Tion v Attorney General [2014] SBHC 63; HCSI-CC 469 of 2013 (16 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CIVIL CASE NO. 469 OF 2013

BETWEEN:

AGNES TION and RASITE TION
Claimant

AND:

ATTORNEY-GENERAL (Representing the Registrar of Titles)
First Defendant

AND:

ATTORNEY-GENERAL (Representing the Commissioner of Lands)
Second Defendant

AND:

JOSEPHINE KAIRORONGA BEN
Third Defendant

Date of Hearing: 4th June 2014
Date of Decision: 16th June 2014

Mr Taupongi for the Claimant
Mr A. Radclyffe for the Third Defendant
No one for First and Second Defendants

DECISION ON INTER-PARTY HEARING

Faukona J: The conduct of this hearing is necessary following granting of ex-parte orders which was effected on 9th January 2014. On that date there was no claim filed, however, it was later filed on 5th February 2014. Upon reading of the claim, the major and perhaps the only relief sought is rectification of title in FTE PN 098-011-47 under Section 229 of the Lands and Titles Act. Currently the third Defendant is the holder of fixed term estate in the parcel number.

2. In this case submissions are basically related to the grant of the ex-parte injunctive orders and as well as in association with the issue of rectification of the title. Besides that, Mr Radclyffe also questions the administrative functions of the Court in listing of this particular case.

3. I agree with Mr Radclyffe that five months interval between grant of ex-parte orders and inter-parties hearing are not totally acceptable. However, it has to be noted that there are only two Civil Judges dealing with Civil Cases for the last five years. One logical aspect ought to be noted is that two weeks or even a month after the date of the orders is quite impossible to set for inter-parties hearing. Normally the dates in the first two or three months of a year had been booked by October, November and December the previous year. And of course the principle of first come first serve has to be applied.

4. Having said that, there is usual and continuous consultation between the listing coordinator and the civil judges. Despite that, the first element of delay can be noted from the date of filing of the claim. In this case, it was almost a month after the orders were granted. The delay was attributed by the Claimants. Filing of a claim should have been done within 14 days. Secondly, it could have been a best option to have the case adjourned to first mention date after the orders so as to monitor the quick filing of the claim and for Counsels to estimate how much time is required for inter-parties hearing. Date and duration of hearing is significant so that it would fit well with the diary of a judge. That process certainly will not take a month, may be more. However, five months is more than delay.

5. The issuant of the ex-parte orders were based on the substance of the application, reasons for such application and brief evidence supported by a sworn statement. It is a single party proceeding without contrary evidence which may not be necessary in ex-parte proceedings. Having satisfied on those grounds the Court therefore granted the orders as required by Rule 7.11.

6. There is no dispute the substantive issue in this case is premised on rectification of title. And the restraining orders sought were to restraint the third Defendant and family from entering the property to carry out any activity and not to harass the Claimant.

7. In this proceeding, there is evidence that the land was registered in the name of the third Defendant's father since January 2013. And the Claimants have admitted in Exh.AT6. It reflected that the application for ex-parte orders were made by the Claimants who were in occupation of the property. The third Defendant whose father was registered as a legal owner of FTE PN 098-011-47 did not live on the property nor occupied it. By virtue of section 110 of the Land and Titles Act the third Defendant has indefeasible right which right shall not be liable to be defeated until overturn by a Court of competent jurisdiction.

8. Mr Taupongi argues that the third Defendant may have indefeasible rights but his clients the Claimants have overriding interest. Mr Taupongi fails to identity what sort of overriding interest. However, he refers to possessory rights which the Claimants had been occupying the property for eleven years. And he terms it as rights in equity. I think the Counsel has misconceived what are overriding interests and rights in equity. None of those interests and rights was specifically referred to. There are many overriding interest entrenched in Section 114 of the Land and Titles Act and many equitable rights. A Counsel cannot just rely on rights in equity. That is too general. There are many rights in the law of equity. To rely on any equitable right that right has to be specially mentioned if relies on as basis for filing a suit.

9. In any event, Section 224 of the Act does not assist the Claimants either. The third Defendant had just acquired registered interest in January 2013. Since then he had indefeasible interest for 1 year 5 months. It is a requirement that the Claimants have to have uninterrupted adverse possession for twelve years. Not only that, but acquiring title under uninterrupted adverse possession is not automatic. The Claimants by virtue of Section 224 (2) must advertise or give notice of their occupation as the High Court may direct. Then must apply to the High Court for an order that they be registered as owners thereof. The Claimants have to comply with the law and cannot rely on mere occupation for eleven years as a qualification for registration allowable by law of equity. This issue in my view is closely associated with the question of rectification of title which must be tested at trial.

10. This is a case where purported or assumptive rights in equity conflicts with legal rights. In such situation, legal rights must prevail. Meantime the rights of the third Defendant is indefeasible as expressed in Section 110 of the Act and that right is still current at this stage.

11. Having considered the material evidence before me, I therefore set aside the Ex-parte injunctive Order 1 made by this Court on 9th January 2014.

Orders:
1. Ex-parte order 1 of 9th January 2014 is hereby set aside.

2. Costs are awarded to the third Defendant.

3. Case adjourns to 10th July 2014, for mention at 9.30am.

The Court.