HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 426 of 2007

FREDDIE LUIRAMO &JOYCE LUIRAMO

V

BEN TATAI

FAUKONA, J

Date of Hearing: 08 August 2008
Date of Ruling: 22 August 2008

M. Tagini for the Claimants
D. Hou for the Defendant 

RULING

Faukona, J.

This is an application for eviction order. A writ and statement and other annexures in support were filed on 6th September, 2007. At the closure of pleading, Mr. Hou feels that the reply in defence to the Defendant’s counterclaim did not hold any merit. By Rules 9.58 and 9.61 filed an application to replace the summons filed on 29th February 2008 seeking a final judgment. However, during the course of submissions, it was agreed by the Counsels that submissions will cover both applications.

Background Facts

The land being the subject of this case is Parcel Number 191-016-36, located around Kaibia Telekom Station in Honiara. It was first registered as PN 191-016-36 sometimes in 1991. After the sale and purchased transaction was completed in September 2005, the title was transferred in October 2005, from the vendor, Frank Konare, to the Claimants. The Claimants admitted being awared of the Defendant’s occupation prior to the purchase transaction. 

By a letter dated 2nd August 2007, Mr. Tagini, on behalf of the Claimants, wrote to the Defendant to evict himself from occupying the Claimant’s registered land, unless he could prove otherwise (Exhibit "FL3"). Prior to that, the Claimants, on 30th December 2005, wrote a letter (Exhibit "FL2") to D. Hou explaining that the Fixed Term Estate copy (probably instrument) was free from any interest when all documents were signed bearing only the name of Frank Konare as the legal registered owner. As the property had already been transferred in their names, they became the legal registered owners. And that the Defendant had no legal rights over it, neither did Mr. Frank Konare.

Issues

1.	Is the reply to Defendant’s counter claim holds any merit?

2.	Indefeasibility of title.

3.	Overriding or equitable interest and legal interest in conflict. 

The first issue to be considered is whether the reply filed by the Claimants in respond to the Defendant’s counter claim holds any merit. The relief sought by the counterclaim is in the sum of $46,775.00. The reason for relief is because the Claimant’s title to the property is to be held subject to the overriding and equitable interest of the Defendant. In reply and defence to counter-claim the Claimants deny the relief and say that the Defendant’s equitable rights are subject to the legal rights of the Claimants as registered holders of the property. And that the Defendant’s money claim do not evince the interest in land and cannot support a caveat – See Quitales Properties Ltd v. Mason.

Reading from the pleading documents, it appears that there is a conflict between the legal and the equitable rights. Where there is a conflict arise between the rights as to which right should prevail over the other, it sums up a good ground for argument. I will elaborate more on this later. Meantime I do not seem to agree with Mr. Hou. There is indeed a merit advance in the defence to counter-claim. I refuse to grant the application to enter final judgment.

Transfer Instrument

Before moving further to consider the other issues it is of significant to closely scrutinize the transfer instrument. That document is very important so for as this case is concerned. From the face of the document, the grantor was the Commissioner of Lands. The Grantee was Ellix Ordway. The date of grant was 21st January 1991. From 1991 to 2005 there was no transaction entry. The person Frank Konare was never entered or recorded in the fixed term estate register. There was no explanation by the Counsels, in particular, Counsel for the Claimants, as to how Mr. Konare acquired registered title to the property. Or is it Ellix Ordway the same person as Frank Konare that has to be clarified as well. In the absence of any explanation and clarification, and on the face of the document, the only transfer of title was from Ellix Ordway to the Claimants, a totally different name from Frank Konare. That anomaly has given rise to suggest whether Frank Konare did acquire legal title to the fixed term estate or was he selling someone’s property.

There was mention of fraud in the pleadings but was not persuaded vigorously. However, as it appears, on the face of the transfer document, that there was no legal title acquired by Mr. Konare, hence, no legal title was transferred to the Claimants, for value for consideration, though they may have concluded the purchase transaction by actually paid the money required. If one does not have a title to a property, you have nothing to sell, and no title conveyed, event to a bona fide purchaser.

This is a preliminary and a most important issue. The rest of the issues hang on it. My conclusion on this preliminary point is sufficient, and I need not venture into discussing the rest of the issues.

I expect Counsels be vigilant in scrutinizing such a document before admitting that in court. If there should be any fraud or mistake committed, that has to be rectified. And the court has the power under S. 229 Land and Titles Act to do so. Meantime I am not in a position to make any such rectification order. I will leave it for the parties to investigate. Having said that I feel it would also assist the court, having identified such irregularities; submissions have to be made to that effect supported by case authorities. In this there is nothing at all. However I refer to David Lilimae and Fox Irokalani v. Commissioner of Lands, Registrar of Titles and Rex Fera where fraud and mistake were raised. In that case the court found that the registration of Mr. Rex Fera as the owner of fixed term estate for 50 years was base on mistake. The court therefore cancelled Mr. Fera’s registration.

In this case I am not convinced on the face of the fix term estate transfer document, that Mr. Konare ever acquired legal title to the property. His name was not included in the transactions recorded in the document since 1991.

I therefore issue the following orders:

1.	Application for final judgment for failure by the Claimants to reply to counterclaim on merit-refused.

2.	Application for eviction order – refused.

3.	The sum of $46,775 has been awarded to the Defendant against Mr. Konare. This court cannot charge that.

4.	Cost be awarded to the Defendant.

THE COURT