Lever Solomons Ltd v Leni [2010] SBHC 16; HCSI-CC 349 of 2007 (11 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 349 of 2007

BETWEEN

LEVER SOLOMONS LIMITED
Claimant

AND

NOLLEN LENI
First Defendant

AND

COMMISSIONER OF LANDS
Second Defendant

Mr Radclyffe for the Claimant
Mrs Tongarutu for the First Defendant
Mr Muria for the Second Defendant

Date of Hearing: 4th May 2010
Date of Judgment: 11th May 2010

Judgment

1. This case involves Lever Solomons Limited a Company which says it owns, or more correctly, says it is the registered owner of the fixed term estate of land at Lungga on the outskirts of Honiara and Nollen Leni who says he has bought part of the land. He has built a house on that land. Lever Solomons Limited says he has not bought the land and they still own it. They have not given any permission for him to build the house. The claim is in trespass and the substantive issue for the court to decide is who actually owns the land.
   
2. The Second Defendant is the Commissioner of Land and why he is involved will be clear from the brief facts of the case.
   
3. The facts are straightforward enough and largely undisputed. By a grant dated 10th September 1989 the Commissioner of Lands granted a fixed term estate for a period of 75 years from 31st December 1977 to Levers Solomon Limited of parcel 192-004-390. Certified copies of the Register were made available to the court[1]. By the process of mutation the parcel number of the area of land has changed to 192-004-590. Nothing turns on the change of parcel number.
   
4. In 2002 the First Defendant says the Second Defendant offered to sell him a portion of land, Lot No. 1279 of LR 83/R. He later paid fees amounting to $2607.00 to the Second Defendant[2]. There is no real dispute that the land purportedly comprised in Lot No. 1279 of LR 83/R is within the area covered by 192-004-590.
   
5. In short then, the Second Defendant premises his defence on the basis he is a legitimate purchaser for value. The success of his defence depends largely on what the Second Defendant has to say about the transaction and the circumstances surrounding it.
   
6. What the Second Defendant says is, he admits the Claimant is the registered owner of the FTE in parcel 192-004-590, and he admits the Claimant holds the FTE for 75 years from 31st December 1977. The Second Defendant also admits the Claimant has not consented to any sub-division of the land and that there has in fact been no application to sub-divide. The Second Defendant also admits the First Defendant has built a house within the boundaries of 192-004-590.
   
7. Given the admissions by the Second Defendant the substantive issue of who owns the land can be dealt with shortly. In view of what the Second Defendant says it would have been impossible for him to have sold the land to the First Defendant. I have absolutely no doubt the land on which the First Defendant has built his house is land of which the Claimant is the registered owner of the Fixed Term Estate.
   
8. I would also say there is clear and uncontested evidence by Mr Alfred Soaki[3] that Lot 1279 of LR83/R, the land the First Defendant says he bought, is within the boundaries of 192-004-590. The First Defendant, as indicated [4] does not really dispute that.
   
9. There is clear and uncontested evidence from Mr Japhet Limopu which confirms the Commissioner of Lands cannot create a Fixed Term Estate out of an existing one without the consent of the Fixed Term Estate owner. There is absolutely no evidence the Claimant gave any permission to the Commissioner of Lands to create Lot 1279 of 83/R out of 192-004-590.
   
10. Having reached the conclusion that the land must belong to the Claimant, that it has not given any consent for the First Defendant to build a house on it and there being no other lawful reason why the house was built on Levers Solomon Limited land it follows the First Defendant has trespassed onto the Claimants property.
    
11. That only leaves the question of relief. As against the First Defendant the Claimant asks for, and is entitled to, an order for immediate possession. I so order subject to my comments below [5]
    
12. As against the First Defendant the Claimant asks for, and is entitled to, an order restraining the First Defendant, his relatives, servants or agents from remaining upon or re-entering the land. I so order subject to what is said below.
    
13. As against the First Defendant the Claimant asks for, and is entitled to, damages for trespass and the conversion of trees felled on the land. Mr Radclyffe was very honest about the claim for damages. He told me that no evidence had been or would be introduced about the value of the trees. He said, quite rightly, damages were at large in relation to the trespass but given the claim at paragraph 7. c)[6] in reality the question of damages was neither here nor there. I therefore order nominal damages of $10.00.
    
14. As against the First Defendant the Claimant asks for a declaration that any buildings erected on the land are the property of the Claimant. This is the only aspect of relief that troubles me. Mr Radclyffe’s authority for me being able to make such an order is section 2 of the Lands and Titles Act [Cap 133]. The interpretation section of the Act. It says, inter alia, land includes, "...all things growing on land and buildings and other things permanently fixed to the land...". As I have made a finding of fact that the land belongs to the Claimant then it follows, by reason of the definition in Section 2 that all things growing on the land and buildings and other things permanently fixed to the land, belong to the Claimant as well. I will therefore make the declaration sought at paragraph 7. c) of the Amended Statement of Case. All other things, that is things not permanently fixed to the land, can be removed by the First Defendant. Given the nature of the case I offer a gentle warning to the First Defendant that he must be extremely careful as to how he interprets this order. He would do well to enter into some kind of dialogue with the Claimant or it’s representatives to explain what he intends to remove. I am hoping that the gentle warning proffered will avoid any recriminations and contempt proceedings at a later stage. I have ordered immediate possession of the land but I will suspend that order for a period of 21 days solely to allow the First Defendant time to find somewhere else to live and time to remove any property not permanently fixed to the land. The suspension of the possession order will also affect the injunction ordered at paragraph 12 above.
    
15. I also order interest, if appropriate, to be paid to the Claimant.
    
16. As costs usually follow the event, I see no good reason as to why the costs of the Claimant should not be paid by the First Defendant. However I will return to the question of costs shortly.
    
17. The Claimant also seeks relief as against the Second Defendant. Again Mr Radclyffe was very open in his approach to relief as against the Second Defendant. He was of the view that if I found that the land belonged to the Claimant then there maybe no need for the declarations set out in paragraphs 8. a) and b). I think he is right about that. However, I would just say, to avoid any doubt, that the Second Defendant may have the right to offer all or part of the land for sale sometime in the future. That right would, of course, only arise in circumstances clearly set out in the Lands and Titles Act or any subsequent legislation. I would not want the Claimant to think that the Commissioner of Lands could never offer the land for sale to Mr Leni, or any other person for that matter, at any time in the future. I stress that such a course of action by the Second Defendant would have to be legitimate and lawful and in accordance with any right given to him by law.
    
18. Returning to the question of costs, whilst they are not claimed against the Second Defendant by the Claimant they are at the discretion of the court. The Second Defendant was joined as a party at the request of the First Defendant. The Second Defendant has made admissions. In the circumstances I will not make any order for costs against the Second Defendant but given the admissions made and considering those admissions could have been obtained as witness evidence I think it right that the First Defendant should pay the costs of the Second Defendant.
    
19. The final order for costs is that the First Defendant shall pay the costs of the Claimant and the Second Defendant.
    

Chetwynd J

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^[1] See for example Appendix A to the sworn statement of Japhet Limopu filed 16^th April 2010
^[2] See Exhibit NL1 to the sworn statement of Nollen Leni filed 1^st August 2008
^[3] See sworn statement by Alfred Soaki filed 21^st April 2010
^[4] See 4 above
^[5] See paragraph 14.
^[6] Amended statement of case filed 5^th November 2008