Sivoro v Paza [2017] SBHC 28; HCSI-CC 298 of 2011 (10 May 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

CIVIL CASE NO. 298 OF 2011

BETWEEN: BARNEY SIVORO Claimant
(Trading as East West Tourism Corporation)

AND: MAMU HEBALA PAZA First Defendant

AND: ZOME ENTERPRISES LIMITED Second Defendant

AND: ATTORNEY-GENERAL
(Representing the Registrar of Titles) Third Defendant

Date of Hearing: 24^th February 2017
Date of Judgment: 10^th May 2017

Mr G. Faaitoa for the Claimant
Mr W.Togomae with Miss Seke for the First and Second Defendants
Mr D. Damilea for the Third Defendant

JUDGMENT

Faukona PJ: An amended claim in Category C was filed on 14^th May 2012. There are two major reliefs in the Claim. One is an order for repossession of part of the land PN 192-004-627 occupied by the Defendants without authority and consent. Secondly an order that all structures erected on the part of the land without authority or consent of the Claimant be dismantled and removed immediately at the Defendants own costs.

2.	The manner in which the Claimant and first and second Defendants entered or acquired rights to the land is twofold. The Claimant is imparting that he acquired the interest to the land by complying with the procedures set down by the land and Titles Act. That is by submitting application for the vacant land, then an offer was made to him and then appropriate fees were paid.
3.	The first and second Defendants are arguing that they entered the land as an alternative site after the Commissioner of Lands verbally requested them to surrender their lands located behind Honiara High School. They took possession and constructed four buildings on the lands describe as FTEs 192-004-627 and 192-004-1061. They also deny any act of trespass, and there was any evidence available to proof. Further to that the issue of trespass was not pleaded.
4.	Describing one another in opposition as to the manner each had entered the land is very interesting. The Claimant describes the first and the second Defendants entry into the land as trespassing. On the other hand the first and second Defendants describe the process which enable the Claimant to acquire the land was done by fraud.
5.	The manner in which the pleadings are conducted reflects that the counter-claim is in fact a defence to the claim. It outlines facts pleaded to either dilute to zero or negative the entire statement of claim and the process which the Claimant resort to.
	The 1st and 2nd Defendants Case:
6.	The first and second Defendants’ case is rather interesting so I elect to outline their case first. Having relinquished the land behind Honiara High School upon request by the Commissioner of Lands, with promise to offer an alternative site with equal status and fees.
7.	On 30th April 2007, the Commissioner of lands verbally instructed the Defendants to develop Lots 1961 and 1965 as alternative residential sites. The first Defendant then entered and took possession of the lands and constructed four properties. The lots now are FTEs 192-004-627 and 192-004-1061.
8.	In 2008 proper survey was ordered by the Commissioner of Lands which was done accordingly. In 2009, the subdivision was approved by the Guadalcanal Town Country Planning Board which includes Lots 1961 and 1965. The first Defendant since then has been waited for the formal amalgamation of the now disputed lots which had never been materialised.
9.	The Defendants strongly asserted that Lot 1961 including Lot 1476 were granted to the Claimant in amalgamation which now become as FTE 192-004-627.
	The Claimant’s Case:
10.	On or about 20th September 2008 the Claimant applied to the Commissioner of Lands for land PN: 192-004-627 or Lot 1476. The land was triangular in shape and situated at Henderson, near the International Airport, East Honiara. The land contains 0.7010 hectares.
11.	The Claimants application was supported by the Ministry of Culture and Tourism because there was a need to protect and preserved the fox hole which was located in the land.
12.	On or about 21st April 2009, the Commissioner of Lands made a written offer to the Claimant. On or about 21st May 2009 the Claimant paid the sum of $4,167.00 to Solomon Islands Government as a premium.
13.	Finally the land was formally registered in the name of the Claimant on 1st May 2009 until now.
	Analysis:
14.	The first thing I noted is that the Claimant had applied to the Commissioner of Lands for a singular triangle shaped land, a single block and not a combination of two blocks. The initial application by the first Defendant was made to Guadalcanal Provincial Executive (GPE) for a commercial site supported by the Physical Planning Division of the Province.
15.	As alluded the Commissioner of Lands had given instructions that the Defendants to do a survey, at the same time developed the two lots, Lot 1961 and Lot 1965 (disputed lot) as an alternative site.
16.	On the outset there were two wrongs existed. One, if the Defendants relied on the verbal advice by the Commissioner to enter the lands, it was wrong. That is absolutely outside of the procedures outline in the Lands and Titles Act. No one can enter and take possession of a Crown land by way of verbal advice from the Commissioner. The required process is by submitting an application to the Commissioner, if accepted, a formal offer will be made to the applicant and payments of required fees have to be done. At that stage a contract of sale has been concluded. What remains therefore is registration which is an administrative function. That is the process that will qualify any person before he can enter Crown Land and develop it. There is no second route available or provided by the Lands and Titles Act.
17.	The second wrong is that in dealing with Crown lands the Commissioner exercises its powers under S.4 (4) of the Land and Tittles. It is not part and partial of his functions to advise someone verbally to enter and possess any Crown land and develop it. That is not on, that is extra ordinary function not provided for under the Lands and Titles Act.
18.	The Defendants argue that the Claimant failed to plead and fail to show actual trespass, identify buildings constructed on the land and types. That argument may be relevant, but not so gravely required in the circumstances of this case. The Defendants had admitted entered into two lots and developed them is self-explanatory evidence. The two lots are adjacent to one another. The Claimant is concerned with one of the lots which he eventually obtained title to. There can be no doubt that those buildings constructed in both lots must include the lot registered in the name of the Claimant. It was the entry and construction without title, and build on the Claimant’s land is physically sufficient evidence of trespass. As we are dealing with Crown land the boundaries are well fixed without alteration.
19.	Further, the Defendants rely on the instructions given by the Permanent Secretary to the Commissioner that sale of undeveloped land is not allowed. This instruction in my opinion is out of context, logic and contrary to the Land and Titles Act.
20	The Commissioner of Lands has power in dealing with Crown lands pursuant to Section 4(4) of the Land and Titles Act. One of its functions is to sale vacant and undeveloped Crown lands. If a Crown land was developed then undoubtedly by good reason the land belongs to the developer which the Commissioner cannot by law exercise discretion to deal with by way of sale.
21.	What the Permanent Secretary would have meant by her instructions was that, no individual or corporations who had been registered as FTE owners and has the title cannot sell their lands undeveloped to other individual or corporations. Any such sale transaction must obtain consent from the Commissioner. In this case the Commissioner was instructed to discourage and not to permit any sale in such a manner. It does not mean the Commissioner must not sell any vacant Crown land which was not allocated to any one as yet.
22.	Again the first and second Defendants rely on an e-mail personally sent to the first Defendant from Mr. Harry in Fiji. What Mr Harry did convey was that no triangular shaped Crown land be allocated and sold to anyone. Therefore there was a need for further surveying to obtain more details.
23.	The Claimant’s application for the land is simple as per se. He applied for Lot 1476 of LR 83/R. An offer was made to him for Lot 1476 of LR 83/R – Henderson Land. The relevant fees as prescribed in the offer were paid. The volume of the FTE is 0.7010 hectares see map on page 86 the Court Book and the shape is triangular in form. Eventually the Claimant was granted title and registered as owner of PN: 192-004-627.
24.	The process had been concluded. A contract was eventually done. Grant and registration had been done. The Claimant had acquired a legal title to the land.
25.	The allegation that the Claimant was granted Lot 1965 including Lot 1476, a combination which make up PN: 192-004-627 is misconceived. If Lot 1965 was added to Lot 1476 to make PN 192-004-627 then there would be no doubt an increase in the volume. There was nothing as such occurred in this case in particular in the FTE register.
26.	Further still the first and Second Defendants alleged that Mr Marau granted Lots 1965 and 1476 to the Claimant; another unsubstantiated allegation. The truth is that the Claimant was offered Lot 1476 under the cover letter dated 21st April 2009 signed by Mr Sike, For: Commissioner of Lands, (P.76 & 77 Court Book) and not Mr Marau. The fees required in the letter were $4167.50 which was paid on 21st May 2009 GTR receipt No. B1325691 – Page 79 of the Court Book.
27.	If a dispute is attributed to the fact that the Commissioner (substantial holder of the post) did not endorse, an offer, then a similar situation also applied to the Defendants when an offer was made to the first Defendant in relation to FTE Lot 361/V1/H No.3 where Mr Fatai not substantive holder of the Commissioner’s post signed the offer on behalf of the Commissioner of Lands (Acting). Mr Marau who was alleged to have granted the FTE to the Claimant had never involved in the Claimants case and application. He did not endorse the offer nor did he play any role in the Claimant’s application for the land.
	The Counter–Claim by the first and second Defendants:
28.	From facts and submissions the Claimant had applied for PN: 192-004-627, Henderson area, Honiara, on 20th September 2008. The site accommodates a “Fox Hole”, an ideal spot for tourism attraction and development.
29.	From the maps submitted by the parties, there is no PN: 102-004-627 identified. However, upon perusing the grant instrument the area of land concern is approximately 0.7010 hectares. That refers me back to a map on page 86 of the Court book, Exh. “BS-12” attached to the Claimant’s sworn statement. In fact it was Lot 1476.
30.	The first and second Defendants after being advised by the Commissioner of Lands entered Lots 1961 and 1965 as alternative resident site, on unknown date after 30th April 2007. As they entered they constructed four houses on both Lots. At that time the first and second Defendants did not submit any application for those two lots.
31.	Identifying new site and entered therein after relinquishing, on advice by the Commissioner, does not mean a direct allocation verbally without a formal application and an offer. The processes provided under the Land and Titles Act still applies with no exception. It must be exhausted.
32.	In accordance with the map submitted by the first and second Defendants, there were two triangle blocks Lots 1961 and 1965. One of the Lots was the one the Claimant had applied for. Those were the two blocks the first and second Defendants had entered and constructed the four buildings.
33.	It would appear crystalline, that the first and second Defendants preferred both blocks but since there was an advice against allocating triangular shaped land, the Defendants then resort to surveying on advice, so as to combine both triangular shape lands into one Lot and PN.
34.	Unfortunately the survey process was slow and eventually no reports were compiled on any amalgamation. By then one of triangular shaped one was offered to the Claimant.
35.	Ultimately both parties had shown interest to the lands almost at the same time with different motives and desires. The Claimant had interest for one lot whilst the first and second Defendants preferred an amalgamation of the two lots which was never materialised.
36.	There is nothing sinister about the Commissioner receiving several interests or applications for the same land from different persons. However, the Commissioner is subject to consider interest conveyed by way of application only. In this case it did, and made an offer in response to the Claimants application.
37.	It has to be noted that the Commissioner has statutory powers under S.132 (b) of the Land and Titles Act to deal in Crown lands and grant to any person a fixed term estate. And having fulfilled requirements under S. 132(a) (payment of required fees) a contract of sale had been concluded.
38.	Registration under S.109 of the owner of FTE is an administrative function after the contract of sale had been concluded. After a person had been registered, he becomes a legal owner with the title which right cannot be defeated. At the same time he has the right to occupy, use and enjoy the land pursuant to S.113 (1) of the Land and Titles Act.
39.	In the counter-claim the first and second Defendants sought that the two lands be de-registered on the ground that the titles were obtained by fraud.
40.	Any dealing concerning the other Lot 1961 was outside of the Claimant’s interest. That land was never applied for or being offered to the Claimant or neither registered in the name of the Claimant.
41.	If that land was sold to Mr Heraiano, definitely was done through a different process which does not concern, included or affect the Claimants land PN: 192-004-627 which was offered to him.
42.	The first and second Defendants are assuming that under the mutation process the two Lots had been amalgamated. The problem the Defendants encounter was that, there was no report from the surveyor compiled in relation to any amalgamation, so that rectification of both lands are necessary.
43.	From submissions, the grant to Mr Hereiano and a subsequent transfer of the title to Mr Wakio concerned a different land. Mr Wakio had never sold or transferred that land to the Claimant. In reality the activities of Mr Hereiano, Mr Wakio or even Mr Warau had never involved the Claimant in his land dealings.
44.	As I have decided the Claimant’s case is a clear and simple one. He was concern only on one fixed term estate, not two, or a combination of estates. Therefore I find there is no fraud proved against the Claimant as to registration of the estate in his name so that I be require to make an order for rectification of the register.
	Orders:
	1.	Hereby declare that whole of 0.7010 hectares of fixed term estate in PN: 192-004-627 Lot 1476 registered in favour of Claimant belongs to the Claimant.
	2.	Leave is hereby granted to the Claimant forthwith to repossess the portion of PN: 192-004-627 which the first and second Defendants have illegally occupied.
	3.	That the first and second Defendants with immediate effect vacate PN: 192-004-627 with all their properties in the land.
	4.	That the first and second Defendants to pay damages to the Claimant to be assessed.
	5.	The Claimant is entitled to his costs be paid by the first and Second Defendants.
	The Court.