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Natei v HHD Development Ltd [2023] SBCA 25; SICOA-CAC 9032 of 2022 (13 October 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Natei v HHD Development Ltd


Citation:


Decision date:
13 October 2023


Nature of Jurisdiction
Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)


Court File Number(s):
9032 of 2022


Parties:
Patterson Natei and Dickson Vau, Wilson Tolongea, Hendry Teleu, Jimmy Ramo, Steve Melive, Steve Laore, Mary Poniga, Simon Moli and Mathias Utupia v HHD Development Limited


Hearing date(s):
3 October 2023


Place of delivery:



Judge(s):
Hansen, President (Ag)
Palmer, CJ
Gavara-Nanu, JA


Representation:
B Upwe for the First and Fifth Appellants
Kwaiga L for the Sixth and Eighth Appellants
J Soaika and W. Rano (Assisting) for the Respondent


Catchwords:
Rights of owner of Fixed-Term Estate, Overriding Interests, Actual Possession, section 114 (g) LTA and Acquisition by prescription, Adverse possession section 224 and 225 LTA, summary judgment


Words and phrases:


Legislation cited:
Land and Titles Act S 225 (8) (b)


Cases cited:
Beti v Kama [2014] SBHC 13, General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69, Sevona Development Co Ltd v New Venture Ltd [2022] SBCA 27, AG and Others v Jui Hui Chan [2017] SBCA 5


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Dismissed


Pages:
1-17

Judgment of the Court

  1. This is an appeal by the Appellants against the Orders of the High Court dated 23 September 2022, in which the Court below granted summary judgment against the defendants (Appellants) and issued orders inter alia as follows:
    1. Grant immediate possession to the Claimant (Respondent in this Appeal) over the Fixed-Term Estate in Parcel Number 192-004-379;
    2. Damages for mesne profit to be assessed, if desirable; and
    3. Costs to be assessed if desirable.
  2. The first and fifth Appellants are represented by Mr. Upwe, and the sixth and eighth Appellants by Mr. Kwaiga. The Respondent is represented by Jillian Soaika and Wilson Rano.

Brief background.

  1. This dispute is about ownership of the fixed-term estate in parcel number 192-004-379 (hereinafter referred to as “Parcel 379”) and rights of eviction which flow from that.
  2. Parcel 379 was initially part of a bigger parcel of land, Parcel Number 192-004-68, but was then sub-divided into several lots and given parcel numbers. It is not in dispute that Parcel 379 was owned by Pacific Seg Corporation Ltd (“Pac Seg”).
  3. It is also not in dispute that there have been several attempts by Pac Seg since to evict the Appellants from its land. The first attempt was in or about 2005 when according to the sworn statement of Andy Leung, efforts were made to serve notices and have people living on the land at that time to vacate the property.[1] This included issuing a letter and having it delivered to all those residing on the land[2]. The letter is dated 22 February 2006.
  4. That was the first attempt by the company to have all persons residing on the land to be removed.
  5. On 10th April 2006, legal proceedings were instituted in the Magistrates’ Court to remove all those residing on the land at that time. Those named were the Boliko family, the Teleu family and the Paniga family. That apparently was the second attempt to have those residing on the land removed. In terms of the institution of legal proceedings, that was the first time although it was commenced in the wrong court.
  6. On receipt of legal advice, that claim was discontinued and a fresh claim instituted in the High Court. That claim is marked Civil Claim No. 189 of 2006. The names on the list are set out in detail in the claim, a copy of which is set out at page 62 in the Appeal Book.
  7. It is relevant to note what Mr. Leung states in his statement at page 10:
At paragraph 11, he continued:
At paragraph 12, it is notable that he states:
  1. Patterson Natei is the First Appellant, Dick Vau the Fifth Appellant and Wilson Tolongea the Sixth Appellant.
  2. Mr. Leung’s sworn statement continues at paragraph 15: “Throughout the proceeding I did not come across Mr. Patteson Natei, Dick Vau and Wilson Tolongea. Nor have I been advised that they had an agreement with the Company or any of its Directors.”
  3. At paragraphs 16, 18, and 19 of his sworn statement, he notes in particular, the lack of information or evidence of any association or agreement, with those three Appellants by his father or late Patrick Leung and concludes that those three persons may not have been truthful about their assertions or claims of occupancy on the land.
  4. It is important to note that this is clear and direct evidence against the claims of the appellants that they were resident on the property during that time.
  5. We will re-visit this notable evidence later as to whether they have been rebutted in evidence.
  6. Judgment was entered against the Defendants on the 2nd February 2006.
  7. The third claim commenced in the High Court was civil claim 474 of 2016. That claim included the First, Fifth and 6th Appellants and others and their families.
  8. On the 20th March 2017, title of the registered land was transferred to HHD Development Ltd, the current Respondent in this appeal.
  9. A fresh claim was then instituted by HHD Development Ltd and on the 7th August 2018 a further amended claim was filed. This included the current 1st, 5th, 6th and 8th Appellants as Respondents.
  10. On the 19 October 2020 the Claimant applied to have preliminary issues of law to be determined and summary judgment to be issued.
  11. This was listed and heard, and judgment delivered on 23 September 2022 granting summary judgment against the Respondents.

The Appeal.

  1. This appeal stems from that decision of the Court to enter summary judgment against the Appellants (Defendants).
  2. There are three grounds of appeal filed against the orders of the Court below (Keniapisia J.). These are set out as follows:
  3. These will be dealt with together as the issue in this appeal is that the matter should not have been dealt with by way of summary judgment, but rather should have been allowed to proceed to a hearing or trial.
  4. The application for summary judgment has been further compounded by an application as well for determination of preliminary points of law and facts.
  5. Both appeals of the 1st and 5th Appellants and 6th and 8th Appellants will be dealt with together as they all rely on the same appeal grounds that have been filed.
SUMMARY JUDGMENT – Rules 9.57, 9.59, 9.60 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
  1. An application for summary judgment is dealt with in Rules 9.57, 9.59 and 9.60 in the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Civil Procedure Rules”). These provide as follows:
  2. An application for summary judgment is premised on the submission that there is no triable or arguable issue that has been raised in the defence to go to trial. In other words, that the defendant does not have any real prospect of defending the claim.
  3. In Beti v Kama [2014] SBHC 13; HCSI-CC 429 of 2012 (4 February 2014), Apaniai J. said at paragraph 13 of his judgment:
  4. In Sevona Development Co Ltd v New Venture Ltd [2022] SBCA 27; SICOA-CAC 6 of 2021 (28 November 2022), this Court re-stated the position regarding summary judgment as follows, at paragraph 11:
  5. In this case, it is that there is no prospect of any part of the defence succeeding.
  6. If there are any triable issues or live issues for determination before the court, the matter should be allowed to progress on to hearing or trial.

Preliminary Issues of Fact and Law – Rule 12.11 of the Civil Procedure Rules.

  1. In conjunction with the application for summary judgment, two issues were agreed in the Court below for determination. These formed the basis for an application for determination of preliminary issues of fact and law under Rule 12.11 of the Civil Procedure Rules. Rule 12.11 provides:
  2. Rule 12.12 provides for the hearing of the question of law where the parties have agreed on the facts:
  3. The two issues identified for determination were:
  4. The first issue of overriding interests by actual occupation, based on an “oral agreement”, however had been separately disposed of by the court on 4 September 2020 (see page 366 of the Appeal Book). That decision has not been appealed and so was no longer a live issue for consideration by the Court during that hearing.
  5. The only issue left for determination which the Appellants’ case turned on was that of adverse possession, asserting peaceable, overt and uninterrupted possession for a period of 12 years under section 224(1) of the LTA.
  6. It was that issue which was rightly considered in detail by the trial judge in his judgment, and noting at paragraphs 7, 8, and 9 the following facts.
    1. He noted that the represented defendants had been living and occupying parts of the property since 2003/2004.
    2. He noted that the company Pac Seg owned Parcel 379 and that the ownership had been transferred in 2017 to the Respondent (HHD Development Ltd).
    3. At paragraph 8, he noted that there were three attempts made by Pac Seg to have the defendants evicted from the land. This being a civil case brought in the Magistrates’ Court civil case number 26 of 2006, filed 10th April 2006, the second one before the High Court in civil case no. 198 of 2006 filed on 16th May 2006 and the third one in 2016 but which was discontinued when the property was sold to the Respondents.
  7. In 2017, the current civil claim was commenced by the Respondent in the High Court in civil case no. 189 of 2017. That case is now on appeal before this court.
  8. In his judgment, the trial judge dealt with the issue of adverse possession in detail from paragraphs 10 – 24 before concluding that there are no rights in law capable of being sustained in the defence relied on by the defendants (Appellants in this appeal) and that the position will not change even if a trial was convened. The uncontested facts as set out in the evidence before him was overwhelmingly in favour of the claimant (Respondents). He found in favour of the Claimant and proceeded to enter summary judgment against the defendants.

The effect of section 225(8) (b) of the Land and Titles Act.

  1. It is important to note that paragraph 225(8) (b) of the LTA provides an exception where possession may be interrupted if inter alia, legal proceedings are instituted. Paragraph 225(8)(b) states:
    1. by physical entry upon the land by any person claiming it in opposition to the person I possession with the intention of causing interruption if the possessor thereby losses possession:
    2. by the institution of legal proceedings by the owner of the estate or lease to assert his right thereto; or
    1. by any acknowledgment made by the person in possession of the land to any person claiming to be the owner of an estate therein or lease thereof that such claim is admitted.”
  2. Paragraph 225(8) (b) is very clear about claims of adverse possession being interrupted by the institution of legal proceedings. That said, even if there had been occupation as early as 2003 by these appellants (which is denied), any claims of possession would have been interrupted by the two legal proceedings, in the Magistrates’ Court and in the High Court subsequently. Any rights or claims for adverse possession would accordingly have been interfered with.
  3. We note from the materials before the court that apart from an assertion by Patterson Natei (1st Appellant) in his sworn statement filed 20 September 2017, (see pages 26 and 27 of the Appeal Book), there is no direct evidence to rebut the clear and specific evidence adduced by the Respondent that those Appellants were not in occupation, or residing on the land as claimed by them from 2003 or thereabouts. Mr Leung in his sworn statement expressly states, and not rebutted, that those named in the civil suit, were those who were residing on the property at the time the claims were instituted. They say accordingly that on the clear and uncontested evidence before the court, there is no direct evidence that the Appellants were residing on the said land as asserted, from 2003 thereafter.
  4. We note that while the trial judge’s finding was to the effect that they may have been residing there we do not find that to be supported by the evidence.
  5. In any event, the orders of the judge to have summary judgment entered against the defendants to be correct and cannot be faulted on the material before him.
APPEAL GROUND 1. (1) The Court below erred in law and in fact in exercise of its discretion to decide the question of law “along with relevant facts” in considering the two questions for preliminary point of law, whereas this relevant facts should be determined in advance of the two questions of law, thus breached one of the requirements or guidelines set in AG and Others v Jui Hui Chan [2017] SBCA 5, SICOA- CAC 36 of 20216 (5 May 20217) (“Jui Hui Chan’s case”).
  1. In his submissions, Mr. Upwe for the 1st and 5th Appellants and supported by Mr. Kwaiga for the 6th and 8th Appellants, sought to rely on the decision of this Court in the case of Attorney-General v. Jui Hui Chan[3], in which this Court discussed the question of dealing with preliminary points of law, and in particular citing paragraph 31 of the judgment.
  2. This court discussed in that case in some detail, the provisions of Rule 12.11 of the Civil Procedure Rules, which give the court power to hear preliminary issues of fact or law as agreed to between the parties, and which may result in the early resolution of the case, or costs or issues in dispute narrowed down for determination at trial.
  3. Rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provides –
  4. This Court then went on to say in paragraphs 31 and 32 in that case as follows:
  5. In their submissions, both Counsel Mr. Upwe and Kwaiga sought to argue that the Court below erred when it proceeded to hear submissions on the issue of law and the relevant facts before it. They say where there were factual issues at large or yet to be determined as in this case, the matter should not have been determined by way of resolution of the preliminary issue of law.
  6. This appeal ground however is misplaced. Once the issues of law are agreed upon, the court is entitled to rely on the evidence that is before it to make a determination on the facts that apply to it. We simply do not understand why counsel should say that this approach which the court below adopted amounted to an error in fact or law.
  7. The court below did consider carefully the issues of fact that had been raised as they apply to the questions of law before it and the evidence adduced before it before making its determination.
  8. The issues of fact which counsel sought to rely on, one of which is the date when the Appellants settled at the property had been clearly addressed in the evidence before the court in the sworn statements filed.
  9. We are satisfied this appeal ground should be dismissed.
APPEAL GROUND 2. The Court below erred in its finding which is against the weight of the evidence when the Judge made the finding that the 1st, 5th and 6th Appellants were considered together with the defendants as being parties of Civil Case No. 26 of 2006 in the Central Magistrates Court, High Court Civil Case No. 198 of 2006, where the 1st , 5th and 6th Appellants are not parties of and that High Court Civil Case No. 474 of 2016 which was initiated but was discontinued on the 10th July 2017 when the respondent became the new owner of the subject property, hence the 1st , 5th and 6th Appellants should be treated differently because they were not affected by the proceedings intended to assert its right to FTE 192-004-379 pursuant to section 225 (8)(b) of the Land and Titles Act on the basis that the 1st , 5th and 6th Appellants occupied land for 12 straight years.
  1. We are satisfied this appeal ground too should be dismissed as it misconstrues the purpose and intent of paragraph 225(8) (b) of the LTA regarding the effect of the institution of legal proceedings. When the owner of the estate or lease institutes legal proceedings to evict the Appellants and those residing illegally in his property, it is notice to the world of his rights of ownership over the property.
  2. The fact that the Appellants may not have been named in those earlier proceedings is immaterial since they too would have had notice if they were present on the land (which is denied), that the Claimant was taking express steps to assert his rights of ownership over the property in 2006, 2016 and 2017.
  3. It is pertinent to note that paragraph 225(8) (b) is premised on the fact of the institution of legal proceedings by the owner of the estate or lease, to assert his right over the property. Once legal proceedings have been instituted and established as a fact, any claims of adverse possession are dislodged. That is the effect of legal proceedings having been instituted in the Magistrates’ Court and the High Court.
  4. It is for the Appellants (Defendants) in the Court below to show by evidence that somehow their case does not come under the provisions of that section. They have not done so. We are satisfied the Judge accordingly was correct in his finding on this issue.
APPEAL GROUND 3. The Court below erred, when it exercises its discretion that there are sufficient evidence to terminate the matter early, however, at paragraph 25 of the Ruling, the lower Court erred when dealing with an outstanding issue in relation to enforcement of High Court Civil Case No. 85 of 2018 to be investigated at trial or through another interlocutory application but yet concluded that the matter be terminated early. The outstanding issue implies that there is an issue for trial hence the early termination of the proceeding is not proper.
  1. We are satisfied this appeal ground is without merit and is frivolous and vexatious and ought to be dismissed. The comments by the judge on negligence and damages (compensation) are obiter, irrelevant and would have no bearing in this case where summary judgment had been given in favour of the Claimants (Respondents in this appeal).
  2. We do not understand how his obiter remarks which relate to a totally separate case (Civil Case No. 85 of 2018), have any bearing to the current case before him.
  3. Once summary judgment is entered, that is the end of litigation in that case, apart from the question of costs. The court becomes functus officio and cannot then take upon itself to consider anything beyond.

Conclusion and Decision.

  1. The appeal should be dismissed with costs.
  2. On the issue of costs, we form the view that this should be awarded on indemnity basis as the grounds relied on in this appeal should have been obvious from the outset that they lack substance and merit in law and facts. Accordingly costs is awarded in favour of the Respondent on indemnity basis to be taxed if not agreed. This is to be borne in equal shares by the Appellants.

Orders of the Court:

(1) Dismiss appeal.
(2) Uphold orders of the court below.
(3) Award costs in favour of the Respondents to be borne by the Appellants in equal shares.

Hansen (P)
Palmer (CJ)
Gavara-Nanu (JA)

[1] see paragraphs 6 – 8 of the sworn statement of Andy Leung filed 8 November 2017 (page 48 of the Appeal Book).
[2] see page 56 of the Appeal Book.
[3] [2017] SBCA 5, SICOA – CAC 36 of 2016

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