Noro v Saki [2023] SBHC 153; HCSI-CC 90 of 2013 (29 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Noro v Saki
Citation:
Date of decision:	29 November 2023
Parties:	Joseph Noro, Daniel Buto, Nester Poru and John Ilei v John Saki and Jenny Saki, Attorney General, Attorney General
Date of hearing:	10 and 11 October and 10 November 2023
Court file number(s):	90 of 2013
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is for the First, Second and Third Defendants. 2. The Claimants are to pay the costs of the First, Second and Third Defendants. In the circumstances of this case the costs are on an indemnity basis in accordance with Rule 24.12. If not agreed then to be taxed.
Representation:	Mr N Laurere for the Claimants Mr W Rano and Mr W Rotumana for the First Defendant Ms R Soma for the Second and the third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 114 (g), S 132 (1), S 229, S 229 (2) Evidence Act 2009 S 77,
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 90 of 2013

BETWEEN

JOSEPH NORO, DANIEL BUTO, NESTER PORU AND JOHN ILEI
(Representing Lunga Mamata of Ghaobata Line)
Claimants

AND:

JOHN SAKI AND JUNNY SAKI
First Defendants

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Second Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
Third Defendant

Date of Hearing: 10 and 11 October and 10 November 2023
Date of Decision: 29 November 2023

Mr N Laurere for the Claimant
Mr W Rano and Mr W Rotumana for the First defendant
Ms R soma the Second and the Third Defendant

Lawry; PJ

RULING

Introduction

1. The claim in this case seeks an order rectifying the title to the perpetual estate parcel number 192-008-90 whereby the Claimants are seeking to become the registered owners of 192-008-90. Secondly the claim alleges that the Claimants hold an overriding interest pursuant to section 114(g) of the Land and Titles Act. Alternatively that the rectification in the name of the First Defendants is rectified to its original status or the Second and Third Defendants.
2. The Perpetual Estate Parcel Number 192-008-90 was previously registered as part of 192-008-41. Title was held by the Commissioner of Lands. By mutation numbered 6 of 92 two parcels were created, the first being 192-008-89 and 192-008-90. The matter before the Court concerns the second of those parcels, 192-008-90. The mutation was recorded on the Perpetual Estate Register as being presented on 17 February 1992. The perpetual estate of 192-008-90 was transferred to the First Defendants with the transfer number recorded as 215/12 and the date of presentation being 26 March 2012.
3. The Claimants allege that the land was transferred to the First Defendants by the Commissioner by mistake. They claim that they are the customary owners of the land and that in accordance with the Government Policy of 2001 concerning the return of alienated land, 192-008-90 should be transferred to them.
4. The Claimants have set out the issues as follows:
   • (a) Whether the Commissioner of Lands made a mistake in failing to follow the practice and process contained in the Government Land Policy for the return of alienated land to the original customary land owners when he transferred the title of 192-008-90 to the First Defendants; and
   • (b) Whether the Commissioner of Lands made a mistake of law when he transferred the title of 192-008-90 to the First Defendants without the written consent of the Minister of Lands and Housing in accordance with section 132(1) of the Lands and Titles Act when the land was originally compulsorily acquired?

Evidence

5. The two issues depend on the finding assumed in these stated issues whether or not the land was alienated or compulsorily acquired in the first place. This was always a central issue in these proceedings. As long ago as 21 May 2015 the First Defendant sought interrogatories, filed on 22 May 2015. At paragraph 4 of the interrogatories the First Defendant sought the actual date and place where the acquisition took place, and sought the report of the acquisition and the map used in the acquisition, and whether any appeal was lodged and by whom. She deposed that no answers were received to the interrogatories. She was no not challenged on that evidence.
6. The relevance of this evidence is that the case for the First Defendants and indeed the Second and Third Defendants is the land was not alienated by compulsory acquisition. The First Defendants put forward evidence that the land was part of a larger block of land sold by Tudia to Solomon Islands Development Company Limited on 10 December 1912. Jenny Saki, one of the First Defendants has deposed that Tudia was her ancestor. That has not been challenged. She produced the copy of the conveyance by indenture dated 4 July 1912 as well as the Memorandum of Agreement dated 10 December 1912. She produced a certification dated 12 July 1965 confirming the conveyance was registered in Conveyances to Crown Book A, Folio 30 and the report concerning the lands Boli-Soso and Boli-Gaopapaga dated 8 December 1965. That report identifies the Claimant’s line with Boli-Soso and the line which I find includes the First Defendants’ line with Boli-Gaupapaga. The report identifies one of the trustees of Boli-Gaupapaga as Mogaea of Koli which I accept is the mother of Jenny Saki. It also confirms the evidence of Jenny Saki that the boundary between the two Boli blocks Keasisiri. The case for the First Claimants is that 192-008-90 is part of Boli-Gaopapaga.
7. In support of the claim the first witness relied on was Daniel Veta Buto. He is one of the Claimants. He provided a statement sworn on 3 October 2017. He said that the property which he referred to initially as 92-008-90 and later as 192-008-90 is a large block which he says was “our” customary land on one part, that the Claimants owned the northern part and the south and eastern part was owned by the First Defendants. He said that prior to first registration the land was owned by Mathew Tuanivali and the Claimants are the successors to Mathew Tuanivali. He says that the land was compulsorily acquired on 6 July 1970 and signed by L/M Davies. He said there were acquisition meetings held at Roroni Village on 10 May 1966. He said the area of interest includes the land known as Boli-Soso and that the owner was Mathew Tuanivali. He alleged there was another meeting held on 9 June 1966 and said that Boli-Gaopapaga did not agree to lease their land, that Binu did not agree and Boli-Soso did not agree. He relies on exhibit DB1 which he says is a copy of the acquisition process An examination of DB 1 does not support this assertion. It is a copy of a letter written by the witness to the Commissioner of Lands on 14 August 1998.
8. He repeats that the land was compulsorily acquired on 6 July 1970 for the expansion of rice farming and Palm Oil development. He said that after the public use was completed the land should be returned as it was never sold and the right to own was not given away. He refers to the return of alienated land policy of the government. He alleges the land is Boli-Soso and refers to exhibit DB2 which he says is a letter he wrote on 14 August 1998. This must be an error as that is the document under the annexure number DB1. DB2 appears to be the same document as the memorandum attached to the sworn statement of Jenny Saki as JS4. However it is presented as a two page document the second page of which is signed by Matthew Tuanivali, presumably a submission by the person the witness had referred to as Mathew Tuanivali. There is then a document that appears to be a copy of an undated submission by Stephen Matagu that appears to refer to lots 23 and 24 of LR536. It has hand sketches of what is submitted to be the land in Lot 23 and Lot 24. There follows what may be a judgment of an unknown parcel of land by an unknown court between S Matagu and M Tuanivati. Whether these persons are supposed to be the persons who made the submissions or not is unclear. Certainly there is a similarity of name although the spelling differs. There follows a document which is headed Memorandum and dated 4 January 1966 from the Acting Commissioner of Lands and Surveys to the Hon the Chief Secretary and copied to the District Commissioner and the Registrar of Titles. If the Memorandum relates to the present land which it would need to be in order for it to be relevant and therefore admissible, it does not assist the Claimants as it records an objection by Mathew Tuanivali said to be one of the trustees of the land holding group of the Boli-Soso area. The annexure refers to the area hatched red and refers to the land surrendered by the Solomon Islands Development Company by indenture of surrender dated 20 May 1948. It is unnecessary to set out the Memorandum in full however at paragraph 11(a) the following is set out:
   • “Tuanivali’s objection to registration of Government’s title to the red hatched area is a spurious one in view of the evidence that the blue edged parcels 16 and 17 were apparently legitimately purchased by Government.”
9. No map, coloured or otherwise has been attached to that Memorandum.
10. At annexure DB 3 is a letter dated 1 October 2012 seeking to “acquire lease part of this register land 192-008-90”. The letter says that those who signed the letter are members of the original land owning tribe Lunga. The letter has a series of dots after the words land owning tribe and someone has written in the word Lunga above those dots. There follows a second letter dated 17 October 2012 from Samuel Kuri who has signed as Secretary for Lunga Tribe which reads: “I hereby forward the appointed trustees of Lunga tribe as joint ownership of the PE 192-008-90 Lot 209 of LR536 then lists six persons which includes three of the Claimants excluding the witness Daniel Buto. It is curious as from the previous letter they must have known that the tribe was not the registered owners and conflicts with the paragraph in the sworn statement that asserts the First Defendants are the customary owners of the south and eastern parts of the land. Next is an undated caveat in the name of three of the Claimants, excluding the witness which claims they are the original land owners of the parcel 192-008-90/Lot 209/ LR536. After a receipt are two maps that Mr Buto says are maps of the area. In the first there are the words ‘Gaobata line’ has been typed across several parcels of land. They are shown as Boli Gaopapaga, Boli-Soso, Binu and Thogo. Those parcels are identified in typed wording. On the map Boli-Gaopapaga is a large block to the left (west) of a much smaller block called Boli-Soso. However some unknown person has hand written Boli-Soso in the block called Boli-Gaopapaga and there is an arrow under the word Gaopapaga towards to a larger area also called Boli-Gaopapaga. I can place no weight on the handwriting that has been added to the printed map as no evidence has been lead about who made those markings nor when they were made. At paragraph 11 of the sworn statement is reference to Exhibit DB4 which is said to be a copy of the Government Alienated Land Policy 2000. An examination of the document shows it is a Public Notice of an application to transfer a block being 192-008-4. The notice is dated 31 October 2005. The index to the Court Book shows this is the last page of the statement.
11. Counsel for the Claimants realised that the document about Government Policy for the return of alienated land had not been produced and he sought to produce it from the bar. Counsel for the First Defendants objected to its production on the grounds that it had not been proved and that even if it had it was simply policy of the Government of the time and had not been put into legislation nor into regulation. It was simply policy at that time and could be changed at any time. Counsel for the Claimants did not and could not suggest that it had been passed into law. Counsel for the First Defendants also objected to the document that appeared to be an undated court decision concerning unknown land that was not referred to by the deponent in the sworn statement. The basis of the objection, in addition to it being unknown what land the case related to, its admission was, counsel submitted, contrary to section 77 of the Evidence Act 2009. Section 77 provides:
    • “77. (1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given. (2) This section does not affect the operation of –
      • (a) a judgment in rem; or
      • (b) the law relating to res judicata or issue estoppel.”
12. Counsel for the Claimants did not submit that either of the exceptions set out in subsection 2 applied. Counsel appeared to rely on it to prove an assertion that Mathew Tuanivali was the owner of the land in question in these proceedings. That being the case the prohibition set out in section 77 would prevent this Court from using the document to prove the existence of a fact in issue in these proceedings which are clearly different proceedings from that to which the document referred. In his closing address counsel for the Claimants said he did not rely on that document.
13. In cross examination counsel for the First Defendants took the witness through the sworn statement and demonstrated clear errors and contradictions. Counsel demonstrated that the documents annexed were to a large extent not what the witness had deposed them to be. An example is the document said to be the acquisition process and the witness eventually conceded that it was simply a letter. Counsel challenged what the witness had included at DB3 and again eventually had the witness acknowledge it was not what he had sworn it was. The witness defended his position to say it was just an error in numbering. An examination of the documents demonstrates that cannot account for all the differences.
14. The witness did not know of disputes between the parties nor was he part of the acquisition process. He had no explanation to the evidence that the land had been sold in 1912 and that the Solomon Islands Development Company had subsequently sold it to the Government. He was asked about his assertion that the land was compulsorily acquired on 6 July 1970, and that the process began in 1965. He was reminded he had said he was not part of the acquisition process and was asked to show the Court where such evidence was to be found in the sworn statement or annexures. When there was no response counsel suggested to him, “Can you show me where in the sworn statement...I take it there is nothing.” Counsel ended with “Is there nothing you can show to prove that it was acquired compulsorily in 1970?” The witness said: “letters of objection but no acquisition.” Parcel 192-008-90 could not have been alienated by compulsory acquisition in July 1970 as the records show it was already registered in the name of the Second Defendant years early as set out in the 1965 report.
15. Joseph Noro deposed in his sworn statement that he had been on the land for 40 years. His sworn statement conflicted with the evidence of Daniel Buto as to the claimed customary ownership of 192-008-90. He swore that the land was within their parcel of land and that the First Defendants’ land was further south. He said he had been asked by the father of the First Defendant to move off the land and that he agreed to move if he received compensation. He said in Guadalcanal custom that if you keep pigs on land you own the land and he had kept pigs on the land.
16. In cross examination it was suggested to him that at paragraph 9 of the statement he said he would move out of the land if he received the value of his house and his piggery. Counsel put to him that this was evidence that he recognized he did not own the land. He confirmed that if he was paid the compensation he would move out, if he was not paid he would not. Similarly he was asked about the ownership of land if you raise pigs. While this Court does not make a finding on customary law it appears that the agreement to move off the land if he was compensated is inconsistent with owning the land, especially because of the basis of the compensation sought was the amount spent on creating buildings. The witness referred to a meeting with a company about being paid to allow roading, which does not assist this Court at all.
17. It is noteworthy that he makes no mention of the land being compulsorily acquired at any time. Regarding paragraph 18 where he said the First Defendants were from Kaipalipali tribe he then said he did not know where they came from. This was in contrast with the evidence from the previous witness that the First Defendants were from Gaobata tribe. In re-examination he said that the First Defendant was from Gaobata tribe but that there were 5 subtribes.
18. The Claimant also called the former Commissioner of Lands and the former Minister of lands who were in those respective positions at the time the land was transferred. There was a challenge to the credibility of each of them. Significantly the sworn statements each of them did not suggest that the land had been compulsorily acquired. Nor did they allege that the First Defendants had done anything improper. This was in spite of the amended claim alleging that the First Defendants had paid a substantial amount of money to the Commissioner of Lands to acquire the perpetual title over the said land. Not only did neither of their sworn statements suggest there had been a compulsory acquisition of the land, the former Commissioner said he simply followed instructions from the Minister. The Minister said he did not instruct the Commissioner to transfer the land and suggests it may have been a misunderstanding. The former Commissioner accepted that at the time of the transfer he owned the land on behalf of the Government and had the power to transfer the land as he did in accordance with his discretion. The most the Minister said was that there could have been a misunderstanding and that it might have been taken as a directive. The Minister did say that there was no approval nor consent given by him to the transfer to the First Defendants. He said he knew the land but it was clear he did not know where the individual lands were and said the parties should know the boundaries. He did say that Boli-Soso is now built on and is no longer free for others to use. The Minister said he did not direct the Commissioner and said his role is to support.
19. The former Commissioner said that he believed the required process had been followed. He did not identify on what basis the process was not followed. Overall the evidence from the former Commissioner was not reliable. The Minister’s evidence did confirm that the transfer was within the discretion of the Commissioner and that he could not direct the Commissioner on a specific transfer. Overall his evidence did not advance the case at all for the Claimants. The Claimants also relied on Nester Ghoala Poru who said she has gardened on the land since she was a child and is now in her forties. When challenged about her statement she said she would support evidence given by the witness Buto, even when the inconsistencies were pointed out. She gave no evidence of any alienation of land nor did Leonard Letana nor did John Ilei.
20. For the defence the First Defendants relied on Jenny Saki who had sworn two statements. She confirmed that the land that is 192-008-90 is the same as what is known as Boli-Gaopapaga and shown as Boli Gaupapaga in the maps. In cross examination she confirmed that she was of Gaubata tribe. She was referred to exhibit JS4 and confirmed that the names set out in paragraph (a) under the heading Boli-Gaopapaga are the same as she set out in paragraph 7 of her statement. She was asked whether they were trustees and simply agreed they were the same names. She was referred to JS1 and in particular the number 192-008-1 and it was suggested it was a different parcel of land. She said she did not know about that. The Court notes the map associated with the Memorandum of Agreement and notes that the sale in 1912 was of a much larger parcel of land and as explored in evidence in chief included what is now 192-008-90. Counsel for the Claimants suggested to her that JS4 was merely a letter from the District Commissioner to the Commissioner of Lands and Survey about ownership in custom on 8 December 1965. The witness was asked about exhibit JS5 and confirmed it was a letter from the Gaubata House of Chiefs supporting the transfer. She accepted it was not a decision of the House of Chiefs following a dispute and said: “but it confirmed we are the traditional owners.” Finally she confirmed that she did not hold the land in trust for the tribe.

Facts

21. The facts in the present case have become clear. The traditional owners of Boli-Gaupapaga included the forebears of Jenny Saki. The traditional owners of Boli-Soso included the forebears of the Claimants. The land which was sold to the Solomon Islands Development Company included the land 192-008-90. The land was subsequently purchased by the Government and title was held by the Commissioner of Lands. In the 1960s there was an issue that arose over the traditional ownership of the land. The land was not acquired compulsorily in the 1960s or 1970. It was already held by the Commissioner. I reject the evidence that in the 1960s there was a compulsory acquisition of land as set out in Division 2 of PART V of the Land and Titles Act. The assertion is unsupported by any documentation and is contradicted by the evidence relied on by the Claimants. Notwithstanding the question in the interrogatories which was an issue when the parties argued about whether the claim should be struck out, the documentation sought in the interrogatories has not been disclosed nor produced in this trial. The Court finds that the land had been acquired by the Government from the Solomon Islands Development Company Ltd in 1948 and was since held by the Government until it was transferred to the First Defendants in 2012.
22. The First Defendants had proposed to the Commissioner that they be able to acquire the land to use it for agricultural purposes. That proposal was supported by the Ministry of Agriculture, the Gaubata House of Chiefs and the Minister at the time, being the witness called by the Claimants. The property was transferred to the First Defendants in the transfer presented on 26 March 2012. As the witness Noro said, the Claimants found out about the transfer in September 2012 and that explains the letter dated 1 October 2012 to the Commissioner and the subsequent communication on 17 October 2012 by Samuel Kuri.

Discussion

23. Returning to the issues raised by counsel for the Claimants as set out in paragraph 3. The Alienated Land Policy document that counsel sought to produce is simply that, a policy document. It has not been incorporated into the legislation of Solomon Islands by Act or Regulation. There is a process for policy to be included into the law of Solomon Islands. A policy can be changed overnight. Secondly the Claimants have not proved on the balance of probability that the land 192-008-90 was alienated by compulsory acquisition. Indeed the evidence before the Court was that it was not so acquired. The Commissioner of Lands could therefore not be said to have made a mistake in not following whatever policies may be set out in the Policy document.
24. Counsel for the Claimants did not challenge Jenny Saki about her assertion that she had not been provided with answers to the interrogatories about the alleged compulsory acquisition even though it was raised when there was a strike out application heard.
25. The Court records that no evidence has been put forward of fraud. The allegation that the First Defendants paid a considerable amount of money to the Commissioner of Lands has not been substantiated even though the Commissioner of Lands was called as a witness. It was never put to Jenny Saki.
26. The second issue raised in paragraph 3 was whether the Commissioner made a mistake of law when he transferred the title of 192-008-90 to the First Defendants without the written consent of the Minister of Lands and Housing in accordance with section 132(1) of the Lands and Titles Act. This appears to be the assertion now put forward by the Minister. Section 132(1) provides:
    • “132.- (1) The Commissioner may, subject to the provisions of this Act -
    • (a) transfer to any person the perpetual estate in any land held by him for such an estate; or
    • (b) grant to any person a fixed-term estate in any public land for a period not exceeding ninety-nine year: Provided that where the land concerned was compulsorily acquired under Division 2 of Part V it shall not be transferred or granted as aforesaid without the prior written consent of the Minister.”
27. The section therefore permitted the Commissioner to transfer the perpetual estate 192-008-90 to the First Defendants subject to the proviso. The Court has already found that the Claimants have not proved on the balance of probability that the land concerned was acquired by compulsory acquisition pursuant to Division 2 of PART V of the Land and Titles Act. The proviso therefore does not apply. Therefore the Commissioner did not require the consent of the Minister to transfer the property. The Commissioner then did not make a mistake in law in transferring the title without the consent of the Minister.
28. The submissions from counsel for the Claimants are all premised on a finding that the land was acquired by compulsory acquisition. It clearly was not. As referred to in paragraph 12 above counsel has quite properly said that the case referred to as S Matagu v M Tuanivati can be disregarded.
29. Counsel for the Second and Third Defendants has submitted that the Second Defendant was the registered owner of the perpetual estate in parcel 192-008-90 and as such had the right to transfer his interest to whoever he chooses and in this case he transferred it to the First Defendants. Counsel submits that there is no evidence of either mistake or fraud. Counsel referred to the evidence of the former Commissioner who said it is the Commissioner who allocates land to applicants and he confirmed he signed the documents because the process was proper and complete.
30. However the former Commissioner did say there was a mistake but it appears that the only mistake is the confusion about the land being acquired by compulsory acquisition and whether the transfer then required the signature of the Minister. As that was not the case there is no basis for the assertion that the transfer was by mistake.
31. It is noted that the transfer was not one to return land to former owners. It was land held by the Commissioner who had received an application to allocate the land so it could be developed for agricultural purposes.
32. Counsel for First Defendants concentrated on the conflicts of evidence in what was put before the Court by the Claimants. He submitted that neither the former Commissioner nor the former Minister could provide evidence of a mistake although each made that assertion. He submitted that no evidence was led that the Commissioner received a substantial amount of money from the First Defendants. He submitted that the law relating to mistake and fraud is well settled as indeed it is and the Claimants must show the First Defendants either had knowledge of the mistake or fraud or contributed to it. The Claimants have shown neither.
33. Counsel referred to the apparent tampering of the maps tendered to show that what is shown as Boli-Gaupapaga was Boli-Soso. The Court places no weight on the handwritten alterations as it cannot know who made the alterations nor when they were made.
34. Section 229 of the Land and Titles Act empowers the Court to order rectification in some circumstances. 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.”
35. It is apparent that the Court has found that the Claimants have not proved on the balance of probabilities that title was acquired by compulsory acquisition. The Claimants have made the allegation that the registration of 192-008-90 in the name of the First Defendants was obtained, made or omitted by fraud or mistake. The Court finds that it was not. The basis for a claim of rectification is therefore not made out. Even if that was not so the First Claimants are in possession, and acquired the land for valuable consideration. As set out there is no evidence of fraud. The mistake alleged by the Claimants in evidence relates to compliance by the Commissioner with the policy and section 132(1) of the Act. Subsection 229(2) directs that title will not be rectified against persons in the position of the First Defendants unless they had knowledge of the omission, fraud or mistake in consequence of which rectification is sought, or caused or substantially contributed to the mistake omission or fraud. It is clear that such knowledge or contribution must be at the time title was acquired. There has been no evidence adduced to show they had such knowledge or substantially contributed to any omission, mistake or fraud. It follows that even if there had been proof of a mistake, the Court could not rectify the title as sought.
36. The Claimants in their claim allege that they hold an overriding interest in 192-008-90 pursuant to section 114(g) of the Land and Titles Act. Whether the Claimants are seeking a declaration to that effect is not clear from the pleadings. Counsel has not addressed section 114(g). That section provides:
    • “114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may, for the time being, subsist and affect the same, without their being noted on the register-
    • (c) ...
    • (d) ...
    • (e) ...
    • (f) ...
    • (g) ...
    • (h) ...
    • (i) the rights of a person in actual occupation of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed”
37. Counsel for the First Defendants have put to the witnesses Buto and Noro that their presence on the land is as trespassers. The proposition was put on the basis that the land was previously sold, first to the Solomon Islands Development Company Ltd then to the Government prior to it being transferred to the First Defendants. From the evidence of Mr Buto the land had been owned in custom by the forebears of the Claimants as well as the forebears of the First Defendants. It is also noted that the First Defendants are also in occupation. The larger parcel of land which was sold in 1012 included land now referred to as parcel 192-008-90. There has been nothing put before this Court to show that any rights of the former customary owners, whether that be the Claimants or the First Defendants, was preserved following that sale. There is nothing before the Court to allow the Court to conclude that the Claimants have any rights in relation to 192-008-90 or indeed are other than trespassers on the land. No order is made in favour of the Claimants in relation to section 114(g) of the Land and Titles Act.
38. The Claim must fail. To allege fraud and to fail to provide any evidence of it and to allege there has been an acquisition process and fail to provide the answers to the interrogatories sought persuade the Court that costs should be on an indemnity basis. In the circumstances the Court does not need to rule on the admissibility of the Land Alienation Policy document counsel has sought to tender.

Orders

1. Judgment is for the First, Second and Third Defendants.
2. The Claimants are to pay the costs of the First, Second and Third Defendants. In the circumstances of this case the costs are on an indemnity basis in accordance with Rule 24.12. If not agreed then to be taxed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge