Tolumae v Uni [2023] SBHC 61; HCSI-CC 543 of 2020 (30 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tolumae v Uni
Citation:
Date of decision:	30 June 2023
Parties:	Jeffrey Tolumae and Edward Voko, Dolson Mokeni, Dysen Basiberi, Jimmy Sa’asi and Fred Bualano v Brian Uni, Florence Olofia and Fatai Lolofia, Rose Mary Sato, Attorney General,
Date of hearing:	21 November 2022, 23 November 2022, 23 December 2022, Last Submission
Court file number(s):	543 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. The claim filed by the first Claimants is hereby dismissed in its entirety. 2. The claim advocated by the second claimants under the claim filed by the first Claimants is hereby dismissed accordingly. 3. Order that the second Defendant continue to take possession of Parcel Nos: 192-016-16 and 192-016-18. 4. Order that the Claimants to pay damages to the second Defendant for damages to the land to be assessed. 5. Order that any one occupying the lands to remove their building within one and half month (1½ month). Failure to do so the buildings may be disposed as the second Defendant thinks fit. 6. Order that the fourth Defendant removes any caveats still registered on the said Parcels; 7. Orders that permanent injunction is hereby granted restraining the 1st and 2nd Claimants, anyone they claim to represent, and anyone claiming through them, from remaining on the second Defendant’s lands or re-entering the same. 8. Order that the Claimants to pay the second Defendant’s cost of this trial to be assessed; if not agreed.
Representation:	Mr B Upwe for the Claimants 1 and 2 No one for the 1st Defendants Mr. A Radclyffe for 2nd Defendant Ms Bula for the Defendants 3rd and 4th
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 229 subsection (1), Subsection (2), S 224 (1), S 224 (2),S 225 (1), S 124 and 125, S 114, S 229 (b), S 229 (a), S 224 (4), S 114 (g), S 4 (4) Limitation Act [cap 18] S 5, S 9 (2), S 32 (2), S 32 Duty Stamp S 9,
Cases cited:	Manehamosa v Kelly [2000] SBHC 16, Lucky Enterprise Ltd v Aiwosuga [2019] SBHs-CC 543 of 2020, Shu Fen and others v Nation Bank of Solomon Islands [2011] SHBC 29

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No.543 of 2020

BETWEEN

JEFFREY TOLUMAE AND EDWARD VOKO
(Representing themselves and other member of Haubata tribe of Mount Austin, Guadalcanal Province)
1^st Claimant

AND:

DOLSON MOKENI, DYSEN BASIBERI, JIMMY SA’ASI AND FRED BUALANO
(Representing themselves and members of the Malajili community as per Schedule 1)
2^nd Claimants

AND:

BRAIN UNI, FLORENCE OLOFIA AND FATAI OLOFIA
1^st Defendants

AND:

ROSE MARY SATO
2^nd Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
3^rd Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
4^th Defendant

Date of Hearing: 21 November 2022, 23 November 2022, 23 December 2022 Last Submissions
Date of Judgment: 30 June 2023

Mr. B Upwe for Claimants 1 and 2
No one for the 1^st Defendants
Mr. A. Radclyffe for the 2^nd Defendant
Ms Bula for the Defendants 3 and 4

JUDGMENT AFTER TRIAL

Faukona DCJ: The original claim (Category A) was filed on 16^th October 2020. It was later amended on 30^th October 2020, perhaps after the 2^nd Defendant had filed her defence on 20^th October 2020.

2. Defendants 3 and 4 also filed their defences, with the exception of the 1^st Defendants. According to Mr. Radclyffe, the 1^st Defendants did not file any defence because they are no longer owners of the land but which had been transferred to the 2^nd Defendant.
3. In any event the original Perpetual Estate in PN. 191-016013 was with the Commissioner of Lands. On 12^th March 1998 the Commissioner of Lands transferred the PE in PN: 191-016-13 to Brian Uni, Florence Olofia and Olofia Fatai for the sum of $30,000.00, and was registered.
4. On 24^th March 2000 Levers Solomons Limited surrendered the FTE in PN 192-016-13 to Brian Uni, Florence Olofia and Olofia Fatai and was registered.
5. On 24^th March 2000, the original PN in 192-016-13 was subdivided into PN: 192-016-16 and PN: 192-016-17.
6. It was the PE in PN: 192-016-16 that was transferred by the 1^st Defendants on 20^th December 2000, to Rose Maria Sato and Yoshi Yuki Sato, as joint owners for the sum of $32,000.00, and was registered.
7. On 27^th July 2001, PN in 192-016-0017 was further subdivided into 192-016-18 and 192-016-0019.
8. On 10^th August 2001, PN: 192-016-18 was transferred from Rose Maria Sato and Yoshi Yuki Sato to Rose Maria Sato for the sum of $9,000.00 and was registered.
9. On 9^th September 2001, Parcel No. 192-016-18 was transferred by the 1^st Defendants to Rose Maria Sato for the sum of $128,000.00 was registered.

The relevant laws applicable in the circumstance of this case.

10. The starting point is S. 229 of the Land and Titles Act, which in subsection (1) vested power upon the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
11. In subsection (2) provides exception that land registered shall not be rectified to affect the title of the owner who is in possession and had acquired the interest for valuable consideration, unless the owner has knowledge of omission, fraud or mistake or cause such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.
12. The next provision is S.224 (1) of the Act, which states that the ownership of an estate or registered lease may be acquired subject to Part V11, against the person registered as the owner of the estate or lease, by peaceable, overt and uninterrupted adverse possession of the land comprised in the estate or lease for a period of twelve years.
13. S.224 (2) of the Act states, that after having acquired the estate in subsection 1, may advertise or giving notice in such manner as the High Court may direct, apply to the High Court for an order that the applicant be registered as the owner.
14. S. 225 (1) of L & T Act advocates further definition, that possession of land is termed as adverse possession, when it was possessed by a person not being the owner, without permission of a person lawfully entitled to possession, shall be adverse possession against that owner but not against the owner of the estate or lease where the owner of the lease derived title.
15. The next set of laws is provided for under the Limitation Act Cap. 18. Section 5 of the Act states no action shall be brought, nor any arbitration commence, after the expiration of six years from the date of which the cause of action accrued.
16. 16.S. 9 (2) of Limitation Act states, no action shall be brought nor arbitration commence by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him, or if accrue to some person through whom the claims to that person.
17. Section 32 (2) states, where a claim is an action based on fraud the prescribe period for such action or arbitration, shall not begin to run until the plaintiff has discovered such fraud, concealment or mistake, or could with reasonable diligence have discovered it.

The Claimant’s Case.

18. The first Claimants case is that they are the members of the haubata tribe; the original customary owners of Block F of mambulu customary land, a part of it was registered in the names of the first Defendants in PE NOs; 192-016-16 and PE N0: 192-016-18, which subsequently was transferred to the second Defendant.
19. The first Claimants claim that the transfer was void in the beginning on the basis of fraud, mistake or omission pursuant to S. 229 of the Lands and Titles Act.
20. Consequently, if the registration of the PEs in the names of the first Defendants were done by fraud, mistaken or omission then the registration in the name of the second Defendant be cancelled and register the names of the first Claimants instead.
21. The case for the second claimants is that they are members of the malajili community and are entitle for adverse possession pursuant to S. 124 and S. 125 of the Lands and Titles Act, on the basis they had occupied parts of those two perpetual estates for more than twelve years. Therefore they have an overriding interest pursuant to S. 114 of the Land and Titles Act.
22. Should the court find in the affirmative, then the 4^th Defendant to register the second Claimants as trustees for and on behalf of malajili community on the parts of the two PE estate they currently occupied?

The second Defendant’s Case.

23. The Defendants should not have been sued. They do not have the title to the lands. They ceased to own in 2000 and 2001 when the two parcels were sold to the second Defendant.
24. The second Defendant’s case is that she denies the relief sought and should not be granted. And that her counter-claim has been proved.
25. In her pleadings, she plead in defence that the 1^st Claimants have no locus standi and secondly their claim is time barred under the Limitation Act. The second Claimants settled in her lands as trespassers, even after notices were served

Issues.

26. There are six issues outline by the submissions furnish by the 1^st and 2^nd Claimants. The fifth issue is locus standi and the sixth one is limitations made under the Limitation Act. The last two issues often regarded as preliminary issues which in practical ought to be heard first.

Locus Standi.

27. The first Claimant’s rights or interest to the two subject parcels of lands PN: 192-016-16 and PN: 192-016-18, are based on custom, virtually converted into legitimate expectation that one day they would be legal owners of the parcel of lands.
28. Their claim of customary ownership reinforced by the Guadalcanal Customary Land Appeal Court (GCLAC) decision on 17^th October 1988 and 20^th June 1989.
29. That decision was in favour of Joseph Manehamosa of the haubata tribe through whom they claim. It was determined that Mr. Manehamosa was awarded blocks “C and F”. Part of block “F” is where the two subject parcels are located.
30. The first Claimants’ major claim of right is that they were the original customary owners of Block F of mambulu customary land. With respect they may be the descendants of the original owners.
31. The reason perhaps why the 1^st Claimants persisted with such claim, is if they were descendants of the original owners, why the Commissioner of Lands authorized or agreed to transfer the PE in those two lands to the first Defendants? They suspected it was done by fraud, mistake or omission. I will return to this issue later.
32. Meantime, one convincing fact for sure is according to the sworn statement of Mr. McNeil (Commissioner of Lands), is that the land had been registered for many years even before Independence in 1978. It was formally part of Levers Pacific Plantation Ltd acquired from the native landowners. Once a customary land was registered the customary ownership of the land became extinguished.
33. The original natives or their descendants down the line cannot continue to claim ownership of the land in custom, even through a latter court decision.
34. In the current case, the CLAC determination upon which the 1^st Claimant’s hatched their claim cannot provide a valid foundation to pursue the right of ownership to the registered lands. The CLAC had no jurisdiction or power to deal with or determine ownership of registered lands which now owned by the second Defendant. Any right in custom ceased to exist on registration of the land many years ago. Indeed the Claimants have no standing to come to court, they do not have any right. The basis of their claim is but a fluke.
35. The 1^st Claimants further argue that following the decision of the CLAC, they pursued with the Commissioner of Lands to return the land to them, as he equitably did by returning the PE in PN: 192-016-7 to their tribe.
36. Pursuant to paragraph 12 of the sworn statement of Mr. Tolumane, who deposed that the 1^st Defendants also challenge the CLAC decision but fail? However, there is no material evidence to proof the 1^st Defendants involvement in the CLAC or appeal to the High Court against the CLAC decision.
37. Likewise there is no attempt by the first Claimant by way of application or letter to the Commissioner of lands about any prospect of transferring the subject lands to them. The reality can be spotted after the CLAC case, the first Claimants were expecting that the C of L will transfer those lands to them whilst sitting back enjoying their victory. In this Court they expressed their lay back action as legitimate expectation without doing any move towards transfer of any title.
38. However, having learned that the first Defendants were acquiring the titles and selling lands then they began to bark ferociously.
39. But then their noise came too late; transactions were done in 2000 and 2001. In the final analysis the 1^st Claimants have no locus standi to come to court.

Fraud, Mistake, or Omission:

40. As an introductory, this claim was brought as an action purposely for recovery of land. However recovery implies that the land was once held but was lost. To be specific recovery of land, according to the Claimants, is rectification of the titles of the lands, so as to include their names instead of the 2^nd Defendant.
41. In order to extend the limitation provisions, the Claimants advance the allegation of fraud, mistake or omission pursuant to S. 32 of the Limitation Act which advocate two situations. One where a claim is based on fraud by the Defendant, and secondly where a claim in an action is based on any fact relevant to the plaintiff’s case which has been deliberately conceal from him by the Defendant.
42. In both occasions the prescribe period for such action, as the case may be, shall not run until the plaintiff has discovered such fraud, concealment and mistake, or could with reasonable diligence have discovered it.
43. With preciseness the first Claimants have failed to inform or show to the Court as to when actually they discovered fraud or concealment done by the 1^st Defendants. It would be easy in order to count from the date of discovery to the date this cause of action was filed on 15^th October 2020.
44. The circumstance of this case is rather complex and indifferent. In general approach the sounding requirement is there must be evidence to proof fraud, mistake or omission to the requirements under S.229 (b) of the Land and Titles Act. Then the next issue is the limitation period under S.32 of the Limitation Act. The claimants have to show the date of discovery of the fraud or mistake, which within 6 years thereafter this cause of action was filed.
45. If filing of this cause of action was less than 6 years after discovery of any fraud, then the first Claimants are entitled to be heard in respect of the limitation period. And the question of rectification under S. 229 (a) for the Act becomes redundant.
46. However, despite searching the materials thoroughly, there was no date of discovery of the fraud, even in the submissions. The first Claimants are obligated to provide but seemingly do not wish to emphasize in their pleadings nor in their submissions.
47. On the argument concerning the non-existence of PE in PN: 197-016-13, before the first Defendant made an offer to the second Defendant. The chronology of events reveal that dealing with the Commissioner to transfer the parcel numbers started in 1997. The dealings materialized on 12^th March 1998 when PE was transferred to the 1^st Defendants.
48. By making an offer as earlier as 15 December 1997 before the actual transfer, was fair and not tainted by any ambiguity. The reason being that the letter clearly stated that the first Defendants were intended to offer for sale of 20 hectares of land for a price. The letter further stated once payment was done they will transfer the title. The letter simply refer to activities that will be done in the future. The lots may be different but the fact is that PE in PN: 192-016-13 was eventually transferred to the 1^st Claimants, 2 months and 25 days later after the letter of offer was made.
49. The dealing for sale of land was done by the 1^st and 2^nd Defendants. If they agreed to which ever land was ready in time the sales agreement would be concluded. There is nothing left for the 1^st Claimants to soar about it. The purchase of the land was done after the first Defendants had acquired full PE and FTE titles to PN: 192-016-13. After subdivision of land of which land PN 192-016-16 emerged. It was the PE title in PN: 192-016-16 was transferred to the 2^nd Defendant on 20^th December 2000.
50. There was no fraud in those transactions. There is no irregularity at all to form an act of fraud. After all the land was owned by the 1^st Defendants before it was sold to the second Defendant who purchased in good faith for value.
51. In regards to what evidence or documentations presented to the C of L which convinced him to transfer the PE in PN 192-016-13 to the first Claimants. The first Claimants argued that the first Defendants had misrepresented themselves to the C of L that they were the original land owners. And so convinced him to transfer the PE title to them. In any event the Claimants carry the onus of proof on the civil standard on this issue.
52. If there is no material evidence available, then there can be no expectation upon the C of L to act as the former in civil case HC-CC No. 196 of 1996, Joseph Manehamosa V Sethael Kelly and AG.
53. I am very much certain that the first Defendants had presented some evidence concerning original land ownership to the C of L. What may appear was that no other tribe or group applied for transfer of PE of the same land. Neither any one challenge the first Defendants’ application.
54. The real position of the 1st Claimants is expressed in paragraphs 36, 37 and 38 above.
55. In any event S. 4 (4) of the Land and Titles Act states;

“The commissioner shall have power to hold and deal in interest in land for and on behalf of the Government and subject to any general or special direction from the Minister...”

56. The spectrum interpretation of the provision has negated any allegation of fraud unless there is clear and direct evidence proving collusion and participation between the C of L and one of the first Defendants, Mr. Fatai.
57. The issue that Mr. Fatai failed to challenge the documents served on him which contain the allegation of fraud, depicted his silence simply mean admission.
58. However, I accept the submissions by Mr. Radclyffe on this point that the 1^st Defendants need not to respond to the claim and sworn statements, or be a party because the lands had been sold to the 2^nd Defendant in good faith and for value. Apparently from my exposition as above, there is no fraud, mistake or omission proved by the Claimants on the balance of probability.

Statutory breach in execution of the respective lands.

59. The first Claimants also allege that there was a statutory breach is the execution of PE 192-016-13. Figure 9 was crossed and instead inserted figure 13 in a hand written form and was initialed by two people.
60. A similar occurrence also happened to PE 192-016-16, where figure 14 was crossed out and figure 16 was inserted and initialed by two persons.
61. Again a similar situation occurred in the transfer instrument in PE 192-016-18 where crossings were not initialed. The 1^st Claimants attested that what had been done was contrary to Land and Title Act (General) Regulation Note 1.
62. The presumption was that those irregularities were committed by Mr. Fatai and two other transferees. I noted Mr. Fatai was the former Planner/ Lands Officer in the Ministry of Lands at that time. The Claimants also submit that it was Mr. Fatai who master minded all the transfers’ transactions and executed the documents. He knew all the processes how to acquire land. He had conflict of interest. His name and wife’s name appeared in all the transfer documentations.
63. I noted there were changes or amendments of figures. However were they severe enough to tantamount to mistake or omission, which in general was fraud?
64. The Commissioner of Lands said in his evidence in Court, the Registrar of Titles, accepted the documents in the form and registered them. If there were defects, they were defects of form and not substance and cannot form the basis of a claim for fraud, mistake or omission. Regulation 4 (1) and (2) of the Land and Titles (General) Regulation gives the Registrar the discretion to accept or reject documents. In this case he accepted it.
65. Mr. Radclyffe submits the fact that the Registrar of Titles registered the transfers soon after they were lodged is not evidence of fraud. The second Defendant purchased the land in good faith for value.
66. The firs Claimants refer to the case of Lucky Enterprise Ltd V Aiwosuga and others^[1] where the Judge stated that the little known Kwanae got the title in 8.5 hours and transfer it to LEL inside the same limited time. The Court further stated that the whole transaction lacks genuineness right from the beginning. The Court found LEL was a team player in the whole transaction. Why deprive an important institution such as Police of the land that will apparently be needed for a Police Station expansion.
67. The above case is simple and straight forward case of fraud or mistake. It concern a land which accommodated Police Officers, a frog leap from Kukum Police Station. It so happened a private individual applied for the land without consultation with the Commissioner of Police. Subsequently that private person got the land and title and immediately sold it to the Claimant a business entrepreneur based in Honiara.
68. I say that case is simple because it is less complicated and easy to deal with. The current case contains major issues of locus standi, fraud, mistake or omission, time limitation and adverse possession as an overriding interest. It is a complex case in nature which involves multiple issues.
69. Perhaps the relevant case which I concur applicable to the circumstances of this case is Hwang Shu Fen and Others V National Bank of Solomon Islands^[2] which Chetwynd (J) explain;

“I cannot see that the Registrar has duty other than to consider and deal with such paperwork as is presented to him. He was entitled to accept the documents on their face value”. The duty of the Registrar is to register the documents. That duty include checking the documents have been duly being completed, in the sense that he is bound to check they been completed in accordance with the requirements of various Acts. As a matter of law, it is not part of his duty to go behind the documents presented and to make all manner of additional enquiries”.

70. From the discussed narratives and the case authority above gives enlighten to doubts in changing of the figures and not fully initialed, but at least two did is suffice.
71. In summing those issues I have covered in respect of locus standi, time limitation and fraud. It is sufficient and obvious to adjudge that any claim of right through custom cannot affect a registered land. There is a practical understanding that all qualified lawyers should appreciate. Any claim of right of ownership to a registered land through custom claim is not recognized by law.
72. Once a land is registered in the name of person, that person become a legal owner and his title is protected under the principle of indefeasibility.
73. Therefore the first Claimants claim of customary ownership of the subject lands do not form any basis in law to rectify registered interest in land. Hence the first claimants have no standing or locus standi to come to court and pursue their claim. Their right was abrogated by law.
74. In terms of time limit, the Claimants claim was filed out of time limit of six years, and even under S. 32 (2) extension of limitation of time in case of fraud of which the prescribe period shall not run until the plaintiff discovered that fraud.
75. There is no evidence to proof a date on which the Claimants discovered such fraud or mistake or with reasonable diligence, so that the prescribe period began to run. Even if there is a date which may qualify the Claimants to come to court to pursue their grievances, the fact that they have no standing or right to come to court has dismissed their claim altogether. The second Claimants’ claim relies on the major claim. In that instance I find in conclusion that the claim filed by the first Claimants is statute bar under the Limitation Act.
76. After assessing all the evidence I could able to conclude by the narratives, I find there is no evidence adduce by the first Claimant to proof the first Defendants had acquired the PE’s in the two subjective lands, which subsequently sold to the second Defendant, were obtain by fraud, mistake or omission. And their claim is statute barred.

Stamp Duty.

77. On the issue of stamp duty which lacked to have been done on the document exhibit AM 1 attached to the sworn statement of Mr. McNeil, I find upon reading the amended claim it was never pleaded in any paragraph therein, pleading that the particular document refer to was not stamped as required by S. 9 of the Stamp Duty Act.
78. There is nothing in the seven reliefs sought by the Claimants that include, the first transfer document to the first Defendant was not stamped, which will render the document unreliable and of no effect.
79. There is no paragraph in the entire claim that pleaded such omission. Yet in the written submissions it appeared on paragraph 8.8 page 18 and 19. In fact the Claimants claim that all the instruments of transfer were not stamped hence is null and void ab in tio.
80. Since the issue was not pleaded, there is no response by the Defendant in her defence and submissions as well. As such I must not consider this issue because it ambushes the 2^nd Defendant in the last minute. It deprives her right to response immediately.

2nd Claimants’ claim for adverse possession and overriding interest.

81. The principle of adverse possession are set out in S.225 of the Land and Titles Act. Section 224 (1) of the Land and Titles Act says that the ownership of an estate or registered lease may be acquired against the person registered as the owner of the registered estate by peaceable, overt and uninterrupted adverse possession of the land for a period of 12 years.
82. S. 224 (4) that any person claim to have acquired an estate may, after advertising or given notice in such a manner as the Court may direct, apply to the High Court for an order that he be registered as the owner thereof.
83. The second Defendant admits that people are occupying parts of her land without her consent. But they do not occupy the whole of the parcels, only parts each family occupies.
84. The second Claimants rely on the evidence of Mr. Mokeni who said there were ten (10) families who occupied the lands in 1998. Other families joined them in 2004 after RAMSI arrived. The 2^nd Claimants based their claim on the Laperous case.
85. The first hurdle the second Claimants encounter is the requirement under S. 224 (4) of Land and Titles Act. That section require a person claiming adverse possession must first advertise or given notice as the High Court may direct.
85. The notice at page 118 of the Trial Book (TB) does not satisfy S. 224 (4). The notice was advertised in the print media contrary to any direction of the court. There was no direction order given by the Court at any time in such a manner prior to notice was advertised.
86. Therefore, the 2^nd Claimant’s claim for adverse possess cannot be valid, on that basis alone. This is a crucial requirement under law was not complied with. Instead the 2^nd Claimant took an unfavorable route, out of the provision of law, and gave notice inviting objections, that should there be no objection the Malajili Community be registered as owners. That notice sounds baffled shortfall from the requirements of law.
87. The question is, how a Community would become a registered owner. Is Malajili Community a legal body? I do not think so. Further, there is no mention of any trusteeship, thus makes it unwise to register a none legal body. In other words a registered company or individual can be registered as owner of an estate, or individuals as joint owners.
88. On the issue of occupation in peaceable overt and uninterrupted adverse possession, for more than 12 years as claim, since 1998. The second Defendant contest that assertion as not being true.
89. In comparison to the two sets of google photographs produce by the parties, I notice at first instance that photo DB1 in Mr. Buga’s sworn statement was taken in 2002 There was no single settlement shown in the lands. In photograph DB2 taken in 2003 there was one house shown.
90. In the same year, 2003, the second Claimants’ photo attached to Mr. Mokeni’s sworn statement contain 3 houses. Would those 3 houses accommodate 10 families, impossible? 10 families which Mr. Mokeni advocates occupying the lands since 1998 did not show. He failed to exhibit any photograph from 1998 to 2002.
91. In the second Claimant’s photo taken in 2009, there were additional four (4) houses. Mr. Mokeni did not produce any photograph from 2004 to 2008. Where are additional families settled after RAMSI arrived, only 4? There was nothing, no evidence even to suggest more.
92. The three houses shown in photograph taken in 2003 has no boundary indication, as in DB2, 2003 photograph with one house. With ambiguity in evidence I doubt there were three houses in 2003.The only house identified in 2003 was DB2 but had left and abandoned the place permanently.
93. To qualify under the element of possession without interruption since 1997, there must be continuous possession up to the time this case was filed. It must be 12 years or above.
94. In fact there is no evidence to show. There were letters written to the 2^rd Claimants to vacate possession.
95. On the balance of probability I must accept the evidence adduce by the 2^nd Defendant. Mr. Mokeni in his evidence is not telling the truth. He did not show settlements from 1998 to 2002, from 2004 to 2008. Anyone settled from 20^th October 2008 and beyond is disqualified and cannot be protected by S.224 (1) of the Land and Titles Act, possession is less than 12 years.
96. He only produce evidence by google photographs that Malajili Community settled in 2003, where it shows 3 house rebutted by the 2^nd Defendants DB2 shows only one house but since it was abandoned permanently by photograph in 2009. The evidence under the circumstances do not qualify the 2^nd Claimants to base on the principal of adverse possession for 12 years without interruption.
97. Therefore, the claim for adverse possession must fail and the second Defendant’s counter-claim must be upheld.
98. Impurity as it is, the 2^nd Claimants do not have any overriding interest in the lands under S.114 (g) of the Land and Titles Act.
99. All in all the second Claimants and others occupying the 2^nd Defendant’s lands are trespassers, hence must be subsequently removed themselves and their buildings and vacate the lands within 1½ months from the date of this judgment.

Orders:

1. The claim filed by the first Claimants is hereby dismissed in its entirety.
2. The claim advocated by the second claimants under the claim filed by the first Claimants is hereby dismissed accordingly.
3. Order that the second Defendant continue to take possession of Parcel Nos: 192-016-16 and 192-016-18.
4. Order that the Claimants to pay damages to the second Defendant for damages to the land to be assessed.
5. Order that any one occupying the lands to remove their building within one and half month (1½ month). Failure to do so the buildings may be disposed as the second Defendant thinks fit.
6. Order that the fourth Defendant removes any caveats still registered on the said Parcels;
7. Orders that permanent injunction is hereby granted restraining the 1^st and 2^nd Claimants, anyone they claim to represent, and anyone claiming through them, from remaining on the second Defendant’s lands or re-entering the same.
8. Order that the Claimants to pay the second Defendant’s cost of this trial to be assessed; if not agreed.

The Court.
Justice Rex Faukona
DEPUTY CHIEF JUSTICE.

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^[1] [2019] SBHC 49: HCSI – 32 of 2016 (31 July 2019).
^[2] [2011] SBHC 29; HCSI – CC 364 of 2008 (5 May 2011).