Rebaio v Amoi [2023] SBHC 121; HCSI-CC 427 of 2021 (18 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rebaio v Amoi
Citation:
Date of decision:	18 October 2023
Parties:	Ruth Rebaio v Chachabule Amoi, Commissioner of Lands
Date of hearing:	21 April 2023
Court file number(s):	427 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	The land is to be subdivided as originally was intended. The cost of that subdivision is to be met by the Second and Third Defendants. That part of the land that was to have been transferred to the Claimant is to be registered in the name of the Claimant. The costs of these proceedings for the Claimant and the First Defendant are to be paid by the Second and Third Defendants on the standard basis.
Representation:	Mr A Radclyffe for the Claimant Mr B Kaehuna for the first Defendant Mr B Pitry for the Second and Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 224 (1), S 225 (1), S 229,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 427 of 2021

BETWEEN

RUTH REBAIO
Claimant

AND:

CHACHABULE AMOI
First Defendant

AND:

COMMISSIONER OF TITLE
Second Defendant

AND:

REGISTRAR OF TITLES
Third Defendant

Date of Hearing: 21 April 2023
Date of Ruling: 18 October 2023

Mr A Radclyffe for the Claimant
Mr B Kaehuna for the First Defendant
Mr B Pitry for the Second and Third Defendant

LAWRY PJ

RULING

1. This is an application for rectification of title of the fixed term estate parcel number 097-005-55. [‘the land’].
2. In October 2000 the land was owned by Vatule Land Development Association Company Limited [‘Vatule’]. By letter dated 13 October 2000 Vatule agreed to sell part of the land to the Claimant and her late husband. Vatule had divided the land into three parts. One part was then purchased by the Claimant and her late husband and the purchase price paid. A commercial building was then constructed on the land by the Claimant. The Claimant has deposed that she has been in possession of the property since 2002 and in actual occupation since early 2007. Significantly this evidence is unchallenged.
3. The parcel of land occupied by the Claimant was not subdivided as anticipated. By letter dated 15 June 2006 from the Commissioner of Lands to the First Defendant acknowledged that the failure to complete the subdivision of the land was the fault of the Commissioner, or rather the Department of Lands and Survey. In that letter after acknowledging the previous arrangements between Vatule and the Claimant her husband and another set out the following:
   • “A survey was carried out in 2002 to effect the above arrangement that was never processed to registration. The failure to facilitate the registration is the fault of this department”.
4. In her sworn statement the Claimant annexed a series of documents from 2001 and 2002 confirming the instruction to subdivide. Vatule had a debt to the Development Bank of Solomon Islands. It appears that Vatule had been unable to honour its obligations to the Development Bank. As a result the First Defendant paid the debt owed to the Development Bank and Vatule transferred the land to him. Counsel for the First Defendant has submitted that the land could not be subdivided because of the money owed to the Development Bank. That submission must be rejected as there is no evidence put forward that Vatule could not transfer the share sold to the Claimant. In any event there seems no reason why the arrangement with the bank could not be accommodated.
5. The First Defendant gave evidence that he instructed Philip Szetu to write to the Claimant. He says a letter was written and delivered to the Claimant. In cross examination the First Defendant said he instructed Mr Szetu to deliver the letter. Mr Szetu did not give evidence. There is therefore only inadmissible hearsay evidence that the letter was delivered to her.
6. If the letter had been delivered, and there is no admission that it was received in spite of it being referred to in the sworn statement of the Claimant, it is necessary to consider whether the letter had any relevance.
7. The letter is set out in full.
   • “Dear Madam,
   • RE: FURTHER DEVELOMENT ON PARCEL LOT261 – P/N 097-005-55
   • Please advised that the land on which the Jowinca building was built is still the same Land Parcel No 097-005-55 which Mr. Chachabule Amoi holds Title to. There was and has been no new Land Parcel issued to the land therefore I wish to humbly instruct you cease any development at the back of your building.
   • Fairtrade Co. Ltd will, in January 2010, embark on a major Development. This will include major land refill/reclaim therefore the need to utilize all available land within the Land Parcel must be considered. For that matter I advise you to cease any further development to avoid unnecessary loss of funds to those developments. I ending final assessment to our Development Plan., we may request you to remove the current reclaimed portion that you have so far developed.
   • Thank you
   • Philip Szetu
   • Manager Cuzo Branch”
8. The issue in this proceeding is whether the Claimant has had peaceful, overt and uninterrupted adverse possession of the part of the land that ought to have been subdivided and transferred to her in 2002. There is no dispute that the land was transferred to the First Defendant in 2005. There is no dispute that he knew of the occupation of part of the land through the time he has been the owner of the land. He acknowledged inspecting the land before purchasing it. There is no dispute that the Claimant has been in peaceable overt possession of the share of the land she and her late husband purchased for a period in excess of twelve years.
9. The question then is whether that possession of the land has been interrupted.

Section 224 (1) provides as follows:

“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 land 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.”

10. Clearly the First Defendant as the owner of the land has notice of the interest of the Claimant in the Land so that no further advertising of the claim is appropriate.

Section 225(1) defines adverse possession. It provides:

“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;
(b) where land is subject to a lease the receipt of the rent and profits of the land by any person who is not the lessor for the time being or a person authorised by him shall be deemed to be adverse possession against the lessor; and
(c) possession of a claimant shall not qualify as adverse possession unless it is possession of the claimant in person or is deemed to have been such possession by the following provisions in this section.”

Subjection 8 of section 225 prescribes how adverse possession may be interrupted. It provides:

“(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
(c) by any acknowledgment made by the person in possession of the land to any person claiming to be the owner of an estate therein or lease thereof that such claim is admitted.”

11. The Claimant commenced these proceeding on 29 July 2021 and amended the claim on 2 August 2021. The First Defendant acknowledged service of the claim by the response filed on 24 August 2021.
12. On 27 August 2021 the First Defendant filed a Defence to the Amended Claim and a counter claim. That counterclaim is the first institution of proceedings by the First Defendant to assert his right to the land.
13. Returning to the letter dated 8 June 2009. The first thing to notice is that the registered owner of the land is the First Defendant. The letter, if there was proof it was served on the claimant is not from the First Defendant, nor is it asserting the rights of the First Defendant rather it is from Philip Szetu who signs as Manager of Gizo Branch. The letter head appears to be of an organisation called CXL Department.
14. The letter correctly recites that the Claimant’s building is on the land and that the First Defendant holds title to that land. It records that no new land parcel had been issued (presumably in relation to the land) and says that Mr Szetu humbly instructs the Managing Director of Jowincia Trading (which is the Claimant) to cease any development at the back of the building.
15. The letter advises that a company named Fairtrade Co Ltd will embark on a major development which will include land refill/reclaim and will consider using all available land within the land parcel. The writer then advises the Claimant to cease any further development to avoid unnecessary loss of funds to those developments. This must be understood to mean that any further developments may be lost. The final sentence advises that the organisation is awaiting final assessment of their Development plan and may request the claimant to remove the current reclaimed portion that she had development at that stage.
16. The letter then is what is relied on as the interruption to the possession by the Claimant. There is nothing in the letter to direct the Claimant to vacate the land. There is no admissible evidence that the letter was ever received by her.
17. For the First Defendant it was submitted that in 2005 legal title was held by the Development Bank. That is clearly not so. The land was owned by Vatule and the Development Bank had protected the then indebtedness of Vatule by placing a charge over the property.
18. The submission for the First Defendant was that the First Defendant had by the letter of 9 June 2009 informed the Claimant to cease development and to vacate the land. The letter did not direct the Claimant to vacate the land but to cease further development on the land.
19. The unchallenged evidence of the Claimant at paragraph 10 of her sworn statement was: “At all material times the First Defendant was aware of my interest in the Parcel and has not disputed my claim to the part of the parcel I have been in possession of since 2002 and in actual possession since early 2007.”
20. The submission that she had been given verbal advice to that effect is rejected. The Court finds that she was not directed either in writing or verbally to vacate the land.
21. From 2002 until 2005 the Claimant was in possession of her share of the land with the knowledge and consent of Vatule. She was not in adverse possession until 2005 when the land was transferred to the First Defendant. Since that time she has been in possession of that part that but for the failure of the commissioner would have been subdivided and transferred to her. She is therefore a person who was not the owner and without the permission of the owner but in possession of the part of the land that was to have been subdivided. The First Defendant has never been in possession of that part of the land. The Claimant has had peaceable overt possession of that part of the land for more than 12 years before the Counterclaim was filed. The First Defendant has not interrupted her possession until the counterclaim was filed.
22. The Claimant is therefore entitled to acquire the share of the land that she occupies.
23. Section 229 of the Land and Titles Act 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.
24. While the First Defendant has acquired his interest in the land for valuable consideration he is not and has not been in possession of that part of the land occupied by the Claimant. There has been an omission to subdivide the land and he is not one who at the time he acquired the land had knowledge of the omission. There is no need to consider whether he contributed to the present situation by his own act neglect or default. The reason for this is that section 229 cannot assist him as he has not been in possession of the part occupied by the Claimant.
25. The reason the parties are in the situation they find themselves is principally because of the failure of the Commissioner of Lands or his department as was acknowledged and made known to the First Defendant as long ago as 2006. However the Claimant could have filed a caveat against the property when she commenced construction but did not. That would have given notice to any prospective purchaser. The First Defendant could have required vacant possession before parting with the purchase price but he did not.
26. The Court is not persuaded that she received the letter dated 9 June 2006. Even if she had that letter could not amount to interruption of her adverse possession for the reasons given. In all these circumstances the Court is satisfied that the Claimant has established she has been in peaceable, overt and uninterrupted adverse possession of that part of the land that she has occupied for in excess of 12 years without that possession being interrupted and that she is entitled to have the title rectified.
27. The land is to be subdivided as originally was intended. The cost of that subdivision is to be met by the Second and Third Defendants. That part of the land that was to have been transferred to the Claimant is to be registered in the name of the Claimant.
28. The costs of these proceedings for the Claimant and the First Defendant are to be paid by the Second and Third Defendants on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge