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Apa v Natowan [2012] SBHC 141; HCSI-CC 467 of 2011 (20 December 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 467 of 2011.

BETWEEN:

JUDE APA
First Claimant

AND:

JOYCE APA
Second Claimant

AND:

REUBEN NATOWAN
First Defendant

AND:

JOY DAUSABEA
Second Defendant

AND:

RAMO DAUSABEA
Third Defendant

AND:

ATTORNEY-GENERAL
Fourth Defendant
(Representing the Commissioner of Lands).

AND:

ATTORNEY-GENERAL
Fifth Defendant
(Representing the Registrar of Titles).

Date of Hearing: 7th December, 2012
Date of Ruling: 20th December, 2012.

Mr. P. Watts for the Claimants.
Mr. B. Etomea for the First Defendant.
Mr. D. Tigulu for Second and Third Defendants.
Mrs. Maefiti for the Fourth and Fifth defendants.

RULING.

Faukona J: A claim for judicial review was filed by the Claimants on 24th November, 2011 supported by a sworn statement deposed by the second claimant and filed on 25th November, 2011.

2. At the pre-trial conference hearing, the Court hears arguments from Counsels relating to the preliminary requirements stated in Rules 15.3.8. The Court must be satisfied that the Claimants have fulfilled those requirements; otherwise the Court will not hear the claim. To determine whether the Claimants have complied with the Rules, the Court is at liberty to consider the papers filed and hear the arguments pursuant to Rule 15.3.19.

3. Before considering the arguments it is pertinent to outline the background facts of this case.

Background brief facts:

4. The first Defendant at all material time was the owner of Property PN 191-034-040. On 6th July 2010, the 1st Defendant by his letter of offer for sale to the Claimants the property in PN 191-034-040, East Kolaridge, includes the canteen building and vacant land at front of existing building, for a reserved price of $50,000-00. There was no formal acceptance of that offer, however, by conduct of the parties which subsequently reflected in a formal agreement signed on 13th July 2010. On that occasion the 1st Defendant affirmed receiving $24,000.00 in cash and $8,754.50 for settlement of rental arrears. Total sum received was $32,754.50 as first instalment payment. Final $17,245.50 will be paid upon completion of the sub-division and transfer of title. It was also agreed that the claimants would pay housing loan arrears with ANZ Bank.

5. Following the signing of the agreement for sale the 1st Defendant wrote to the Ministry of Lands on 20th October, 2010 giving consent for the sub-division of his land (PN 191-034-040) East Kolaridge.

6. Since the property was the subject of a mortgage which the 4th Defendant had first charge over, the 1st Defendant has to pay $12,000.00 to settle his outstanding loan before the Bank could grant requisite consent for the sub-division.

7. Following that, another subsequent agreement was signed on 21st October, 2010, where the Claimants paid ANZ Bank the sum of $12,000.00 to settle loan arrears and $4,000.00 as final payment.

8. On 3rd December, 2010 the Bank gave its consent to sub-divide the land subject to all its charges remain intact on all new parcels. On 11th March, 2011, the 1st Defendant wrote to the 5th Defendant granting consent to transfer Lot 4100 to the 1st Claimant with a location plan distinctively depicts Lot 4100 as the purchased plot.

9. After submission of those documents to the Commissioner of Lands nothing was done. Through inquires it was discovered later that the sub-division was not registered and that the whole property PN 191-034-040 had been transferred to the 2nd Defendant on 16th September, 2011.

10. The case for the 2nd and 3rd Defendants is that the 1st Defendant had on an unknown date offered to sale his house at Kolaridge, to the 3rd Defendant as ANZ Bank was about to sell it, thereby prefer the following dealings with the 3rd Defendant.

(i). That 3rd Defendant assist the 1st Defendant to clear his loan with ANZ Bank;

(ii). The 1st Defendant would then sell and transfer his house;

(iii). Thereafter the 3rd Defendant would give two houses at Kombuvatu to the 1st Defendant.

11. In his sworn statement the 3rd Defendant deposed that there was no mention of sub-division of the land at Kolaridge. That he was a bona fide purchaser for valuable consideration.

12. In transforming those facts to the Rules, it is apparent the Commissioner of lands fully aware that the process of sub-division was about to complete, except for the registration part. And having being made aware by the bank that land rental payment of $8, 649.50 was paid on 17th June, 2010 by a person intending to sub-divide the land as per arrangement made with the 1st Defendant. At the same time the Commissioner of Lands by consent letter from the 1st Defendant of 11th March, 2011, to transfer Lot 4100 to the 1st Claimant.

13. Whilst the need for the first process be acted upon and be concluded first as it was first in time, the Commissioner of lands instead by consent letter from the 1st Defendant dated 12th September, 2011, affirmed the transfer of the fixed term estate in 191- 034 -040 to the 2nd Defendant.

14. What is it that made the second consent letter to transfer the title more significant than the first consent to transfer? Had the Commissioner of Lands enquired why two consent letters of transfer from one landlord to two separate persons concerning the same land, he would have well versed with the actual situation. Instead he acted on the second consent letter to transfer, and the title was transferred to the Second Defendant on the same day the stamp duty was paid. The hastening action taken by the Commissioner of Lands is susceptible for questioning, and the Claimants are questioning it now.

15. To answer those questions require facts to proof fraud or mistake. It is apparently clear that the Claimants have an arguable case. At the same it is also clear that the Claimants are affected by the subject matter of the claim. That the Commissioner of lands seemed to down play or ignore the first process which occurred first in time.

16. Having learned of the turn of events the 1st Claimant made a formal letter of complaint to the 5th Defendant on 20th September, 2011, and further follow up consultations but eventually fail in the end. That shows there has been no undue delay in making the claim.

17. In considering the question that there is no other remedy to resolve the matter, except for claim for judicial review, the Rules has made it clear. Rule 15.3.4 affirmed that prohibiting or quashing order shall be made to the High Court by a claim for judicial review. The Claimants case premises on the fact should evidence prove that the Commissioner of Lands erred by mistake or was done by fraudulent ploy (fraud) pursued by 1st Defendant; and to solve such, an order to rectify the register is an option the Court may resort to resolve the impasse.

18. As such I am satisfied on the Claimant's case and the matters required in Rule 15.3.18 has been fully complied with. Therefore directed that the case be set for 24/1/2013, first motion day in 2013 to set a date for trial. The Court hereby orders accordingly.

19. The Court is in receipt of the authorities submitted by Mr Tigulu on 18th December, ten days after the hearing of the application. However, there is nothing more to add. Counsels are expected to be well prepared before coming to Court. The book of authorities was received after the ruling has been typed. The last bit is to deliver this ruling. No more time to consider, the book was submitted more than late.

The Court.