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Zutu v Gold Shing Trading Ltd [2019] SBHC 56; HCSI-CC 467 of 2018 (18 June 2019)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 467 of 2018

ROBERT ZUTU
Claimant

V

GOLD SHING TRADING LIMITED
First Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Second Defendant

ATTORNEY GENERAL
(Representing Registrar of Titles)
Third Defendant

Date of Hearing: 16 May 2019
Date of Ruling: 18 June 2019

Mr. N Laurere for the Claimant
Mr. M Pitakaka for the first Defendant
Mr. E Kii for the second and third Defendant

RULING ON POINT OF LAW

The claimant filed a category A claim against the defendants on 30^th January 2018, seeking the following orders and reliefs;

1. A declaration that the transfer of title of the fixed-term estate in parcel no 097-005-134 by the 2^nd defendant to the first defendant was done by mistake or fraud and done without the knowledge or consent of the claimant and whilst the claimant was still the legal title owner, and therefore null and void.
2. A declaration that the registration of Fixed Term estate in Parcel No. 097-005-134 in the name of the first defendant by the third defendant was therefore void.

The claimant, therefore, seek the following orders;

1. The Registrar of Title to rectify the Register of Fix Term Estate in Parcel Number 097-005- 134
2. The Commissioner of Lands to restore the title to the claimant over the Fix Term Estate in Parcel Number 097-005-134.

100. The Registrar of Titles to register freshly executed transfer instrument giving title to the claimant over Fixed-Term Estate in Parcel Number 097-005-134.

3. Costs;
4. Such further and other orders as the Court deems fit to make.

The claims background facts

1. The Claimant was the original registered title owner of the fixed-term Estate in Parcel number 097-005-134 since the 9^th December 2004.
2. The 1st Defendant (Gold Shing Trading Limited) is the entity to whom the Fixed Term Estate Parcel NO.097-005-134 was transferred.
3. The 2^nd defendant represents officers charged with duties and responsibilities under the land and Titles Act [Capp 133] purportedly had authority to effect transfer of title in Fixed Term Estate Parcel No. 097-005-134 to the 1^st Defendant.
4. The 3^rd defendant represents officers with responsibilities for registering titles to land.
5. On the 5^th July 2017 the 1^st Defendant was registered as a registered owner of the Fixed Term Estate Parcel No.097-005-134.
6. The Claimant avers that the transfer of title to the 1^st Defendant was fraudulent and illegal for the following reason;
   1. The Notice required before forfeiture was never served on the claimant before his land was forfeited.
   2. The letter of 7^th January 2015 purportedly written by Nester Maelanga, claimed to have approved application letter by the 1^st Defendant dated 4^th September 2014, when in fact the Commissioner of Lands has no authority to approve since the Land Board took over the authority from 1^st December 2014.
   3. The letter of 7^th January 2015, further claimed that the forfeiture formalities were current at the time the letter was written when in fact forfeiture process never commenced until 2017.
   4. The 1^st Defendant (Gold Shing Trading Limited) to whom the Fixed Term Estate Parcel No. 097-005-134 was transferred, never applied for the estate in question on the 2^nd September 2014 as claimed by the letter to the 1^st Defendant dated 7^th January 2015, when in fact the 1^st Defendant’s application was first made by letter dated 20^th December 2016.
   5. The letter of 7^th January 2015 approving the 1^st Defendant’s application for land legally owned by the Claimant at that point was clearly unlawful and the process was fraudulent.
   6. The Commissioner for Lands has no authority to approve any dealings in land or application as such after 1^st December 2014, because 0n 1^st December 2014, the Land Board came into existence and any application by the 1^st Defendant dated 20^th December 2016 may only be approved by the Land Board which took over authority as of 1^st December.2014
   7. At its meeting on the 1^st December 2014, the Land Board directed that “any transfer or Fixed Term Estate made by the commissioner under section 132 of the Act shall only be registered under section 134 of the Act where the approval to transfer was made by the Land Board and that decision made no earlier than 1^st December 2014.
7. The claimant, therefore, claims that the transfer of title to the 1^st Defendant was fraudulent and illegal and prays for the relief sought in his Claim.

The 2^nd and 3 defendants admitted the reliefs sought by the claimant but denied the content of paragraph 6 (i), (vi) and (vii). The 1^st defendant, in its defence, admitted paragraphs, 2, 4, and 5 of the claim but denied paragraphs 6 and 7 of the same.
Counsel for the 1^st defendant submitted that the issue of whether the forfeiture is valid is the main issue in this application. He submits if the court decides in the affirmative then all the other determination sought in the application will follow the issue of forfeiture. He went on and submit that the forfeiture of PN 097-005-134 is valid in law. He submits under section 136 of the Lands and Title Act, the Commissioner has the right to forfeit PN 097-005-134 if the claimant, Robert Zutu, who is the former owner of PN 097-005-134 fails to perform an obligation, i.e. building a house costing a minimum SBD300, 000-00 on the land within 24 months of the grant). He submits that the claimant had failed to build a house costing a minimum of SBD300, 000-00.
There are two crucial issues to be determined by the court,

1. Whether the forfeiture was valid? and
2. Whether the allocation and registration of PN 097-005-134 are valid?

I will deal first with the question of validity of forfeiture. In so doing, I had considered the materials before the court and the submission of counsel. In considering the evidence, I am satisfied that proper noticed before forfeiture was served on the claimant by registered post, dated 27^th April 2017. The notice was sent by registered post to the address given by the claimant to the Commissioner for correspondences relating to PN 097-005-134. The fact that he was transferred to Honiara makes no difference and it is his duty to inform the Commissioner if he had changed his address. The actions of the Commissioner of Lands before the forfeiture process as shown by the letter of Nester Maelanga are, however, raises doubts as to whether the actions taken by the Commissioner of Lands to forfeit Parcel No. 097-005-134 are solely because of the claimant’s failure to comply with his obligation under the grant to build a house valued at a minimum of $300,000-00 within the specified time period. The actions of the Commissioner of Lands relayed by Mrs Nester Maelanga’s letter to the 1^st defendant dated 7^th January 2015, some two years before the actual process of forfeiture commences on 26^th April 2017, raises inference of ulterior motives, one of which was PN 097-005-134 was forfeited with the intention to enable the COL to transfer the land to the 1^st defendant. Those actions have tainted the forfeiture process with fraud thus making it invalid thus consequently makes the allocation to the 1^st defendant void.
Even if I am wrong that the forfeiture process was invalid, I still find that the transfer of title in PN 097-005-134 to the 1^st defendant by the 2^nd defendant and the subsequent registration of the same by the 3^rd defendant were invalid because at the time of the said transaction the claimant was still the legally registered owner of PN 098-005-134. I am also satisfied that the letters issued by Nester Maelanga dated 7 January 2015 approving the purported application by the 1^st defendant when there was no such application as referred to in her letter amounts to mistake or fraud. Any approval or allocation as stated in the letter would also be invalid because after 2014, by amended to LTA, the Commissioner of Lands function to approve and allocate land has been transferred to the Land Board.
For the reasons stated above the rectification reliefs sought are granted. I order as follows;

1. that the Register of Titles to rectify the register of Fix term Estate in Parcel No. 098-005-134 and remove the name of the 1^st defendant as estate owner of Parcel No. 098-005-134.
2. The Commissioner of Lands to restore the Title to the claimant over Fixed Term Estate Parcel No. 098-005-134.
3. The Register of Titles to register freshly executed transfer instrument giving the title to the claimant.

THE COURT
Emmanuel Kouhota
Puisne Judge