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Butala v Maelifaga [2010] SBHC 81; HCSI-CC 133 of 2008 (26 November 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 133 of 2008

BETWEEN

ALICK BUTALA
Claimant

And

JOY MAELIFAGA
Defendant

Mr Tigulu for the Claimant
Ms Bird for the Defendant

Date of Hearing: 15th November 2010
Date of Judgment: 26th November 2010

Judgment

1. This is a claim for possession of PN 191-018-43 (the land). The Claimant, Alick Butala,who is also known as Alick Wane (AB), says that he purchased the land and is now the registered owner. He says this was pursuant to a contract entered into in or about August 2007. The person who sold him the land is one George Fagono (GF). The Defendant is Joy Maelifaga (JM). She is the widow of the late Milton Maelifaga, who was sometimes called Milton Maeli or Jack Maeli (MM). He died in 2003. There was some evidence that JM has remarried but not a great deal was heard about the second husband or rather not a lot to his good was heard about the second husband. JM says that any purchase and registration by AB is subject to her overriding interests.

2. That is the main issue before the court. Does the Defendant have an overriding interest in the land and if so how did it arise?

3. Some facts are agreed or there is indisputable documentary evidence to establish them. That AB is the registered owner is beyond dispute. The fixed term estate register is available in the court book [1]. There is also a copy of a transfer at pages 143 to 146. The transfer deed was from GF to AB. Those facts are clear from the documents. The Registered owner of the land is AB. It is important to grasp that GF was not a party to this case but he did give evidence on behalf of AB, the Claimant

4. Much else is disputed to varying degrees. It is accepted there were, in 1995, negotiations between GF and MM for the sale of the land to MM. Cash was paid to GF by MM. There is some uncertainty about the total of cash paid but it is agreed at least $7,000 was handed over. It is also accepted that GF agreed to take a motor vehicle as part payment of the whole purchase price. There is disagreement as to what value was placed on the vehicle. JM says the figure was $18,000. GF says it was only $10,000. I do not find his reasons for saying that very convincing. The vehicle was a Lada. He calls it a Landa. He says it was a Russian World War II model. If the vehicle was a genuine World War II model it would have been at least 50 years old in 1995 and worth a considerable sum. Far more than $10,000. No evidence was given as to the model but I seriously doubt it was of World War II vintage. I can take judicial note that Lada is a Russian car manufacturer and whilst its models may have been "old fashioned" in design they were modern day builds. I believe there was an outlet selling new Lada cars in Honiara in the early 1990's but I heard no evidence on that and do not take it into consideration. I prefer JM's evidence that originally MM asked $20,000 for the car but GF only agreed $18,000. I find as fact then, at least $25,000 in cash and kind had been received by GF during 1995.

5. A copy of a transfer was produced and it was said to have been signed in 1995 by both MM and GF. The latter says it is a forgery. In a letter he signed dated 6th December 2006 the story is slightly, but significantly, different [2]. He says in his letter that, "the signing of the Transfer of Title are false pretendence (sic)". He goes on to say, "I really don't know what time I have signed the documents". I accept the letter was written in what to GF is a second language but it does not say the documents are forgeries, just that he does not know when he signed them. He explains that the arrangement between him and MM was just a verbal agreement. He then rather tellingly goes on to say, "I did what I had to do because at the time I was facing an uncontrollable problem with my family". The evidence he produced about the forgery also included a sworn statement from one John Mark Hikimae. The implication in the statement is that George Fagono, "was not the person who appeared before me during the signing of the transfer on 31st January 1995". In oral evidence Mr Hikimae admitted no one had appeared before him despite the certificate to that effect. Donley Betu Maebule witnessed the signing of the deed, and Hikimae says he trusted Maebule and that Maebule had witnessed George Fagono's signature. Maebule was not called as a witness. I have no doubt George Fagono did sign the transfer.

6. That raises the question of why MM did not complete the registration. The partial answer can be gleaned from documents in the court book. At page 73 is a letter from the Solomon Islands Housing Authority. It is dated 17th June 1987. It reveals some errors in the title. In simple terms it says that GF bought the wrong house. He should have been registered as the owner of FTE 191-019-42 which was location or number 47 at Mbokonavera II. He was in fact registered as owner of PN 191-019-43 which was in fact No 46. Following the June 1987 letter the Commissioner of Lands sent a Surrender Instrument [3]. Unfortunately there are no more documents to show whether the "error" was corrected. There is a letter in February 1995 where the Commissioner gave his consent for the transfer from GF to MM [4] so some attempt had been made to effect the transfer. However, it appears the error had not been corrected because we then come to the letter dated 3rd November 1995. That is from the Home Finance Corporation of Solomon Islands [5]. It repeats the information about the error in location numbers and tells MM he has to decide whether he wants, "...the property that Mr George Fagono sell to you or the property that register under his name". As we know from later documents that 191-019-43 was still registered in GF's name as late as the transfer to the Claimant the error had clearly not been corrected. MM replies to the letter from Home Finance saying he wants to own the property, "..register under George Fagono's name". There are no further documents to show how or why PN 191-019-43 continued to be registered in GF's name. A possible clue maybe found in the dealings with the Claimant AB. Despite what he and GF imply in evidence and in sworn statements, there was a charge registered against the property. It was not discharged until 2007. The Deed of Discharge is shown at page 147. It is dated sometime in 2006 (it is stamped 21st November 2006 so presumably after that date) and it was registered on 22nd March 2007. All of MM's correspondence in 1995 seems to be with Home Finance (that was the re-branded name of Solomon Islands Housing Authority) and clearly the reason for that was the Registered Charge in its favour. No evidence was adduced about the loan from Home Finance and particularly whether or when it was paid off. From the documents it is obvious that MM could not have obtained clear title to the property in 1995. Any transfer would have been subject to the charge held by Home Finance.

7. GF's evidence before the court was at odds with his sworn statements in another important respect. He says in his statement [6], "The Defendant's late husband chased my wife out of the house claiming he had purchased it from me". In his evidence he admitted that he had asked MM to tell his wife to move out and for MM to move into the property. In effect, he had given possession of the land to MM in 1995. I find as fact MM and his wife the Defendant JM, have enjoyed continuous uninterrupted possession of the land from late 1995 until the present day. Possession, in a legal sense, does not require JM to have actually lived in the property. If she can show that she and her late husband had exclusive use or control of the property that is sufficient. The evidence shows that state of affairs to have existed and in any event in addition it shows JM did actually live in the house from about 2003 onwards.

8. There is no evidence whatsoever GF asked either MM or JM pay rent during that period of possession or indeed ever. The Claimant admits he knew JM was living in the house when he purchased it from GF. He did arrange to meet with JM but this was after he had purchased the land from GF. He does not say whether he asked GF to clarify the situation as between GF and JM. He does say in evidence that he entered into some discussion with JM's second husband but he also says as soon as he found the property to be registered in GF's name he had no further dealings with either the second husband or JM. He dealt exclusively with GF.

9. I asked counsel if there was any claim in respect of prescriptive rights acquired by JM pursuant to s224 of the Lands and Titles Act [Cap 40]. That point was not pursued. There may be some argument the possession was with the agreement of the then owner GF and the possession was not therefore adverse. As the point was not pursued I have no need to consider it further or make any findings on the issue.

10. Section 114 of the Lands and Titles Act says the owner of a registered interest in land shall hold it, "subject to such of the following overriding interests as may, for the time being, subsist and affect (the land)." At subsection (g) it says overriding interests include, "the rights of a person in actual occupation of the land.... save where enquiry is made of such person and the rights are not disclosed". I have made a finding of fact MM paid at least $25,000 to GF in 1995 and that GF allowed MM and JM to take possession of the property. I have found no evidence that rent or any other payment was demanded by GF or paid or offered by the Defendant in regard to the occupation of the land. I find that the Claimant was well aware of JM's occupation of the land but made no enquiries of her as to her rights over the property. He consulted lawyers at the time of the signing of the transfer and so could have asked for advice about the effect of her living in the property. GF knew she was saying the land was hers and I cannot believe that AB was not aware of the "dispute" through his dealings with GF. If GF concealed the details from him then his remedy is against GF. This is a clear case of overriding interests as set out in s.114(g) of the Lands and Titles Act. What that means is the Claimant may be the registered owner of the FTE in PN 191-019-43 but he takes the title subject to the rights of the Defendant. She is entitled to live there rent free for as long as she wants and she is entitled to use the property as she alone sees fit. The Claimant has no control over the property. He is, in effect, owner in name only. So far as the Defendant is concerned, the only thing she cannot do is sell the property. However she has an equitable interest in respect of the $25,000 paid to GF.

11. In the circumstances I dismiss the claim. With regard to the counterclaim, I have found as fact the Claimant, as registered owner, takes his title subject to the overriding interests of the Defendant. There was a suggestion that I should make an order for specific performance of the (1995) agreement between GF and MM. As GF is not a party to this case I can make no such order. Neither can I order rectification of the title in this case. Costs should follow the event and I order the Claimant to pay the Defendant's costs.

Chetwynd J

^[1] See pages 152 and 153.
^[2] See page 81 of the Court Book.
^[3] See page 74 ibid
^[4] See page 75 ibid
^[5] See page 76 ibid
^[6] See page 66 ibid