HDD Development Ltd v Vaike [2023] SBCA 7; SICOA-CAC 23 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	HDD Development Ltd v Vaike
Citation:
Decision date:	28 April 2023
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Keniapisia, J)
Court File Number(s):	23 of 2022
Parties:	HDD Development of Limited v Commines Vaike
Hearing date(s):	21 April 2023
Place of delivery:
Judge(s):	Goldsbrough P Hansen JA Wilson JA
Representation:	Rano W and Soaika J for the Appellant Kwaiga L for the Respondent
Catchwords:
Words and phrases:	Land and Titles Act Prescriptive rights S: 114 (g) rights Status of Parties
Legislation cited:	Land and Titles Act [cap 133] S 114 (g) and (i), S 224 and 225 (1)
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-13

Judgment of the Court

1. This is an appeal from a judgment of Keniapisia J dated 8 July 2022. There is a related judgment on a summary judgment application delivered by the same Judge on 8 October 2021. We will need to refer to a limited degree to both judgments.
2. There are a number of issues relevant to the appeal that are unclear or confused. With proper attention to the rules of pleading, this would not have occurred. As far as we are able, we will identify and clarify them.

Background facts

3. Levers Solomons Limited (LSL) were the owners of a large palm plantation to the south of Henderson Airfield on Guadalcanal. At the time of the tension, large numbers of settlers and squatters appear to have moved in. That is only relevant to this appeal as a matter of background information. In March 1999 the named respondent (defendant below) received an offer from LSL to sell to them land known as Lot 402. This is established by an offer letter of 4 March 1999 from Russell Islands Plantations Estates Limited, the predecessors of LSL. (AB 46). On 11 March 1999 the defendant paid a deposit of $4000 plus additional $100 for the identification of the subject land at Lot 402. Receipts for those payments were produced (AB 48). An agreement was entered into on 10 May 1999 between LSL and Commines Vaike for the parcel number 192-004-137. It is to be noted throughout we are dealing with registered land.
4. A signed copy of the agreement was forwarded to Commines Vaike on 26 May 1999. (AB 51). The purchase price is $14,076, calculated at a rate of $12,000 per hectare or part thereof together with survey fees of $1085. A 50 per cent deposit was to be paid by the vendor, and the balance was to be paid by bank cheque on completion. Paragraph 6 of the agreement states that completion shall take place at the office of the vendor’s solicitor within 30 days from the date the subdivision of the land is registered or from the date the Commissioner of Lands gives his consent to the transfer, whichever is the later. Lot 402 is shown in a plan produced (AB 94). On the current evidence all we can note is that document appears to have been produced on 12 April 2018. We assume, to the Registrar of Lands but again, on the evidence, it is not clear. There is also no evidence that the terms of the agreement were kept by either party.
5. On the face of the contract, there is no right of possession until completion. It is to be noted that the only sum paid, of $4000, is less than the 50 per cent deposit provided for, and it is common ground that from that date forward until 2018 no efforts were made by Commines Vaike to settle the transaction or to attempt to enforce the contract in any way. It seems no further payments were made. It also seems apparent that for much of this period LSL did nothing either.
6. What is clear, however, from the evidence of Commines Vaike’s daughter, Maybellyn Vaike, is that after the payment of the $4000 and the signing of the agreement, Commines Vaike, along with his family, occupied Lot 402. This appears to have occurred in mid-1999. We are also satisfied on the state of the evidence that LSL acquiesced in this occupation by Commines Vaike, although the exact nature of the right of possession being claimed is unclear. What is important, because of the way this case has developed in front of the judge, is that it was with acquiescence by LSL.
7. The property was developed with buildings, cultivation, fruit trees and such, and over time Commines Vaike himself (we will return to his death), and other family members have been buried on the land. The photos in the Appeal Book establish this, and it appears to be common ground.
8. Over the years there appear to have been changes to the shareholding and directorship of LSL, although the exact details of that do not appear in the material before this Court. The current relevant directors, Messrs Salopuka and Morris Mae were appointed in 2017. Mr Salopuka was responsible for matters relating to land, and he and the company decided in or around 2017 to sell off land that they owned in the area in question. In his Sworn Statement he says he accompanied a survey team to the area, and it was apparent the area was occupied by settlers living in semi-permanent houses. He said their security offices notified the settlers on the block of land on several occasions of the intention of LSL to sell it. He said LSL persistently issued notice to settlers to call into their office if they had any interest or dealings on the land. He said none of the settlers came forward, and in or around early 2018 a notice was published in the Island Sun and Solomons Star newspapers, notifying the public of the intention to sell this land.
9. He said he has never seen the contract between Commines Vaike and LSL. But he did say the previous general manager, a Mr John Whiteside, who managed LSL over the relevant period, did not disclose any of these documents and due to an argument over unpaid wages refused to release any documents he held. He said for that reason he saw the Vaikes as occupying Lot 402 as squatters.
10. In a sworn statement of a director of the HHD^[1], Pau Siew Hong, it is stated that the fixed term estate previously owned by LSL was transferred to the claimant on 24 May 2018. He says he was told prior to purchase that the occupants on the land were illegal settlers and squatters and that, understanding the risks associated with the sale and purchase of land in the Solomons, he caused a title search of the Registry and discovered the land was free from all encumbrances. He also said that LSL assured him that the 5 Lots purchased were free from any third-party instruments. The five lots were purchased for $800,000 per lot. (AB 116)
11. There is then evidence that, on hearing of the sale, Maybellyn Vaike approached Mr Mae of LSL and said that her father had a contract to purchase the land dating back to 1999 and that they had paid the deposit. She says she supplied him, as attachments to an email, copies of the relevant contract and receipt referred to earlier. Receipt of this documentation is denied by Mr Mae.

The proceedings

12. The proceedings before the Court were commenced by a Category A claim lodged on 17 April 2019. It alleges that the respondent, said to be Commines Vaike, unlawfully occupied the land as a trespasser and the claim sought immediate possession of the fixed term estate in parcel 192-004-137. A Defence was filed on 16 July 2019. That Defence claims an overriding interest under s 114 (g) and (i) of the Land and Titles Act (Cap. 133) and then recites the details around the sale and purchase agreement. It alleges that Maybellyn Vaike, the daughter, approached Mr Morris Mae of LSL, who told her if she paid the outstanding sum under the agreement there would be a consent to transfer. It is alleged that because of the defendant’s continuous occupation of the land since in or around April 2000 he had a legal interest by way of prescription and was not an unlawful occupier. It pleads the defendant’s interest overrides the later registered interest of the claimant.
13. There was a Request for Further and Better Particulars, and that confirms the interest claimed as pursuant to 114 (g) and 114(i) of the Land and Titles Act. It also confirmed that there was a caveat lodged on 20 August 2018. That document, lodged by Maybellyn Vaike, claims a legal and equitable interest over the FTE in 192-004-137 consequential upon the agreement and the partial payment, and the continued occupation. On its face it is a personal claim by Maybellyn Vaike.
14. On 1 December 2020, a sworn statement of Maybellyn Vaike was filed and, for what appears to be the first time in the proceedings, there was reference to the fact that, her father Commines Vaike, had died and that she had been granted Letters of Administration in respect of his estate. It is apparent from that document that Commines Vaike died on 4 July 2017. It is unclear why this was not advised earlier.
15. Following that, there was an application for Summary Judgment which was said to be allowed in part and dismissed in part. There was the trial and the judgment appealed against.

Commines Vaike

16. Almost without exception throughout the proceedings, the respondent is described as Commines Vaike. The exceptions are the intituling to the Summary Judgment decision where the defendant is said to be Maybellyn Vaike, and in the final judgment as Maybellyn Vaike and family. It is not clear from this latter intituling if that is Maybellyn Vaike and her family or the broader Vaike family, the descendants of Commines.
17. This is not just an academic pleading point. It is a matter of some moment in this case. It appears neither the Judge, nor counsel, have turned their minds to it. There are positive defences advanced in the defence, confirmed in the Further and Better Particulars relating to personal claims that would attach to Maybellyn. Also, in the Defence and in the caveat, there are matters raised that are said to give rise to legal and equitable interests in the land connected to and arising from the sale and purchase agreement. The only right to claim in relation to the Agreement vests in the Estate of Commines Vaike through the duly appointed Administrator. It may well be that Maybellyn needs to be a party, both in her personal capacity and as the administrator of her late father’s estate. That needs to be clarified if this matter moves forward.

Judgments

18. We have read both judgments closely. We find it difficult to ascertain the factual and legal findings made. With the greatest respect to the Judge, there is little point in trying to completely unpack and understand his reasoning in this case, except to some limited degree to which we will turn. Rather, it is important to identify the true issues in this case and, given that we will be allowing this appeal, how they will need to be resolved.
19. In the Summary Judgment proceeding, the Judge said Maybellyn Vaike was not privy to the purchase agreement, and he entered Summary Judgment against her on any interest connected to the purchase agreement with LSL. He seems to be oblivious to the fact that she was the administrator of Commines Vaike’s estate. He does not appear to have considered the terms of the Defence, the Answer to Further and Better Particulars and the caveat. He ignores the Letters of Administration that were before the Court. To some extent, given the matters we raised above regarding intituling, we have some sympathy for the Judge. But there was no basis in law or fact to rule that the agreement for sale and purchase could not be considered in the substantive trial of this matter if the Estate Commines Vaike was a party.
20. His decision in that regard is compounded when one turns to the final decision that is appealed against where, having ruled nothing relating to the purchase agreement will be considered at trial, he relies on that agreement for certain of his findings. (Paragraph 9 of the judgment.)

Prescriptive rights

21. This matter is covered by Part XXIII of the Land and Titles Act (Cap. 133). For present purposes the relevant sections are 224 and 225(1):
    • Acquisition of land by prescription
    • 11 of 1977, s.2
    • 224-(1) The ownership of an estate or a registered lease may be acquired, subject to Part VII, against the person registered as the owner of the estate or the lease, as the case may be, by peaceable, overt and uninterrupted adverse possession of the land comprised in the estate or lease for a period of twelve years:
    • Provided that -
      • (a) the interest acquired in the land by virtue of this section shall be the owner against whom the adverse possession occurs; and
      • (b) no person shall so acquire the ownership of any estate or lease in any land vested in or owed by the Commissioner or a local authority.
    • (2) Any person claiming to have acquired an estate or lease by virtue of the provisions of the sib-section (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to High Court for an order that he be registered as the owner thereof.
    • Principles of adverse possession
    • 225.- (1) For the purpose of section 224 -
      • (a) possession of land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of estate or lease from whom the owner of the lease derives title;
      • (b) where land is subject to a lease the receipt of the rent and profits of the land by any person who is not the lessor for the time being or a person authorised by him shall be deemed to be adverse possession against the lessor; and
      • (c) possession of a claimant shall not qualify as adverse possession unless it is possession of the claimant in person or is deemed to have been such possession by the following provisions in this section.
    • (2) Where it is shown that a person has been in possession of land, or in receipt of the rents or profits thereof at a certain date and is still in possession or receipt thereof, it shall be presumed that he has, form that date, been in continuous possession of the land or in continuous receipt of the rents or profits until the contrary is shown.
    • (3) Possession of land or receipt of the rents or profits thereof by any person through whom a claimant derives his title shall be deemed to have been possession or receipt of the rents of the rents of profits by the claimants.
    • (4) Adverse possession be a succession of persons not claiming through one other shall not be deemed to be uninterrupted adverse possession within the meaning of section 224.
    • (5) Where from the relationship of the parties or from other special cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the possession of that other.
    • (6) If a person whose possession of land is subject to conditions imposed by or on behalf of the owner of an estate therein or lease thereof continues in such possession after the expiry of the term during which such conditions subsist without fulfilling or complying with such condition and without any exercise by the owner of his right to the land, such subsequent possession shall be deemed to be peaceable, overt an interrupted adverse possession for the purpose of section 224.
    • (7) For the purpose of sub-section (6) -
      • (a) a tenancy at will shall be deemed to have determined at the expiration of a period of one year from the commencement thereof unless it has been previously determined;
      • (b) a tenancy from year to year or other period shall be deemed to have been determined at the expiration of the first year or other period.
    • Provided that where any rent has been subsequently paid in respect of the tenancy, it shall be deemed to have determined at the expiration of the period for which the rent has been paid.
    • (8) Possession shall be interrupted -
      • (a) by physical entry upon the land by any person claiming it in opposition to the person in possession with the intention of causing interruption if the possessor thereby losses possession:
      • (b) by the institution of legal proceedings by the owner of the estate or lease to asset his right thereto; or
      • (c) 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.
    • (9) No person possessing land in a fiduciary capacity on behalf of another shall acquire be prescription any title to the land as against such other.
22. For prescriptive rights to arise from possession it must be adverse possession, i.e., possession “without the permission of the person lawfully entitled to possession”.
23. As we said above, it is clear in this case that LSL acquiesced in Commines Vaike’s occupation, so this essential trigger for prescriptive rights by way of adverse possession simply does not arise.
24. On the evidence before this Court, it is impossible to determine the exact nature of the right enjoyed by Commines Vaike. But subject to the contract, any such right, as a personal right, would not survive Commines Vaike. Furthermore, any right he would have pursuant to s 114 is a personal right and would not survive him.
25. We do consider the estate of Commines Vaike could put forward a claim based on that contract and partial performance by the payment of the $4100. Other claims may arise because of the interaction between Maybellyn Vaike and the directors of LSL. However, we do recognise the difficulties a claim in contract, or any other legal right, would face given the extraordinary delay since 1999. It needs clarity of pleading and evidence.
26. Another important point at this juncture is the conflict in the evidence relating to any notice the appellant may have had of the rights of the Vaike family. The LSL directors say they told HDD of the position. HDD say they were not informed. That is a matter of which clear evidence will have to be called, cross-examined on and determined by the trial Judge.
27. We find the Judge’s conclusion that the registered interest of LSL became extinguished by limitation of action to be incomprehensible. First, because the prescription point does not arise as there is no adverse possession, the limitation arguments below become irrelevant. Secondly, LSL were on the title, and we are unclear on what legal basis the Judge came to say he could simply expunge them from that title or register some interest attaching to Estate Commines Vaike or Maybellyn Vaike personally. Third, it is unclear on the evidence that the requirement to complete ever arose.
28. It would seem clear to us that any claim under s 114(i) fails because of the prescription point noted above.
29. We are satisfied any rights claimed pursuant s 114(g) from the date of occupation to be a right granted to the Estate of the late Commines Vaike. Any right would die with him. So, any rights now claimed by the Maybellyn personally, will reflect quite a short period of actual occupation. That may prove problematic, but we say no more about it.
30. That is not to say a claim by the Estate, based on rights in contract or other legal basis arising from LSL’s acquiescence, could not be brought, subject always to the Limitation Act.

The way forward

31. While there are positive defences asserted in the Defence, reiterated in the Further and Better Particulars, we are somewhat surprised that there has been no counterclaim filed. It would also seem that the claimed equitable and legal rights in the land pursuant to the agreement as set out in the caveat, would require a positive pleading.
32. There will need to be amendments to the pleading to make it quite clear in what capacity Maybellyn Vaike is involved (noting it may be personal, or as an executor of her father’s estate, or both). Given the present value of the land, the estate could well have more than a passing interest.
33. There is the potential that LSL may have to be added as a defendant, which will complicate matters further.
34. However, what needs to be addressed in the pleadings and the evidence for determination by the trial Judge is in what capacity Maybellyn is involved; the nature of the interest that arose when LSL acquiesced in Commines Vaike taking occupation of the property; what rights are maintained on behalf of the estate, and by Maybellyn, in her own right; and what is the interest that can be established under s 114(g).

Disposition

35. We allow the appeal and set aside the order below. We think it sensible to timetable for this matter as follows:
    1. The necessary documentation to clarify the status of Maybellyn Vaike in these proceedings is to be filed within 14 days.
    2. Any application to join Levers Solomon Limited is to be filed within 14 days thereafter.
    3. Any amended defence and/or counterclaim is to be filed 21 days thereafter.
    4. Defence to the counterclaim 21 days thereafter.
    5. The matter is then remitted to the High Court for directions for trial to be made.
36. Given the unfortunate state of this matter of the file, we think the appropriate order for costs of the appeal is that they should be costs in the cause of the ultimate disposal of the matter.

Goldsbrough P
Hansen JA
Wilson JA

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^[1] It seems that throughout these proceedings, both HDD and HHD are used to refer to the same entity. The claim was brought in the name HDD but in parts of the evidence, is it called HHD. The spelling used in this judgment reflects the context in which it is found.