Mae v Metangi [2023] SBHC 165; HCSI-CC 341 of 2019 (1 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Mae v Metangi
Citation:
Date of decision:	1 September 2023
Parties:	Maurice Mae and Desmond Probates Mae v John Metangi, John Metangi v Maurice Mae and Desmond Probates Mae, Levers Solomons Limited (“LSL”), Attorney General Attorney
Date of hearing:	11 April 2023 (Closing Submissions)
Court file number(s):	341 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	(i) Defendant has trespassed onto PN 894 since June 2017. (ii) Claimants claim is granted. Defendant’s counter claim is dismissed. (iii) Defendant shall vacate possession of PN 894 to claimants after 3 months. (iv) Parties will meet their own costs.
Representation:	Ms Willy for the for Claimant and LSL (2nd Defendant in Counter Claim) Mr To’ofilu for Defendant (Claimant in the Counter Claim) No Appearance for the Attorney General
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 224 and S 225 [cap 133], as amended in 2014, S 114 (g), Land and Titles Act S 229 (1) and (2), S 110, S 110(a) and (b), S 225 (8) (a) (b) and (c), S 224 (1) (a), S 117 (2)
Cases cited:	HDD v Commines Vaike [2023] SBCA 23, Paza v Sivoro [2018] SBCA 2,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 341 of 2019

BETWEEN

MAURICE MAE AND DESMOND PROBATES MAE
Claimants

AND:

JOHN METANGI
Defendant

COUNTER CLAIM

BETWEEN

JOHN METANGI
Claimant

AND:

MAURICE MAE AND DESMOND PROBATES MAE
1^st Defendants

AND:

LEVERS SOLOMON LIMITED (“LSL”)
2^nd Defendant

AND:

ATTORNEY GENERAL
3^rd Defendant

Date of Hearing: 11 April 2023 (closing submissions)
Date of Judgment: 1 September 2023

Counsel; Ms Willy for Claimants and LSL (2^nd Defendant in the Counter Claim)
Counsel; Mr To’ofilu for Defendant (Claimant in the Counter Claim)
No Appearance for the Attorney General

Keniapisia PJ

JUDGMENT ON A CLAIM FOR POSSESSION OF LAND

Introduction

1. Claimants in the original claim are Morris Mae and Desmond P Mae. Defendant in the original claim is John Metangi. Then in the defence and counter claim (“counter claim”), John Metangi is the claimant. Morris Mae and Desmond P Mae are the 1^st defendants in the counter claim. These are the two principal parties in the original claim and counter claim. The other two parties in the counter claim (Attorney General and LSL/RIPEL) are joint for purposes of rectification and enforcement only. No serious allegations are made against Attorney General.
2. In this judgment Morris Mae and Desmond P Mae will be referred to as the claimants. John Metangi will be referred to as the defendant, irrespective of which claim is being referred to.

Original Claim

3. Claimants claim is at pages 1-3 of the court book. Claimants seek relief against the defendant for possession of Parcel Number 192-004-894 (“PN 894”), interest and costs. Claimants claimed that PN 894 was registered in their names on 1^st June 2017. And so, the defendant was a trespasser on their land since June 2017.

Counter Claim

4. Defendant on the other hand claimed (pages 86-89 court book) that he has lived on PN 894 for more than 12 years since 1994. And so, he claimed two main equitable interests over PN 894 and is refusing to move out. The two equitable interests that the defendant is claiming are: -
   • (i) Prescription/adverse possession under Sections 224 and 225 of the Lands and Titles Act (Cap 133) as amended in 2014 hereafter referred to as “the LTA”.
   • (ii) Overriding interests under Section 114 (g) of the LTA.

Issues

5. There are three (3) main issues that I have to resolve in this dispute. The 3 issues are: -
   • (i) Original claim - Whether or not the defendant is a trespasser on PN 894?
   • (ii) Counter claim - Whether or not the defendant has obtained prescription or adverse possession rights over PN 894?
   • (iii) Counter claim - Whether or not the defendant has obtained overriding interests over PN 894?

Starting point for claimants

6. Claimants have a registered interest in PN 894. Under our Torrens system mirrored in the 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 Fixed Term Estate (“FTE”), in the context of this dispute, once registered, then there is certainty of ownership, is protected under LTA, is indefeasible and can only be defeated by fraud and or mistake under Section 229 (1) and (2) of LTA. For Section 110 of 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, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims, whatsoever, but subject-
   • (a) to the leases, charges and other encumbrance and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by this Act; and
   • (b) to such liabilities, rights and interests as affect the same and are declared by sections 114 (which relates to overriding interests) not to require noting in the register:
   • Provided that nothing in this section shall be taken to relieve an owner from any duty obligation to which he is subject as a trustee”. (My underlining)

Starting point for the defendant

7. Defendant’s claim is premised on the exceptions to the protections afforded to the claimants in Section 110 (a) and (b) of the LTA, underlined in paragraph 6. As noted above, defendant raised two main rights and interests which are likely to defeat claimants’ indefeasible registered title. First right is prescription. Second right is overriding interest.

First Right - Prescription or adverse possession interests – Section 224 and 225 of the LTA

8. Defendant say he has acquired interests through adverse possession (by prescription) under Section 225 (8) (a) (b) and (c) as read with Section 224 (1) (a) of LTA. I have contemplated on the provisions of Section 224 and Section 225. I have come to the firm conclusion that, one is entitled to adverse possession (by prescription), if she or he has peaceful, overt and uninterrupted adverse possession of an estate against the registered owner (uninterrupted occupation for 12 years) and had obtained High Court order endorsing the same (Section 224 (1) (a) and (2) of the LTA).
9. It follows that, I found on the evidence that the defendant had lived on the disputed land for 12 years uninterrupted occupation against the former owner (RIPEL/LSL) by year 2006. Evidence shows defendant has resided on the land from October 1994. So, by October 2006, defendant had resided on the land for 12 solid years without interruption. However, defendant still fell short of full eligibility to 12 years uninterrupted adverse possession (by prescription) in the absence of a High Court order. Defendant did not produce a High Court order, endorsing his uninterrupted possession rights for 12 years against the registered owner (RIPEL/LSL) by 2006 or 2017, when RIPEL/LSL sold PN 894 to claimants. High Court order is necessary because defendant was not the registered owner of PN 894. Yet was claiming equitable rights that are likely to displace the legal rights/interests of the registered owner (RIPEL/LSL in this case). So, before the High Court can grant such equitable ownership rights/interests by prescription, to the defendant, to displace RIPEL/LSL’s registered FTE, an opportunity (through High Court’s litigation process – what is referred to as advertisement or notice in Section 224 (2) of LTA) must be given to the registered owner (RIPEL/LSL) from whom the defendant will be taking over ownership of the registered interest (FTE in the context of this dispute). And then RIPEL/LSL will have the opportunity to defend its registered interest.
10. The next pertinent question is in spite of the short fall, can the defendant still sustain rights and interests to 12 years uninterrupted adverse possession (by prescription) under Section 225 (8) (a) (b) and (c). Section 225 (8) (a) (b) and (c) list 3 instances of interruptions or disturbances whereby the defendant’s 12 years uninterrupted adverse possession can be disturbed. By disturbed it means with the presence of the 3 instances stipulated, defendant’s claim to prescription rights will be dispelled. The 3 stipulated instances are (i) physical entry by RIPEL/LSL, (ii) legal proceedings by RIPEL/LSL against defendant and (iii) admittance or acknowledgement by defendant to RIPEL/LSL about RIPEL/LSL estate in PN 894. There was no physical entry by RIPEL/LSL against defendant in the 12 years. There was no legal proceeding in the 12 years by RIPEL/LSL against defendant. Evidence shows legal proceedings only started by RIPEL/LSL against defendant and others in year 2014. And defendant did not admit or acknowledge that RIPEL/LSL is the owner of PN 894. So, it would seem that the defendant is entitled to uninterrupted adverse possession (by prescription) under the 3 instances of non-disturbances stipulated in Section 225 (8) (a), (b) and (c).
11. However, the 3 instances of interruption or disturbances to adverse possession in Section 225 (8) (a) (b) and (c) must still connect back to eligibility under Section 224 (1) (a) and (2) of the LTA. That is to say, if you are eligible to 12 years uninterrupted adverse possession by prescription, but not anchored on a High Court order endorsing such claimed rights, under Section 224 (1) (a) and (2) then you are still not eligible to full adverse uninterrupted possession under Section 225 (8) (a) (b) and (c). Accordingly, defendant is not entitled to uninterrupted adverse possession (by prescription) for lack of a High Court order endorsement. What about defendant’s claim for overriding interest and rights? I will discuss this below (paragraphs 14-20). For completeness purposes, I will first recite in full the provisions of Sections 224 and 225 of LTA on prescriptions rights.

Prescriptive Rights

12. Section 224 – (1) The ownership of an estate or registered lease may be acquired subject to Part VII, against the person registered as the owner of the estate of 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 provided that-
    • (a) The interest acquired in the land by virtue of this section shall be the interest of 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 owned by the Commissioner or a local authority.
    • (2) Any person claiming to have acquired an estate or lease by virtue of the provision of Subsection (1) may, after having advertised or given notice in such manner as the High Court may direct, apply to the High Court for an order that he be registered as the owner thereof.

Adverse Possession Rights

13. Section 225 – (1) For the purposes 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 the 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 an estate or lease from when the owner of the lease derives title:
    • (b) Where land is subjected to a lease the receipt of the rents 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 deemed to have been such possession by the following provisions of this section.
    • (2) Where it is shown that a person has been in possession of land, or in receipt of the rents or profits thereof at a certain date and is still in possession or recept thereof, it shall be presumed that he has, from that date, been in continuous possession of the land or in continuous receipt of the rents or profits until the contrary is shown
    • (3) Possession of land or receipt of the rents or profits thereof by any person through whom a claimant derives his title shall be deemed to have been possession or receipt of the rents or profits by the claimant.
    • (4) Adverse possession by a succession of person not claiming through one another shall not be deemed to be uninterrupted adverse possession within the meaning of section 224.
    • (5) Where from the relationship of the parties or from other special cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the possession of the other.
    • (6) If a person whose possession of land is subject to conditions imposed by or on behalf of the owner of an estate therein or lease thereof continue in such possession after the expiry of the term during which such conditions and without any exercise by the owner of his right to the land, such subsequent possession shall be deemed to peaceable. Overt and uninterrupted adverse possessions for the purposes of section 224.
    • (7) For the purpose of subsection (6)-
      • (a) A tenancy at will shall be deemed to have determined at the expiration of a period of one year from the commencement thereof unless it has been previously of the first year or other period.
      • (b) A tenancy from year to year or other period shall be deemed to have been determined at the expiration of the first or other period:

Provided that where any rent has been subsequently paid in respect of the tenancy, it shall be deemed to have determined at the expiration of the period for which the rent bas been paid.

• (8) Possession shall be interrupted-
• (a) By physical entry upon the land by any person claiming it in opposition to the person in possession whit the intention of causing interruption if the possessor thereof loses possession.
• (b) By any institution of legal proceedings by the owner of the estate or lease to assert his right thereof; 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.
• (9) No person possessing land in a fiduciary capacity on behalf of another shall acquire by prescription any title to the land as against such other. (My underlining)

Second Right - Overriding interests claimed under Section 114 (g) of LTA

14. Defendant also claim overriding interests pursuant to Section 114 (g) of the LTA. Section 114 (g) of LTA states: -
    • “The owner of a registered interest in land shall hold such interest in land subject to such of the following overriding interest as may, for the time being, subsist and affect the same, without there being noted on the register: -
    • (a)...
    • (b)...
    • (c)...
    • (d)...
    • (e)...
    • (f)...
    • (g) The rights of a person in actual occupation of the land or in receipt of the rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed
    • (h)...
    • (i)... (My underlining)
15. The overriding interest in Section 114 (g) of LTA which even though not registered but can still defeat the registered interest of RIPEL/LSL (prior to 2017) only require that the defendant be in actual occupation of PN 894. Defendant’s evidence say they occupy PN 894 from 1994 (October). So, by October 2017, defendant was in actual occupation of PN 894 for 23 years. Defendant toiled on the land and built houses on the land. Court of Appeal in Paza^[1] laid down one condition upon which actual occupation can give right to overriding interest under Section 114 (g) of LTA. That condition is lawful occupation, i.e. occupation with consent of the registered owner. For the defendant to be eligible under Section 114 (g) of LTA, he must have been in actual occupation of PN 894, with prior consent/authority/permission from RIPEL/LSL.
16. The evidence shows that defendant’s family entered PN 894 on or around October 1994 and occupied the property until 2023. Defendant entered the property in 1994 based on the understanding that RIPEL/LSL gave a house built on the land to defendant’s father (then employed by former owner RIPEL/LSL – as a housing entitlement) and that the property will be transferred to defendant’s late father upon sub-division. Then defendant’s father retired or terminated because of illegal strike in 1994. Defendant was employed by RIPEL/LSL in 1995. Defendant continued to occupy and develop the land based on the same understanding that his late father entered into with RIPEL/LSL.
17. There are two issues with the said understanding that the defendant relied on. First it was a gentleman understanding based on verbal agreement of some sort which terms are uncertain. Second, any understanding as such personally belongs to the defendant’s late father. And so, such agreement with its rights would have extinguished with the passing on of defendant’s late father. Any right to claim in relation to such understanding or agreement vests in the estate of the defendant through a duly appointed administrator. Such was not pleaded in the counter claim. Consequently, defendant cannot lawfully claim any such rights that belong to his father (See Court of Appeal in HDD v Commines Vaike^[2]).
18. On the first issue, the defendant’s claim based on a gentleman’s understanding or verbal agreement faced a legal hurdle, which will render whatever equitable interest defendant may have over PN 894, non-effectual in law. The legal hurdle is that the defendant did not have a written contract, except some sort of understanding RIPEL/LSL may have had with his late father, which he relied on to occupy PN 894. Section 117 (2) of LTA says that an agreement for the purchase of registered land must be evidenced in writing. Defendant admitted in his oral evidence that there was no offer letter or written contract that he or his late father entered into with RIPEL/LSL. As correctly submitted by counsel for LSL: -

“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 state of fraud and re-iterated in the law of property 1952 of England and re-stated in the lands and “Titles Act”^[3]. (My underlining)

19. Consequently, any transfer of equitable interests alleged by the defendant pursuant to any verbal agreement or gentleman’s informal understanding will have no effect in law. This means that defendant’s occupation of PN 894 was without authority/permission/consent from RIPEL/LSL. Therefore, the overriding interests claimed under Section 114 (g) of LTA will collapse (have no effect in law).
20. Defendant’s claim having failed it means the defendant is a trespasser on PN 894. Defendant is illegally occupying PN 894 since 2017. Defendant has no legal authority from the claimants to be on the land since 2017, when claimants took over the FTE title/interest from the former owner RIPEL/LSL.

Claimants’ title is undefeated as per the original claim

21. Claimants’ FTE title/interest was registered on the 1^st of June 2017. The register is conclusive evidence of ownership and is indefeasible (repeat and reaffirm paragraph 6).

Conclusion and Orders

22. According, I will decline defendant’s counter claim for equitable rights or interests in PN 894. I will grant claimants claim for eviction or possession against the defendant. Defendant must vacate PN 894 after 3 months of this order to give him adequate time to remove his properties from PN 894.
    • (i) Defendant has trespassed onto PN 894 since June 2017.
    • (ii) Claimants claim is granted. Defendant’s counter claim is dismissed.
    • (iii) Defendant shall vacate possession of PN 894 to claimants after 3 months.
    • (iv) Parties will meet their own costs.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Paza v Sivoro [2018] SBCA 2; SICOA-CAC 16 of 2017 (11^th May 2018).
^[2] HDD Ltd v Vaike [2023] SBCA 7; SICOA-CAC 23 of 2022 (28^th April 2023, at paragraphs 17, 24, 29, 32 and 34.
^[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).