lass="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
HIGH COURT OF SOLOMON ISLANISLANDS
Civil Case Number 263 Of 1999
LIKO ASSOCIATION LIMITED
(T/A TEMOTU FISHERIES PRODUCTS)
class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
v
COMMISSIONER OF LANDS & OTHERS
High Court Of Solomon Islar>
Before:
Palmer J.
Civil Case Number 263 Of 1999
Hearing: 30 November 1999 And 9 December 1999.
Judgement: 17 December 1999
A. Radclyffe For The. Plaintiff
No Appearance Entered For Second Defendant
No Appearance Entered For Third Defendant
PALMER J.:
The Plaintiff, Liko Association Limited trading as Temotu Fisheries Products
(hereinafter referred to as �LAL�) seeks orders under section 229 of
the Land and Titles Act (hereinafter referred to as �the LTA�), for
rectification of the fixed-term estate register for Parcel No. 192-010-68 on
grounds of mistake and for declaration
under section 18(1) of the Crown
Proceedings Act (Cap. 8) that Plaintiff is entitled to be registered as the
fixed-term estate owner of said Parcel.
The fixed-term estate in Parcel No. 192-010-68 (hereinaftinafter referred to
as �the Land�) was formerly registered in the name of Max Andrew Barker
(see Document No. 8 in the Bundle of Agreed Documents filed
20 November 1999).
Grant of said fixed-term estate was made to him by the Commissioner of Lands
(hereinafter referred to as �the Commissioner�) on or about 9 July
1986 (Document No. 1). Clause 6 of the grant instrument required Mr.
Barker to erect on the Land a building costing not less than $A50,000-00
within 18 months from date of grant. This was not complied with. Further
extensions were sought in correspondences between
Mr. Barker and the First
Defendant (see Documents Nos. 2, 3, 4, 5 and 6). On or about 10 June
1992, a Notice Before Forfeiture was served by registered post on Mr. Barker
(see Document No. 7). Clause 4 of said notice required Mr Barker to
erect on the Land a building to the value of $A50,000-00 by 25th August
1992, failing which, the Commissioner threatened to have the Land forfeited.
In the meantime, LAL through its Managing Director, Mr. Mai. Maina applied by
letter dated 15 October 1992 (Document No. 9) to the Commissioner for
possible re-allocation of the Land to it when re-possession had been
completed. On or about
4th December 1992, an offer was made to LAL for grant
of the said fixed-term estate for fifty years (Document No. 12). This
was accepted by Plaintiff and requisite fees paid (see Document no. 14).
On or about 7 December 1993, grant instrument in favour of LAL was executed
(see Documents No. 15 and 16). The document was then prepared for
registration. Unfortunately this was not lodged for registration due to some
misunderstandings
and delays about when forfeiture proceedings would be
completed.
In December 1995, an application for possible allocation tion of the same plot of
land was lodged by Kwan Wai Man (Third Defendant) to the Commissioner
(see Document No. 26). In utter disregard of the previous Agreement
entered into with LAL the Commissioner made a separate offer to Third
Defendant for the same plot of land (see Document No. 27). On 19
December 1995, a Second grant instrument was executed in favour of Third
Defendant (see Document No. 28). It was lodged for registration on or
about 12 March 1996 and registered on or about 11 August 1997 (See
Document No. 32).
The �mistake� which occurred in this instance is not diffidifficult to identify.
The Commissioner it seems, simply did
not know what his left hand was doing
from his right. The Lands Officer, Nestor Maelanga, who dealt with Third
Defendant�s
application and prepared the offer and instrument, seemed
completely oblivious of the first offer and grant instrument, prepared
and
processed by another Officer, Baddeley Tabiru, in favour of LAL. The only
common link in what those two officers
did was the fact all correspondences
and documents were signed for and on behalf of the Commissioner. Yet the
Commissioner
was not aware of what was happening. This is unacceptable and
blame must be placed squarely on his table, not with his Officers.
This
Court cannot keep reminding the Commissioner about his duties. It is not for
this Court to tell the Commissioner
what to do in addressing this kind of
bungle, but if it helps, the Commissioner should look seriously at how his
filing
system is being done, and to consider keeping a master registry book
which should contain details of all allocations and offers
that had been
made by him regarding any plot of land (identified by its parcel number
or lot number). There should be an indexing system whether by letters or
numbers that would make it easy for him to check against for any
previous
allocations or offers and entries made. As soon as an offer is made, he or
his Officers should make entry in
that registry book. By doing this,
whenever a second application or subsequent application should be brought to
his attention
in respect of the same land, he or any of his Officers should
be able to check the master registry book for any previous entries
over the
same plot of land. At least such a system, or something similar, should
reduce to some extent the possibility
of double allocations, or offers, and
causing unwarranted mistakes from happening.
SUIONS OF THE FIRST DEFENDANT.
Mr. Manetoali he First Defendant submits the grant instrument executed
ed
in favour of LAL was defective and therefore
a nullity. It was executed when
forfeiture proceedings were yet to be completed. In contrast, he submits the
grant instrument
executed in favour of the Third Defendant was done after
forfeiture proceedings had been completed and therefore valid. He
denies any
mistake was committed by the Commissioner.
One of the cruciaues in this case turns on the question when forfeiture
was completed. Mr. Radclyffe submits it was
completed on 25th August 1992;
being the date Mr. Barker was required to have a building costing not less
than $50,000-00
erected on the Land. Mr. Manetoali on the other hand,
submits date of forfeiture fell on 11 September 1995; being date of re-entry
noted on the fixed-term estate register for Parcel No. 192-010-68 (see
Document No. 8).
The law covering forfeiture proceedings is set out in sections 136 - 139 of
the LTA. It is not in dispute forfeiture proceedings
were instituted by the
Commissioner pursuant to section 138 of the LTA by having a Notice Before
Forfeiture (see Document No. 7), served on Mr. Barker. Clause 4 of
that Notice required Mr. Barker to have the breach complained of remedied by
25th August 1992. This was not complied with.
Section 138 of the LTA reads as follows:<
�The Commissioner shall not be entitled to exercise the right of forfeiture
until he has served on the owner of the estate
and on every other person
shown by the land register to be interested a notice-
(a) &nbs; &nbbsp; specifying the part particular breach complained of; and
<
(b) &nb) & if the the breach is capable of remedy, requiring the owner to remedy
the breach within such reasonable
period as is specified in the e; anan>
p class="MsoNormal" style="tee="text-indent: -34.35pt; margin-left: 106: 106.35pt.35pt; mar; margin-top: 1; margin-bottom: 1">
">
(c) ny ase oaher than non-paym-payment of rent, requiring the owner to
make compensation in money for the breach,
class=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
and the owner has failed to remedy the bthe breach within a reasonable time
thereafter, if it is capable of remedy, and
to make reasonable compensation
in money.�
It is my respectful view, the deadline of 25th August 1992 given to Mr.
Barker to have the breach complained of remedied
cannot be regarded as the
date forfeiture proceedings were completed. Rather, it should be seen as the
date when Commissioner
can thereafter exercise his right of forfeiture. This
raises the question when right of forfeiture can be exercised. Subsection
136(2) deals with this as follows:
p class=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�The rof forfeiture may be -
(a) &nbs; &nbbsp; exercised where neie neither the owner nor any person claiming through
or under his occupation of
the land comprised in the estate, by entering
upon (and) remaining in possn of and>
(b)   &nbssp; enforceforced by action in the High Court.�
class="ass="ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
[Emphasisd]
The applicable provision is paragraph 136(2)bove; that is, the right ofht of
forfeiture in the facts of this case was
exercised by the Commissioner by
way of re-entry on the land and remaining in possession. That is not in
dispute. It
is my respectful view, forfeiture is complete on re-entry and
remaining in possession. This raises the question when re-entry
was effected
in this instance. The facts in this case reveal in my respectful view, that
re-entry was effected by the
Commissioner sometime before 6 November 1992 (see
Documents No. 11 and 20). Document No. 20 is a letter dated 23 February
1995 from the Commissioner to Registrar of Titles. It reads as follows:
class="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�RE: RE-ENTRY FIXED TERM ESTATE - PARCELARCEL NO. 192-010-68
- MAX ANDREW BAKER - RANADI INDUSTRIAL
lass=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
Am here fing up the Re-Entry Notice tice Declaration & Vesting Order I
lodged to your office this date 6/11/92.
Grateful if your office could advise me what action you have taken to
repossess the above title from Andrew Baker.
class=lass="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
I
attach here copy of the said lodged document. Thank you for your early
response.
B. Tabiru
for: for: Commissioner of Lands
Ministry of Lands"
Paragraph 1 of that letter indicates the Re-Entrice was lodged with the
e
Office of the Registrar of Titles on 6th November 1992. This is
undisputed evidence. Baddeley Tabiru gave evidence before this Court and was
never cross-examined
about this evidence. It necessarily follows from this
re-entry must have been effected sometime prior to 6th November
1992. The actual date of re-entry should be contained in that Re-Entry
Notice. Unfortunately copy of said Re-Entry
Notice has not been submitted as
an exhibit.
<
RE-ENTRY ON 11 SEPTEMBER 199pan>
What of the date of 11 September 1995 recorde the fixed-term estate
register of Parcel No. 192-010-68 as the suggested
date of re-entry relied
on by Mr. Manetoali? With respect, that date not only can be distinguished,
but in my respectful
view is erroneous and should be corrected by the
learned Registrar of Titles, under section 228 of the LTA. It seems on the
facts before this Court, the date of 25th September 1995, was the date an
entry eventually came to be made on said fixed-term
estate register, after
the Notice of Re-Entry was lodged for registration on or about 6 November
1992. It took almost
three years (2 year and 10 months) to be exact
for that simple entry to be made on the register. That with respect can only
be described as inordinate
and excessive, delay. Re-entry in my respectful
view was not made on 11 September 1995. It was made way back sometime before
6 November 1992. The letter from the Registrar of Titles dated 19th
September 1995 (Document No. 24) is consistent with this view. It is
my respectful view, the �date of re-entry� in paragraph 139(2)(c), is
the date re-entry was effected by the. Commissioner on the said Land for the
purpose of re-taking
possession of the Land
There are therefore three different dates wshould be borne in mind in d in
relation to the question of re-entry. First
is the date of re-entry on the
Land itself. This is the date re-entry was made on the Land by the
Commissioner and re-possession
taken of the Land. Then there is the date the
Notice of Re-entry is lodged for entry in the fixed-term estate register at
the Office of the Registrar of Titles. The third date is the date entry was
actually made on the register. In this instance
the date of 11 September
1995 was the date entry was made on the fixed-term estate register of Parcel
No. 192-010-68.
The date Notice of Re-Entry was lodged at the Office of the
Registrar of Titles was the date of 6 November 1992 (see Document No. 20).
And the date re-entry was actually made on the Land by the Commissioner must
have been on a date prior to 6 November
1992. The period of six months
provided for under section 139(2)(c) within which an owner of an estate has
right to apply
to this Court for relief is defined as commencing from �date
of re-entry�, not date of entry on the fixed-term estate register. The
appeal period given in the letter of 19 September 1995 (Document No. 24)
by the Registrar of Titles as commencing from 11 September 1995 accordingly
is wrong. The period of six months should
run from date of re-entry. This is
why it is important to get the correct dates right so that the correct
details are
entered on the register. If there is no application made to the
High Court for relief within that period of six months, the
rights of the
registered owner are determined with effect from that date of re-entry (section
137 of the LTA). In the facts of this case no application was made to
this Court within the period of six months from date of re-entry.
Accordingly title of Max Andrew Barker was determined with effect from date
of re-entry (which would be sometime before
6
November 1992).
THE IMPLICATIONS ON THE GRANT MADE TO LAL
The implications to be drawn from the above conclusions mean the submissions
of learned Counsel Mr Manetoali, that
the grant to LAL was void ab initio
must be rejected. The grant was made on 7 December 1993 well after re-entry
and possession had been effected. The said
grant instrument therefore was
valid and binding on the Commissioner.
RELIEF SOUGHT.
Relief sought is rectification of the fixed-term estate register for Parcel
No. 192-010-68 on the grounds of mistake.
Powers of rectification of this
Court are provided for in section 229 of the Land Titles Act [Cap. 133]. I
quote:
ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�(1) Subject to (2), the High Court may oray 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�s any
registration has been
obtained by, made or omitted by fraud or mistake.�
lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Court can order rectification where registration had been obtained, made made or
omitted by mistake. Plaintiff relies
on this ground for rectification of
said fixed-term estate register.
HAS A MISTAKE BEEN COMMITTED?
ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr. Radclyffe submits a mistake was committed by the Commissioner in makinmaking
a second grant to the Third Defendant
over the fixed-term estate in Parcel
No. 192-010-68 and lodging for registration when he was akready bound by the
first
grant to LAL. With respect, I agree. Not only is that second grant
ineffective no explanation whatsoever had been provided
by the Commissioner
for his actions. No evidence has been adduced either, other than submission
from Counsel Mr. Maneatoali
that no mistake had been committed.
Commissioner had not given evidence and so never denied the subm submission that
had he been conscious of the fact a first
grant had previously been made to
LAL, he would not have lodged second grant for registration. It is not in
dispute,
a binding for the grant of the fixed-term estate in said parcel
existed well before any offers were made to the third Defendant
and
accepted. No explanation has been produced, whether in evidence or
otherwise, that anything other than mistake was
the explanation for the
Commissioner�s actions. I reach the inevitable conclusion with little
hesitation, that mistake
had indeed been committed by the Commissioner, that
had he been aware, or it had been brought to his attention a binding
contract existed with the plaintiff, he would not have executed the relevant
documents granting the fixed-term estate in
Parcel No. 191-010-68 to the
third Defendant. That was a clear mistake on the facts before me, though it
is surprising
the Commissioner had not even bothered to admit this and save
the Plaintiff unnecessary costs in having to come to this Court
for
rectification. This in my respectful view must be reflected in the order for
costs.
SECTION 229(2) OF THE LTAn>
Subsection 229(2) of the LTA provides:
class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Before rication could be considered by this Court the provisions ofns of
subsection (2) above would have to be considered
by this Court whether they
apply to the facts of this case or not. One of the crucial requirements of
subsection (2)
above is that title holder is in possession of the said
property. That is not the case here. Third Defendant has not entered
appearance and there is no suggestion whatsoever he was or is in possession
of said property at any time. The provisions
of subsection 229(2) therefore
do not apply to this case.
ORDERS OF THE COURT
p>
/p>
1. & 1. Enter judgement for the piaintiff for rectification of the
fixed-term estate register for parcel no. 192-010-68
on thunds me.
2. 2. Direct that tge reatstr ofon of Kwan Wai Man (the third
defendant) as registered owner of the fixed-term estate in parcel number
-010-e cand forh.
3. &nbp; &nnbp;&&nbp;; Grpnt declaraclaration under section 18(1) of the crown proceedings
act (cap. 8) that the plaintiff
(liko association limited) is
tled regid as wner of the fixed-term estatestate in p in parcelarcel
no. 192-010-68.
4.   &nbssp;&nnbp; Csp; Costs of the plaintief are to be borne by the first defendant (commissioner
of lands) on indemnity basis.
p class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
THE COURT
>
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1999/120.html
