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Waririu v Dora [2018] SBCA 27; SICOA-CAC 9023 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Waririu v Henry Star Dora


Citation:


Decision date:
12 October 2018


Nature of Jurisdiction


Court File Number(s):
CA 9023 of 2018


Parties:
Moses Waririu, Ruth Waririu v Henry Star Dora, Attorney General


Hearing date(s):
4 October 2018


Place of delivery:
High Court of Solomon Islands- Court Room Six(6)


Judge(s):
Goldsbrough President
Ward JA
Lunabek JA


Representation:
Mr. N Laurere for the Appellant
Mr. J.K Zama for the 1st Respondent
Mr. D. Damilea for the 2nd Respondent


Catchwords:



Words and phrases:


Legislation cited:
Lands and Titles Act.


Cases cited:


ExTempore/Reserved:


Allowed/Dismissed:
The appeal is dismissed


Pages:
1-23

JUDGMENT OF THE COURT

I. Introduction

  1. This is an appeal dated 14 September 2018 against the whole judgment of the High Court dated 20th June 2018 in which Kouhota J found in favour of the First Respondent and made the following orders:
Declarations sought by the claimant (Appellant) are refused and the claim is dismissed.
That the First Defendant’s (First Respondent) counter-claim succeed in part and the court orders as follows:

II. Background

A: Overview of the disputed land property

  1. The proceeding in this appeal is about the dispute over the grant of a fixed term estate in parcel number 191-016-316 in the name of the First Respondent.
  2. The Appellants asserted rights over the same parcel since prior to subdivision of the initial bigger and wider parcel number 191-016-102, the appellants occupied that land and constructed houses of permanent nature on two different parts of that land.
  3. In 2011, the Commissioner of Lands subdivided Parcel number 191-016-102 into different parcel lots.
  4. Parcel Lot number 191-016-320 was granted to the Appellants.
  5. Parcel Lot Number 191-016-316 was granted to the First Respondent.
  6. The Appellants challenged the grant of the fixed term estate in parcel number 191-016-316 in the name of the First Respondent before the High Court and on appeal before this Court.

B; Summary of pleadings history on respective position of parties

  1. The Appellants filed an amended claim on 3rd September 2012 in the High Court and sought the following reliefs:
  1. The Appellants stated in their Amended statement of the claim, among other matters, the following as the basis of their claim:
  1. The First Respondent filed an Amended Defence and counter claim on 2 February 2013 to the following effect:-
(11) He said he had no knowledge of the facts stated in the Amended claim, however, he said:
(12) He said there was no mistake or fraud at the time of registration of the transfer as alleged or at all; and no rectification of the register of estate can be validly ordered so as to affect his interests in the estate.
(13) He finally said that:
(14) He denied any other facts in the Amended claim.
(15) He made a counter claim and sought the following reliefs:-
  1. An order for possession of Parcel Number 191-016-316;
  2. An order for damages for trespass limited to $100,000.00
  3. An order for vacant possession and for the Appellants, their servants and agents to remove their building from the land;
  4. An order that if the Appellants refuse to remove their property that they shall become the property of the First Respondent and may dispose of them as he considers fit;
  5. A restraining order; and
  6. Any such order as may be appropriate.

(16) He relied on the grounds contained in his Amended Defence to advance his counter-claim.
(17) In their Defence to the Amended Claim, the Second Respondents pleaded to this effect:-
(18) They denied any further allegations in the Amended claim and said the Appellants are not entitled to the reliefs they are seeking.

C: Agreed facts and Issues in the court below

(19) The trial judge recorded the following agreed facts and issues:

Agreed Facts.

(i) The Commissioner of Lands had title over Parcel Number 191-016-102 in which the Claimants (Appellants) occupied part of, since 2003.
(ii) In 2011, the Commissioner of Lands subdivided Parcel Number 191-016-102 and the Claimants (Appellants) were granted title over Parcel Number 191-016-320. Parcel Number 191-016-316 “the land” (which is the land in dispute in this case) remained with the Commissioner of Lands.
(iii) Prior to subdivision of Parcel Number 191-016-102, the claimants (Appellants) had occupied Parcel Number 191-016-316 since 2003.
(iv) The Claimants (Appellants) and the First Defendant (First Respondent) were applicants for grant of title over “the land” Parcel Number 191-016-316 from the Commissioner of Lands.
(v) The First Defendant (First Respondent) was registered as owner of Parcel Number 191-016-316 on the 17th May 2012.

Agreed Issues

(i) Whether the grant of the title in Parcel Number 191-016-316 to the First Defendant (First Respondent) by the Second Defendant (Second Respondent) was lawful or void?
(ii) Whether the registration of the title in Parcel Number 191-016-316 to the First Defendant (First Respondent) by the Second Defendant (Second Respondent) was lawful or void?
(iii) Whether there as a mistake and or fraud on the part of the Second Defendant (Second Respondent) in the process of granting and registration of Parcel Number 191-016-316 to the First Defendant (First Respondent)?

III Hearing and judgment of the Court below under appeal

  1. On the face of the judgment under appeal, the trial judge dealt with the amended claim of the Appellants first. The Amended claim and the relief sought therein, are against both the First and the Second Respondents. The Amended claim is supported by the following documents:
  2. The trial judge considered the first issue as the critical question in this case as to the rights of the parties and all other issues depend on the answer given to the first issue.
  3. The trial judge made the point that since the two offers were made over the same parcel number 191-016-316, it is appropriate to see which offer was first in time and which offer was first accepted. He assessed first the offers made to the Appellants. He found there were two offers made to the Appellants on 23rd January 2012, one is for parcel number 191-016-320 and one is for parcel number 131-016-316 (land in dispute). As to the latter offer, the appellants paid the required fees of $5,870.50 on 30th January 201, office of Treasury Receipt No. B 157 1369.
  4. There was however no evidence that the Appellants complied with condition 2 of the offer by signing the declaration for accepting the key conditions of the grant instrument. Further no grant instrument signed by the Appellants and the second Respondent was exhibited as evidence, although the Appellants stated in the sworn statement of Moses Waririu that the grant was executed in February 2012.
  5. The Second Respondents offer to the First Respondent was made on 30th November 2011. The trial judge found on the evidence that the First Respondent paid the required fees for 3 lots, totalling of $12,400.00 on 2nd December 2011 and also the First Respondent signed the key grant considerations on the same date. Parcel Number 191-016-316 is in Lot number 1591/I/H.
  6. The trial judge found that the offer over the parcel of land was made to the First Respondent on 30 November 2011 and the offer to the Appellants was on 23rd January 2012. The offer to the First Respondent was first in time (one month and 23 days before the offer made to the Appellants).
  7. The trial judge concluded that the First Respondent accepted the offer and complied with the conditions by paying the required fee and signed the key grant consideration on 2nd December 2011. The grant instrument was however not executed until 11th May 2012 but the contract was completed, on the date the First Respondent accepted the offer and complied with the subject requirements. The offer to the Appellants was made on 23rd January 2012 but by that time the First Defendant (First Respondent) had accepted the offer and comply with the two required conditions which concluded the agreement. The first Respondent had therefore acquired interest in the land for valuable consideration. The execution of the grant and the registration of the grant are just formalities to seal the acquired interest.
  8. The trial judge declared that the grant of title to the First Defendant (First Respondent) by the Second Defendant (Second Respondent) was lawful. That conclusion also means that the answer to the second issue must also be answered in the affirmative and that is, the registration is lawful.
  9. On the third remaining issue, the trial judge perused and considered Section 229 (1) (2) of the Lands and Titles Act and its effect in the light of the evidence before him. He had considered the evidence and found that there was no evidence of fraud or mistake in the registration of the title in the name of the First Respondent. He observed that the only mistake if any was, the offer made to the Appellant by the Second Respondent because the property offered has already been acquired by the time the Commissioner of Lands made the offer hence there is no property to offer and that offer to the appellants was therefore void.
  10. The trial judge finally found that the Appellants may be in possession of the land but they have not legal title to the land and are deemed trespassers. On this basis, there is no reason to order rectification of the estate in parcel number 191-016-316, he concluded.
  11. He therefore refused to make the declarations and orders sought in the amended claim and dismissed the claim.
  12. The trial judge then considered the counter-claim filed by the First Respondent and the reliefs sought therein. The trial Judge considered the circumstances of the case before him, the grounds upon which the counter-claim is based. He was satisfied and made a judgment that the counter claim succeeded in part and issued the following orders:
  13. The Appellants filed their appeal in this court against the whole judgment of the learned trial judge dismissing their Amended Claim and against the trial judge’s findings of trespass on the counter claim of the First Respondent and the consequential orders issued as a result of his findings in favour of the First Respondent.

IV Appeal Grounds

  1. The Appellant advanced the appeal on six grounds. We set out below for ease of reference.
  2. Ground 1: Holding that the Appellant’s occupation of the land in question (Parcel No. 191-016-316) amounted to trespass when there was unchallenged evidence by the then Commissioner of Lands who had verbally authorized the Appellants in 2005 to take possession of the land (Parcel No. 191-016-102 prior to sub-division) as an alternative site approved for the Appellants by the Honiara City Council and the Commissioner of Lands.
  3. Ground 2: Holding that the 1st Respondent was the first to be offered parcel No. 191-016-316 in 2011 when the Appellant were the first since 2005 to be verbally offered to occupy parcel No. 191-016-102, and the Appellants had occupied by building their family home building on parcel No. 191-016-102 prior to subdivision which then became parcel No. 191-016-316 after subdivision.
  4. Ground 3: Holding and observing that the Appellant’s occupation of land parcel number 191-016-316 amounted to trespass since they had no legal title to the land, when in fact the Commissioner of lands at that material time had authorized the Appellants to subsequently assist the Appellants with essential services.
  5. Ground 4: Failing to consider that since the Commissioner of Lands and the Honiara City Council had provided an alternative site for the Appellant in 2005, the Appellants had legitimate expectation from the Commissioner of Land and had built their family home on parcel number 191-016-102 being the same area of land which became parcel number 191-016-316 after subdivision.
  6. Ground 5: Failing to consider the overriding interest of the Appellants under section 114 (g) of the Lands and Titles Act, who are in actual possession of the land (parcel No. 191-016-316 since 2005. The facts of the Appellant’s actual possession was known to both 1st Respondent and the 2nd Respondent made an offer to the 1st Respondent by letter dated 20th November 2011.
  7. Ground 6: Holding that the grant instruments executed were merely for complying with the concluded written agreement when the court held that execution of the grant instrument is conclusive evidence of sales agreement.

V. Discussion on the appeal

  1. The appellants challenge the finding of the trial judge that they were trespassers onto the land parcel number 191-016-316 when they were authorised to occupy that land since 2005. They seek to rely on the sworn statements of Moses Waririu filed 5 December 20113 and a sworn statement of Alfred Soaki, (former) Commissioner of Lands filed 14 September 2013.
  2. We note that the sworn statement of A. Soaki is only in part. There was no transcripts of the cross-examination of A. Soaki in the Appeal Book (AB). We raised this matter with the appellants’ counsel. He informed us that he had written to the Registrar to have the complete transcripts of the evidence of A. Soaki but nothing happened. We remind counsel of the Appellants that it is part of the responsibility of counsel to ensure that the transcripts of the record of evidence are placed before the Court of Appeal.
  3. We now proceed with the grounds of appeal and we begin with grounds 1 and 2 jointly and together.
  4. The appellants contended that their occupation of land parcel number 191-016-316 did not amount to trespass because they are verbally authorised by the Commissioner of Lands to take possession of that land and they occupied since 2005 when the said land parcel was 191-016-102 before it is subdivided in 2011. They occupied that land and built their family home building on that parcel number 191-016-102 before it was subdivided and thereafter it became 191-016-316 after subdivision.
  5. At the hearing, we invited Counsel for the Appellant to take us through the statement of Moses Waririu filed 5 December 2013 and show us whether there is evidence of permission for the Appellant to occupy that land since 2005 by the Commissioner of Lands. Moses Waririu referred to verbal agreement in his statement. We perused the sworn statement of Moses Waririu and counsel referred us particularly to paragraph 6. Paragraph 6 of Mr Waririu’s statement is not evidence agreeing for the Appellants to occupy the land parcel number 191-016-102 or land parcel number 191-016-316. There is no evidence of a verbal agreement in Mr Waririu’s statement that we can see.
  6. Counsel for the Appellants referred us to the sworn statement of Alfred Soaki and in particular paragraphs 56 – 57 and 58 of his statement. That statement referred to period 2005 – 2006. It is not evidence of the Commissioner of Lands authorising the Appellants to occupy the land. That was one part of Soaki’s evidence in the sworn statement. We note that Mr Soaki was also cross-examined on his evidence and his answers to the cross-examination on his evidence in chief are not in the Court of Appeal Book and are not part of the material before the court.
  7. We note also that there are material on agreed statement of the facts that were in the Appeal Book.
  8. The notion that the Commissioner of Lands agreed for the Appellants to occupy the land was disputed. The relevant part of the agreed facts are set out below:-

Agreed Facts

(1) The Commissioner of Lands had title over Parcel Number 191-016-102 in which the Claimants occupied part of since 2005.
(2) In 2011, the Commissioner of Lands subdivided Parcel Number 191-016-102 and the Claimants were granted title over Parcel Number 191-016-320. Parcel Number 191-016-316 “the land” (which is the land in dispute in this case) remained with the Commissioner of Lands.
(3) Prior to subdivision of Parcel Number 191-016-102, the Claimant had occupied Parcel Number 191-016-316 since 2005.
(4) The Claimants and the First Defendant were applicants for grant of title over “the land” Parcel Number 191-016-316 from the Commissioner of Lands.
(5) The First Defendant was registered as owner of Parcel Number 191-016-316 on the 17th May 2012.
  1. On the judgment, the trial judge seemed to reject the evidence of Mr. Soaki and found the Appellants were trespassing on to the said land.
  2. The Appellants want this court to overturn the judgment of the trial judge on the basis of the evidence of Mr. Soaki. However, the evidence of Mr. Soaki is only in part.
  3. On the face of the evidence, the occupation of the land by the Appellants (from January 2005 – 2006) could not have occurred as Mr. Soaki said because the subdivision of the land parcel number 191-016-102 did not yet exist at the time. Mr. Soaki seemed to talk about things that do not exist yet.
  4. The Appellants seemed to occupy a plot of land and at the same time build a house on another plot of land as well.
  5. The next question is, was there evidence in Mr. Soaki’s sworn statement allowing the Appellants to build a house? The Appellants may have had the intention to build a house. However, was the Commissioner of Lands permitting the Appellants to go build a house? There was no evidence of that in the statement of Mr. Soaki. The Appellants never at any time have in possession of the title to land in Parcel Number 191-016-102 or 191-016-316 at all times. Their occupation of land was therefore deemed illegal, as the title to the land was held by the Commissioner of Lands and later after subdivision the disputed land was transferred and held by the First Respondent. The Appellant since 2005, have resided on the said land illegally without having the title of the land registered under or in their names or even in possession of the title over the said title. On the evidence (sworn statement of Abel Viuru filed 10 February 2014), as found by the trial Judge, the offer to the Appellants was second in time. It would be deemed illegal as there was already an offer made to the First Respondent earlier and he had paid all the requisite fees on 2 December 2011. In essence, there was no vacant land to offer to the Appellants on 12 January 2012. The second offer was a mistake by the Commissioner of Lands. It cannot be facilitated to registration. It is void. The trial Judge was correct in his findings and conclusions.
  6. Grounds 1 and 2 of the appeal are refused and dismissed.
  7. We proceed with grounds 3 and 4 jointly and together.
  8. We note points 1, 2 and 3 of the above agreed facts that:
  9. In the agreed facts there is no agreed facts that:
  10. The evidence establish that the Appellants were trespassers on the land Parcel Number 191-016-316. As trespassers on the said land, they could not assert that they had legitimate expectation from the Commissioner of Lands when they had built family homes on the land without permission from the Commissioner of Lands. They occupied and built houses on Parcel Number 191-016-316 at their own risk as they did not have grant of title to that land.
  11. Grounds 3 and 4 cannot succeed. They are dismissed.
  12. We also joint grounds 5 and 6 together.
  13. The Appellants assert overriding interest under s. 114(g) of the Lands and Titles Act as they were in actual procession of Parcel Number 191-016-316 since 2006.
  14. The submission and assertion in ground 5 of the appeal are not right. Trespassers do not have overriding interests under section 114(g) of the Lands and Titles Act.
  15. In ground 6, the grant instrument executed by the Appellants was never completed for land Parcel Number 191-016-316 but they have completed for land Parcel Number 191-016-320. It should be noted that the Appellants were never at any time given any approval to construct any permanent structure or building at the land Parcel 191-016-316. Appellants were given permission to erect temporary structures only by the City Council but not the Commissioner of Lands pending approval after subdivision or when development planned is completed.
  16. The Appellants instead go ahead and construct permanent building while they do not possess any legal title to the land. It is noted that the First Respondent was the one who had applied for a fixed term estate in Parcel Number 191-016-102 way back on 22 October 2003 and was given approval on 27 October 2003 before the Appellants. The title to the land was given to the First Respondent by the Commissioner of Lands. There were other individuals also who have applied for a Parcel Land in fixed term title in Parcel Number 191-016-102. The Appellants and First Respondent were not the only interested applicants for a parcel in parcel land number 191-016-102.
  17. In this case, the trial judge was right in granting orders against the appellants to remove any building or structure from land in Parcel No. 191-016-316 and order for the First Respondent to take possession of the said land.
  18. Grounds 5 and 6 cannot be successful. They are dismissed.
  19. We confirm the judgment and orders of the trial judge in the court below.

Result

  1. The appeal is dismissed.
  2. The First and Second Respondent are entitled to their costs in the Court of Appeal and such costs shall be agreed or assessed on the standard basis.

.........................................
Goldsbrough P
.........................................
Ward JA
.........................................
Lunabek JA


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