Bird v Registrar of Titles [1980] SBHC 6; [1980-1981] SILR 47 (22 July 1980)

[1980-1981] SILR 47

IN THE HIGH COURT OF SOLOMON ISLANDS

Land Registration Appeal Case No. 4 of 1980

BIRD AND OTHERS

v

THE REGISTRAR OF TITLES

Land Registration Appeal Case No.4 of 1980
(Daly CJ)

22nd July 1980

Alienated land - Application for registration of transfer - Objection - s. 213 of the Land Titles Act (Cap 93) - Appeal against Registrar’s rejection of an objection to registration - hearing de nova.

Alienated land - Objectors to an application for registration of transfer on appeal seeking registration of their own title acquired by adverse possession - s. 204 of the Land and Titles Act (Cap 93).

Voluntary conveyance - whether consideration necessary in the Solomon Islands to render enforceable a voluntary disposition under seal in 1938 - Para 20 of the Pacific Order in Council 1893.

Applicable law - Prescription and limitation of action Solomon Islands Independence Order 3rd Schedule - Substance of the law in force in England prior to 1961 - English Limitation Act 1939. Prescription - acquisition of title against a registered owner - Applicable law in the Solomon Islands Limitation Act 1939 (English) Part XX of the Lands and Titles Act 1959 (Cap 56).

Dispossession - occasional visits to land to collect coconuts and clear the bush 2 or 3 times per week - insufficient evidence of dispossession - occupation of land in parallel with the Registered Owners.

Facts:

Alice Cant Anissi and Frank Mulvey applied for registration of transfer of title to them of Warata Island, Marovo Lagoon, Sheet 8/158/9 of Series X711 Maps of Solomon Islands. The Land was alienated and a conveyance in 1921 was registered in the name of Harry Clennett’s. He died in 1929 and his family were removed from the land by Arthur Cant who with Harold Markham subsequently bought the land from Harry Clennett’s administrator and became the registered proprietors on 6th May 1932.

By a deed of Gift made the 21st September 1938 and registered on the 29th December 1939, the property was transferred to Alice Cant and Lily Evalu Mulvey who on the 22nd July 1977 applied to the Registrar of Titles to be registered as proprietors of Warata Island. To this application the present appellants objected, they being the descendents of Harry Clennett. Two points were taken, that the 1938 voluntary conveyance under seal failed to transfer any estate in the land for want of consideration, and that the appellants had acquired a title by adverse possession against Alice Cant and Lily Evalu Mulvey whose title became unenforceable against them and who were thus barred from being registered as proprietors.

Held:

1. That paragraph 20 of the Pacific Order in Council of 1893 rendered English Law applicable in the Solomon Islands in 1938 and that in the circumstances a voluntary conveyance executed under seal need have no consideration passing to make it enforceable.

2. The applicable statutory law relating to limitation in the circumstances of this case, in the English Limitation Act 1939, and the appropriate period of prescription in relation to unregistered owner is 12 years and that the appellants failed to establish adverse possession against the applicants for registration.

Case dismissed.

Cases referred to:

Marshall -v- Robertson (1905) SO Sol Jo 75
Techbild Ltd -v- Chamberlain (1969) 20 P. & C R 633
Moses -v- Lovegrove (1952) 1 All ER 1279

For Appellant: F.S. Waleilia
Respondent in person

Reported by D. Crome

Daly CJ:

Background of the Case

This case concerns an island known as Warata or Varata Island. It is in the Marovo Lagoon quite close to Marovo Island and its size and location is shown on Sheet 8/158/9 of Series X711 Maps of the Solomon Islands.

This island has been the subject of a number of transactions which have been registered. It is what is known in Solomon Islands as ‘alienated land’. The history of the early transactions is not in dispute and is shown clearly on the documents which everyone agrees are true copies. They have been sent to the Court by the Registrar of Titles who is the respondent and the two parties who appeared and the court, were prepared to accept the copies. These documents I will call "the agreed bundle". The agreed bundle together with the evidence I have heard show that Warata was sold by Messrs. Lipu and Beno, two Solomon Islanders, in the early 1900’s to a Mr William Henry Pope. Thereafter there were a number of transactions with which the Court is not concerned and on 18th July 1921 the island was bought by Mr Harry Clennett from Mr Richard Kane in his capacity as administrator of the estate of Mr Ronald Smithers. This conveyance of a freehold interest was duly registered.

Thus on 18th July 1921 Mr Harry Clennett, a European planter, became owner in fee simple of Warata Island which he owned until his death on 6th October 1929. By the time he died Mr Clennett had a Solomon Island family. His wife in custom was Leni and her daughter was Terangula who had a number of children. The three appellants are her sons. I will call them and their mother the Terangula family. The family lived with Mr Clennett on Warata. Before his death I am told that Mr Clennett told this family that they would own the island after his death. There is also evidence that Mr Clennett read something out of a book to a cook which said this. However what happened is that after Mr Clennett was dead and buried, Mr Arthur Cant, another European, ordered the Solomon Island family to leave the island and go to Ulio, a nearby village, which they did.

Subsequently, and there is eyewitness evidence as to this, the island was auctioned to a group of European planters and Mr Jimuru and finally bought on the 14th December 1931 by Mr Arthur Cant and Mr Harold Markham for £150, each purchaser to be a tenant in common. The vendor was Mr Francis Ashley, a Resident Commissioner, who was acting as administrator of the estate of Mr Clennett. It is clear therefore that Mr Clennett left no will which was valid in law. There is no evidence at all to suggest there was anything wrong with this transaction. The deed was duly registered on 6th May 1932. In this case there has at various times been a suggestion of fraud arising in relation to those events. In the absence of any evidence I reject this suggestion completely.

Subsequently, as the documents show, Mr Cant and Mr Markham decided to transfer the island to their daughters Alice Cant Anissi and Lily Evalu Mulvey. This they did, by a deed dated 21st September 1938. This deed expresses that the transfer was to be "in consideration of natural love and affection". It was also a deed that was duly sealed, signed and delivered. On the 29th December 1938 the deed was registered in the Land Registry in Honiara. It purported to make Mrs Cant and Mrs Mulvey tenants in common in fee simple in equal shares of Warata Island (I say "purported" as a point is taken to the validity of this deed). The Mrs Cant referred to in that deed is the Mrs Cant who now appears in court. I am told, although I have no evidence, that Frank Mulvey is the heir of Mrs Lily Evalu Mulvey. It is on this deed that the original application which has led to these proceedings was made.

What had in the meanwhile happened to the family of Mr Clennett? Their evidence was that when ordered off the island they went to Ulio and there Jimmy Bird died after 3 years. They wanted to bury him on the island. Mr Sainana, who was a Japanese planter, said that Mr Markham’s permission must be obtained, and this was, in fact, obtained. Probably through Mr Sainana himself. The Terangula family then went back to Warate and buried Jimmy Bird there. His grave is there to-day. If the three years is accurate, this must have been after the sale of the island to Messrs. Cant and Markham. The Terangula family also lived for some time in Rukutu and Chubikopi as well as Ulio. All these villages are located quite close to Warata. It is clear to this court that the Terangula family retain strong and understandable emotional ties to Warata Island. The function of this court is however to examine dispassionately the legal rights of the parties.

The Present Dispute

This case comes to this court because on 22nd July 1977 Mrs Alice Cant Anissi and Mr Frank Mulvey applied to the Registrar of Titles to be registered as owners of Warata Island.

(In passing I should observe that there seemed to be a misapprehension in the mind of the Registrar of Titles that the applicant Mrs Cant was the daughter of the Alice Cant Anissi referred to in the deed of 21st September 1938. (See paragraph 6 of his summary). The unchallenged evidence before this court is that they are one and the same person. Whether this fact alters the need for Mrs Cant to apply for registration is a matter upon which I have heard no argument. I shall proceed on the basis that the application to register by Mrs Cant is necessary. It was, in any event, duly made).

The application of Mrs Cant and Mr Mulvey was advertised and this advertisement came to the attention of the appellants. On 20th April 1978 they wrote to object to the registration on two main grounds:-

(a) that the dealings by which Messrs. Markham and Cant acquired the property were invalid; and

(b) that they had occupied the island as from the death of Mr Clennett in 1928 and still occupied it.

This occupation, they claimed, arose from the statement by Mr. Clennett that the land was to be theirs. The Registrar asked for full details of these objections by letter of 5th September 1978 (LR 114/6 of the agreed bundle) and in particular of the details of occupation. At the request of the appellants an interview took place on 25th October 1978. Correspondence subsequently took place with a minister of the United Church in April/May 1979 and finally on 4th July 1979 after showing commendable patience the Registrar of Titles dismissed the objection in the absence of any evidence in support of it. Against that decision the appellants appealed to this court under section 213 of the Land and Titles Act (Cap. 93 ‘the Act’) as persons aggrieved by a decision of the Registrar made under the Act.

When this appeal was called for hearing Mr. Waleilia for the appellants asked me to hear all the evidence available. Mrs. Cant who also appeared and who said she represented Mr Mulvey’s interests was content that I should do so. In the absence of Rules of Procedure I agreed to treat this case as a rehearing rather than an appeal on the record. If I had taken the latter course I would have had no hesitation in dismissing the appeal as the Registrar had no information upon which he could do other than reject the objection.

Mr Waleilia then applied to amend paragraph 2 (b) of the grounds of appeal to allege adverse possession against the applicants for registration. I permitted this amendment and the effect of that amendment was that the appellants, according to Mr. Waleilia, then were virtually applying under section 204 of the Act to be registered as owners of an interest in Warata Island acquired by adverse possession.

As Mrs. Cant was present and prepared to meet this claim of adverse possession, which was indeed foreshadowed in the objection of 20th April 1978, I took the course which seemed most convenient of hearing the evidence and submissions in order to rule upon all matters in issue between the parties.

I now turn to the law in relation to those issues.

Law Relating to the Issues

I should perhaps stress at the outset that I am dealing with the law relating to alienated land.

I have already considered the question of the transactions by which Messrs. Cant and Mulvey acquired the property in 1931. Indeed, this point was not pressed at the hearing and I have no hesitation in holding that title to Warata Island was validly acquired by Messrs. Cant and Mulvey.

Mr. Waleilia did, however, challenge the conveyance by Messrs. Cant and Mulvey to Lily Evalu Mulvey and Alice Cant Anissi dated 21st September 1938 (LR 114/4 in the agreed bundle). He made a short point; this conveyance, he said, was without consideration as it is expressed to be in consideration of "natural love and affection" which has been held insufficient to support a binding agreement. The conveyance was therefore unenforceable. He cited Chitty on Contract (24th Edition) page 72 at paragraph 147.

The general proposition that consideration must be of real value is, of course, correct. Its applicability to this case is, however, not so obvious. This conveyance was by deed, sealed, signed and delivered by all parties. Such deeds under seal need not be supported by consideration (see Chitty ibid p. 63 paragraph 131).

I gathered that Mr. Waleilia was submitting that a contract seal may not necessarily have been valid in Solomon Islands. I did not quite follow the argument but as the law then applicable, that is in 1938, was English law (see para. 20 of the Pacific Order in Council 1893) then the English rule that a deed was enforceable without consideration would seem to apply. I therefore reject this point and hold that the conveyance dated 21st September 1938 (LR 114/4) was valid to transfer the interests of Messrs. Cant and Markham to their two daughters of whom Mrs Cant is one.

The real thrust of Mr. Waleilia’s argument and the evidence which I have heard was on the basis of a claim of adverse possession by the appellants of Warata Island. The matter is put at large; that at some stage between the death of Mr Clennett in 1939 until 1979 title to Warata Island was acquired by the Terangula family by adverse possession as against Messrs. Markham and Cant, Mrs Cant and Mrs Mulvey or Mrs Cant and the successors to Mrs. Mulvey. Therefore, Mr. Waleilia submits, neither Mrs. Cant nor Mr. Mulvey are entitled to be registered as owners.

As I have indicated Mr. Waleilia seeks to bring his claim of adverse possession with section 204 (and Part XX of the Act).

Section 204 of the Act reads as follows:-

"(1) The ownership of an estate or a registered lease may be acquired subject to Part VIA of the Ordinance, 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 interest of 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 owned by the Commissioner or a local authority.

(2) Any person claiming to have acquired an estate or lease by virtue of the provisions of subsection (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to the High Court for an order that he be registered as the owner thereof."

It will be noted that this section expressly states that the ownership "may be acquired .... against the person registered as the owner of the estate or the lease." (subsection (1)). In this case, however, the appellants seek to establish acquisition against Mrs Cant and the successor to Mrs Mulvey who are not as yet registered. If they were already registered their application in 1977 would be unnecessary.

But section 28 of the Act provides as follows:-

"(1) For the avoidance of doubt it is hereby declared that subject to subsection (2) and Part XX (which relates to prescription), in determining who is or was at any time the owner of a freehold or leasehold interest in any land, regard shall be had to the provisions of the Limitation Act, 1939, or of any enactment repealed thereby, as the case may require, and for this purpose such provisions shall be deemed to apply and to have applied to such interests in the same manner as they apply and applied, to land in England.

(2) The provisions of section 207 (2) (which exclude from adverse possession the period between the 1st February, 1963 and the 3rd August, 1965) shall apply mutatis mutandis to the ascertainment of the aggregate period of limitation under subsection (1)".

I will have something to say later about the words "subject to .... Part XX" and subsection (2) of that section. The remainder of the section is clear and requires the Registrar and this court to have regard to the English Limitation Act, 1939, or its predecessor Act, in deciding who is or is not to be registered as owner of an estate or interest.

As at first glance the distinction between these two sections is not obvious it may be helpful to consider the legislative background to the question of adverse possession in Solomon Islands. There are two aspects, the first is limitation.

The basis of the doctrine of limitation is that, after a period of time during which a person has failed to exercise his rights, that person is prevented from applying to a court to enforce those rights and therefore his rights are lost. In relation to land this means that if the owner is dispossessed by the adverse possession of another he must assert his rights within a certain period. If the owner does not do so, the other acquires a right to the land because it cannot be reclaimed from him. The period is governed by the appropriate law of limitation relating to enforcement of rights before a court.

So the first question is, what is or was the appropriate law of limitation in Solomon Islands?

From 1893 to 1961 the terms of the Pacific Order in Council 1893 required that courts in Solomon Islands exercised civil jurisdiction "so far as circumstances permit... upon the principles of and in conformity with the substance of the law for the time being in force in and for England ... and according to the course of procedure and practice observed by and before courts of justice ... in England." (Order 20). This was replaced from 9th April, 1962 with Order 15 of the Western Pacific (Courts) Order which required jurisdiction of the High Court to be exercised, -

"in conformity with -

(a) the statutes of general application in force in England the 1st day of January 1961, and

(b) the substance of the English Common Law and the doctrines of equity, and with the powers vested in and according to the course of procedure and practice observed by and before the Courts of Justice in England."

The latter provision was preserved by section 11 of the Solomon Islands Courts Order 1975 (LN 55/75) - "until such time as the provision is made." Other provision has now been made in Schedule 3 to the Constitution which came into force on 7th July 1978. This provides as follows:-

"Application of Laws

1. Subject to this Constitution and to any Act of Parliament, the Acts of the Parliament of the United Kingdom of general application and in force on 1st January 1961 shall have effect as part of the law of Solomon Islands, with such changes to names, titles, offices, persons and institutions, and as to such other formal and non-substantive matters, as may be necessary to facilitate their application to the circumstances of Solomon Islands from time to time.

2. (1) Subject to this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time; or

(c) in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter.

(2) The principles and rules of the common law and equity shall so have effect notwithstanding any revision of them by any Act of the Parliament of the United Kingdom which does not have effect as part of the law of Solomon Islands."

Limitation is a matter created entirely by statute and there is not at present and there has not ever been a Solomon Island ordinance or act dealing expressly with limitation. (There is one Solomon Islands provision relating to adverse possession which I will mention later). It will therefore be seen that it is the English Limitation Acts in force on the 1st January 1961 which apply in Solomon Islands at present and since that date. Prior to 1st January 1961 it would have been the "substance of the law for the time being in force in England" that is again, the appropriate Limitation Act. For our present purposes, then, the Act to be looked at is the English Limitation Act of 1939 which came into force on July 1, 1940. The Act applicable before 1940 is the English Real Property Limitation Act 1874, but a claim under both Acts involved the expiry of a twelve year period from the first taking of possession. Therefore in the present case it is clear that the point in relation to limitation could only be taken on or after 1941 (that is twelve years from Mr. Clennett’s death in 1929) when the 1939 Act was already in operation. The 1939 Act, then, applies throughout.

It is this situation which is recognized in the provisions of section 28 of the Act which specifies that, in any event in relation to an unregistered title, regard must be had to the English legislation dealing with limitation of actions. In this case the question does not arise as to the applicability of the limitation acts to claims against a registered owner but it would seem that, in the absence of any provision to the contrary, the Limitation Act could be relied on to defeat such claims.

I now turn to the question of prescription. Prescription is primarily a common law doctrine. As such it falls within the constitutional provisions to which I have already referred as these apply the common law to Solomon Islands. The basis of prescription is that if long enjoyment of a right is shown, the court will strive to uphold the right by presuming it had a lawful origin (see Megarry & Wade Law of Real Property 4th Edition p. 841). At common law the necessary period of enjoyment was twenty years. The English Prescription Act, 1832 made certain express provisions with which I need not concern myself. The doctrine existed in Solomon Islands in the common law form as modified by that statute until the coming into operation on 1st February 1963 (see LN 37/63) of Part IX of them by any Act of the Parliament of the United Kingdom which does not have effect as part of Land Titles Ordinance 1959 (Cap. 56 of the Edition of the Revised Law of Solomon Islands ‘the 1959 Act’). This part contained section 130 which reads as follows -

"The possession or occupation of any land, not being native customary land, or the assertion or purported exercise of any right interest or privilege over, in or affecting any land, not being native customary land, for any period however long, shall not give rise to any interest in, over or affecting that land, nor to any presumption that the possession, occupation, assertion, or purported exercise had a lawful origin."

This section was widely drafted and clearly dealt with prescription as it referred to a presumption of "lawful origin". Whether it also applied to limitation is not so clear although it could be argued that the words were capable of preventing a person from asserting that any possession of land gave rise to any interest. As the transitional provisions embody (Para. 24 2nd Schedule) a reference to the need to consider the English Limitation Act in relation to the determination of the subsistence of an interest at "the commencement date" there is, however, an argument to the contrary. Fortunately, I do not have to resolve this conflict.

Second thoughts prevailed on the subject of prescription as on 3rd August 1965 the Land and Titles (Amendment) Ordinance 1965 (No.5 of 1965) came into operation. This repealed and replaced section 130 of "the principal ordinance" (an expression undefined but which can only refer to the 1959 Act) and replaced it with provision in identical terms to sections 205, 206 and 207 of the present Act. Again there is a reference to acquisition "against the person registered as owner". Thus a Solomon Islands statute for the first time dealt with acquisition by prescription as against the person registered as owner. As to acquisition by prescription as against other persons (that is persons not registered as owner) the 1959 Act is silent. The only possible reference to it in the legislation is in the words in section 28 (1) of the present act "subject to subsection (2) and Part XX (which relates to prescription)". It is difficult to give these words any real meaning as section 28 is only dealing with limitation, and, as I have already indicated, limitation and prescription, although they may produce the same result, have different bases. The application of the statute of limitation cannot be "subject" to express provision relating to prescription. It would appear therefore that in relation to an unregistered owner the common law rules relating to prescription would apply.

However there is a provision in paragraph 2 of Schedule 3 of the Constitution (set out above) which enables a court to say that a rule of the common law shall not have effect if it is "inapplicable or inappropriate in the circumstances of Solomon Islands from time to time". Use of this power should obviously be approached with great caution particularly where, as here, there has been no argument on its exercise. I have decided however, in this case, to approach the matter as though the period of prescription in relation to a claim against owners who are not registered is also 12 years. I make it clear that this is a course adopted for this case only and the matter remains open to argument in another case.

In both sections 28 (2) and 207 of the Act there are provisions dealing with the period from 1st February 1963 to 3rd August 1965 during which section 130 of the 1959 Act removed rights acquired by adverse possession. Insofar as this case is concerned the effect is that that period cannot be included in calculating adverse possession either for the purposes of limitation or prescription although it does not constitute "an interruption". Express provision was made in the Land and Titles (Amendment) Ordinance 1965 to restore adverse possession prior to 1965 for the purposes of prescription (see section 23 (1)) and by the Land and Titles (Second Schedule) (Amendment) Rules, 1965 (LN 121/65) to extend the English Limitation Act to the subsistence ‘at any time’ of an interest in Land (see para. 18).

I therefore approach this case on the basis that the English Limitation Act of 1939 applies and that the common law rules of prescription modified to meet the circumstances of Solomon Islands apply. The modifications I accept are set out in Part XX of the Act.

The English Limitation Act 1939 requires two matters to be established before time begins to run against the over of property. These are -

(1) the owner has been dispossessed, or has discontinued his possession (see section 5 (1)) and

(2) adverse possession has been taken by some other person (see section 10 (1)).

The common law rules of prescription require user as of right. Section 204 of the Act speaks of "peaceable, overt and uninterrupted adverse possession" which is further elaborated in section 205 as follows -

"205 - (1) For the purposes of section 204 -

(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 an estate or lease from whom the owner of the lease derives title;

(b) where land is subject to a lease the receipt of the rents 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 of 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, from 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 or profits by the claimant.

(4) Adverse possession by a succession of persons not claiming through one another shall not be deemed to be uninterrupted adverse possession within the meaning of section 204.

(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 conditions and without any exercise by the owner of his right to the land, such subsequent possession shall be deemed to be peaceable, overt and uninterrupted adverse possession for the purposes of section 204.

(7) For the purposes of subsection (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 loses possession.

(b) by the institution of legal proceedings by the owner of the estate or lease to assert his right thereto; or

(c) by any acknowledgement 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 by prescription any title to the land as against such ,other."

Thus it will be seen that in relation to both doctrines ‘adverse possession’ is the crucial expression.

In Moses v. Lovegrove (1953) 1 All ER 1279 Lord Evershed M.R. said at p. 1282 A:

"According to the ordinary sense of the words, adverse possession must, I should have thought, be possession adverse to - that is to say, inconsistent with and in denial of - the right of the landlord to the premises ..."

I will approach this case by asking the following questions:

(a) Did the Terangula family take possession of Warata Island at any stage and if so when?

(b) Was Mrs. Cant (who is the tenant in common who claims actual possession) dispossessed or did she discontinue her possession of Warata Island?

(c) Was this possession adverse in the sense that it was denial of the right of Mrs Cant to Warata Island?

(d) If there was adverse possession was it for a continuous period of 12 years or more?

The cases establish that the burden of proving possession of the claimant and dispossession of the title owner is on the claimant. In Marshall v. Robertson (1905) SO Sol. Jo. 75 (Reported in English and Empire Digest Vol. 32 para. 4529) Warrington J. said "what is the fact that they (the claimants) have to prove? It seems to me that it is not sufficient for them to prove mere acts of ownership - that is to say, acts which an owner might do, but they must prove possession on their part and dispossession of the rightful owner". What can amount to proof of possession and dispossession must vary with the nature of the property and the intention of the title holder in relation to it. This is made clear in the judgment in Techbild Ltd. v. Chamberlain (1969) 20 P. & C.R. 633 (Reported in Digest ab. cit. para. 4540) in which it was held that:

"(1) an owner of land did not necessarily discontinue possession of it i.e. abandon it, merely by not using it, but each case depended on the nature of the land or property in question and the circumstances under which it was held", and

"(2) a finding on adverse possession required some affirmative unequivocal evidence, going beyond mere evidence of discontinuance, consistent with an attempt to exclude the true owner’s possession, the nature of the property being, again relevant". Sachs L.J. said that "In general intent to exclude the true owner has to be inferred from the acts themselves. The suggestion should be guarded against that, in all cases where there are equivocal acts, expressions of intent are necessarily relevant if they are not brought to the notice of the true owner"

Thus I must consider all the facts and in particular the following:

(1) The nature of Warata Island. This I find to have coconuts growing on it with a view to producing copra. There are also some other trees and vegetables and on that island at one time, at least was a house and a store.

(2) The intention of Mrs. Cant in relation to the island which I find to have been throughout an intention to produce copra from the island when arrangements could be made therefore and eventually to provide a residence for herself or a member of her family.

(3) The nature of the acts said to shown an inference of possession by the Terangula family and dispossession of Mrs. Cant.

(4) the acts said to show an inference of continued possession by Mrs. Cant.

The latter two matters must be considered in greater detail against the background of all the evidence.

Facts of the case in detail

The evidence for the Appellants about what happened after the death of Mr. Clennett comes from Terangula herself. She says that some six months after the death of Mr. Clennett and their enforced departure from the island, she and her mother returned to Warata first of all to clear the burial place and then a second occasion to pick up coconuts and clear the ground. However on this second occasion they went with two labourers so someone else was using the island.

Thereafter until the death of Leni which took place shortly after World War II Terangula said that she and Leni went to pick up coconuts on the islands 2 or 3 times every month. She also claimed that she and her family cleared the islands and planted some trees. One event occurred during this period which I have touched on already. This was the death and burial of Jimmy Bird on the islands some 3 years after the death of Mr. Clennett.

In evidence in chief, Terangula said that that burial was with the express permission of Mr. Markham although later she did say that that permission was not really necessary. Terangula also accepted that Alice was in the period before Leni’s death going to Warata to pick up coconuts. According to Okeni the frequency of the visits of Terangula to Warata was once in a month.

It was in this period too that the conveyance to Mrs Cant and Mrs Mulvey took place. Mrs Cant gave evidence that after the ceremony of signing which must have been on 21st September 1938 she went with her father Mr Cant to the island and stayed there three months.

Looking at all the evidence of this period from the death of Mr. Clennett to the death of Leni I have come to the conclusion that the visits to the island referred to by Terangula do not constitute "possession" of the island. There is no evidence of residence; no evidence of exclusion of others and in particular of the title holders; and no evidence of user inconsistent with the plans of the owners. These are just factors but they indicate to me that something much more is required before I could conclude that possession was taken by the Terangula family. The evidence too points to a continuation of use of the island by Mr Markham which I find was acknowledged by the Terangula family in their getting permission to bury Jimmy Bird from Mr. Markham. There is also evidence, which I accept, that in 1938 Mrs Cant was herself visiting the island and was in clear possession of it for at least three months. I must hold therefore that even if possession existed it was not adverse within the meaning given to that expression in Moses v. Lovegrove (ab. cit.) and the other authorities. Were I to accept that the Terangula family took adverse possession of this island in this period, which I do not, I would hold that that possession was interrupted in 1938.

The next period I must consider is the period from the death of Leni to the marriage of Cedric Bird which took place on 12 January 1959. The evidence for the appellants again is that of Terangula. As to this period she says she went 1, 2 or 3 times a week to pick up coconuts. Once again it was accepted that Mrs. Cant was also going to Warata and that Terangula was aware of this. For the period from 1957 to 1959 this evidence is confirmed by that of Mr. Karejame who says he went with his mother to the island. During this period Mrs. Cant was living in a number of places accompanying her husband who worked for a church. Mrs Cant gave evidence that in 1953 she agreed to a Mr. Hodge putting poison on the island to kill rats and that in so doing a notice was put up which excluded everyone from the island. I accept that such a notice was put up and that it was done on Mrs Cant’s behalf as an exercise by her of her exclusive possession of the island. She also claimed that she put a worker or workers on the island to produce copra for her.

The same issues arise in relation to this period that is there possession by the appellants? Was Mrs. Cant dispossessed? Was possession if any adverse? Was it continuous for 12 years? Again I must answer the first three questions in the negative for the same reasons. As far as the last question is concerned I hold that possession by the appellants, had it existed, was interrupted in 1953.

One aspect of this case which has been canvassed in questioning arises in this period. This is correspondence which took place between Mr. Cedric Bird and the Department of Lands (Agreed bundle LR 114/17 to 21) in 1957 abd 1958. In this correspondence it was made clear to Mr Bird that Mrs Cant and Mrs Mulvey owned the island. Mr Bird said in the correspondence that he had approached Mrs Cant for a lease but had been turned down (LR 114/20). In court he denied approaching Mrs. Cant but Mrs Cant remembered such an approach. I accept that it was made. It is clear from this correspondence that in 1958 one member of the Terangula family was aware that Mrs Cant claimed rights in the island. I find it unbelievable that this was not discussed in that family, but I was told that it was not until 1978 that Mr. Karejema became aware that Warata was claimed by Mrs Cant. In all the circumstances of this case I reject such an assertion. I take the view that all through this long saga the Terangula family has been aware of Mrs Cant's interest in the island. That awareness is reflected abundantly in the correspondence to which I have referred and the fact that Terangula herself was aware of Mrs Cant’s visits to the island.

The next period I am asked to consider is the period following Mr Cedric Bird’s marriage until 1979 when it was conceded Mr Waleilia that any possession by the Terangula family was interrupted. Mr Waleilia quite rightly observes however that if title had been acquired by the appellants before that date it would not cease by an interruption after the title had been acquired.

So again possession must be considered. This time it is the evidence of Mr Cedric Bird who speaks of cutting copra on the island and clearing the land. Sometimes, he said, he went 3 days a week; sometimes Monday to Friday. Sometimes he visited there for picnics. Mr Bird said he had produced copra on the island since 1959. Some confirmatory evidence is available as to visits by the Terangula family to Warata during this period. Mr Karejema too spoke of collecting copra on Warata. Mrs Cant was still on her travels until 1966. After her return home she said her sister went to the island in 1972, 1973 and 1976 and in 1978 the people of a village were hired to work on the island.

As a question of fact I conclude in relation to this period too that there is not sufficient evidence of "adverse possession" for the doctrines of limitation or prescription to be relied upon by the appellants. In 1977, 1978 and 1979 there was a vigorous attempt by Mr Cedric Bird to acquire adverse possession in a form that would allow the doctrines to operate. This follows the discovery that Mrs Cant and Mr. Mulvey were applying for registration. This was however in my judgment the first time that such possession was asserted and it ended with Mrs Cant enlisting the aid of the police to take proceedings in the Magistrate’s Court in 1979.

Finding of the Court

I find therefore that at no time has a title been acquired by the appellants either by operation of, the English Limitation Act or by the doctrine of prescription.

I therefore dismiss this appeal and confirm the decision of the Registrar in his rejection of the objection by the Appellants to the application of Mrs Alice Cant Anissi and Mr Frank Mulvey for registration of an interest in Warata Island. I do so of course without offering any view on whether Mr Frank Mulvey is entitled to be registered as owner of such an interest. I merely find that this application is not defeated by any claim of these appellants or by any point taken by them in their notice of objection or at the hearing of this case.

Appeal Dismissed.