Fairafo Ltd v Commissioner of Lands [1998] SBHC 73; HCSI-CC 108 of 1997 (27 February 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil case No. 108 of 1997

FAIRAFO LIMITED

-v-

COMMISSIONER OF LANDS & MARTIN KEALOA

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 108 of 1997

Hearing: 20 February, 1998
Judgment: 27 February, 1998

A. Radclyffe for the Plaintiff
First Defendant unrepresented
R. Teutao for the Second Defendant

PALMER J.: The Plaintiff seeks declaration under section 18 of the Crown Proceedings Act that it had the right to have the fixed-term estate in Parcel No. 191-039-622 (also identified as Lot 1266/Naha) transferred to it. The Plaintiff relies on a letter of offer from the Commissioner of Lands dated 15th August, 1996, and which was accepted on or about 23rd August, 1996 on payment of the fees requested.

The first defendant has not entered any appearance and abides the decision of the Court. The second defendant on the other hand has been joined claiming a prior interest over the same parcel of land when it had not yet been sub-divided.

Mr. Kealoa claims that he had been allocated the said parcel prior to its sub-division when it was then known as Lot 1262/VII/H. He relies on a letter of offer dated 30 May, 1996, and which was accepted on payment of the requisite fees the next day, 31st May, 1996. Mr. Kealoa claims his letter of offer preceded the Plaintiffs offer and therefore must take priority.

The existence of this offer and agreement have not been disputed. It is a fact therefore that Lot 1262/VII/H had been allocated to the Second Defendant by way of an offer contained in the letter dated 30 May, 1996 (see Exhibit 1) and became binding on payment of the requisite fees by the Second Defendant on 31st May, 1996 (see GTR. No. B543234).

It is a fact also that Lot 1262 comprised the area of land prior to sub-division bounded by pegs MK1, MF10, BK8, and MF11 (see exhibit “MK5” annexed to the affidavit of Martin Kealoa filed on 4th February, 1998). After sub-division the said lot was divided into two parts; Lot 1266 (being the bigger area) and lot 1262 (see exhibit “MK6” in the same affidavit of Martin Kealoa). It was Lot 1266 that had been offered to the Plaintiff by letter dated 15th August, 1996 and accepted on payment of the requisite fees on or about 23rd August, 1996. There appear therefore to be two allocations involving the same area of land by the Commissioner of Lands. The first one in respect of Lot 1262 before it was sub-divided to the Second Defendant, and a second allocation over part of the same area of land to the Plaintiff (Lot 1266).

It has been suggested by learned Counsel for the Plaintiff that this Court should not look beyond the sub-division of the said land. Unfortunately that would not be correct because the sub-division did not extinguish any rights which may have been acquired prior to sub-division. Whether the sub-division is valid or not makes no difference to the rights which may have been acquired over the said land prior to sub-division.

It is important to appreciate what the legal effect and consequences of the agreement entered into between the Commissioner of Lands and the Second Defendant. What we have is a legally binding contract between the Commissioner of Lands and the Second Defendant for the transfer of Lot 1262/VII/H to the Second Defendant entered into on or about 31st May, 1996.

Lot 1262/VII/H is clearly identifiable by the four pegs referred to above as shown in exhibit “MK5” annexed to the affidavit of Martin Kealoa filed on 4th February, 1998. There can be no mistake about its identity. There can be no mistake about the parcel or plot of land that had been, allocated to the Second Defendant by legally binding agreement.

The subsequent sub-division of the said plot of land with respect, does not and cannot affect the validity of that legally binding agreement; neither does it frustrate the agreement entered into between the parties as sought to be submitted by learned Counsel for the Plaintiff. All that the sub-division amounts to is to have the said lot (Lot 1262) divided into two separate parts or parcels. Ownership by agreement is not affected. The sub-division did not divest the Second Defendant of his contractual interests acquired over the said plots. I agree with the submission of learned Counsel for the Second Defendant that neither the Commissioner of Lands nor the Surveyor-General had the right to sub-divide the said lot without the express consent of the Second Defendant. But the fact that this had been done does not and cannot alter the interests acquired by the Second Defendant over the said lot. This simply meant that the Commissioner of Lands had no right thereafter to further re-allocate part of the said lot to the Plaintiff. It was not open to him to do that unless first he had re-acquired the interest of the Second Defendant, or that it had been surrendered voluntarily by the Second Defendant. The re-allocation therefore was invalid and unenforceable with no rights conferred. There was none in the first place to confer, it having been conferred by agreement on the Second Defendant. If the Second Defendant wished to re-combine the two parcels again, then it would be open to him to do that.

I appreciate and note with concern that the Plaintiff had been misled by the Commissioner of Lands into believing that he had acquired a valid interest over lot 1266. It has been brought to this Court’s attention that similar cases have and continue to plague that Office with double allocations not an infrequent occurrence. It is not for this Court to show the Commissioner of Lands what to do and how to do it, but it is this Court’s respectful submission that aggressive steps should be taken by the Commissioner to ensure that land allocations are not mis-handled and treated lightly. Bearing in mind that land in the Capital (Honiara) is now a highly sought after commodity, it should be given that extra care and diligence when applications are being processed. If there are procedures to be followed, then these should be complied with.

There should also be some mechanism in place which would ensure that double allocations are minimised; like a centralised map or plan or file which all lands officers should have access to and can check and cross-check for purposes of determining whether there have been any applications or allocations in respect of a particular plot of land. In this case for instance, the allocation in favour of the Second Defendant had been processed by the Commissioner of Lands through certain officers whilst the allocation of part of the same land to the Plaintiff had been done through a different officer, who testified in court that he did not know that the land had already been allocated to the Second Defendant. Had he known, it appears this case would never have been brought before this Court. But even if he did not know, at least the Commissioner of Lands should have known because he was the one who first made the allocation to the Second Defendant. The fact that this has not been picked up only shows that a proper checking system needs to be put in place to minimise such mistakes from taking place in future. Had such a system been in place, the lands officers in this instance, should have been able to ascertain that the said land had already been allocated to the Second Defendant and thereby avoiding any subsequent invalid allocation to the Plaintiff. This in turn should minimise any unnecessary expenses on the part of the Plaintiff. The Plaintiff thus has been an innocent victim in this instance and has incurred expenses which would not have accrued had the Commissioner of Lands and the respective officer checked the application thoroughly or there had been in place a proper checking system.

If there is to be any recompense, then this must be reflected in costs. The costs of both the Plaintiff and the Second Defendant are to be borne by the Commissioner of Lands. As to scale, this should be adjourned to chambers to allow the Commissioner of Lands to be heard before any orders are made.

ORDERS OF THE COURT:

1. Refuse declaration sought under section 18 of the Crown Proceedings Act.

2. Costs of the Plaintiff and the Second Defendant to be borne by the Commissioner of Lands.

THE COURT.