HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 5 of 1997

SOLOMON ISLANDS PLANTATIONS LIMITED

V

WILLIAM MANEDETEA AND OTHERS

High Court of Solomon Islands
(LUNGOLE-AWICH, J.)

Hearing: 11th May 1998
Judgment: 17th July 1998

A. Radclyffe for Plaintiff
C. Ashley for First and Second Defendants

JUDGMENT

(LUNGOLE-AWICH), J:	On 16.12.1998 the plaintiff, Solomon Islands Plantation Limited (SIPL) was registered as holder of fixed term estate in land on Guadalcanal Island described as parcel No. 192-023-16, thereby acquiring the fixed term estate in the land. The fixed term estate was a grant made by the Commissioner of Lands to the plaintiff under the Lands and Titles Act, (LTA) Cap. 93 of Laws of Solomon Islands. It was stated to be for 75 years commencing on 1.7.1997. There is nothing invalidating in stating that a fixed term or any other estate commenced on an earlier date. It does not matter that the date is retrospective. The rule is in s:124(3) of the Act; it states that the date on which transfer of estate is deemed to take place is the date on which the instrument of transfer is presented for registration unless an earlier date has been specified. The section restates to some extent, the original Common Law rule, the adopted law in Solomon Islands, under which a lesee could not acquire estate until he actually entered into possession, a lease in which a future date was given as the date of commencement operated only as agreement giving mere right to take possession called interesse termini. Certain restricting conditions as well as conditions to develop the land as cocoa plantation were imposed by the Commissioner in the fixed term grant. The Commissioner had the perpetual estate in the land. Of course he retained the perpetual estate.

On 20.5.1987, the Commissioner transferred his perpetual estate to William Manedetea, Michael Bulo, Timothy Vuria, Gabriel Thura and John Sura as joint owners. They, therefore in effect, held the perpetual estate in trust for one another and for the rest of the people of their tribe - see s:174 of LTA. The distinguishing attribute of joint ownership of estate and ownership in common is stated in s:175 of the Act. Owners of estate in common have definate though undivided shares which may be registered. The share may be in any proportions and may be sold to the other owner or owners in common, or with their consent to anybody, and on the death of one owner in common, his share forms his estate. Joint owners of estate own the whole undivided estate together and on the death of one, the whole estate in the land vests in the surving joint owner or owners, although during their life time they may sell off the land (the estate) and share the proceeds. The five transferees of the perpetual estate have now been named as the first defendants in this case.

The Plaintiff’s Case

The plaintiff has come to court by originating summons asking for declarations that:

“1.	That the First Defendants are in breach of section 103(1) of the Land & Titles Act in that the rights of the Plaintiff as owners of the fixed term estate in Parcel No. 192-013-18 are being interfered with by the First Defendants.

2.	That the First Defendants had no right to sell any interest in Parcel No. 192-013-18 to the Second Defendant free from the Plaintiffs fixed term estate in the said land”.

The plaintiff also asked for order restraining the defendants from interfering with the plaintiff’s right to exclusive possession, and for order evicting the second defendant from part of the land, parcel No. 192-013-18, said to be now occupied by the second defendant.

The facts on which the plaintiff seeks the declarations and orders are stated in the affidavit of John Adifaka sworn on 7.1.1997 and filed the same day. The more material ones are: That the first defendants now own the the perpetual estate in the land, but subject to a fixed term estate of the plaintiff for 75 years. The first defendants have sold off portion of the land to the second defendant, without consent of the plaintiff, the holder of fixed term estate in the land. The portion is said to measure 210 x 58 metres. The second defendant has taken possession. The plaintiff has demanded cancelation of the sale and removal of the second defendant. The first defendants instead have responded by saying that the plaintiff had breached conditions of the fixed term estate granted to them, the first defendants, stated the breaches in two paragraphs in a letter dated 22.4.1996, written by William Manedetea on their behalf. The letter is exhibit No. 1 to the affidavit filed in support of the plaintiff’s case. I quote the two paragraphs here:

“You could be right let the court to decide. Two points, I wish you to consider before taking any legal action.

1.	The site has never been developed for over twelve (12) years and I have been using the land for collecting of coconuts until you have cut them down, and placed Lawrence to develop it. There is a provision of Land and Titles Act that applied.

2.	You have disrespect and breach a clause in the lease by without getting my written approval you’ve changed the crop (from cocoa to palms). Your operation in Lot 106 is illegal and I will persue to terminate the lease if you continue without proper negotiation to the subject matter.

Yours faithfully

William Manedetea”

The Defendants’ Case

Learned solicitor for the first and second defendants, Mr. Ashley, filed memorandum of appearance to the plaintiff’s originating summons, but he did not file any affidavit of facts that would be relied upon in defence. He stated during submission that the defendants relied on the contents of the letter, exhibit I. The plaintiff on his part dealt with the alleged breaches in the letters of the first defendants in only a summary way, by simply stating that, “the plaintiff denies the allegations of the first defendants that the plaintiff is in breach of the terms and conditions subject to which it holds the said land”. It is to be noted that the plaintiff did not reply to or submit on the first defendants’ statement that the first defendants had been using the uncultivated part of the land to collect coconut, and that the plaintiff has cut down the coconut trees, the first defendants thereby suggesting that they retained right of some sort in the land despite the grant of the fixed term estate to the plaintiff.

The Law and Determination

Fixed term estate in land is a creature of statute, the Land and Titles Act, in particular, sections 22, 99, 122 and 124. It is in the nature of a lease as known in the adopted law, the Common Law. The grantor of fixed term estate is the Commissioner of Lands, condition for development is usually imposed. The grantee is required to pay rent and to comply with other conditions stated in the grant. The Act outlines duties and rights of the Commissioner and the grantee, although they are mostly the same as those in the oridinary lease. Most import to note in this case, however, is that the Act provides in s:126 for the right of the Commissioner to forfeit the grant, that is, to repossess the land.

As a matter of law, when perpetual estate in land parcel No. 192-013-16 was transferred to the first defendants and registered, the first defendants, acquired the estate subject to the fixed term estate of the plaintiff because the fixed term estate had been registered prior to the transfer of the perpetual estate to the first defendants and the registration of that transfer. Sections 99 and 162(5) of the Act are authority for that statement. The provisions of the sections are the nearest to the Common Law rule as modified by s:141 of the Law of Property Act 1925, of England, to the effect that an assignee of reversion takes with it covenants or conditions that, “touch and concern the land demissed”, also expressed as, covenants or conditions “having reference to the subject matter”. Besides, the Register of Perpetual Estates shows that no consideration was paid by the first defendants for the transfer of the perpetual estate, it follows that even if the fixed term estate of the plaintiff had not been registered, it would subsist after the transfer of the pertetual estate to the first defendants; the rule is in s:101 of the Act. Mr Ashley, for the defendants, must have realised the position, he did not, in his submission, contend that the first defendants took transfer of the perpetual estate free of the fixed term estate of the plaintiff. The fixed term estate being in the nature of a lease, it of course entitled the plaintiff to take exclusive possession of the whole land parcel No. 192-013-16 for the 75 years, commencing on 1.7.1997.

The defendants’ contention is that the plaintiff had no right because the plaintiff has breached the condition to develop the land as a cocoa plantation and has changed the crop from cocoa to palm oil crop and so the first defendants were entitled to re-enter the land. They also contend that they are entitled to enter that part of the land that remains uncultivated. Assuming that the breaches have occured as stated by the first defendants, their contention in my view, would have no basis in law anyway.

Generally breach of a condition (covenant) does not entitle a landlord to resume possession of leased property unless that has been expressly stated in the lease as a covenant or as a condition upon which the lease in this case, fixed term estate was granted - see the English cases of Doe d. Willson v Phillips [1824] 2 Bing 13, and Total Oil Great Britain v Thompson Garages (Biggin HDL) Ltd [1972] 1 QB 318. In this case, it is my view that the right to forfeit (resume possession) continues to be a statutory one. The Right of the Commissioner under s:126 of the Act, to forfeit the fixed term grant, has passed on to the first defendants with the perpetual estate which was acquired subject to the fixed term estate of the plaintiff. It is only logical that the right to forfeit be regarded as having passed with the perpetual estate because the right to the benefit of performance of the duties of the plaintiff (grantee) imposed as conditions in the fixed term estate and by the Act, have passed to the first defendants. Forfeiture is one of the ways of enforcing performance by the plaintiff provided for and so must pass to enable enforcement of performance. Moreover, it has been expressly stated in paragraph 4 of the conditions of the fixed term grant that the provisions of the Ordinance (now Act) shall apply to the grant. Section 126 providing for forfeiture states that the Commissioner shall have the right to forfeit the grant if the grantee fails to pay rent or to perform other obligations provided for. The first defendants must now have that right to forteit the fixed term grant in the event of failure by the plaintiff to pay rent or to perform other obligations provided for. The first defendants are really assignees or transferees of the Commissioner’s reversion. Should there be suggestion that Provisions of the LTA do not go that far, my answer is that the facts of the case are sufficient to create privity of estate in Common Law.

The right to forfeit given by s:126 of the Act is, however, exercised only upon notice in terms of s:128. I set out here s:128:

128. The Commisioner shall not be entitled to exercise the right of forteiture 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)	specifying the particular breach complained of;

b)	if the breach is capable of remedy, requiring the owner to remedy the breach within such reasonable period as is specified in the notice; and

c)	in any case other than non-payment of rent, requiring the owner to make compensation in money for the breach,

and the owner has failed to remedy the breach within a reasonable time thereafter, if it is capable of remedy, and to make reasonable compensation in money.

The provisions of s:128 were in fact the position in adopted law, which would have applied had the LTA not been promulgated statute law of Solomon Islands. I do not think Mr. Ashley would insist on his submission that the letter of the first defendants is notice if he considered the provisions of s:128. The letter is nowhere near what is sufficient notice under the section. As there has not been sufficient notice, it follows that the right to forfeit could not be properly exercised, even if breaches were to be assumed. Accordingly there could not be any re-entry of the land or any part of it by the first defendants. Their permission to the second defendant to enter part of the land, the subject of the fixed term estate, was not valid permission. The question of consent of the plaintiff raised by the plaintiff does not arise. There can be sale of reversion without the consent of a lessee, in this case, of a grantee. Notice is only relevant as to when liability to pay rent to the transferee commences - see s:162(5) of the LTA. The second defendant has entered part of land parcel No. 192-013-16 unlawfully, I grant order to evict him from the portion of the said land and to restrain him from entering or remaining on any part of parcel No. 192-013-16 without the consent of the plaintiff except for the time required to remove his belonging from the land. There are no facts on which the court may determine the time required. Parties are to agree on the time. If they are unable to agree, they are to file affidavits for consideration by court so as to decide the time required.

Deficiency in the Case Arising from Procedure

This is an example of cases that are hurried to hearing in court before the facts have been properly presented in affidavits (or pleaded), court is hurriedly asked to make determination on incomplete facts. In this case the facts said to constitute breaches by the plaintiff of the conditions of the fixed term estate were not properly presented and the reply to them was very general and stated in a summary way. And the facts and terms of transfer of the perpetual estate could have been stated in more details. The best the court could do was to decide the question of “sale” and taking possession of part of the land only, which in my view did not depend on breach of conditions by the plaintiff. The right of forfeiture would have to be exercised in accordance with the conditions and procedures in s:126 of the LTA anyway and after notice will have been given in terms of s:128 of the Act.

This is also a case in which, given the contentious facts, the plaintiff should have come to court by writ of summons instead of by originating summons. Its solicitor had known that the first defendants had raised questions of facts about breach of conditions which the plaintiff denied. On the face, the crop on the land was palm oil crop not cocoa as stated in the fixed term grant, and some part of the land remained uncultivated. Those are some of the facts that could have been clarified by pleadings. As the plaintiff chose to come by originating summons, it was open to the first defendants to apply to court to have the proceeding converted to one by writ of summons. They would have then been able to state their counter-claim in detail. The exchange of pleadings that would have followed would have clarified why the crop was palm oil crop and not cocoa crop, the extent of the area which remains uncultivated and any basis for the right to collect coconut from uncultivated areas, alluded to. As it is, it has not been possible for the court to deal with the intimated counter-claim of the first defendants. It therefore remains a matter which is not res judicata.

Rushing a case to trial without sufficient pleadings often does not achieve the desired aim of concluding the case speedily. The Court of Appeal case, Solomon Motors Limited v Honiara Town Council, Civil Appeal No. 11 of 1994, is a good example. In the case on appeal, the Court of Appeal stated the law applicable, but declined to decide the appeal because the facts and issues of the case were insufficient. The Court sent the case back to the High Court with order that the appellant clarify the issues in the case and better facts be obtained and the case redecided at the High Court. So in the end more time was taken on the case than if time had been taken in the first place to plead sufficently.

The decision reached above on the issues that are important to the right of the plaintiff as the holder of the fixed term estate in land parcel No. 192-013-16, makes it unnecessary for me to make declarations in the form asked for by the plaintiff. Costs are awarded to the plaintiff against both defendants jointly.

Delivered this 17 day of July 1998
At the High Court
Honiara
Sam Lungole-Awich
Judge