Solomon Islands Ports Authority v Korean Enterprises Ltd [2015] SBHC 33; HCSI-CC 140 of 2012 (4 May 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

BETWEEN:

SOLOMON ISLANDS PORTS AUTHORITY
Appellant

AND:

KOREAN ENTERPRISES LTD
Respondent

Date of Hearing: 27th March 2015.
Date of Judgment: 4th May 2015.

Mr F. Waleanisia for the Appellant
Mr A. Radclyffe for the Respondent

JUDGMENT ON APPEAL

Faukona J: A claim in category A was filed by the Appellant on 14th May 2012. There are four reliefs the Appellant seeks. They can be summarised as follows; damages for trespass to be assessed, permanent restraining order, removing of encroaching structures and immediate possession of FTE No. 191-063.001 own by the Appellant.

2. The Respondent did not deny the Appellant is registered as the owner of FTE No 191-063-001 but must proof its area and boundaries of its land. The Respondent denies encroaching onto the Appellants property. The seawall that was constructed and the fence that was erected were within the boundaries of its land namely; PN191-023-131, 191- 023-134 and 191-023-135 where it constructed the Hyundai Mall. Therefore, there was no encroachment and the Appellant has not suffered any loss.

3. It would appear the heart of this dispute is confined to the position of the common boundary shared between the parties. As such it was referred to the Registrar of Titles for determination pursuant to section 97(1) of the Land and Titles Act (the Act). Since the dispute concerns boundary of Crown lands the litigated parties has no direct access to the jurisdiction of the court, the parties must fulfil the above specific provision of the Act.

4. Right of appeal to the High Court is provided for in section 233 where a party is aggrieved of the determination, hence the filing of this appeal.

5. There are six appeal points in the notice of appeal which the Appellant intends to deal with under two categories; (1) registered land arguments (Appeal points 3 and 5) and (2) high water mark arguments (Appeal points 1, 2, 4 and 6).

The background history of registered lands:
6. The land described as Lot 102 Section II, Honiara, was first registered on 12th July 1981. That land is equally the same as PN 191-063-1. Without doubt and dispute that land was owned by the Appellant. According to plan number 2211 the Southern boundary of that land was bounded by high water mark as shown by dark red line in that document.

7. By mutation no. 25/82 PN 191-023-8, 47, 63 and 76 were combined and subdivided into PN 191-023-78 to 80 (inclusive). By application 164/83 perpetual estate in PN 191-023-78 and PN 191-023-79 were transferred to Guadalcanal Provincial Assembly. It is by the transfer of the estate that extended the boundary of the provincial land to high water mark. PN 191-023-79 was actually boarded with PN 191-063-1(the Appellant's land) and shared a common boundary.

8. After the transfer of the two lands to the Guadalcanal Provincial Assembly there were other mutations as well. The most significant was per instruction survey no. 26 of 1999 and 120 of 2001 where the Survey Department fixed the boundary marks on the ground along the common boundary between PN 191-023-79 and, 191-063-1. As it stands now PN 191-023-131,191-023-134, 191-023-135 and 191-023-93 shares common boundary with PN 191-063-1 (owned by the Appellant).

9. At some stage the Guadalcanal Provincial Assembly then leased its perpetual estate in PN 191-023-131 and 191-023-134 and part of PN 191-023-135 to the Respondent. Further, Guadalcanal Provincial Assembly leased PN 191-023-132 and 191-023-133 to the Respondent but did not share common boundary with PN 191-063-1.

Powers of the Registrar and Surveyor General:

10. I noted from the written submissions filed by Counsel advocate for Appellant exposing provisions in the appropriate Acts which define and segregate the functions and powers of the above officers. As neatly as it is, deserves my appreciation.

11. A point of law raised by Mr Waleanisia that sections 6, 7 and 8 of the Land and Surveys Act (Cap 134) was not complied with. He particularly points out the 1987 high water mark maps with new pegs and boundary marks. I noted the truth of the submissions, but fail to see the advocator has complied with the same provisions he quotes. The survey report and the map he relies on as supporting his case was never been counter-signed by the Surveyor General, and whether any deposit was made with the Surveyor General for duplication of the plan and memorandum made? However, a survey was done and a report was compiled on 18th October 2011. Attach to it is a map of the survey plan. There was no counter signing, though sufficient time is all the time from date of request until the determination by the Registrar. Now the Counsel wishes to pin point the failure of others. My personal perception is that the Counsel's submission on this point is not better than anybody.

12. The Counsel also points out the likely effect of such a shortfall, though not as clear as I would expect. In fact he has failed to address this point in full. At the end of paragraph 16 he merely states the Registrar did overstep his powers. If there is no good reason then this Court will not accept the Appellant's survey report and map. One can paint all the ingredients of someone's short comings, but one thing for certain is to ensure no possibility of any adverse effect back firing.

Has Registrar power to alter, improve or reject plans?

13. Counsel for the Appellant argues that S. 97 of Land and Titles Act gives the Registrar limited power confine to determination of disputes related to boundaries of state lands. It has no power to reject, alter or improve any matter that falls under another authority; in this case the Surveyor General. To permit will override the powers of the Surveyor General under the Land Surveys Act.

14. S.97 (1) of the Act vested power upon the Registrar to decide where the disputed boundary lines are. The subsection states that the Registrar shall make determination as to the location of the disputed boundary "on such evidence as the Registrar considers relevant". This means the Registrar has discretion when considering what evidence is relevant and must exercise it responsibly. He must not take into account irrelevant matters or disregard relevant matters.

15. On page 2 paragraph 3 the Registrar's determination that the survey marks which fixed the common boundary between PN 191-023-131, 191-023-134, 191-023-135 and 191-063-1 was a mistake and ought to be removed from the Cadastral plan and replaced with high water mark boundary. By rejecting the fixed survey marks on the ground prompted Mr. Waleanisia to argue that the Registrar has no power to reject, alter or improve any matter that falls under the jurisdiction of the Surveyor General?

16. The argument advance by Mr. Waleanisia is a contemplation of authority authorising the survey, or an affirmation, or an actual report of the survey marks. Unfortunately, no such authority is identified or available in the files. Notwithstanding that, it ought to be realised that all boils down to the bulk of evidence available before the Registrar for consideration. It is up to the Registrar, in exercise of his discretion to accept any evidence whether in a form of exhibit, sworn statement, or oral evidence which he considers relevant, and reject ones which are not relevant, provided he exercise his discretion responsibly or reasonably. By rejecting the survey report does not reduce or demean his powers or tantamount to contravening powers vested upon the Surveyor General. Notably his reason for rejecting the survey report is because he inclines to adopt, which he did, the principle of accretion, which allow the boundary in such circumstances to be at the high water mark.

17. Mr Waleanisia concedes that the Surveyor General has yet to complete the process that the new plan with pegs and boundary marks are still to be counter-signed by him pursuant to Section 7 of the Land Surveys Act. Despite, as it may, it is submitted that the Registrar cannot refuse the mutations and the plans including the 2211 plan. Given the situation, it would be grossly improper to concede to S.6 of the Land Surveys Act which expressly stated that such incompleteness cannot be recognised by any Court. That is law and the courts are bound to interpret to give its true meaning.

18. I noted the Registrar's jurisdiction is confine to S.97 which vested on him power to determine the boundary. However, the provision does not restrict the Registrar in analysing the evidence before him, which he is entitled to do so to arrive at a decision he thinks most appropriate in the circumstances of the case. He is tasked to decide on the evidence which he thinks is relevant and has the power to omit or reject irrelevant evidence. What he did was the best he could do as a non-legal officer.

Principle of Natural accretion:

19. There is no dispute the principle of natural accretion applies in Solomon Islands and in the context of shorelines. The question to ask is, where shoreline is being a natural feature separating two different lands; where should a common boundary between the two lands lie?

20. In the case of Johovah's Witness of Solomon Islands Trust Board (Inc) V Registrar of Titles[1]. His Lordship Justice Palmer (as he was then) define the word "accretion" by referring to Osborn's concise Law Dictionary (6th Edition) as;

"The act of growing on to a thing; usually applied to the gradual accumulation of land from out of the sea or a river. It belongs to the owner of the land..."

21. His Lordship also made reference to land law text book "Introduction to Land law[2] which stated that the doctrine of accretion is limited to land abutting to tidal water or running water. In other words the doctrine is limited to sea-shore and land abutting on rivers of running water. The word "abut" is defined by the Australia Little Oxford Dictionary as "adjoin, border on, touch, lean on or against". In a situation of sea-shore where the sea meets the land, where is the distinctive boundary? The above case related to the bank of the stream/river and river bed or stream. His Lordship concluded that the boundary of the right bank of the stream can be described as reference to land bordering on or touching the stream.

22. Applying the simple definition to shoreline, the boundary of the land should board with the high water mark on the shoreline. However, despite the perceived simplicity of this case, there are arguments that certain activities as further survey report with peg marks, human activities and other features are possible hints likely to complicate a simple application of the doctrine. That persuaded this court to move certain step further to acquire legal impartation of the doctrine.

23. His Lordship Palmer J cited with approval the case of Southern Centre of Theosophy V State of South Australia[3] which Lord Wilberforce made the following statements on page 716

"This is a doctrine which gives recognition to the fact where land is bounded by water; the forces of nature are likely to cause changes in the boundary between the land and water. Where these changes are gradual and imperceptible ..., the law considers the title to the land as applicable to the land as it may be so changed from time to time.. If part of an owner's land is taken from him by erosion, or diluvium (i.e advance of the water) it would be most inconvenience to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair the landowner's title should extend to it. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years.

24. The question whether at that time when the boundary was defined in 1981 survey, the doctrine of accretion applied? That boundary as described clearly abutted the seashore. His Lordship clearly stated on page 15 paragraph 4 that even if the original boundary can be identified, if it is bounded by running water then the doctrine of accretion nevertheless will apply, unless it has been specifically excluded. His Lordship further cited and noted a passage from the same above case[4] which Lord Wilberforce stated,

"They have (i.e. case authorities) firmly laid down that where land is granted with a water boundary, the title of the grantee extends to the land as added to or detracted from by accretion, or diluvium, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcel clause stating the area of land, and whether or not the original boundary can be identified"

Further, in the case of Attorney-General V M'Cartney[5] the Court stated:

..". that it makes no difference whether the original boundaries are fixed by natural objects, or by construction, or by measurements and maps. The principle governing the ownership of alluvion growing by imperceptible process of nature is the same"

"In the case of Attorney-General of Southern Nigeria V Joh Holt & company (Liverpool Limited)[6] the Privy Council stated that properties scheduled or specifically measured but in fact abutting on the seashore are not excluded from the operation of the rule which adds to riparian lands the increment which is caused by natural and gradual accretion from the sea".

25. His Lordship further cited the case of Hong On[7] which Lord Cross made the following statement:

"It is of course well settled that if the boundary of the land conveyed is the line of the medium high tide the mere fact that the acreage of the land conveyed is given and that the position of the line of medium high tide at that date of conveyance can be established-whether or not it is delineated or a plan-will not present land which subsequently become dry land through the gradual imperceptible recession of the sea from being added to the land conveyed"

26. The same principle applies here even if the boundary was surveyed in 1981 and perhaps 2001 with peg marks following the mutations. The doctrine of accretion still applies because the boundary of the Respondent's land abutted the sea. In other words high water mark at a given time is the common boundary between the party's lands. Whether the title of the Respondent's land added or eroded or detracted it does not change. The fact is that it would be inconvenient to regard the boundary as extending into the water as conveyed. It makes no difference whether the boundaries are fixed measurement and maps the imperceptible process of nature is the same. It concludes that high water marks should be the natural boundary between the lands own by the parties.

27. I noted there are human activities on the shoreline and may not be possible to identify natural high water mark boundary. The doctrine of accretion applies where the change is so gradual on a day to day basis, but not over a long period. Since 1981 no other regular survey reports is available to ascertain the high water mark whether there were additions or subtractions on the shoreline. It cannot be said that the boundary in 1981 will remain as it is for thirty four years; that is absolutely contrary to the doctrine of accretion. So where is the boundary? Mr Waleanisia argues that, 2011 HWM was not endorsed by the Surveyor-General in contravention of S.7 of Land Surveys Act. A similar argument can be taken concerning most recent survey reports including one from Mr Waleanisia's Client. So if I am legally obliged to uphold consistency and credibility where does it lie, definitely not coming from Mr Waleanisia's submissions on this point.

28. In the absence of regular survey reports on the shoreline to determine and ascertain the changes of high water mark, the most I could refer to are the maps from the survey reports contemplating some reference and where possible provide some form of assistance.

29. There are three reports on high water marks. One in 1981, the other in 2011 and third in 2014. The Registrar has exercised discretion and omits high water mark reports in 1981 and 2014. The question ought to pause now is has the 2011 HWM drawn according to the natural feature of the shoreline? It would be quite difficult to ascertain if there been certain human activities at the shore front. However, the high water mark in 2001 shown in the Claimant's survey report pegs the boundaries of the Defendant's land which exactly tracked the 1981 high water mark. If one perceives the actual registered boundary, that could probably so, as the Registrar did mention on page 1 paragraphs 5 of his determination that upon transfer of PN 191-023-78 and 191-23-79 to Guadalcanal Province, the boundary extended to the high water mark(1981) as common boundary.

30. From observations, it appears that a good portion of 1981 high water mark had been eroded with accumulation at one end compared to 2011 high water mark. That is expected because of natural forces and modern changes of weather pattern, and of course considering the duration of thirty years.

31. Unfortunately there is no actual measurement in relation to changes of high water marks. The fact that there are area of gain and loss speaks well of the gradual changes of high water mark for the past thirty years. The difference cannot be verified which I think is important. Notwithstanding that, 2011 high water mark should be the common boundary. And I uphold the Registrar's decision.

Order:

1. Appeal dismissed with costs payable to the Defendant.

The Court.

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^[1] (1993) SBHC 49; HCSI-CC SI of 1993 (16 July 1993)
^[2] By G.W.Hinde, D. Mcmorland & P.B.A Sim, Wellington Butterworth’s 1979, page 170.
^[3] (1982) AC 706
^[4] Ibid (3).
^[5] (1911) 2 I.R 26
^[6] (1915) AC 599
^[7] (1972) A.C 425