Honiara Resort (Solomon) Ltd v Nazar Gold SI Ltd [2015] SBHC 55; HCSI-CC 294 of 2014 (17 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No.294 of 2014

BETWEEN:

HONIARA RESORT (SOLOMONS) LIMITED
Claimant

AND:

NAZAR GOLD SI LIMITED
First Defendant

AND:

LAPEROUSE RESTAURENT COMPANY
Second Defendant

AND:

COMMISSIONER OF LANDS
Third Defendant

Date of Hearing: 19th May 2015.
Date of Ruling: 17th June 2015.

Mr. J. Sullivan and Mr Soma for the Claimant
Mr J. Keniapisia for the First Defendant
Mr. G. Suri for the Second Defendant
Mr J. Muria (Jnr) for the Third Defendant

RULING ON APPLICATION TO DISMISS CLAIM

Faukona PJ: This is an application pursuant to Rule 9.75 to dismiss the Claimant's claim filed on 17th March 2015, on the grounds of being frivolous and vexatious; or that it discloses no reasonable cause of action and/or that the claim is an abuse of court process.

2. An original claim in category A was filed by the Claimant on 4th September 2014. The reliefs sought are in terms of declaration that the Claimant acquired ownership by prescription under Sections 224 and 225 of the Land and Titles Act in two estates PN 191-014-100 and PN 191-014-121 as outlined in red in the survey plan.

3. The second relief are consequential orders directed to the third Defendant and is set out in paragraph 2 of the relief; and of course costs.

4. The first Defendant response to the claim by filing a defence on 29th September 2014. On 11th March 2015 the first Defendant filed this application to dismiss the original claim. On 17th March 2015 the Claimant filed an amended claim.

5. Apart from the application for dismissal, there are other minor applications heard at the same time. One of which is an application by the Claimant for leave to formally file an amended claim filed on 17th March 2015.

6. The first application dealt with, is an application for leave to effect amendment of the statement of claim. At the hearing, Counsel advocate for the first Defendant persisted that his client's application for dismissal was against the original claim and not the amended one.

7. Mr Sullivan QC submits that the amendment does not disclose any new facts but merely explaining the doubt as to the period the Claimant claims title by prescription by reason of its own period of such peaceable, overt and uninterrupted possession and in combination with period of peaceable, overt and uninterrupted possession of its predecessors in title Blue Lagoon Cruises (SI) Limited and the third Defendant.

8. The nunc pro tunc principle and which this application is premised, was adopted in the case of Progressive Resource Ltd v Commissioner of Lands[1]. The principle is defined as; a procedural error committed on an earlier date can be corrected at a later date by rectifying it in retrospect. Therefore the major amendment is an inclusion of paragraph 20A, a new one not pleaded previously, to explain the position of the Claimant in relation to Sections 224 and 225 of the Land and titles Act.

9. Counsel Suri submits concurring with the Claimant's submissions. After brief submissions the Court decided to grant leave based on the practical reason that amendment done to the original claim does not affect the amended claim, neither will it prejudice any of the parties. Leave is therefore granted.

Application to dismiss the amended claim:

10. The first Defendant's application to dismiss the claim is premised on the reason that none of the parties, the Claimant and the first Defendant had possession against each other's property or part thereof continuously as to entitle either to claim title by prescription.

11. The Claimant became a registered owner of PN 191-014-199 from 21st August 2006.

12. The first Defendant is the registered owner of PN 191-014-100 and 191-014-121 in November 2013.

13. The Claimants two parcels of land are adjacent to the first Defendants of which they share a common boundary.

14. The arguments in this application are one of defining the applications of Sections 224 and 225 of the Land and Titles Act. S.224 provides where the ownership of land may be acquired against the person registered as owner by adverse possession. S.225 sets out various ways where possession of land shall be adverse possession for the purpose of S.224.The elements of a claim of title by adverse possession against the registered owner are; continuous peaceable, overt and uninterrupted possession of the land; for a period of twelve years and adverse possession by a claimant's predecessors in titles shall count towards the required period of adverse possession.

15. Mr Keniapisia is paradigm in upholding a general view that the Claimant is not qualified to claim prescription because it fails to meet the mandatory requirements of Sections 224 and 225 of the Land and Titles Act. That the Claimant and the first Defendant have not lived together for 12 years to be able to enjoy peaceable, overt and uninterrupted possession. There was no prior advertisement or notice given before applying to the High Court for an order to be registered; no actual physical possession of the land marked as annexure A of the claim without the first Defendant's permission; actual time of possession; possession deemed inherited; or succession by will; special cause; and that possession by Claimant has been interrupted by the first Defendant's proceeding in defence and counter-claim filed in 29th September 2014. Mr Keniapisia sums up that the Claimant fails to plead to the relevant requirements exerted by the two provisions. It would appear Mr Keniapisia is probably making reference to the original claim.

16. Mr Sullivan QC submits that the amended claim has pleaded the Claimant's position in particular paragraphs 16, 17, 18, 20A, 21 and 22. There is nothing more to plead but they have complied with the requirements of the two provisions.

17. It appears the Claimant's position is that, it claims its title by prescription by way of its adverse possession and that of its predecessors in title.

18. Firstly from 1996 until 2006 are of the Claimant's predecessors in title (Blue Lagoon) had actual peaceable, overt and uninterrupted possession of part of one of the parcels which the first Defendant is the registered owner. Later in late 2006 the Claimant has been in actual peaceable, overt and uninterrupted possession of that land. (Pleaded in paragraphs 16, 17, 18 and 20A).

19. Again the Claimant is saying from 1996 to mid-2006, another of Claimant's predecessor in title (the Commissioner of Lands) Also had actual peaceable, overt and uninterrupted possession (as well as receipt of rents and profits) of part of another of the parcels of which the first Defendant is the registered owner and that the Claimant has since mid-2006 been in actual, peaceable, overt and uninterrupted possession of that land. (Pleaded in paragraphs 16, 19, 20 and 20A).

20. By utilizing Section 225 (3) the Claimant claims its title by prescription by way of a combination of its own adverse possession and that of its predecessors in title. The combine period in each case runs from 1996, a period well over 12 years.

21. The most significant issue in this case is possession by peaceable, overt and uninterrupted adverse possession of the first Defendant's lands. The Claimant claims its title by prescription combining its own adverse possession and that of its predecessors in title. The argument is that whether the previous owner and the Claimant had actually in possession enjoyed peaceable, overt and uninterrupted possession, adverse in nature and in which the Claimant derived its title, and whether the combined period was continuous for twelve years. These are issues to be tried at the hearing of the substantive case.

22. In addition, is another of Claimant's predecessor in title, the Commissioner of Lands? It is common knowledge that the Commissioner of Lands has perpetual estate title to all Crown land. The question is has the Commissioner of Lands had adverse possession, as well as receipt of rents and profits, and if so from who? I noted S.224 (1) (b) which states, "no person shall so acquire the ownership of any estate or lease in land vested in or own by the Commissioner or a local authority. In any event this is another issue which ought to be litigated at trial.

23. This application covers both areas of land the Claimant wish to acquire by way of prescription. Though adverse possession was derived from two previous and separate titles, it would be in my opinion prudent to consider the application as one. It would be improper to separate them. May be a decision at trial will consider the issues separately followed by a decision to that effect.

24. I noted that the claim by claimant is for adverse possession whilst the first Defendant is contending encroachment. There are two legal rights; which one will prevail have to wait for full argument at trial.

25. Having said that, I take comfort of the case Mr Suri discloses in his submission, Fera v Ologa[2] which headed, "The pleading should be struck out only in plain and obvious cases." See also Mayor, etc., of City of London V. Horner; and Kemsley V. Foot and Others). An important quote from Fera's case is, "If the statements of claim discloses some cause of action, or raise some question fit to be decided by the Court, the mere fact it is weak and not likely to succeed, is no ground for striking out (Davey V Bentinck)."

26. I appreciate Mr. Suri for outlining the major issues in paragraph (3.2) of his submissions. At this juncture may I add the other cause of action which relate to whether there was physical entry upon the land which would interrupt possession. Those are some of the issues which ought to be fully pleaded and consider at trial. Therefore striking out the claim at an early stage is premature. I am satisfied that the amended claim discloses reasonable cause of action which if proved at trial, will entitle the Claimant to the relief sought.

27. At the hearing, all the Counsels agree that this case be consolidated with Civil Case no. 82 of 2014. That was done accordingly and an order to give effect to that is included in the orders of this Court.

28. On the application for leave to issue advertisement or given notice in such manner under S. 224 (2), that has been opposed by Mr Suri. The reason being to do so at this stage will pre-empt arguments in this case. I tend to see the impact of Mr Suri's argument. Therefore, I will refuse to order for any advertisement be made at this stage.

Orders:

1. Leave granted for Claimant to effect amendment of the statement of claim which had been formally filed in court.

2. Refuse to grant order dismissing the amended claim.

3. Order that this case be consolidated with CC No.82 of 2014.

4. Refuse to grant leave for the Claimant to advertise or give notice before applying to the High Court for an order that it be registered as the owner thereof.

5. Case adjourns to 2nd July 2015 for parties to seek direction orders to move the case forward.

6. Costs of this application be paid to the Claimant by the first Defendant.

The Court.

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^[1] [2004] SBHC 59; HCSI-CC 341 of 2003 (9 July 2004).
^[2] [2004] SBHC 24; HC – CC 268 of 2003 (16 March 2004).