Catholic Church Gizo Registered Trustees (Inc) v Alisae [2021] SBHC 76; HCSI-CC 480 of 2020 (30 July 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Catholic Church Gizo Registered Trustees (Incorporated) v Alisae
Citation:
Date of decision:	30 July 2021
Parties:	Catholic Church Gizo Registered Trustees (Incorporated) v Remsio Alisae Family, Bernard Laore Family, Joel Billy Family, John Bakeleng Family, Aloysius Billy Family, Derick Gorae Family, Bros Leo Family, Bernard O’Gredy Family
Date of hearing:	7 June 2021
Court file number(s):	480 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	By the nature of this claim, being a registered land, claimant clearly has title to PN 1. Therefore claimant should enjoy the indefeasible title guaranteed under Section 110 of the LTA. I should order benefit of that guarantee, but want a new survey to pick up the old concrete pegs with the other technical matters to ascertain the original boundary. I want the defendants to cooperate because the 11th June 2020 survey report says, “survey was made under duress”. This is why I am ordering a new survey. Other orders are in paragraph 7 (i) to (v) above. Costs in the cause. Order accordingly.
Representation:	Mr. C. Hapa for the Clamant/Respondent Ms. M. Manaka for the Defendant/Applicant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles (Amendment) Act 2014 [cap 133], Land and Titles Act S 229 (1) and (2), S.110, Limitation Act [cap 18] S. 9 (2), S 37, S 39, S 39 (2) (b)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 480 of 2020

BETWEEN

CATHOLIC CHURCH GIZO REGISTERED TRUSTEES (INCORPORATED)
Claimant

AND:

REMSIO ALISAE FAMILY
1^st Defendant

AND:

BERNARD LAORE FAMILY
2^nd Defendant

AND:

JOEL BILLY FAMILY
3^rd Defendant

AND:

JOHN BAKELENG FAMILY
4^th Defendant

AND:

ALOYSIUS BILLY FAMILY
5^th Defendant

AND:

DERICK GORAE FAMILY
6^th Defendant

AND:

BROS LEO FAMILY
7^th Defendant

AND:

BERNARD O’GREDY FAMILY
8^th Defendant

Date of Hearing: 7 June 2021
Date of Ruling: 30 July 2021

Mr. C. Hapa for the Claimant/ Respondents
Ms. M. Manaka for All the Defendants/Applicants

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT

1. Claimant is the registered owner of the Fixed Term Estate (FTE) in PN 029-012-1 (“PN 1”) in Shortland, Western Province, commonly referred to as Kopokopana. Claimant wants to carry out its development plans on the land. But is prevented from doing so, because the defendants have allegedly settled inside of PN 1. On the basis of its registered ownership title, claimant filed this claim to take possession of its land. And to evict the defendants. Defendants are allegedly residing within the boundary of claimant’s land, without claimant’s consent.
2. This is a claim of ownership of registered land. Under our Torrens system mirrored in the Land and Titles Act (Cap 133) as amended in 2014 (“LTA”), the overriding purpose is to establish certainty of ownership of interests in land by registration. Put another way, the land register is conclusive evidence of ownership. An interest in FTE, in the context of this dispute, once registered, then there is certainty of ownership, is protected under the LTA, is indefeasible and can only be defeated under the grounds of fraud or mistake under Section 229 (1) and (2) of LTA. For Section 110 of the LTA relevantly states:-
   • “ The right of an owner of a registered interest whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of the Court shall be rights not liable to be defeated, except as provided by this Act...”
3. For the Court to set aside the default judgment and to go to trial, I must be satisfied that claimant’s indefeasible title is subjected to “rights” alleged in defence such “rights” being recognised as exceptions under the provisions of Section 110 of the LTA. So let me examine the defence to see if there are “rights” amounting to exceptions recognised under Section 110, alleged in the defence.
   • Issues on Rectification of Original Survey and boundary demarcation of PN 1, not accommodative of late Christopher Laore’s objection to original survey
4. Defendants sought rectification under Section 229 (1) and (2) of the LTA. But there is no allegation of fraud or mistake particularised to compel the Court to dig behind the “indefeasible title veil” of the claimant. Defendants tried to raise the issue that the original survey carried out at the time of registration was invalid because late Laore’s objection was not considered. However the documentary evidence at the time of registration shows that late Laore’s objection was considered. And late Laore’s objection was decided prior to or at time of registration in 1983/84. Even if I were to say that late Laore’s objection was not considered or decided, the defendants would be statute barred from claiming for any grievances relating to late Laore’s objection.
5. The land (PN 1) was registered following due adherence to due process for registration way back in 1983/84. Late Laore did not challenge the demarcation of the original boundary that was surveyed and determined for PN 1, in 1983/84, or soon thereafter. So it is not open to the defendants now to challenge the demarcation of the original boundary that was surveyed and determined for PN 1 some 30 plus years later. The defendants are statute barred from doing so under Section 9 (2) of the Limitation Act (Cap 18). One cannot take action to recover land after the expiration of 12 years. Under Section 37 of the Limitation Act, Court has power to dismiss action to recover land, which is brought to Court after 12 years, unless the Court makes a waiver under Section 39 of the Limitation Act. On the facts of this case, Court cannot exercise waiver under Section 39 because, Court will not cogently process and administer evidence on facts surrounding late Laore’s objections (Section 39 (2) (b) of Limitation Act). Late Laore has died and cannot be cross examined on his objection evidence. Similarly the Lands Officers are no longer at post to be cross-examined on the facts surrounding late Laore’s objection. But the available documentary evidence revealed that late Laore’s objection was considered and or decided^[1].
6. From November 6, 1983, (date when late Laore’s objection was dismissed), to 1/10/ 2020 when this eviction claim was filed is about 37 years. From July 3, 1984 (date of completion of registration of PN 1) to 1/10/2020 when this eviction claim was filed is 36 years. In both dates, we have far exceeded the 12 years limit, when the defendants would have been allowed by statute to lawfully raise any complaints relating to the registration of PN 1, inclusive of boundary demarcation complains (Section 9 (2) of Limitation Act). Therefore the defence alleging that the original survey and boundary demarcation for PN 1 was defective because late Laore’s objection on boundary demarcation was not considered is not an issue that deserves trial. That issue is barred by statutory time limitation – Section 9 (2) of Limitation Act.
   • Defendants say 11 June 2020, Survey and Report Defective
7. Defendants are alleging in their defence, that the survey made in June 2020, did not pick up the old concrete pegs which separated claimant’s registered plot (PN 1) from the defendants’ customary plot called Tuai. Defendants maintain they reside on Tuai, a customary plot situated outside of claimant’s registered parcel (PN 1). Defendants say they were not party to the said survey. And that it was a mistake for the surveyor to use GPS to shoot the boundary. The surveyor rushed. The surveyor should have made physical survey and not use modern machines and equipment like GPS. Defendants obstructed the survey team. And so the surveyor was not able to use “TOTAL STATION” to pick up the boundary pegs. The report^[2] say the survey was done under duress. This raises the issue on boundary demarcation accuracy to support trespass claim. Defendants deny they are inside of the boundary of PN 1. But this is not an issue that must go to trial. This issue I can make orders to accommodate as follows:-
   • (i) A new survey must be arranged and carried out.
   • (ii) Defendants to cooperate and not hinder the survey.
   • (iii) Defendants to be part of the survey team.
   • (iv) The survey must include a physical tour to pick up the old concrete pegs used in the 1980s or 1983/84.
   • (v) Claimant and defendants to agree on the time for the survey. And to seek appropriate orders from the Court (if necessary) to ensure logistics and security arrangements are put in place.
8. Once the survey is completed then the issue of trespass will be determined either by summary judgment application or Rule 12.11 determination application. And the Court will issue final orders on the reliefs sought in this claim.
9. Other considerations for this application are reasonable cause for delay. I can condone delay because defendants live afar and have difficulties with finance, in a pandemic crisis.
10. As to prejudice, claimant will suffer because there will be delays to its development plans. And no award of cost can remedy this. But then I also note that defendants’ properties will be destroyed/removed and they will suffer prejudice that will also not be rectified by award of costs. So I feel secure to make orders, after the new survey. I found issues with the current survey report as discussed in paragraph 7 above, the main issue being duress.
11. By the nature of this claim, being a registered land, claimant clearly has title to PN 1. Therefore claimant should enjoy the indefeasible title guaranteed under Section 110 of the LTA. I should order benefit of that guarantee, but want a new survey to pick up the old concrete pegs with the other technical matters to ascertain the original boundary. I want the defendants to cooperate because the 11^th June 2020 survey report says, “survey was made under duress”. This is why I am ordering a new survey. Other orders are in paragraph 7 (i) to (v) above. Costs in the cause. Order accordingly.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] See Exhibits CP 5 – CP 15 of sworn statement by Cletus Pita filed on 13/05/2021.
^[2] See Exhibit CP 15 of sworn statement by Cletus Pita filed 4/01/2021, for copy of Survey Report.