Samlimsan (SI) Ltd v Bato [2021] SBHC 106; HCSI-CC 548 of 2015 (21 June 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Samlimsan (SI) Ltd v Bato
Citation:
Date of decision:	21 June 2021
Parties:	Samlimsan (SI) Limited v Donald Bato, Vicky Paulsen, Pari Development Company Limited
Date of hearing:	1 April 2021
Court file number(s):	548 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	I give judgment for the claimant and dismissed the first and second cross claimants' claims. I also order that any caveat placed on Parcel Number 098-009-33 by the Defendants be lifted forthwith. Cost for the Claimant to be taxed if not agreed.
Representation:	Rano W for the Claimant/ 1st Cross-Defendant Muaki Victoria K for 2nd Cross-Defendant Marahare D for Defendants/1st Cross-Claimant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 136, Land and Titles Act as Amended [cap 133] S 114 (g), S 114
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 548 of 2015

BETWEEN

SAMLIMSAN (SI) LIMITED
Claimant

AND:

DONALD BATO
First Defendant

AND:

VICKY PAULSEN
Second Defendant

PARI DEVELOPMENT COMPANY LIMITED
Third Defendant

By Way Of Cross-Claim

BETWEEN

PARI DEVELOPMENT COMPANY LIMITED
First Cross-claimant

AND:

DONALD BATO, PAULSEN VICKY
Second Cross- Claimant

AND:

SAMLIMSAN (SI) LIMITED
First Cross-Defendant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Lands)
Second Cross-Defendant

Date of Hearing: 1 April 2021
Date of Ruling: 21 June 2021

Rano W for the Claimant/ 1st Cross-Defendant
Muaki Victoria K for 2nd Cross-Defendant
Marahare D for Defendants/1st Cross-Claimant

JUDGMENT

The Original Claim

The original claim in this matter is a category A claim filed by Samlimsan on 18^th October 2015. The Claimant is the owner of Fixed Term Estate in Parcel Number 098-009-33. The land is situated at Lembu, Noro, New Georgia Island, Western Province. The FTE was granted to the Claimant on 18^th August 2008.

The Commissioner of Lands by Notice dated 26^th August 2015 issued to the Claimant a Notice before Forfeiture under section 136 of the LTA. The Commissioner of Lands then issued on the Claimant a Notice of re-entry and took possession of PN 098-009-33. On 15^th December 2015, the Claimant filed Civil Case No. 628 against the Commissioner of Lands over the action taken by the Commissioner. The matter was settled out of court and a consent order was entered into by the parties resulting in the cessation and discontinuation of the forfeiture process against the Claimant and a 12 months extension given to the Claimant to comply with the terms of the grant of Fix Term Estate. This claim was filed on 26^th October 2015 in which the Claimant seeks orders to permanently restrain the Defendants from interfering with its work on its property namely Fix Term Estate Parcel Number 098-009-33, damages for trespass in excess of $1 million to be assessed if not agreed and cost in the action.

The Cross-Claim

The Defendants/Cross-Claimants filed a cross-claim on 31^st January 2019 and seek;

(a) A declaratory order that the First Cross-Claimant’s grant of profit that was removed from Parcel Number 098-009-33 amounts to an over-riding interest pursuant to section 114 of the Land and Title Act (Cap .33), as amended,
(b) Further declaratory order that the First and Second Claimants' actual occupation of Parcel Number 098-009-33 amounts to an over-riding interest pursuant to section 114 (g) of the Land and Title Act (Cap 133.) as amended.
(c) Consequent to orders 1 and 2 hereof, an order directing the First Defendant to reinstate forthwith and to enter on the relevant register in respect of Parcel No. 098-009-33 the First Claimant’s grant of profit.

Issues

While the parties had not filed any agreed facts or issues, I believe the issues outlined in paragraph 4 of the 1^st and 2^nd defendant’s submission comprise the relevant issues for consideration in this matter. The issues stated are as follows;

1. Whether Parcel Number 098-009 -33 exist prior to 2015?
2. Whether Parcel Number 098-009-40 the same as Parcel Number 098-009-33?

100. Whether Parcel Number 098-009-33 was a result of sub-division and mutation of Parcel Number 098-009-40?

4. Whether Parcel Number 098-009-40 was created and registered before Parcel Number 098-009-33?
5. Whether the grant of profit to the First Defendant and Second Defendant over Parcel Number 098-009-40 amounts to over-righting interest?

The Evidence

The crucial evidence in this matter comes from none other than the Commissioner of Lands himself, Mr Alan McNeil. Mr McNeil filed a sworn statement on 11/07/2019 and also gave oral evidence in court and was cross-examined by the Defendants' Counsel. The answers to the above question posed in paragraphs (a) – (e) above can be found in Mr McNeil’s evidence. In his sworn statement filed on 11/07/2019 and his oral evidence in court, the Commissioner of Lands, Mr McNeil, confirmed that Parcel Number 098-009-40 was registered in the name of the Commissioner and has been superseded as follows;

Parcel Number 098-009-40 and 098-011-116 were subdivided to create, Parcel Number 098-011-117, 098-011-118, and 098-009-43. In paragraph 5 of his sworn statement, the Commissioner of Lands says that Parcel Number 098-009-33 is not a result of any subdivision of Parcel Number 098-009-40. In paragraph 4 of his sworn statement and in his oral evidence, Mr McNeil further stated that Parcel Number 098-009-40 is a separate land that has a separate case involving Pari Development Company and a grant of profit previously filed at the High Court in Civil Case Number 169 of 2015. He further clarifies that Parcel Number 098-009-33 cannot be a result of a mutation of PN 098-009-40 because parcel numbers are created in sequence. I understand that to mean the numbers run progressively or the parcel numbers mutate into numbers higher than the number of the original Parcel. Further at paragraph 8 of his sworn statement, Commissioner McNeil states that Parcel Number 089-009-33 was registered in the name of the Defendant in 2008 which predates the registration of the grant of profit over Parcel Number 089-009-40 (I believe there are two typing errors in this paragraph, 089 in the parcel number should be 098 and the second defendant should be second cross-defendant)

Assessment of evidence

For the purpose of this claim and the counterclaim, the crucial questions are stated in questions b and c of the issues. Based on the unchallenged evidence of Mr McNeil, the answer to questions b and c is ‘No’. It, therefore, follows that even if the First and Second Defendants have a grant of profit over Parcel Number 098-009-40 it does not affect the claimants' FTE in Parcel Number 098-009-33 as they are two different parcels of land altogether. In view of the negative answers to questions (b) and (c), I consider the rest of the issues are irrelevant as they do not affect the position of the claimant’s rights to or ownership of Parcel Number 098-009-33.

Decision

The evidence of the Commissioner of Lands, Alan McNeil was unchallenged and not disputed. I accept his evidence is true and that it correctly and clearly clarify the issues in dispute and the true position of Parcel Number 098-009-33 and that it is owned by the Claimant. I had considered materials before the court and the submissions of counsel and found that Mr McNeil’s evidence clearly supports the claimant’s claim. I also find that Mr McNeil’s evidence shows that the defendants’ cross-claim was based on an erroneous belief or assumption that Parcel Number 098-009-40 is the same as Parcel Number 098-009-33, which is not. I give judgment for the claimant and dismissed the first and second cross claimants' claims. I also order that any caveat placed on Parcel Number 098-009-33 by the Defendants be lifted forthwith. Cost for the Claimant to be taxed if not agreed.

The Court
Honourable Justice Emmanuel Kouhota
Puisne Judge