Yam and Company Ltd v Bana [2019] SBCA 15; SICOA-CAC 06 of 2019 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Yam and Co Ltd v Bana
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands (Keniapisia J)
Court File Number(s):	06 of 2019
Parties:	Yam and Company Limited v Lydia Bana, Attorney General
Hearing date(s):	11 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. P Afeau for the Appellant Mr. C Ruele for the Respondent
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Appeal Dismissed
Pages:	1-8

JUDGMENT OF THE COURT

Introduction

1. This appeal is filed on 6^th March 2019 against a judgment of the High Court dated 11 February 2019 refusing to evict and or injunct the First Respondent (Mrs Bana) from a Registered Fixed Term Estate (FTE) in the name of Yam Company Limited (“Appellant Company”) and which declares valid, lawful and binding on the Appellant Company an offer of part of the FTE PN parcel number 206 to the First Respondent (Mrs Bana) in the land registered to the appellant.

Brief backgrounds

2. The FTE PN 206 was formally registered in the name of one Mr. John Wong from 1993 to 26 September 2014. Mr John Wong fled the Country in year 2000 during the ethnic tension.
3. On 26 September 2014, the Commissioner of Lands (COL) resumed back to FTE title after a re-entry into the property and a successful forfeiture against Mr John Wong (“forfeiture’).
4. On 17 May 2016, the Commissioner of Lands offered the FTE in PN 206 to the Appellant Company by letter dated 17 May 2016. And also by the same letter of 17 May 2016, the Commissioner of Lands offered to Mrs Bana part of FTE in PN 206, which is described as paragraph 16 or condition 16 of the Grant Instrument.
5. At the time of registration of FTE title on 31 May 2016, the First Respondent (Mrs Bana) had already occupied and constructed family house on parts of PN 206. The First Respondent had moved in PN 206 around year 2011 and actually built 3 family houses on parts of PN 206. She is renting out one of the 3 family houses built on PN 206.
6. On 7 February 2017, the appellant Company filed a Claim in the High Court seeking, among others, eviction orders against the First Respondent, her family members, relatives, invitees or Wantoks who are occupying the appellant’s property on Parcel number 206 (“the property”).
7. The First Respondent opposed and denied the claim maintaining that there are obligation specified in the Grant Instrument (at paragraph 16 or condition 16) that upon seeking the title the appellant must sub-divide and transfer the plot of land the First Respondent is currently occupying.

Judgment appealed from

8. The learned judge set out clearly the factual basis of his findings on the evidence he had before him. The Commissioner of Lands had valid title to the FTE in PN 206 on 26/09/2014. The date of forfeiture is critical. He accepted that the court will not consider as valid all past dealings that the Commissioner of lands has had with the appellant and the First Respondent prior to forfeiture on 26/09/2014. He found and accepted that the grant of the offered FTE was registered to the appellant on 31 May 2016. The Commissioner of Lands in the same letter of 17 May 2016, offered to Mrs Bana (First Respondent) part of PN 206. He found and accepted that the Grant to the appellant had a grant condition that obliged the appellant, a condition number 16, to sub-divide and transfer part of PN 206 to Mrs Bana.
9. The learned Judge found that the letter of offer to the appellant on 17 May 2016 was also an offer to Mrs Bana (First Respondent) and therefore, the grant registered on 31 May 2016, imposed a Condition on the appellant to subdivide part of PN 206 to Mrs Bana. The grant to the appellant was conditional upon the appellant sub-dividing part of PN 206 to Mrs Bana (First Respondent).
10. The Judge’s conclusion and orders are set out as follows;

“1. Paragraph 16 or condition 16 of the Grant Instrument, is valid, lawful and binding on the claimant (affirmative).

2. Yes COL had made a valid, lawful and binding offer of part of PN 206 to Mrs. Bana after the forfeiture process completed against John Wong and before the FTE in the land was registered to claimant. Mrs. Bana is yet to pay for the offer, because part of PN 206 is yet to be sub-divided. Contract with Mrs. Bana will still be paid for after sub-division and valuation is completed by relevant Government agencies (SG, COL and or ROT).

3. COL do not have power to deal with FTE in PN 206, prior to forfeiture on 26/09/2014.

4. Mrs. Bana do not have any overriding interest over PN 206, prior to forfeiture on 26/09/2014.

5. Parties meet their own cost.

6. Yam & Company limited and Mrs. Bana to cooperate and engage with COL, SG, and ROT to sub-divide part of PN 206 to Mrs. Bana to implement condition 16 of Grant Instrument to claimant registered on 31^st May 2016.”

11. On appeal, the appellant appealed against the judgement, the conclusion and orders made by the learned judge on 11 February 2019. The grounds of the appeal are set in the notice of appeal and we deal with them in term.

Discussion on Appeal

12. We noted that the Appellant accepted the trial judge’s conclusions and orders that the Commissioner of Lands did not have power to deal with the FTE in PN 206 prior to forfeiture and Mrs Bana did not have overriding interest over PN 206.

Appeal Ground 1: The trial judge failed to consider or properly consider the points pleaded in paragraph 2 of the Appellant Reply to the Respondent’s amended Defence file on 28 August 2017 and paragraphs 7 and 8 of its submissions filed on 20 September 2018 relating to paragraph 18 of the First Schedule to the Grant Instrument.

13. We have read these pleaded points and submissions on aspects relating to the Grant Instrument. We consider that the Judge was correct that any dealings between the Appellant and the First Respondent to be valid must come after the forfeiture and re-entry on the 26/09/2014. The Judge was also correct that all correspondences after 26/09/2014 were therefore relevant. We also consider and accept the finding of the trial judge that the offer of FTE PN 206 to the Appellant was by letter dated 17/05/2016.
14. In that same letter, the Commissioner clearly stated that the Grant Instrument will now be prepared in the Appellants favour subject to the condition that the allocation to the First Respondent of a part of the same land be respected and done after the Appellant obtain the FTE PN 206.
15. We consider that on the evidence before him, the trial Judge found that prior to the letter of offer to the Appellant on the 17/05/2016, the Commissioner of Lands in a letter dated 09/02/2015 confirmed to a Third Party (Director of Housing) the allocation of part of PN 206 to the First Respondent. The letter of 09/02/2015 and that of 17/05/2016 are linked and materialized the intention of the Commissioner of Lands to offer part of the land to the First Respondent. There may be minor defect in the letter of 17/05/2016 related to rental from years 2005-2013 and the reference to allocation to the First Respondent in 2011, these minor inadequacies did not invalidate paragraph 1b or condition 16 of the Grant Instrument.
16. We accept the judge’s findings that the offer to both appellant and First Respondent by letter dated 17/05/2016 was made in time or after the forfeiture and re-entry were done and, therefore should the offer to the appellant valid so do the offer to the First Respondent.
17. We consider that although no formal offer letter was given to the First Respondent after the forfeiture process, the letter dated 09/02/2015 indicates the intention of the Commissioner of Lands to offer part of the land to the First Respondent. This intention was affirmed or cemented in the letter dated17/05/2017. As found by the trial Judge, these two letters gave rise to the inclusion of Paragraph 16 or condition 16 of Grant of Instrument.
18. We consider also there is no error in the trial judge’s finding that the implementation and identification of the part of the land in PN 206 occupied by the First Respondent are yet to be done as the parcel paragraph 206 is yet to be subdivided and valued by the relevant authorities.
19. We dismiss the First Ground of appeal accordingly.
    • Appeal Ground 2: The trial judge served in facts and law in his findings and ruling that paragraph 16 or condition 16 of the First schedule to the Grant Instrument is valid, lawful and binding on the appellant at the suit of the Respondent.
20. We consider that once the intention of the Commission of Lands was established and materialised in the Grant Instrument as found by the trial judge, there is no basis for this ground 2.
21. We dismiss the second ground also
    • Appeal Grounds 3: The trial Judge erred in his findings and conclusion that the Commissioner of Land has made a valid and binding offer to the First Respondent of part of the Land (parcel no 191-029-206) which is yet to be subdivided, valued, accepted and paid for by the First Respondent.
22. There is no basis for this ground on the findings of the trial judge. We dismiss it also.
    • Appeal ground 4: The trial judge erred in his finding that the Appellant did not raise any complaints of wrong doing or denial against the Commissioner of Lands in relation to paragraph 16 of the First Schedule of the Grant Instrument, on the grounds that the Appellant by its Reply to the First Respondent’s Amended Defence file on 28 August 2017 (after the Commissioner of Lands was joined as Second Defendant) did in fact specifically pleaded that paragraph 16 was not binding on it and therefore raised that as an issue for determination by the Court with the Commissioner of Lands having the opportunity to respond to that.
23. We do not see any merit in this ground 4. We dismiss it.
    • Appeal ground 5: The trial judge erred in his finding that by the letter dated 17 May 2016 written by the Commissioner of Lands to the Appellant and copied to the First Respondent, the Commissioner of Lands also offered part of the land to the First Respondent on the grounds that the letter cannot and did not constitute an offer of part of the land as ye to be surveyed, sub-divided, priced and agreed on.
24. On the facts as found by the trial judge, we also do not see any merit on this ground of the appeal. We also dismiss it.
    • Appeal ground 6: The trial judge erred in his ruling in ordering the Appellant and the First Respondent to cooperate and engage with the Surveyor General and Registrar of Titles to sub-divide and transfer part of the land (PN 206) to the First Respondent to implement condition 16 of the First Schedule to the Grant Instrument. This would be a futile exercise in trying to get the parties to reach agreement as the Claimant had already paid for the full price of the entire land area.
25. We dismiss this ground on the facts as found by the trial judge.

Result

1. Appeal dismissed
2. We confirmed the judgment of the High Court dated 11 February 2019
3. The Costs follow the event.

Goldsbrough (P)
Lunabek (JA)
Member
Gavara-Nanu (JA)
Member