter of 24th July 1999, that resulted in the claimants wielded a fierce opposition to negative the registration through this process."


  1. He then rejected the evidence of Mr. Maneniaru on the basis that should he be aware of the allocation and registration he would not have wasted his time applying.
  2. His Lordship referred to the Court of Appeal judgment in the case of Billy v- Daukalia (1995) SBCA; CA-CAC 001 of 1995 (27 October 1995) where the Court stated that the claim for mistake therefore must be necessarily linked to the time when registration was obtained, made or omitted. The word registration bears a corresponding meaning as to "register". And to register is to make an entry in the land register (see section 2 of the land and Titles Act).
  3. His Lordship considered section 229 of the Land and Titles Act. It is very plain. To rectify the registration currently in the names of the Respondents, it has to be established that the Respondents had the knowledge of the mistake, or cause such to occur or themselves substantially contributed by their act, neglect or default. The process that led to the registration is not disputed. What is more objected to, is because of the peculiar nature of the land, it would not be possible to allocate to someone else than the claimants who have been living on an adjoining parcel.
  4. "His Lordship applied section 229 on the factual circumstances of the case before him. He found and concluded that: "The claimants' case as could be reflected is an attempt to interfere with the discretionary power of the Commissioner of Lands to allocate crown lands and ignore the fact that the subject land has its own parcel number and stand out separate. As such, whether it is small in size or big, the Commissioner of Lands has power to allocate to someone, not necessary (sic) to a person living on adjacent land."
  5. On 13th October 2014, his Lordship dismissed the Appellants' claim for rectification of the register and issued orders for the Appellants to vacate the Parcel Number: 191-041-200 and give vacant possession to the Respondents forthwith and ordered costs against the Appellants.
  6. The Appellants now appeal against his Lordship's orders of 13th October 2014 dismissing the Appellants' claim over the Parcel No. 191-041-200.
  7. The appeal is advanced on three grounds. First, the Appellants challenge the trial judge's findings that there was no mistake; second, the findings as to the public duty and exercise of discretion by the First Respondent and third; the findings relating to evidence of expert witness.
  8. We note that the main ground of challenge is whether or not a mistake was made by the Commissioner of Lands in allocating, executing the grant instrument and registering the Respondents on the Land Registrar as owners of Parcel No. 191-041-200.
  9. It is submitted on behalf of the Appellants that the learned trial judge failed to take into account all relevant circumstances of the case and in particular, failed to consider the evidence advanced by the Appellant.
  10. We note that the trial judge conducted a trial hearing for 3 days, he gave a judgment with his reasons. He considered the evidence of the Appellants and the evidence of the Respondents. He gave reasons as to why he refused the evidence of the Appellants and their witnesses. He believed and preferred the evidence of the Respondents.
  11. The following facts taken from the Chronology of events support the findings and judgment of the trial judge:
  12. As we observe from the above relevant factual steps, from the enquiry by the Respondents of the Parcel Number 191-041-200, the Commissioner of Lands offer to the Respondents, the Respondents' payment of premium for Parcel Number 191-041-200, the execution of a grant of instrument in respect to the said Parcel between the Respondents and the Commissioner of Lands and the entering of the names of the Respondents in the Land Register as owners of the said Parcel No. 191-041-200, there is no evidence of any error or mistake on the part of the Commissioner of Lands in these steps nor any evidence of knowledge of a mistake or substantive contribution to a mistake by the Respondents within the meaning of section 229 of the Land and Titles Act for the registration of the Parcel Number 191-041-200 in the names of the Respondents.
  13. We have perused the provisions of section 229 of the Act. It provides:

229.- (1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.


(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default."


  1. We have also perused the provisions of section 228 of the Land and Titles Act in respect to the powers of the Registrar of Land Register if there were any imperfection occurring at the date of the registration of the Parcel No. 191-041-200 in the names of the Respondents, the facts show us that the Respondents have paid a premium before they became registered owners of the Parcel No. 191-041-200. If a mistake or imperfection existed, the Respondents shall be protected under section 229(2) of the Act. In any event, in the present case, as the trial judge recognised it, the Registrar was not a party to this case.
  2. It is our respectful view that for a party seeking rectification under section 229 of the Land and Titles Act, it is not sufficient to prove that a mistake occurred in the course of a transaction which ultimately concluded in registration of the interest which it is sought to have removed from the register. In terms of s.229, the Court must be satisfied that the "registration has been obtained, made or omitted by fraud or mistake". This section imposes a causal requirement. There must be a link between the mistake and the registration. The onus is on the party seeking rectification not only to establish a mistake, but also to satisfy the court that it caused the registration to occur.
  3. We observe and consider that the concerns or issues raised by the appellants in their claim in the High Court and set in the affidavits in support of their claim were matters outside of the requirements of section 229 of the Land and Titles Act. In our respectful view, the trial judge was correct in his judgment of 13th October 2014.
  4. We consider that mistake is the main challenge in the claim of the Appellants in the High Court. We do not see any error of law in the judgment under appeal. We confirm the judgment of the trial judge. We were satisfied that there was no proper legal cause of action raised in the claim and the statement of the case to invoke the application of section 229 of the Lands and Titles Act.
  5. We note that in the Appellants outline submission grounds 2, 3, and 4 of the appeal are about the findings as to public duty and exercise of discretion of the first Respondent.
  6. Taken we have confirmed the trial judge's findings of facts and conclusions of law, there is nothing for the Court to entertain on these grounds. We dismiss those.
  7. We also note that the fifth and sixth grounds of appeal are about the findings relating to the evidence of expert witness. Equally, there is no need for this Court to entertain on these two grounds either. They are also dismissed. On the basis of the above, we dismiss this appeal and all grounds of appeal as without merits.
  8. The court makes the following orders:
    1. Appeal dismissed.
    2. The Appellants to pay the costs of the first and second Respondents in the Court below and in the Court of Appeal.
    3. Such costs shall be determined or assessed.

..................................
Goldsbrough P
President of the Court of Appeal


....................................
Vincent Lunabek JA
Member of the Court of Appeal


...................................
Gordon Ward JA
Member of the Court of Appeal

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