Gamali v Luis Min San Chin [2020] SBHC 19; HCSI-CC 493 of 2017 (27 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Gamali v Luis Min San Chin
Citation:
Date of decision:	27 March 2020
Parties:	Thomas Gamali v Luis Min San Chin, Commissioner of Lands
Date of hearing:	3 December 2019 (Trial) 11 December 2019 (Closing Submission)
Court file number(s):	493 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Accordingly, the claim is dismissed. Cost against Gamali on standard basis. Parties opposing interests in this claim shall all revert back to be dealt with and resolved in Civil Case 314 of 2015.
Representation:	Mr. D Nimepo for the Claimant Mr. A Radclyffe for the First Defendant Mr. A K S Poa for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act ,s 129, s 224 (1) [cap 133]
Cases cited:	Island Enterprises Ltd v Reef Pacific Trading Ltd [1992] SBHC 50, Lucky Enterprises Ltd v Aiwosuga [2019] SBHC 49, Moveni v Cheffers [2013] SBHC 160, Laperouse v Attorney General [2019] SBHC 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 493 of 2017

THOMAS GAMALI
Claimant

V

LUIS MIN SAN CHIN
First Defendant

COMMISSIONER OF LANDS
Second Defendant

Date of Hearing: 3 December 2019 (Trial) 11 December 2019 9Closing Submission)
Date of Judgment: 27 March 2020

Mr. D Nimepo for the Claimant
Mr. A Radclyffe for the First Defendant
Mr. A K S Poa for the Second Defendant

JUDGMENT

KENIAPISIA; PJ:

1. By a Category C claim filed 19/10/2017, claimant sought the relief that PN 191-023-145, be rectified. And that registration is rectified to the original position, prior to 1^st defendant’s registration as Fixed Term Estate (FTE) owner, in year 2010. This will mean, the FTE, should be rectified and restored back to the Commissioner of Lands (COL).
2. Mr. Gamali has occupied the disputed property (PN191-023-145) as far back as the 1990s. And has had various unsuccessful attempts to acquire PN 191-023-145 (“PN 145”). One such failed attempt was on or around 17^th May 2001, whereby COL refused Gamali’s application for the disputed land – PN 145. In other words, by year 2001, Mr. Gamali’s attempts to acquire PN 145, hit brick wall. For the COL rejected Gamali’s application by letter dated 17^th May 2001, saying, PN 145 is reserved for a public space. Mr. Gamali is also known by the name Thomas Daiwo, as confirmed by Gamali in oral evidence at trial. The name Thomas Daiwo was used in COL’s letter of refusal dated 17^th May 2001^[1].
3. Mr. Gamali did not give up. Gamali continued to occupy and construct dwelling houses on the disputed land (PN 145). What frustrated Gamali most occurred in 2005, when COL, instead gave the same FTE to one named Mr. Dola. And Mr. Dola, immediately in 2005, transferred the same to Mr. Tangs. Subsequently in 2010, 1^st defendant obtained the FTE from Mr. Tangs.
4. Mr. Gamali refused to vacate the land in spite of requests from 1^st defendant and in spite of court orders in Civil Case No 314 of 2015. Civil Case No. 314 of 2015, was 1^st defendant’s claim to evict Mr. Gamali from the disputed property – after it acquired FTE title in year 2010. Civil Case 314 of 2015 is at enforcement proceedings stage.
5. Instead of defending the claim in Civil Case 314 of 2015, Mr. Gamali filed this fresh claim, failing to make mention of Civil Claim No. 314 of 2015. Counsel Nimepo explained at closing submission that this decision was taken, because fresh issues, justified filing a fresh claim. But as a prudent litigation practice, Gamali could have filed a defence in Civil Case 314 of 2015. And simultaneously make a counter claim. The issue remain the same – whether or not Mr. Gamali should be evicted from the land – PN 145?

Mistake and or Fraud – Statutory process was not duly adhered to?

6. Whilst this claim seeks rectification on the ground of fraud and or mistake, fraud and or mistake was not actually particularised or established through evidence at trial. What actually occurred was that, Gamali had occupied the land since the 1990s. Gamali has attempted to obtain FTE title to the land (PN 145). That attempt failed in 2001, when COL refused to give the land to Gamali, saying PN 145, is reserved for a public space. Yet in 2005, COL gave the same piece of land to one named Mr. Dola, who immediately, on the same day, transferred the same land to Mr. Tangs. And again in 2010, Mr. Tangs transferred the same land to the current 1^st defendant’s father / 1^st defendant. Gamali’s real grievance is why COL refused to give the land to him in 2001 (for reason of public space)? Yet gave it away in 2005 to Mr. Dola and later to Mr. Tangs and now 1^st defendant (since 2010). Gamali sees all these subsequent transactions as fraud and or mistake.
7. Gamali says it was fraud and or mistake because the statutory process was not followed in giving the land to Mr. Dola in the first place. There was no consent from the COL to transfer the land to Dola at the first place. And then the transfer from Dola to Tangs was made in breach of condition 6, of the schedule to the Grant of FTE between Dola and COL. Condition 6 obliged the grantee (Mr. Dola) to erect a building on the land within 18 months. Yet Mr. Dola transferred the land to Mr. Tangs on the same day. The major flaw to claimant’s contention is that, Mr. Gamali is not a privy to the grant – the grant being a “contract” between the two parties (COL and Mr. Dola, in 2005). Mr. Gamali not a privy, means he cannot claim for any rights and obligations accruing under the grant. That is the unfortunate ending of things for claimant, in the eyes of the law, in terms of the grant.
8. Mr. Gamali has agreed to in cross examination at trial that COL did not give him any permission to be on the land, since the refusal on 17^th May 2001. Gamali has no license nor any known estate or interest to be on the land. Whether it be PE^[2], FTE^[3] or TOL^[4], claimant virtually has no known legal, equitable or any interest or estate (contractual or otherwise) to secure his legal standing to mount a challenge against the grant between the COL and Dola in 2005. These (PE, FTE and TOL) are known estates or interests in registered land in Solomon Islands. Similarly, for the same reason, claimant cannot mount a challenge against the transfer between Mr. Tangs and 1^st defendant in 2010.

Mistake and or Fraud – because of change in policy or decision by COL?

9. Mr. Gamali’s other grievances are that the COL had reserved the area for public use in 2001. Yet by 2005, COL had a change of heart. And COL gave the land to Mr. Dola. Mr. Dola to Mr. Tangs and eventually Mr. Tangs to now 1^st defendant, to develop for private purposes. Claimant alleged that was a mistake. Unfortunately, that is not so. For the COL is the sole administrator of crown lands in 2001 – 2005 and 2010. Disputed property was crown land in the same period (PE and or FTE title). The COL has the discretion to make decisions on crown land allocations. Court does not interfere into COL’s decisions, except where there was fraud or mistake – under Section 129 (2) of the Land and Titles Act (Cap 133) – (“LTA”). A change of crown land allocation decision, does not mean there was a mistake. Not under the present facts, where the fraud or mistake was not pleaded properly and not established on the available evidence, at trial. Not certainly under the present facts, where Gamali does not have “legal standing” to mount a challenge against the grant from COL to Mr. Dola. And Dola to Tangs. And Tangs to 1^st defendant.

Prescription rights claim – peaceful, uninterrupted and adverse possession?

10. Mr. Gamali’s other grievance is, he has been residing peacefully, without interruption on the land for over 12 years (since 1990). And so he has acquired the land by adverse possession, through the principle of prescription under Section 224 (1) of the LTA. On the present facts, this ground cannot be made out in law. From 1990 – 2005, when FTE was created, COL was the PE owner. Under Proviso (b) to Section 224 (1) of LTA, it is not permissible/possible to acquire prescriptive/adverse possession rights against the COL, over the COL’s PE (from 1990s to 2005). From 2005 – 2010, Tangs was the owner of the FTE to the land (5 years). From 2010 – 2015 or 2019, 1^st defendant is the FTE owner. First defendant acquired the land in 2010. And had attempted to evict claimant from the land, but without success. And so in 2015, 1^st defendant, through his deceased father filed Civil Case 314 of 2015 to evict Gamali.
11. For Gamali’s prescriptive rights to have basis in law to anchor ownership claim of the land under Section 224 (1) of LTA, Gamali must have had peaceful and uninterrupted occupation/use for 12 years. That 12 years must be computed from 2005 onwards. So the evidence shows since 2005 (Mr. Dola had FTE); 2005 - 2010 (Mr. Tangs had FTE) and 2010 – 2015 or current (1^st defendant had FTE). In 2015 in Civil Case 314 of 2015, 1^st defendant interfered/interrupted Gamali’s occupation of PN 145. This was only 10 years after 2005, not 12 years as asserted by claimant. Claimant could have validly claim for prescriptive rights by 2017 (12 years from 2005). But by 2015, 1^st defendant had interrupted claimant’s peaceful occupation through eviction proceedings in Civil Case 314 of 2015. So prescriptive rights has not accrued and not available in law to the claimant, as of 2015, with filing of Civil Case 314/2015, by 1^st defendant. In other words, Gamali’s occupation, was interrupted within 10 years, with the filing of Civil Case 314 of 2015, in year 2015.

Abuse and or Scandalous administration of justice?

12. So what effect does Civil Case 314 of 2015 have on the present claim? In Civil Case 314 of 2015, 1^st defendant sued Gamali for eviction, saying Gamali is a trespasser, on his land, since 2010, when 1^st defendant’s father had acquired FTE title. Judgment was entered against Gamali and permanent injunction granted on 15/10/2015. Gamali’s application to set aside the judgment was struck out on 12/02/2016. Gamali’s appeal attempt to the Court of Appeal was not successful. In Civil Case 314/2015 – Gamali was ordered to vacate the land. Mr. Gamali is in contempt, by refusing to vacate.
13. Counsel Radclyffe submitted that, as between Gamali and 1^st defendant the issues dealt with in Civil Case 314 2015, are res judicata and not open to question in this proceeding. And counsel refer to Island Enterprise Ltd v Reef Pacific Trading Ltd [1992] SBHC 50. I do not think res judicata has an estoppel effect on the basis of Civil Case 314 of 2015, because that case was not decided on the merit. First defendant only obtained default judgment. And then went to enforcement.
14. What is true in Island Enterprise case and is on target in application to this case is, court has inherent power to prevent abuse of its process. A clear example of when abuse of court process will happen, is where the same question, having been raised and disposed of in one case, is again raised by the same party against whom the same issue has already been decided. Island Enterprise case went on to say, it would be a scandal to the administration of justice, if the same question, having been disposed by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again.
15. In the present case has the same issue been decided against Gamali previously in connection with the same facts? The answer is obviously yes. In Civil Case 314 of 2015, the issue of Gamali been a trespasser on PN 145 has been dealt with, in connection with the same facts (Gamali is living on PN 145, without authority of the 1^st defendant as FTE owner since 2010). It is therefore not open to Gamali to re-litigate the same issues and facts in a new case such as this. Gamali can only pursue his interest (if any) in Civil Case 314 of 2015. Gamali would have to overcome the first hurdle of setting aside default judgment and to stay enforcement in Civil Case 314 of 2015.

Irrelevant case precedents?

16. Counsel Nimepo rely on a number of authorities that do not assist his client’s case. The case authorities counsel relied on are: Lucky Enterprise^[5], Moveni^[6] and Laperouse^[7]. Unfortunately, none of those cases would render help to the claimant’s case on one ground only. That is Gamali has no interest, legal standing or locus standi to entitle him to claim against the COL or Mr Chin (1^st defendant). Interests such as contract or as the case of Lucky Enterprise shows, crown’s apparent interest in the land allocated to private ownership, because the land was needed for police infrastructure expansion. Government had an apparent interest and the COL should not give away the land to Lucky Enterprise at the first place. The COL should have retain the land in dispute for public interest. The COL made a counter claim in Lucky Enterprise. In Moveni, claimant had an interest because of double allocation by COL (contract).
17. Here, though Gamali had been interested in the land since 1990s, there was no offer of the land to him. For by 2001, COL refused to give the land to Gamali. In Moveni, claimant (Moveni), sued the COL and Cheffers (defendants) because of double allocation. COL gave the land to Moveni and gave the same land to defendant, Cheffers. Offer to defendant Cheffers was upheld by the court. In Laperouse, court found the claiming party had uninterrupted occupation for 12 years. Hence entitled to adverse possession under Section 224 (1) of LTA. That is not the case here (repeat paragraphs 10 and 11).

Conclusion and Orders

18. The allegations on fraud to justify rectification was not made out. There was no evidence of dishonest dealing, which can be connected to Mr. Chin to make a case for rectification under Section 229 (1) of LTA. Similarly there was no mistake. What claimant assert as mistake, or fraud was actually a change of land policy/decision, a discretion that COL is entitled to make (repeat paragraph 9).
19. Accordingly, the claim is dismissed. Cost against Gamali on standard basis. Parties opposing interests in this claim shall all revert back to be dealt with and resolved in Civil Case 314 of 2015.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See letter at pages 28 and 68 of Trial Book.
^[2] Perpetual Estate.
^[3] Fixed Term Estate.
^[4] Temporary Occupancy License.
^[5] Lucky Enterprise Limited v Aiwosuga [2019] SBHC 49; HCSI-CC 32 of 2016 (31^st July 2019).
^[6] Moveni v Cheffers and other [2013] SBHC 160; HCSI-CC 107 of 2011 (20^th December 2013).
^[7] Laperouse v Attorney General and Another [2019] SBHC 16; HCSI-CC 82 of 2014 (7^th January 2019).