Samlimsan (SI) Ltd v Vollrath [2017] SBHC 24; HCSI-CC 270 of 2015 (19 April 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 270 of 2015

BETWEEN: SAMLIMSAN (SI) Ltd Claimant

AND: LINDSAY J. VOLLRATH AND Defendants
ELIZABETH M VALLRATH

Date of Hearing: 19^th January 2017

Date of Judgment: 19^th April 2017

Mr Kaihuna for the Claimant
Mr A. Radclyffe for the Defendant

JUDGMENT

Faukona PJ: A claim in Category A was filed by the Claimant on 23^rd June 2015.

2.	This is a dispute concerning a fence erected and appears to be a boundary between PN: 192-010-87 own by the Claimant and PN: 192-010-84 own by the Defendants.
3.	The Claimant is claiming that the fence was erected about 2 meters from LC33 into its land and about 1.5metres from SH into its land.
4.	The issue of boundary became known in 2012 and the matter was then referred to the Registrar of Titles in 2014 under S.97 of the Land and Titles Act to determine the boundary issue. A survey report was compiled and a report made known to the Defendants.
5.	There was no dispute as to the position of the fence. By evidence it was existed before the Defendants purchased the fixed term estate from Laurie Chan in 2003, and even existed before the Claimant purchased its fixed term estate in 2007.
6.	The significant point to address is not the fence but the boundary. When a person purchased a fixed term estate from the Commissioner of Lands fence is not a determinant factor of the boundaries of a Crown land. The Commissioner of Lands should have the full knowledge of the boundaries of all Crown land as marked by pegs and placed in positions. And this should be understood and acknowledged by all fixed term estate owners.
7.	Where there is a dispute between owners of two adjacent fixed term estates concerning a boundary, the law requires that both have to seek the jurisdiction of the Registrar of Titles under S.97 of the Act to resolve the dispute. In this case it was done. A decision had been given. The Defendants failed to appeal to the High Court under S.23 of the Lands and Title Act within 6 months from the date the decision was made known to them.
8.	An important question then arises; can this Court substitute the decision of the Registrar of Titles in a circumstance where no appeal is grounded to seek the appellate jurisdiction of this Court? The question is simple with logic. The answer is definitely no. Section 97 is a requisite process where there is a boundary dispute concerning fixed term estates. There is no direct route to the High Court. That process must be completed before the jurisdiction of the High Court can be invoked by way of an appeal.
9.	Realising the hurdle, the Defendants then utilise S. 224 of the Land and Titles Act. As it seem, and by way of defence, claim that they had acquire 1.5 to 2 meters into the Claimants land by peaceable, overt and uninterrupted adverse possession of the land for 12 years.
10. 11.	Undisputed evidence reveals that the Defendants acquired the estate in 2003 without knowing the fence had encroached by 1.5 – 2 meters into the Claimants land. The Claimant having acquired the adjacent land in 2007 might not aware as well that the Defendants had encroached into its land by 1.5 – 2 meters. Therefore the requirement that the adverse possession was for 12 years, the least is misconceived. The Claimant had informed the Defendants of the boundary on 26th September 2012 and the dispute was referred to the Registrar of Titles and a decision was finally made on 26th March 2014. Hence, from 2003 to 2012 when the Claimant discovered the encroachment, it acted accordingly and informed the Defendants. From 2003 to 2017 is 9 years when the Claimant started to bring into light the encroachment. It did not wait after 12 years so that it would be disqualified under S. 224 (1). That section requires uninterrupted, peaceable and overt possession for 12 years which does not occur in this case. Therefore the Defendants cannot rely on the principle of acquisition of land by prescription.
12.	Secondly, S. 224 (2) sets out the procedures to comply with where a person claiming to have acquired the estate by prescription. First he must advertise or given notice in such a manner as the High Court may direct and then apply to the High Court for an order so as to be registered as the owner thereof. There is no evidence to indicate the Defendants had done this. On the two grounds alluded herein I do not accept that the Defendants had acquired 1.5 – 2 meters of the Claimants fixed term estate by prescription.
13.	Orders of the Court:
	1.	That the Defendants immediately give vacant possession of the fixed term estate in PN: 192-010-98; Lot 1976, as such portion was trespassed therein.
	2.	That the Defendants immediately removed their fencing that runs along the common boundary.
	3.	Permanent injunction restraining the Defendants their agents, servants, relatives and family members from further trespassing onto the Claimant’s land.
	4. Costs be payable by the Defendants to the Claimant.
	The Court.