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Wickham v Attorney General [2017] SBHC 140; HCSI-CC 30 of 2015 (5 December 2017)

ASHLEY WICKHAM AND -V- ATTORNEY GENERAL,
TEROKORAOI WICKHAM VICTORIA ALAI, JOHN
(Claimant) WONG CHEE KONG

(1^st 2^nd 3^rd Defendant)
HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.30 of 2015

Date of Hearing: 23 October 2017
Date of Judgment: 5 December 2017

P. Afeau for claimants
R. Soma of Attorney General for Commissioner of Lands and Registrar of Titles
M. Ghemu for 3^rd and 4^th defendants

Claim for declarations relating to the forfeiture of registered land by the Commissioner of Lands with the subsequent registration of other persons as owners of the fixed term estate so as to, by court order, rectify the estate register in the claimants favour.

Brown J:
This category A Claim [“claim”] was filed on the 9 February 2015 after it became apparent the Fixed Term Estate parcel no. 191-014-13 previously in the names of these claimants had been transferred and registered in the name of the 3^rd defendant, Victoria Alai. Later the Commissioner of Lands admits mistake by consenting to the transfer of the estate parcel to the 4^th defendant, John Wong Chee Kong on the 29 January 2016. Whilst there is no evidence as to registration of such transfer, the 4^th defendant in his defence, pleads to be entitled to such registration.

The Commissioner concedes there was a caveat on the title at the time of the consent to transfer to the 4^th defendant. As discussed later, I find there is no standing of the 4^th defendant to claim protection if such registration has been effected, contrary to the effect of the caveat admitted by the Commissioner of Lands to be on the title registry of the land when he consented to the transfer and in absence of possession by his predecessor in title to the land if he became registered.^[1]

By claim, a declaration is sought that the purported forfeiture of the fixed term estate of these claimants did not comply with the Act and consequently was a nullity. Other declarations and orders seek the restoration of the claimant’s name in the land register. The claimants also seek costs against the defendants on an indemnity basis.

The claimants became owners of the property at Honiara by purchase from the Shell Company (Pacific Islands) Ltd in March 1995. At that time the company had staff living in premises on the property. In about 1998 those tenants moved out of the house as it was damaged by white ants. The house was subsequently demolished but a basic residence was built on the land pending the rebuilding of a house.

In about 2009 the claimants had a fence built around the property and from 2011 up until the time of institution of proceedings in February of 2015 the claimants have permitted various people to reside on the property. There was a small shack, water and a proper toilet for those living on the land. The fence had a gate with a lock on it. I am satisfied the claimants had possession of the property to the time of institution of these proceedings at all relevant times.

In January 2014 the claimants received a stop notice from the Director of Physical Planning, Ministry of Lands and Survey, advising them to stop work on the land for the land was registered in the name of Victoria Alai. On 28 July 2014 the claimants received a notice to vacate the land from a lawyer for Victoria Alai. The notice to vacate letter had with it a certified copy of the fixed term estate register showing Victoria Alai as the registered owner since 8 October 2013.
The claimant’s search of the land Registry showed that a notice before forfeiture dated 13 February 2008, addressed to the claimants care of SC, private mail bag, Suva, Fiji and a notice of re-entry in respect of the land parcel was on file. The notice of re-entry was dated 28 September 2012 addressed to the claimants at SPC, private mail bag, Suva Fiji.

The claimants deny receiving either such notice before they had returned from Fiji to Honiara before the date of the first notice in 2008. In any event the Commissioner of Lands had, reliant on the forfeiture, acted to transfer the property to the third defendant.

The notice before forfeiture dated 13^th of February 2008 was expressed to rely on the fact that the claimants had failed to comply with clause 4 of the first schedule of the said Grant instrument by not erecting a building by design, siting and structure approved by the Honiara town and country planning board of the Honiara City Council within the prescribed period. The claimants deny any such requirement rested on them to erect any such building for there was a residence on the land when it was bought from Shell Company in 1995.
When I look through the court book I am unable to see the first schedule of the Grant instrument relied upon by the Commissioner as entitling him to forfeit the estate. At page 61 of the court book there is a notice dated 13 February 2008 under hand of the Commissioner of Lands requiring the registered owners of the fixed term estate to erect on the land a residential building approved by the town and country planning board of Honiara city Council costing not less than $120,000 or more. The notice states if its terms were not comply with, in full within three months from the date of notice, the Acting Commissioner of lands give notice of his intention to exercise the right under section 136 of the Land and Titles Act to forfeit the fixed term estate in parcel number 191-01-13. On the balance of probabilities, it would seem the Commissioner had relied on this Notice as affording power to forfeit, not any “first schedule of the Grant instrument [original grant to the Shell Company]. Whilst section 132 (4) of the Land and Titles Act permits the Commissioner from time to time to “varying, negative or add to” the obligations contained or implied in the transfer or grant of the fixed term estate of these claimants, any such obligations are not shown in the material in the court book, at the time these claimants took transfer from the Shell Company. I am not satisfied then that the Commissioner of Lands by notice of 13 February 2008 was entitled pursuant to section 132(4), to give such notice purporting to add to the obligations contained or implied in the earlier transfer from the Shell Company in the absence of evidence to that effect.

Whilst the claimants had a copy of the notice before forfeiture and in fact asked for an extension of time by their letter dated 25 March 2008, and the Commissioner did not reply, the underlying basis of the entitlement to forfeit has not been shown.

The difficulty in this case is that the Attorney has not filed a defence to the claim and consequently I must rely on the material in the Court Book. In this case there needs to be a positive obligation apparent on the register at the time of the transfer to these claimants, an obligation which the Commissioner may from time to time vary in terms of section 132(4) of the Act. I am not satisfied such positive obligation existed and consequently the Commissioner of Lands may not rely on the notice before forfeiture to ground his later notice of re-entry.

In any event when I have regard to the rent statements for fixed term estate 191/01/0013^[2] and the concession by Ms. Soma for the Attorney, that annual rental payments due pursuant to the fixed term lease from the Commissioner were accepted up to and including 23 November 2012, I am satisfied that any right of forfeiture pursuant to the notice has been waived by the Commissioner^[3].

The notice of re-entry was dated 28 September 2012 and again addressed to the claimants in Fiji. The notice had not reached the claimants. The notice rely on the failure to comply with the terms in the Notice before Forfeiture dated 13 September 2008. The notice of re-entry stated; “pursuant to section 136 of the Land and Titles Act the Commissioner of lands hereby re-enter [sic] and take possession of parcel 191/01/13.”
As I have found the notice of re-entry is based on a void earlier notice. When I have regard to all the material filed by the claimants and the defendants in the court book I am satisfied the claimants have remained in possession of the land to the date of institution of these proceedings by continual occupation by licencees at their will.

At no material time has the Commissioner of Lands ever taken possession of the parcel of land for any right of re-entry has not been pursued to final judgment by a court of competent jurisdiction. Consequently the Commissioner was unable to transfer possession to the third defendant at the time the grant of the fixed term estate was given her.

By section 136(2) a right of forfeiture may be exercised “by entering upon and remaining in possession of the land or enforced by action in the High Court”. Neither pre-requisite to lawful forfeiture has been shown in this case. As found, I accept the claimant’s evidence^[4] concerning possession and am satisfied the Commissioner of Lands has never taken possession of the property. Consequently the Commissioner has not validly exercised any right of forfeiture and such Notice is null and void.

There would appear to be some mistake for the claimants relate section 139 of the Act to their right for rectification. The third defendant has relied on the apparent failure to bring action for relief against forfeiture by application to this court within the six months allowed of the order of forfeiture. Use of the word, “forfeiture” in s. 139 presumes a right to forfeiture and such is not the case here. The court, pursuant to section 229 of the Act may order rectification of the land register by directing that any registration be cancelled or amend where it is so empowered by the Act or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake. In the interests of justice this provision may not be ignored and in this case, registration of the 3^rd defendant has been obtained by mistake for the Commissioner was never in a position to validly grant any estate in the subject land to the 3^rd defendant, for his registration as owner was a nullity based as it was on a void forfeiture.

Section 139 of the Act, by subsection (2) constrains this court from entertaining an application for relief by an owner of an estate in three instances. The first instance concerns actions by the Commissioner of Lands for re-entry and possession except where the owner has entered appearance in the action by the Commissioner [such is not the case here]; the second instance concerns such actions where the owner has not entered an appearance unless such appearance is made within six months of the order of forfeiture [such is not the case here for the proceedings are not those of the Commissioner]; and the third instance is following re-entry unless application is made within six months of the date of re-entry [such is not the case here for no re-entry by the Commissioner has been shown]. None of these instances arise in this case for the proceedings were instituted by these claimants not the Commissioner of Lands. At no stage has the Commissioner of Lands been shown to have either by final judgment following court action or actual re-entry, entered into possession of the subject property. A right of forfeiture with the Commissioner “may be exercised by entering upon and remaining in possession of the land or enforced by action in the High Court”. [s. 136 of the Land and Titles Act].

No proceedings had been instituted before the Commissioner presumed to sell the subject property to the third defendant. The sale and transfer in those circumstances is null and void for the right of forfeiture and consequent right to deal with the property [notwithstanding mistaken registration in the Commissioners name] had not arisen in the absence of possession by the Commissioner. There has been no re-entry by the Commissioner concomitant with his notice of forfeiture, least of all had he entered into possession of the land property. The 3^rd defendant acknowledges adverse possession in the claimants by virtue of her solicitors’ letter to the claimants seeking possession^[5]. Any argument in relation to section 139(2) is pointless for the three instances do not arise in this case.

This court may order rectification in the circumstances addressed by section 229 of the Act. As I have found the Commissioner had no right to deal with the land of the claimants following the Commissioners presumed forfeiture. That forfeiture was null and void. There was neither proper re-entry, whether by taking possession and remaining in possession of vacant land nor action for vacant possession in this High Court. In any event, the Commissioner has been shown to have accepted rent and by virtue of s. 136(3), waived his right, [if any] to forfeiture.

The 3^rd defendants claim, relying on statutory bar by the provisions of s. 139(2)[c] cannot arise in the circumstances.

The 3^rd defendant by document of defence, says unless expressly admitted the 3^rd defendant denies all the facts pleaded in the claimant’s claim “as if the same were set off [sic] and or traversed seriatim”. As I have shown the claimants had remained in possession. I am satisfied the third defendant was aware of this fact when I see her solicitors letter to the claimants threatening proceedings against them for possession. I am consequently satisfied the third defendant had knowledge of the omission or mistake of the Commissioner of Lands when she took the grant from the Commissioner for there were persons in occupation of the subject property contrary to the grant to her.

By application the fourth defendant was added in these proceedings in April 2007. In his sworn statement, John Wong Chee Kong deposes to the fact that the subject property was offered for sale in the sum of $300,000 by Victoria Alai. At that time he says he did not know there was a caveat over fixed term estate 191-01-013 or any problem with the property. A transfer of the property by Victoria Onika [Alai] was consented to by the Commissioner of Lands on 9 January 2016.

By statement of the Commissioner of Lands filed on 2 October 2017, Mr. Nelson Naoapu says that when he consented to the transfer there was a caveat on the land and that consent was a mistake.^[6]

Proceedings at that time had already been instituted in this High Court by these claimants. I am satisfied the transfer was known to the transferor, Victoria Onika [Alai] to be likely to be the subject of enquiry by the High Court in proceedings instituted by these claimants almost 12 months earlier. It would seem although she was on notice of the likelihood of court orders affecting the land, she proceeded with the sale without any notice to her purchaser, the 4^th defendant of a possible defect in title. By mistake the transfer was consented to by the Commissioner in the face of the caveat by these claimants on the land register. A prudent purchaser would search the register. The Commissioners consent to transfer is again mistake.

Had the fourth defendant made proper enquiry by search he would have ascertained the fact of the imposition of the caveat. Consequently while it is not clear whether he has become the registered owner I am satisfied, if that is the case, the fourth defendant caused such registration by omission or substantially contributed to it by his default of enquiry.

The third defendant may have deceived the fourth defendant since her title to the land was subject to and affected by these high court proceedings instituted long before she sold her interest in the land, proceedings of which she had notice. She was not in possession when she instructed her solicitor to write the letter of the 28 July 2014 to these claimants demanding their vacation of the property. The land subject to the caveat may not then be seen to be valued at its full market value, the price at which it was sold by the third defendant, for persons other than the transferor were in occupation. The 4^th defendant does not state he accepted the transfer subject to the adverse possession of others but it may be presumed he has been duped. Absence of enquiry in these circumstances may be seen as default.

For all these reasons I make orders that the land register be rectified by the Registrar of Titles under s. 229 of the Land and Titles Act to restore the claimants names to the land register in respect of fixed term estate 191 – 014 – 13 on the grounds of mistake.
On the question of costs?

BROWN J

^[1] S. 114 Land and Titles Act
^[2] court book page 71
^[3] section 136 (3) Land and Titles Act.
^[4] court book statement of Ashley Wickham filed 21st of March 2016, paragraphs 12, 13, 30 and 31.
^[5] Letter of Andrew Radclyffe dated 28 July 2014, p 83 of Court Book.
^[6] Statement by Nelson Naoapu filed 2 October 2017