Morgan v Nimelea [2023] SBHC 156; HCSI-CC 437 of 2017 (31 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Keith Morgan v Nimelea
Citation:
Date of decision:	31 July 2023
Parties:	Keith Morgan v Nelson Nimelea Nelson Nimelea v Attorney General, Lever Solomon Limited, Keith Morgan
Date of hearing:	December 2022 (Trial) Last Closing Submission (March 2023)
Court file number(s):	437 of 2017
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Court will grant claimant his reliefs sought in Civil Case No. 437/2017, except for damages limited to $100,000.00. Court will decline all of the defendant’s reliefs in Civil Case No. 257/2019, except relief no. 7. And order that all the monies defendant paid to LSL under the verbal agreement alleged to be in excess of $120,000.00 to be recovered. Court will allow 1 month for the defendant to file sworn statement evidence disclosing details of payments made as far back as 2010-2012. The LSL will have another 1 month to respond via sworn statement. Court will then reconvene to assess; how much LSL should pay back to the defendant for the double sale of PN 721 and PN 722. Court is of the considered view that LSL had unjustly enriched itself by the double sale of PN 721 and PN 722. Court made this order under relief no 7 of the defendant’s claim in Civil Case 257/2019 at page 13 of trial book which pleads that the “Court may make such further and other orders as it thinks fit to make in the circumstances”.
Representation:	Mr. Radclyffe for the Claimant (Keith Morgan) in CC 437/2017 and 4th Defendant in CC 257/2019. Mr. Kwaiga for Claimant (Nelson Nimelea) in CC 257/2019 and Defendant in CC 437/2017. Ms Willy for LSL (3rd Defendant in CC 257/2019). Ms Rofeta for the Attorney General Representing 1st and 2nd Defendants in CC 257/2019
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] as Amended in 2014, S 229 (1) and (2), S 110, S 117 (2)
Cases cited:	Baiabe v Ghemu [2012] SBHC 141, Deni v Imaw You [1994] SBHC 87

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 437 of 2017

BETWEEN

KEITH MORGAN
Claimant

AND:

NELSON NIMELEA
Defendant

Civil Case No. 257 of 2019

BETWEEN

NELSON NIMELEA
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
First Defendant

AND:

ATTORNEY GENERAL
Second Defendant

AND:

LEVER SOLOMON LIMITED (LSL)
Third Defendant

AND:

KEITH MORGAN
Fourth Defendant

Date of Hearing: December 22 (Trial) Last Closing Submission (March 2023)
Date of Judgment: 31 July 2023

Counsel; Mr. Radclyffe for the Claimant (Keith Morgan) in CC 437/2017 and 4th Defendant in CC 257/2019.
Counsel; Mr. Kwaiga for Claimant (Nelson Nimelea) in CC 257/2019 and Defendant in CC 437/2017.
Counsel; Ms Willy for LSL (3rd Defendant in CC 257/2019).
Counsel; Ms Rofeta for the Attorney General Representing 1st and 2nd Defendants in CC 257/2019

Keniapisia; PJ

JUDGMENT

Introduction

1. These two cases concern the same subject land(s) and two principal parties, namely Keith Morgan and Nelson Nimelea. Mr Keith Morgan is the claimant in Civil Case No. 437/2017 and 4^th defendant in Civil Case No. 257/2019. Mr Nelson Nimelea is the defendant in Civil Case No 437/2017 and claimant in Civil Case No 257/2019. In this judgment Mr Morgan will be referred to as the “claimant” and Mr Nimelea the “defendant” irrespective of which case is being referred to. I have dealt with the two cases together (consolidated) because they both relate to the same subject land(s) and involved two principal parties. The other parties are joined for purposes of rectifications and enforcement only in Civil Case No. 257/2019.

Claimant’s claim in Civil Case No. 437/2017

2. Claimant’s claim is at pages 1 to 3 of the trial book. Claimant seek relief against the defendant for possession of PN 192-004-721, damages for trespass limited to $100,000.00, permanent injunction, interest and cost.
3. At the time of trial in December 2022, the defendant had surrendered and moved out from PN 192-004-721. Defendant had since September 2021, vacated PN 192-004-721 (“PN 721”). Claimant had since September 2021 taken back possession of PN 721. Counsel Radclyffe however still maintained claimant’s claim for the reliefs of damages, injunction, interest and cost against the defendant.
4. The claim seek relief in damages limited to $100,000.00. The claim did not plead that the Court will assess damages afterwards as is normal to do. The claim says damages is limited to $100,000.00. However, the claim does not plead the particulars or details of the harm or financial loss suffered which is quantified at $100,000.00. So, I will refuse the relief sued for damages limited to $100,000.00 due to lack of particulars and therefore also lacking evidential basis. The reliefs claimed in respect of possession, injunction, interest and costs are normal. Court will grant those reliefs. To avoid any doubt, I will order possession of PN 721 back to the claimant. And that a permanent injunction is placed against the defendant not to re-enter PN 721.
5. The defendant’s moving out from PN 721 in September 2021 was to admit that claimant is the owner of that land, although the defendant tried to lead evidence in Court that he was threatened and forced to move out from PN 721, by people related to the claimant. There is nothing much to be pursued in this claim from that line of evidence.
6. Not only that, but claimant became the registered owner of PN 721 on 26/7/2016^[1]. Under our torrens system mirrored in the Lands and Titles Act (Cap 133) as amended in 2014 (“Cap 133 as amended”), 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 the Fixed Term Estate (“FTE”) in the context of this dispute, once registered, then, there is certainty of ownership, is protected under Cap 133 as amended, is indefeasible and can only be defeated under fraud and or mistake under Section 229 (1) and (2) of Cap 133 as amended. For Section 110 of Cap 133 as amended stated that: -
   • “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...”

Defendant’s claim in Civil Case No. 257/2019

7. Defendant’s crucial claims are against LSL. The claim is at pages 12 to 15 of the trial book. Defendant seeks rectification of the title to PN 721 and PN 192-004-722 (“PN 722”) on the grounds of fraud and or mistake. The particulars of fraud and or mistake are set out on pages 14 and 15 of trial book. The particulars complained that LSL had sold PN 721 and PN 722 to defendant between years 2010-2012. And that defendant had paid in excess of $135,000.00^[2] as initial deposit for the said two parcels. Though LSL knew about this transaction and received money from the defendant, LSL later sold the same lands to the claimant. This was the fraud and or mistake that defendant is banking his faith on to seek rectification of the FTE titles to PN 721 and 722, which by year 2016, were registered in the name of the claimant.
8. Court can see and there is evidence (receipts) to establish that LSL had sold PN 721 and PN 722 twice – first to defendant (2010-2012) and second to claimant (in 2016). The registration of claimant’s interest will enjoy indefeasibility of title. On the other hand, under the particulars of mistake the defendant’s claim of a contract with LSL over PN 721 and PN 722 suffered a major legal hurdle, which will render whatever equitable interest(s) defendant may claim to have over PN 721 and PN 722 non-effectual in law. That legal hurdle is that the defendant did not have a written contract, except a verbal agreement which he relied upon to move in and occupy PN 721, after making payments to LSL. Section 117 (2) of Cap 133 as amended, says that an agreement for the purchase of registered land must be evidenced in writing. Defendant admitted in oral evidence that there was no offer letter, nor any written contract that he had entered into with LSL. As correctly submitted by Attorney General: -

“Any transaction affecting interests in registered land (FTE in this case) in the absence of any note or memorandum, will have no effect. This is a requirement in law for a valid transfer of interest in registered land. This trite position in law had its origin in the statute of fraud and re-iterated in the law of property 1952 of England and re-stated in the Lands and Titles Act.^[3]

9. Consequently, any transfer of interest(s) alleged by the defendant pursuant to any verbal agreement will have no effect in law. This is the major single legal hurdle that defendant faced with his claim in Civil Case No. 257/2019.
10. The sad consequence for the defendant in law is that his claim in Civil Case No. 257/2019, for rectification will have no effect in law because he has no lawful interest or equitable interests in PN 721 and PN 722 his claim being based merely on verbal transaction. Furthermore, the registered interest of the claimant will become indefeasible and is protected under our torrens system. So, I will refuse the reliefs sought against the claimant for rectification of PN 721 and PN 722 in Civil Case No. 257/2019.

Conclusion and Orders

11. Court will grant claimant his reliefs sought in Civil Case No. 437/2017, except for damages limited to $100,000.00. Court will decline all of the defendant’s reliefs in Civil Case No. 257/2019, except relief no. 7. And order that all the monies defendant paid to LSL under the verbal agreement alleged to be in excess of $120,000.00 to be recovered. Court will allow 1 month for the defendant to file sworn statement evidence disclosing details of payments made as far back as 2010-2012. The LSL will have another 1 month to respond via sworn statement. Court will then reconvene to assess; how much LSL should pay back to the defendant for the double sale of PN 721 and PN 722. Court is of the considered view that LSL had unjustly enriched itself by the double sale of PN 721 and PN 722. Court made this order under relief no 7 of the defendant’s claim in Civil Case 257/2019 at page 13 of trial book which pleads that the “Court may make such further and other orders as it thinks fit to make in the circumstances”.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] See page 59 of trial book.
^[2] See paragraph 15.1 of claim at page 14 of trial book.
^[3] Baiabe v Ghemu [2021] SBHC 141; HC SI CC 423 of 2016 (18^th November 2021) citing CJ Muria in Deni v Imaw You [1994] SBHC, HCSI-CC 59 of 1993 (28^th December 1994)