Sogabule v Zhou Jian Ming [2022] SBHC 37; HCSI-CC 97 of 2020 (16 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sogabule v Zhou Jian Ming
Citation:
Date of decision:	16 June 2022
Parties:	Maybant Sogabule v Zhou Jian Ming, Jeremy Rua and Dorothy Isaac, Zhou Jian Ming and Greg Young, Attorney General, Sheriff of the High Court
Date of hearing:	28 July 2021
Court file number(s):	97 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Summary Judgment is entered for the First and Second Defendants pursuant to rule 9.58 2. In the Claim against the Third and Fourth Defendants summary judgment is entered for the Third and Fourth Defendants. 3. The Claimant is to pay the costs of the Defendants of and incidental to the application and the proceedings to be assessed if not agreed, with certification for Queen’s Counsel of behalf of the First and Second Defendants.
Representation:	Mr J Sullivan QC and Mr E Soma for the First and Second Defendant Mr E Wai for the Third and Fourth Defendant No Appearance of or on behalf of the Claimant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007, r9.75, r9.58 Land and Titles Act S 224, S 224 (1), S 225 (1) (a) and S 225 (8) (a) and (b), S 229,
Cases cited:	Bird v Registrar of Titles [1980] SBHC 6, Billy v Daokalia [1995] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 97 of 2020

BETWEEN

MAYBANT SOGABULE
Claimant

AND:

ZHOU JIAN MING, JEREMY RUA AND DOROTHY ISAAC
First Defendants

AND:

ZHOU JIAN MING AND GREG YOUNG
(Executors of the Estate of Roland Charles Thomas (Deceased)
Second Defendants

AND:

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

AND:

SHERIFF OF THE HIGH COURT
Fourth Defendant

Date of Hearing: 28 July 2021
Date of Decision: 16 June 2022

Mr J Sullivan QC and Mr E Soma for the First and Second Defendant
Mr E Wai for the Third and Fourth Defendant
No Appearance of or on behalf of the Claimant

RULING ON APPLICATION TO STRIKE OUT PROCEEDINGS

Introduction

1. On 26 February 2020 the Claimant filed a Claim which has since been amended twice. The pleadings have now closed and the Claimant’s claim is contained in the Further Amended Claim filed on 31 July 2020. The First and Second Defendants have applied to strike out the claim pursuant to rule 9.75 or alternatively they seek to have summary judgment entered in their favour, pursuant to rule 9.58.

Background

2. At the heart of the proceedings is registered land owned by the First Defendants. It is the parcel FTE 097-005-10 [“the land’]. In civil claim 409 of 2015 judgment was entered in favour of the Second Defendants on 3 February 2016 against all occupants of the land. The Defendants in that proceeding were permanently restrained from entering or otherwise occupying the land. They were ordered to remove all buildings and structures erected by them within 14 days of the order. No-one affected by that judgment has applied to set aside that order nor appealed that order.
3. On 27 May 2016 the High Court granted an enforcement order authorizing the Fourth Defendant to enter the land and deliver vacant possession to the Second Defendants.
4. On 21 January 2020 a further enforcement order was obtained. In February 2020 the Sheriff executed the enforcement order and delivered the land to the Claimants. It is this action that has resulted in the Claimant bringing the present claim. She seeks damages for the destruction of the buildings that had not been removed since the Judgment was entered. She also seeks rectification of the fixed term estate for the land, a declaration that the transfer of the fixed term estate in 2009 was void for fraud or mistake, adverse possession and consequential orders.
5. Significantly the Claimant does not allege that the judgment entered in 2016 was irregular or unlawful or that it had been set aside. She does not plead that the enforcement order was not valid or that it had been set aside. She does not plead that the Sheriff (through his deputy) acted unlawfully nor that any conduct by him was not authorized by the enforcement order. She does not plead that the Applicants are not in possession nor that they had not paid valuable consideration for it. She alleges that there was a mistake resulting in the registration of the Defendants’ interest but does not plead that they had knowledge of the mistake nor that they had either caused the mistake or contributed to it in a substantial way.
6. On 21 March 1974 the Commissioner of Lands [“the Commissioner”] granted the fixed term estate in the land to Kwan How Yuan Pty Ltd for a term of 84 years. That grant was then registered.
7. In September 2008 the perpetual estate was transferred to the Premier of Western Province in accordance with the Government policy. That transfer was subsequently registered. The fixed term estate remained with Kwan How Yuan Pty Ltd. On 24 November 2009 Kwan How Yuan Pty Ltd transferred the fixed term estate to the First Defendants and Ronald Charles Thomas. That transfer was subsequently registered with the consent of the Commissioner.
8. Ronald Charles Thomas died in 2015. His one third share in the fixed term estate passed by transmission to Dorothy Katia Isaac, the third named First Defendant. The First Defendants are the registered owners of the fixed term estate, each having an undivided one third share.

The Enforcement Order

9. The First and Second Defendants were entitled to enforce the judgment obtained in 2016. That was their sole involvement in the events of February 2020 when the order was executed. The Claimant has not pleaded any tort which would entitle the Claimant to damages.

Adverse possession

10. At the heart of the Claimants pleadings is her assertion that she is acquired the ownership of the estate by adverse possession pursuant to section 224 of the Land and Titles Act [“the Act”]. Section 224 provides:
    • “224-(1) The ownership of an estate or a registered lease may be acquired, subject to Part VII, against the person registered as the owner of the estate or the lease, as the case may be, by peaceable, overt and uninterrupted adverse possession of the comprised in the estate or lease for a period of twelve years:
    • Provided that -
      • (a)the interest acquired in the land by virtue of this section shall be the owner against whom the adverse possession occurs; and
      • (b) no person shall so acquire the ownership of any estate or lease in any land vested in or owed by the Commissioner or a local authority.
    • (2). Any person claiming to have acquired an estate or lease by virtue of the provisions of the sib-section (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to High Court for an order that he be registered as the owner thereof.”
11. It is therefore necessary to examine whether the Claimant has an arguable claim for adverse possession. The principles of adverse possession are set out in section 225 of the Act. Subsections 225 (1) (a) and 225(8) (a) and (b) provide:
    • “225.- (1) For the purpose of section 224 -
    • (a) possession of land shall be adverse possession when it is possessed by a person, not being the owner, without the permission of the person lawfully entitled to possession and accordingly possession by a person of land comprised in a lease without the permission of the owner of the lease shall be adverse possession against that owner but not against the owner of estate or lease from whom the owner of the lease derives title;”
    • (8) Possession shall be interrupted -
    • (a)by physical entry upon the land by any person claiming it in opposition to the person I possession with the intention of causing interruption if the possessor thereby losses possession:
    • (b)by the institution of legal proceedings by the owner of the estate or lease to asset his right thereto; or”
12. Claimant claims she has been residing in and undertaken business on part of the land since 1997. She has not specified details of that part. She claims that she occupied the land as a result of an understanding with the person who was the director and controlling mind of Kwan How Yuan Pty Ltd.
13. In order for her to have been in adverse possession it must be without the permission of the person lawfully entitled to possession. The Claimant does not plead that she was in occupation without the permission of Kwan How Yuan Pty Ltd. In fact, she pleads the opposite. It follows that her licence to occupy up till 2009 excludes that period from any claim of adverse possession. In 2009 the estate was transferred. That possession was interrupted in terms of section 225(8) by the institution of legal proceedings and the application for an enforcement order. With the First Defendants taking possession in 2020 further interrupted any adverse possession. In Bird v Registrar of Titles [1980] SBHC 6 former Chief Justice Daly examined the doctrine and applied it to the facts of that case. He found that even where there had clearly been possession it was not adverse possession. That is also the situation in this case. From the time of occupying the land until the fixed term estate was transferred in 2009 there was no adverse possession of the land or part of it. From the time it was transferred the possession has been interrupted within the meaning of the section 225. The Claimant cannot meet the threshold set out in the Act for adverse possession.

Rectification

14. The Claimant has claimed that there was a mistake in registering the transfer to the First Defendants because the perpetual estate had been transferred to the Premier of Western Province from the Commissioner. The consent of the Premier is said to have been required for the transfer, whereas it was the Commissioner who consented to it.
15. Section 229 of the Act deals with claims for rectification. It provides:
    • “229. - (1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.
    • (2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”
16. The Court of Appeal in Billy v Daokalia [1995] SBCA 5, confirmed that the onus of establishing both that there was a mistake and that there was knowledge of the mistake is on the Plaintiff (the Claimant in these proceedings). The Claimant would need to show that there was in fact a mistake. It is not necessary to make any findings as to whether there was or was not a mistake regarding the issue of consent. This is because the Claimant could have no standing to bring such a claim as she is not the owner and she cannot be successful in any claim of adverse possession. Even if there was a mistake, the First Defendants are the equitable owners in possession and against who there can be no adverse possession. They are in possession and have paid valuable consideration for that possession. There is no basis for any allegation that they had knowledge of or caused or substantially contributed to the mistake. In fact, the sworn statement of the Alan McNeil, the present Commissioner filed on 3 February 2021 makes it clear why the mistake if there was one, may not be known. He says at paragraph [8]:
    • If this consent is genuine, the mistake is easy to understand because the fixed term estate register had not been altered or updated to show that the Grantor is now the Premier of Western Province. Unless the Perpetual Estate Register was also checked, this change of ownership of the Perpetual Estate in PN: 097-005-10 would be easily overlooked.”
17. Even if there had been a mistake and the transfer to the Defendants was put aside it could not benefit the Claimant as at best it would restore the fixed term estate to Kwan How Yuan Pty Ltd against who the Claimant could bring no claim for adverse possession.

Conclusion

18. There is no basis on which the Claimant can succeed in a claim of adverse possession. The remedies she seeks are all dependent on her being able to establish adverse possession.
19. There is nothing pleaded against the Second Defendants. The claim against them is struck out pursuant to rule 9.75.
20. There is no real prospect of any part of the claim succeeding and there is no need for a trial of the claim, summary judgment is given in favour of the First Defendants against the Claimant.
21. The Third and Fourth Defendants support the application by the First and Second Defendants. For the same reasons as set out above, the claim against the Third Defendant cannot succeed. The Fourth Defendant has lawfully carried out an order of the Court. The claim against him must fail as well.
22. It is recorded that there was no appearance on behalf of the Claimant. There were no submissions filed on behalf of the Claimant. The hearing was scheduled for hearing on 19 July 2021. Counsel for Claimant did not appear on that date. The Court waited until 9.55am then vacated the fixture. A fresh fixture was fixed for 28 July at 9.30am with a mention date on 23 July 2021 to provide an opportunity to change the date if required. Rather than striking out the claim for failure to appear as required, the Court heard from counsel who appeared. There being no further submissions received on behalf of the Claimant since that time, the Court has proceeded to rule on the application.

Orders

1. Summary Judgment is entered for the First and Second Defendants pursuant to rule 9.58
2. In the Claim against the Third and Fourth Defendants summary judgment is entered for the Third and Fourth Defendants.
3. The Claimant is to pay the costs of the Defendants of and incidental to the application and the proceedings to be assessed if not agreed, with certification for Queen’s Counsel of behalf of the First and Second Defendants.

By the Court
Justice Lawry
Puisne Judge