Moveni v Cheffers [2013] SBHC 160; HCSI-CC 107 of 2011 (20 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

REEVES MOVENI & HEMAIMA MOVENI
Claimants

AND:

KATE CHEFFERS
1st Defendant

AND:

ATTORNEY GENERAL (representing
Commissioner of Lands)
2nd Defendant

AND:

ATTORNEY GENERAL (representing
Registrar of Titles)
3rd Defendant

Mr. W. Rano for the Claimants.
Mr. A. Radclyffe for the 1st defendant.
Mrs. R. Soma for the 2nd and 3rd defendants.
Date of hearing: 7th October 2013
Date of Judgment: 20th November 2013

JUDGMENT

Apaniai, PJ:

Introduction.

1. This is a claim for damages for trespass and possession of Parcel No. 191-009-175 ("Land") as well as for injunction and costs. The Land is situated along the Tandai Highway in Honiara.
   
2. The Claimants say they own the Land while the 1st defendant says the Land is hers. She has filed a defence to the claim as well as a counterclaim for rectification of the land register on the ground of mistake.
   
3. The Land is currently registered in the names of the Claimants. It was so registered on or about 8 February 2011 following a letter of offer issued to the Claimants on 20 December 2010 by a Mr. Olofia Fatai of the office of the Commissioner of Lands ("Commissioner").
   
4. The Claimants allege that the 1st defendant had constructed a semi-permanent house on the Land and that they were not aware of the house being built on the Land until 23 February 2011 when they visited the Land. The Claimants do not reside on the Land nor do they have any building on the Land.
   
5. The 1st defendant does not dispute that she had constructed a house on the Land nor is she disputing the fact that the Land is currently registered in the Claimants' names. Her claim is simply that the Land is supposed to be hers and that it was registered in the Claimants' names by mistake.
   

Burden of proof.

6. Since the Land is now registered in the names of the Claimants, it must be presumed that all the statutory requirements necessary for a valid registration of the Land in the name of the Claimants have been duly and properly complied with[1]. The burden is therefore on the 1st Defendant to prove otherwise[2], that is, that the Land was registered in the Claimants' names by mistake[3].
   
7. Mr. Rano submits that the 1st defendant must prove two things in order to succeed. First, that a mistake has been made in connection with the registration and, second, that the Claimants knew about the mistake or had contributed to the mistake or had induced the mistake. He relies in section 229(2) of the Land and Titles Act (Cap. 133) ("Act") as authority for that proposition. That provision confers upon a bona fide purchaser for value who is in possession an indefeasible title to the property.
   

Bona fide purchaser for value.

8. In my view, to benefit from the protection afforded by section 229(2), there are three conditions that the registered owner must satisfy. These are:-
   

[1] he is in possession of the land;

[2] he has purchased the land for value; and,

[3] he is a bona fide purchaser in the sense that he had no knowledge of any mistake or fraud which may have been committed in connection with the registration of the land in his name, and, had not caused or contributed to such mistake or fraud.

9. It is not seriously disputed that the Claimants have bought the Land for value and that they are bona fide purchasers. The only question is whether they are in possession of the Land.
   

Possession.

10. Mr. Rano for the Claimants submits that the Claimants are in "possession" of the Land. He submits that the Claimants need not prove that they are in actual possession of the Land for ownership itself is sufficient prove that the Claimants are in possession within the meaning of section 229(2) of the Land and Titles Act (Cap. 133) ("Act").
    
11. Unfortunately, I do not agree with that proposition. Ownership and possession are not the same thing. A person may own a plot of land but unless he occupies the land, he is not in possession of the land. The fact that he owns the land does not necessarily mean that he is in possession of it. For instance, if he leases the land to a tenant, who moves in and occupies the land, the ownership remains with the owner but possession is with the lessee. Peter Butt has described the distinction between 'ownership' and 'possession' in his book "Introduction to Land Law" when he said at page 26:
    

"Possession is a fact, independent of other facts and of legal rules; ownership, on the other hand, whatever its origin, is the creation of law."

12. In this case, it is my view that the Claimants are not in possession of the Land, hence, they are not protected under section 229(2) of the Act. That means if it is found that a mistake or an error has been made in connection with the registration of the title to the Land in their names, the registration could be set aside.
    

Rectification principles.

13. Having said that, I now turn to the question of rectification.
    
14. Subsection (1) of section 229 of the Act gives the Court a discretion to order rectification of the land register where it is satisfied that the registration has been obtained, made or omitted by fraud or mistake.
    
15. Where a mistake is made by the Commissioner in the performance of his statutory functions which results in the registration as owner of land of a person who should not have been so registered, such registration would be set aside on the ground of that mistake[4]. Mistake is tantamount to error. Hence, errors made by persons other than the Commissioner can also amount to grounds for rectification[5].
    
16. As for fraud, it must be shown that the conduct which led to the registration of the person as owner of the land involved dishonesty[6]. In this case, fraud has not been alleged.
    

Was there a mistake?

17. The question, therefore, is whether a mistake has been made in relation to the registration of the Claimants as owners of the Land. From the sworn statements forming the evidence in this case, the following facts are clear.
    
18. In 1994, the Commissioner granted to the 1st defendant two plots of land along the Tandai Highway at Rove referred to as Lots 916 and 917/III/H. The title to these two plots of land are now registered in the name of the 1st defendant. The Land, which is the subject of these proceedings, is a plot of land adjacent to Lots 916 and 917/III/H. It was then known as Lot 918/III/H. It is now referred to as Parcel Number 191-009-175.
    
19. After having been granted Lots 916 & 917, the 1st defendant and her husband, the late Jim Cheffers, again applied to the Commissioner for the Land (ie, Lot 918).
    
20. By letter dated 17 June 1997, the Commissioner approved the application and requested the 1st defendant to call in at his office to sign a "Instruction to Survey" form to facilitate a survey of the area. An assurance was also given in that letter that a formal offer would be made as soon as the survey work was completed. It was submitted by Mr. Rano for the Claimants that the letter did not specify the land being allocated, hence, the offer was not valid. I must disagree. While it is true that the land approved for the Defendant and her husband in that letter was not specified, there is no doubt that the Defendant and her husband as well as the Commissioner knew what land was being approved for the Defendant. That land was Lot 918, which is now Parcel Number 191-009-175.
    
21. Following the approval, survey fees amounting to $2,000.00 were paid by the 1st defendant to the Commissioner on various dates in June 1997 and on 24 September 1998 respectively. The 1st defendant then commenced developing the Land, including the construction of what appears to be a semi-permanent building on the Land. However, nothing was done by the Commissioner towards registering the Land in the name of the 1st defendant.
    
22. On 21 April 2010, the 1st defendant wrote to the Commissioner enquiring about the grant of the Land to her as promised and raising concerns about the fact that Commissioner's file relating to the Land had gone missing. A response was received from the Commissioner dated 14 May 2010 assuring the 1st defendant that the concerns raised by the 1st defendant would be investigated and that directions would be given to effect registration. A more harshly worded letter was sent by the 1st defendant and the late Cheffers to the Commissioner on 30 July 2010 expressing their disappointment and asserting that approval had already given to them in regards to the Land.
    
23. On 17 December 2010, the Commissioner himself wrote to the 1st defendant and her husband indicating that there were confusions regarding the dealings over the Land and that the Land may have been allocated twice by mistake. In that letter, the Commissioner also assured the 1st defendant and her husband that the allocation of the Land made to them had not been withdrawn and that that allocation was still valid and that registration would be effected in their names.
    
24. Despite the assurance by the Commissioner by his letter dated 17 December 2010, a letter of offer of the Land was issued to the Claimants on 20 December 2010 by the same Mr. Olofia Fatai referred to in paragraph 3 above. In that letter, the Claimants were also requested to pay a total fee of $5,357.00 representing premium, registration, survey, stamp duty, valuation and first year rent. The Land was formally registered in the name of the Claimants on or about 8 February 2011.
    
25. There is also another earlier letter purportedly issued by the said Olofia Fatai on 15 October 2009 approving the Claimants' application for an alternative site at Tandai. However, there was no mention in that letter of what that alternative site was and it is not clear whether the alternative site was meant to be the Land. Nevertheless, one thing that is clear from these letters by Mr. Olofia Fatai, that is, that the Claimants have been dealing with Mr. Fatai in relation to the Land since October 2009 while the 1st defendant has been dealing directly with the Commissioner and other officers in the Lands Department since 1997.
    
26. The formal letter of offer of the Land to the 1st defendant was made on 24 January 2011 in which the sum of $14,820.00 was requested to be paid by the 1st defendant as premium, valuation, survey, registration, stamp duty and other fees. The 1st defendant paid the $14,820.00 on 25 January 2011.
    
27. It is clear that a double allocation has been made in relation to the Land by officers employed in the Commissioner's office. It is also clear that, of the approvals and offers relating to the Land, the 1st defendant's approval was first in time and that the Claimants' offer came later. It is also clear that the Claimant was dealing direct with Mr. Olofia while the 1st Defendant was dealing direct with the Commissioner and his other officers. It is clear to me that there was lack of consultation between the Commissioner and Mr. Olofia in their dealings with the Claimant and the 1st Defendant in relation to the Land.
    
28. It is my view that it would not be proper for any officer employed in the Commissioner's office to by-pass the Commissioner in his dealings relating to Government land. It is the Commissioner who is entitled to hold and deal in interests in land for and on behalf of the Government[7]. Hence, where, as in this case, there is a conflict between an allocation of land made by the Commissioner and that made by an officer employed in his office, the Commissioner's allocation must prevail.
    

Decision.

29. It follows therefore that the allocation made by Olofia to the Claimants and the subsequent registration of the Land in their names were errors committed by officers of the Commissioner. Accordingly, it is ordered that the register be rectified by removing the names of the Claimants as owners of Parcel Number 191-009-175 and by registering the Defendant as owner thereof.
    

Costs.

30. This case is the result of the conduct by Mr. Olofia Fatai and the Commissioner of Lands in making a double allocation of the Land. It brings to light the inability by the Commissioner to control his staff in the performance of their duties. Mr. Fatai and the Commissioner must therefore meet the costs of the Claimants and the 1st Defendant.
    

Orders.

31. The Orders of the Court are as follows:-
    

[1] That the claim by the Claimants is dismissed.

[2] That judgment is entered for the 1st Defendant on her counter claim.

[3] That the land register be rectified by removing the names of the Claimants as owners of Parcel Number 191-009-175 and by registering the Defendant as owner thereof.

[4] That the costs of the Claimants and the 1st Defendant be paid by Mr. Olofia Fatai and the 1st Defendant in equal portions, such costs to be assessed if not agreed.

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] Wilover Nominees Ltd vs Inland Revenue Commissioners [1973] 1 WLR 1393.
^[2] Clynch vs Inland Revenue Commissioners [1973] 2 WLR 862.
^[3] Section 229(1), Land & Titles Act (Cap. 133).
^[4] Billy v Daokalia [1995] SBCA5; CA-CAC 001 of 1995 (27 October 1995).
^[5] Hiva v Mindu [2009] SBCA22; CA-CAC 13 of 2008 (23 July 2009).
^[6] Assets Co. Ltd -v- Mere Roihi & Others [1905] UKLawRpAC 11; [1905] AC 176 , Waimiha Sawmilling Co. Ltd -v- Waione Timber Co. Ltd [1925] AC 101.
^[7] Section 3(4), Land and Titles Act (Cap. 133).