Mamupio v Piqe [2019] SBHC 5; HCSI-CC 334 of 2015 (8 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mamupio v Piqe
Citation:
Date of decision:	8 February 2019
Parties:	Bradford Mamupio v Ben Piqe, Attorney General
Date of hearing:	31 January 2019
Court file number(s):	Civil Case Number 334 of 2015
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands
Judge(s):	Kouhota PJ
On appeal from:
Order:	Cost is awarded to the claimant to be taxed if not agreed
Representation:	Mr. D Kwalai for the Claimant Mr. W Rano for the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Lands and title Act
Cases cited:	Waririu v Henry star Dora

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 334 of 2015

BRADFORD MAMUPIO
Claimant

V

BEN PIQE
(Representing himself and members of his family Relatives servants and associate)
First Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Lands and the Registrar of Titles)
Second Defendant

Date of Hearing; 31 January 2019
Date of Ruling: 8 February 2019

Mr. D Kwalai for the Claimant
Mr. W Rano for the Defendants

JUDGMENT

Brief Facts

The claimant is the owner of the Fixed Term Estate in parcel No. 191-006-347. It was transferred to him by his father Hansel Mamupio by a grant dated 17^th November 2014. The property is located at Rifle Range Western Honiara. In 2007 the First defendant was interested in the same plot of land and went to see the Ministry of Lands. According to his evidence someone in the Lands office advised him that he can occupy the land as Temporary Occupation Licence (TOL) and apply for conversion later.

On 5^th February 2011 the First defendant wrote to the Commissioner of Lands (COL) and request a conversion of TOL to Fix Term Estate (FTE). It was initially approved by the then Commissioner of Lands on 8^th December 2011.

On 22^nd May 2012 a site inspection was carried by the Physical Planning Division of the Ministry of Lands and Housing and Survey on lot 1889/XI/H, now Parcel No.191-006-347

On 29^th May 2012 the Physical Planning Division reported two things namely,

(1) land administration practice does not allow a standard two bedroom house to be built on the land and,
(2) That Ben Piqe the First defendant does not have any TOL on the lands.

On 22^nd November 2013 the Assistant Commissioner of Lands notified the Commissioner of Lands (COL) that Ben Piqe does not have nor hold a TOL on the land but there was an approval for conversion of TOL to FTE.

Around 2014 the COL wrote to Ben Piqe to pay rent for occupying the property from 2007 to 2014.The defendant obliged and paid as requested.

On 28^th July 2015 the Land Board granted a TOL over lot 1889/XI/H.

In November 2015 the COL realised that the grant of TOL to the 1^st Defendant was a mistake as the land was already registered to Bradford Mamupio as fix term estate in parcel no. 191-006-347. By letter dated 25^th November 2015, the COL notified the defendant that his TOL dated 28^th July 2015 was cancelled and advised him to immediately vacate the property. The chronology of events relating to the disputed land is long a long history but the brief facts outline above should suffice for the purposes of determining this dispute.

The Claim

By a category A claim filed on 21^st July 2015, the claimant seek the following orders;

(i) Possession of the said land described as parcel number 191-006-347,
(ii) An order requiring the named defendant and his family members to have vacant and peaceful possession of the land and property,
(iii) An order that the named defendant and his family members or relatives whether by themselves or by their agents or any of them otherwise be restrained from entering the land and property described as parcel number 191-006-347,
(iv) An order permanently prohibiting the defendant and his family members or relatives whether by themselves or their servants or agents or any of them otherwise from entering the land and property described as parcel No. 191-006-347,
(v) Any order deem fit by the court,
(vi) Cost.

The claim was served on the defendant on 23^rd July 2015.

The 1st defendant’s defence and counter-claim

The First defendant on 10^th May 2016 file a defence and counter claim. The 1^st defendant in his defence denied the validity of the registration of the Fixed Term Estate in parcel No. 191-006-347 to the claimant in so far as it covers land granted to him by the Commissioner of Lands under a licence to occupy public land described as Rifle Range, lot 1889/XI/H currently occupied by the defendant and avers;

(i) That registration was done by mistake on part of the servants or agents of the Commissioner of Lands and the Registrar of Titles and with the knowledge of the claimant,
(ii) The registration of the public land covered by a licence described as Rifle Range, lot 1889/XI/H currently occupied by the 1^st defendant and now registered in the name of the claimant as Fixed Term Estate Parcel Number 191-006-347, was perpetrated by the claimant and his servants and agents,
(iii) The 1^st defendant also stated at paragraph 4 of his defence that by virtue of their licence to occupy public land at Rifle Range described as Rifle Range, lot 1889/XI/H were persons in actual occupation of the land pursuant to section 114(g) of the Lands and Title Act [Cap 133] and the title of the claimant is subject to the right of the defendant to continue to use the land as they have done for the last 9 years.

Issues for Determination.

The crucial questions to be determine are;

(1) Whether the registration of the property Parcel no.191-006-347 was made by fraud or mistake hence need to be rectified?
(2) Whether the defendant has a valid TOL over the property and in lawful possession of the land when it was registered in the name of the claimant?

While the chronological events relating to the claimant and the defendants dealing with the land in dispute span over a long period of time, the issues in dispute could easily be dispose of by answering the two crucial questions paused above.

Mr. Hansel Maupio the father of the claimant gave oral evidence under oath on behalf of the claimant. He gave a detail evidence of how he acquire the land in dispute and then transfer it to his son. His evidence was not disputed on any material facts hence I do not need to rehearse them in detail, it is all on record and in the pleadings

The First defendant also gave evidence about how he had dealt with the Ministry of Lands about the land in dispute and how he came to occupy the land. His evidence while not disputed on any material facts, it does show that he was confused as to the legality of his dealing with Office of the Commissioner of Lands.

Mr. Nelson Noapu the former Commissioner of Lands gave evidence on behalf of the Second defendant. His evidence is crucial to the issues in dispute and helps to clarify the issues and I find him to be and independent creditable witness and accept his evidence as true and correct.

Mr. Noapu in his evidence stated that the land at Rifle range does not fall within the areas TOL can be granted. He said the grant of TOL to the 1^st defendant on 25^th May 2015 was a mistake. He said after the physical Planning Division of the Ministry carried out a site inspection on Lot 1889/XI/H they reported inter-alia that the 1^st defendant does not have a TOL on the land. The matter was reported to the Commissioner of Lands who on 29^th May 2015. The Commissioner of Lands revoke the purported TOL as it was a mistake. The 1^st defendant was duly informed of the Commissioner’s decision.

I had considered the submission of counsel and the cases authorities cited but I feel the case most relevant to the issues in dispute is the recent case of Waririu v Henry Star Dora [2018] SBCA 27; SICOA-CAC 9023(12 October 2018)

In Waririu v Henry Star Dora the appellant Mr. Waririu and his family had occupied a plot of Land at Mbokonavera since 2005 and built two permanent houses on the land. He claim to occupy the land with the authority of the Honiara City council and the Office the Commissioner of Land. In 2011 the land was sub-dived and a parcel of land on which Mr. Waririu built one of his house was allocated to the defendant Mr. Dora who registered it in his name parcel No. 191-016-316. Mr. Waririu file a claim and claimed amongst others that registration of the land in the name of defendant was void ab-initio and seek rectification. The High Court ruled that Mr. Waririu was illegally occupying the land hence section 114(g) of the Lands and Title Act does not applied to him and order that he vacate the land within 3 months. Mr. Waririu appealed against the High Court decision. On appeal, the Court of Appeal dismissed the appeal and at page 12 said “As trespassers on the said land, they could not assert that they had legitimate expectation from the Commissioner of Lands. They occupied and built houses on parcel No.191-016-316 at their own risk as they do not have grant of title to that land”. The Court of Appeal went on and at the same page stated “Trespassers do not have overriding interest under section 114(g) of the Lands and Title Act”.

The facts of the present case are very similar to the cases of Waririu v Dora. Although the defendant Ben Piqe had occupied the land following what he claimed was advice of someone from the Office of the Commissioner of Lands, there was no evidence that the advice was given on instructions or approval of the Commissioner of Lands. An advice from any one in Office of the Commissioner of Lands without the Commissioners approval does not afforded him any interest in the land or made his occupation of the Rifle Range land Lot 1889/XI/H now FTE Parcel No 191-006-347 lawful nor does it constituted a licence (TOL) to occupy public land. Only the Commissioner has the power to grant interest in crown land hence in the absence of any grant by the Commissioner the defendant is a squatter and lives on the land at his own risk.

As shown in the evidence of Mr. Nelson Noapu the Former Commissioner of Land, the purported Temporary Occupation Licence (TOL) relied on by the defendant was revoked shortly after it was realised that grant of TOL was issued by mistake as the land was already granted to the claimant’s and registered as Fix Term Estate parcel No.192-006-347. In essence this mean the First defendant had never legally occupy the Rifle Range land Lot. No 1889/XI/H under any TOL hence the defendant has been an unlawful occupant and cannot be saved by section 114(g) of the Lands and Title Act, Cap 133.

I would answer question 1 above in the negative. The answer to question 2 is also no. I give judgment for the claimant and dismiss the defendant’s counter claim. The Court order as follows

(i) Claimant to take Possession of the said land described as parcel number 191-006-347,
(ii) The defendant and his family members to have vacant and peaceful possession of the land and property parcel No 191-006-347
(iii) Order that the defendant and his family members or relatives whether by themselves or by their agents or any of them otherwise be restrained from entering the land and property described as parcel number 191-006-347,
(iv) The defendant to vacated the property and removed his properties within 3 months of the perfection of this order.

Cost is awarded to the claimant to be taxed if not agreed.

Right of Appeal informed

The court
...............................
Justice E Kouhota
Puisne Judge