Maneniaru v Attorney General [2010] SBHC 132; HCSI-CC 317 of 2009 (13 October 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Civil Case No. 317 of 2009

BETWEEN:

JOHN MANENIARU AND MATILDA BETSY MANENIARU
Claimants

AND:

THE ATTORNEY-GENERAL (Representing the Commissioner of Lands)
First Defendant

AND:

REGINALD BULE AND DAPHINE BULE
Second Defendants

Hearing Dates: 1/8/2012, 10/10/2013 and 17/9/2014
Date of Judgment: 13th October 2010.

Mr M. Pitakaka for the Claimant
Mr D. Damilea for the First Defendant
Mr W. Rano for the Second Defendant

JUDGMENT

Faukona J: The subject of this proceedings concern a Crown Land in Parcel Number 191-041-200 located at Panatina Ridge, East Honiara. At all material times the Claimants were the registered owners of a fixed term estate in PN 191-041-22 since 1st May 1997, and situates adjacent to the land being the subject of this proceeding.

2. On 13th August 1981 the Perpetual Estate in PN 191-041-200 (Lot 1639) was created following subdivisions and registered in the name of the Commissioner of Lands on 1st August 1981.

3. On an unknown date prior to 15th June 1997, the second Defendants inquired with the Lands Department and found out that the land was vacant so they applied. On 15th June 1997 an offer was made to them. On 26th February 1998 a grant instrument was executed by the Commissioner of Lands (COL) and the second Defendants. On 4th March 1998 the second Defendants were registered as owners of PN 191-041-200.

4. The Claimants also applied for the same land on 6th October 1997 per Mr. Maneniaru's letter addressed to the General Manager of Home Finance and copies to the Chief Physical Planner Honiara Town Council (HTC) and Commissioner of Lands. This was after they realized that the status of the land was not what they asserted or assumed as waste land and as part of their land (PN 191-041-122) which they had acquired.

5. There is also evidence that the Claimants were in possession or occupation of the land since 2000, and had constructed a perimeter fence, a semi-permanent kitchen, a store room and had planted three coconut trees.

6. It is not disputed that the land with size area of 0.0287 hectares is a small piece of land. It was a vacant land when the offer was given to the second Defendants. Four months later the Claimants submitted their application (6/10/1997) for the same land. Verily that application was addressed to a wrong authority with no powers to allocate. Prior to 24th July 1999 the Claimants were aware that the land was allocated to someone else. By their act foreshadowed and implied that they were making a move to discredit the allocation.

Mistake:

7. Mistake in an ordinary and everyday language means something done wrongly on something that should not have been done. In the case of Billy V Daukalia[1] on page 25, paragraph 5, the Court of Appeal clearly stated that claim for mistake therefore must necessary be linked to the time when registration was obtained, made or omitted. The word registration bears a corresponding meaning as to "register". And to register is to make an entry in the land register, see section 2 of the Land and Titles Act. Registration is a function vested up on the Registrar of Titles. In this case, there is no allegation of mistake against the Registrar of Titles, hence not a party.

8. The knowledge refer to in S. 229 (2) accordingly, must be confined to the time period when registration was obtained or made. If the second Claimants (registered owners) had no knowledge of the mistake, then they are entitled to rely on the protection of subsection (2).

9. The rationale as it appears in contrast, is the application by the Claimants adopting the principle of "but for". They alleged that the second Defendants could not have been the registered owners of the estate, but for the mistake, it was done. They should have been the rightful persons to be registered as owners.

10. Since no allegation is against the Registrar of Titles, hence not a party, the Commissioner of Lands therefore carries and bears the weight whether legally allowable by law or not is an issue to be determined. On the other hand mistake can also have its roots from the procedures adapted and applied by the Commissioner of Lands that is my view.

11. The mistake alleged or alluded to by the Claimants grounded on number of factors. That the Commissioner of Lands had known the Claimants interest therefore should not grant at all. Having done so by clause 5 of the first schedule of the grant instrument prohibits such grant. Clause 4 prohibits construction of a dwelling house the first Defendants envisaged. If the second Defendants were to build on the land it will interfere with the peace and comfort by the Claimants- Clause 2

12. Further, it was alleged that because of the peculiar size of the land any dwelling home cannot be built on it. Therefore, the entire grant to the second Defendants was inconsistent with the restrictive covenant in the grant instrument. With the grounds as alluded no reasonable Commissioner of Lands would have granted the land to the second Defendants. Having realized the mistake the Commissioner of Lands (Ag) by letter dated 8th October 2008 agreed to the proposed recommendations by the Honiara Town Council Physical Planning Division for a possible surrender and an alternative site identified, and have the land registered in the names of the Claimants.

13. First and foremost I have noted that having knowledge of the allocation to the second Defendants, was an act the Claimants deplored and could not accept - See Mr. Maneniaru's letter of 24th July 1999. That resulted in the Claimants wielded a fierce opposition to negative the registration through this process. It brings me to a particular point not to accept Mr Maneniaru's evidence, that should they were aware of the allocation and registration he would not have wasted his time applying.

14. From close observations the recommendations suggested three options as a way forward. In my view that merely paved a way for the Claimants to take over the land. In real sense recommendations is not an order or final determination but were proposals to remedy the impasse. At the end of the day, it did not intend to assist the second Defendants at all but provide a leeway for the benefit of the Claimants. However, a significant point which tends to be ignored is the fact that any final decision rests upon the second Defendants. Should they refuse to surrender the proposals will fall, and that is what turns out to be in this case.

15. Public knowledge addressed that land security in urban areas are scarce and had reached saturated level. There is no guarantee an alternative site be identified soon. There is probably no vacant land remain for immediate allocation to remedy the situation. Henceforth it is only fair to say that the proposals are not benefiting the second Defendants at all so they were not accepted.

16. Apparently, there seem to appear that the Claimants are capitalising on the letter by the Commissioner of Lands (Ag) agreeing to the recommendations by Honiara Town Council Planning Division and averred as an admission of mistake. That absolutely is not the case. The proposals were an attempt to resolve the dispute and could be the only way forward. It only proposes an alternative resolution but the final decision rests upon the second Defendants. I could hardly perceive there was present in the letter by Commissioner of Lands (Ag) an element of admission of any mistake. Therefore, the case of Urguhart V Butterfield cannot assist the Claimants.

17. Section 229 of the Land and Titles Act is very plain. For this Court to rectify the registration currently in the names of the second Defendants, it has to be established that the second Defendants had the knowledge of the mistake, or cause such to occur or themselves substantially contributed by their act, neglect or default.

18. The processes that led to the registration are not disputed. What is most objected to, is because of the peculiar nature of the land, it would not be possible to allocate to someone else, than the Claimants who have been living on an adjoining parcel.

19. The Claimant's case as could be reflected is an attempt to interfere with the discretionary power of the Commissioner of Lands to allocate Crown land and ignore the fact that the subject land has its own parcel number and stands out separate. As such, whether it is small in size or big, the Commissioner of Lands has power to allocate to someone, not necessary to a person living on adjacent land.

20. In support of its case, the Claimants rely on various clauses in the first schedule of the grant instrument. Those clauses in my humble view are conditions or terms which are labelled under the title of restrictive covenant. Those clauses seem to provide guidelines to the second Defendants when they started to develop the land, an activity that would happen in the future, definitely not at the time of registration. Sensibly, no one including the Commissioner of Lands would be able to predict an occurrence into the future. It will not be able to foresee that the second Defendants would breach the clauses and as a consequence will revert back to the mistake done by registration. Legally the restrictive clauses were not meant to operate in that manner. The hurdle to overcome is the problem of privity of contract. The Claimants have to establish that the Commissioner of Lands owe them a public duty. The Claimants are not a party to the instrument of grant which contain those restrictive covenants, obligations and liabilities. Under the principle of contract only the second Defendants and the Commissioner of Lands were bound by the instrument of grant and is enforceable by either of them should there be breaches. In the case of Beverly V Commissioner of Lands,[2] His Lordship was satisfied that Mr Beverly has the right as an adjoining owner to the property and that the change of land use had caused and continue to cause nuisance, annoyance and interference with his peace and comfort. Further, the court was also satisfied that the Commissioner of Lands owes the Claimant a legal duty to ensure the restrictive covenants, obligations and liabilities are complied with.

21. Meantime the second Defendants have not occupied the land as yet and have not started any construction. What has physically been shown is that they have the title to the land and their intention was to build a residential home. Their house plan had been approved by the Town and Country Planning Board. That was the purpose of what it meant to be. This can be distinguished from the Beverly case where the land was used for a purpose it was not intended for, that is club or restaurant. It would appear the Claimants have concluded by observing the house plan and the sketch plan drawn of the area therefore protested that to construct the size of the house intended to be built will cause nuisance and interfere with their peace and comfort. However, witness Zeke (qualified architecture) agrees with a small size building can be accommodated by the land. Secondly, he points out that with the current plan the only overlap would probably be toilet soak away but can be adjusted. In this case, the second Defendants have not started any construction work yet. Perhaps after this case some adjustments can be instilled to avoid further conflict.

22. Another point advanced by the Claimant is that their interest on the land had been known by the Commissioner of Lands therefore different allocation would contrary to the Claimant's interest. That interest was actually shown by letter dated 6th October 1997. Unfortunately, that letter was addressed to Home Finance and copied to the Commissioner of Lands. Despite that letter there had already been an offer to the second Defendant's four months ago which they paid the amount required ($850.00) almost immediately. It would be unjust, unfair and prejudicial to withdraw the offer without good reasons. I think the Commissioner of Lands had done what was fair by adopting the policy of first come first serve. The procedures had been complied with as the land was a separate portion with different parcel numbers and was vacant when the second Defendants applied for.

23. The question of the size of the land is undisputable or not an issue. Mr. Zeke a reputable witness has affirmed so. However, on assessment of Mr. Zeke's evidence turns out to be a bag full of biasness. The sketch plan attached to his sworn statement and marked three (3) metres from the perimeter boundaries is an attempt to diminish further a buildable space. Whilst he wishes to see the second Defendants comply with the building policies and practices, he himself failed as a member of the Town and Country Planning Board to see and carry such policy and practices complied with universally. One example was raised during cross examination which he admitted. It would be unfair and detrimental to impose such policy on the second Defendants now as it would definitely benefit the Claimants. That is total injustices, which must be discouraged.

24. Having found there is no evidence to establish any mistake, which may have directly linked with the registration process. This court therefore refused to order any rectification of the land registry, either directing be cancelled or amended.

Orders:
1. The Claimants claim for rectification of the register is hereby dismissed.

2. Should the Claimants are still occupying the land must vacate and give vacant possession to the second Defendants forthwith.

3. Cost is paid by the Claimants to the second Defendants.

The Court.

---

^[1] (1995) SBCA; CA-CAC 001 of 1995 (27 October 1995).
^[2] (2007) SBHC 50 ; HCSI-CC 348 of 2006 (10^th April 2007).