Liko Association Ltd v Commissioner of Lands [1999] SBHC 120; HC-CC 263 of 1999 (17 December 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 263 Of 1999

LIKO ASSOCIATION LIMITED

(T/A TEMOTU FISHERIES PRODUCTS)

v

COMMISSIONER OF LANDS & OTHERS

High Court Of Solomon Islands
Before: Palmer J.
Civil Case Number 263 Of 1999

Hearing: 30 November 1999 And 9 December 1999.
Judgement: 17 December 1999

A. Radclyffe For The. Plaintiff
S. Manetoali For First Defendant
No Appearance Entered For Second Defendant
No Appearance Entered For Third Defendant

PALMER J.: The Plaintiff, Liko Association Limited trading as Temotu Fisheries Products (hereinafter referred to as “LAL”) seeks orders under section 229 of the Land and Titles Act (hereinafter referred to as “the LTA”), for rectification of the fixed-term estate register for Parcel No. 192-010-68 on grounds of mistake and for declaration under section 18(1) of the Crown Proceedings Act (Cap. 8) that Plaintiff is entitled to be registered as the fixed-term estate owner of said Parcel.

The fixed-term estate in Parcel No. 192-010-68 (hereinafter referred to as “the Land”) was formerly registered in the name of Max Andrew Barker (see Document No. 8 in the Bundle of Agreed Documents filed 20 November 1999). Grant of said fixed-term estate was made to him by the Commissioner of Lands (hereinafter referred to as “the Commissioner”) on or about 9 July 1986 (Document No. 1). Clause 6 of the grant instrument required Mr. Barker to erect on the Land a building costing not less than $A50,000-00 within 18 months from date of grant. This was not complied with. Further extensions were sought in correspondences between Mr. Barker and the First Defendant (see Documents Nos. 2, 3, 4, 5 and 6). On or about 10 June 1992, a Notice Before Forfeiture was served by registered post on Mr. Barker (see Document No. 7). Clause 4 of said notice required Mr Barker to erect on the Land a building to the value of $A50,000-00 by 25th August 1992, failing which, the Commissioner threatened to have the Land forfeited.

In the meantime, LAL through its Managing Director, Mr. Maina applied by letter dated 15 October 1992 (Document No. 9) to the Commissioner for possible re-allocation of the Land to it when re-possession had been completed. On or about 4th December 1992, an offer was made to LAL for grant of the said fixed-term estate for fifty years (Document No. 12). This was accepted by Plaintiff and requisite fees paid (see Document no. 14). On or about 7 December 1993, grant instrument in favour of LAL was executed (see Documents No. 15 and 16). The document was then prepared for registration. Unfortunately this was not lodged for registration due to some misunderstandings and delays about when forfeiture proceedings would be completed.

In December 1995, an application for possible allocation of the same plot of land was lodged by Kwan Wai Man (Third Defendant) to the Commissioner (see Document No. 26). In utter disregard of the previous Agreement entered into with LAL the Commissioner made a separate offer to Third Defendant for the same plot of land (see Document No. 27). On 19 December 1995, a Second grant instrument was executed in favour of Third Defendant (see Document No. 28). It was lodged for registration on or about 12 March 1996 and registered on or about 11 August 1997 (See Document No. 32).

Amazingly, by letter dated 17 June 1997, the Commissioner wrote to the Registrar of Titles (Second Defendant) enquiring whether forfeiture proceedings had been completed over the fixed-term estate in Parcel No. 192-010 68. He had forgotten so soon it seems, he had just executed a second grant instrument in favour of the Third Defendant and had lodged that grant instrument for registration in complete disregard of his earlier obligations to LAL. It is simply ridiculous how the same sort of “mistake” keeps croping up in this Court from the esteemed Office of the Commissioner of Lands. Something is very wrong and needs to be addressed with clarity and firmness.

The “mistake” which occurred in this instance is not difficult to identify. The Commissioner it seems, simply did not know what his left hand was doing from his right. The Lands Officer, Nestor Maelanga, who dealt with Third Defendant’s application and prepared the offer and instrument, seemed completely oblivious of the first offer and grant instrument, prepared and processed by another Officer, Baddeley Tabiru, in favour of LAL. The only common link in what those two officers did was the fact all correspondences and documents were signed for and on behalf of the Commissioner. Yet the Commissioner was not aware of what was happening. This is unacceptable and blame must be placed squarely on his table, not with his Officers. This Court cannot keep reminding the Commissioner about his duties. It is not for this Court to tell the Commissioner what to do in addressing this kind of bungle, but if it helps, the Commissioner should look seriously at how his filing system is being done, and to consider keeping a master registry book which should contain details of all allocations and offers that had been made by him regarding any plot of land (identified by its parcel number or lot number). There should be an indexing system whether by letters or numbers that would make it easy for him to check against for any previous allocations or offers and entries made. As soon as an offer is made, he or his Officers should make entry in that registry book. By doing this, whenever a second application or subsequent application should be brought to his attention in respect of the same land, he or any of his Officers should be able to check the master registry book for any previous entries over the same plot of land. At least such a system, or something similar, should reduce to some extent the possibility of double allocations, or offers, and causing unwarranted mistakes from happening.

SUBMISSIONS OF THE FIRST DEFENDANT.

Mr. Manetoali for the First Defendant submits the grant instrument executed in favour of LAL was defective and therefore a nullity. It was executed when forfeiture proceedings were yet to be completed. In contrast, he submits the grant instrument executed in favour of the Third Defendant was done after forfeiture proceedings had been completed and therefore valid. He denies any mistake was committed by the Commissioner.

FORFEITURE PROCEEDINGS.

One of the crucial issues in this case turns on the question when forfeiture was completed. Mr. Radclyffe submits it was completed on 25th August 1992; being the date Mr. Barker was required to have a building costing not less than $50,000-00 erected on the Land. Mr. Manetoali on the other hand, submits date of forfeiture fell on 11 September 1995; being date of re-entry noted on the fixed-term estate register for Parcel No. 192-010-68 (see Document No. 8).

The law covering forfeiture proceedings is set out in sections 136 - 139 of the LTA. It is not in dispute forfeiture proceedings were instituted by the Commissioner pursuant to section 138 of the LTA by having a Notice Before Forfeiture (see Document No. 7), served on Mr. Barker. Clause 4 of that Notice required Mr. Barker to have the breach complained of remedied by 25^th August 1992. This was not complied with.

Section 138 of the LTA reads as follows:

“The Commissioner shall not be entitled to exercise the right of forfeiture 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; and

(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.”

It is my respectful view, the deadline of 25th August 1992 given to Mr. Barker to have the breach complained of remedied cannot be regarded as the date forfeiture proceedings were completed. Rather, it should be seen as the date when Commissioner can thereafter exercise his right of forfeiture. This raises the question when right of forfeiture can be exercised. Subsection 136(2) deals with this as follows:

“The right of forfeiture may be -

(a) exercised where neither the owner nor any person claiming through or under his occupation of the land comprised in the estate, by entering upon (and) remaining in possession of the land; or

(b) enforced by action in the High Court.”

[Emphasis added]

The applicable provision is paragraph 136(2)(a) above; that is, the right of forfeiture in the facts of this case was exercised by the Commissioner by way of re-entry on the land and remaining in possession. That is not in dispute. It is my respectful view, forfeiture is complete on re-entry and remaining in possession. This raises the question when re-entry was effected in this instance. The facts in this case reveal in my respectful view, that re-entry was effected by the Commissioner sometime before 6 November 1992 (see Documents No. 11 and 20). Document No. 20 is a letter dated 23 February 1995 from the Commissioner to Registrar of Titles. It reads as follows:

“RE: RE-ENTRY FIXED TERM ESTATE - PARCEL NO. 192-010-68
- MAX ANDREW BAKER - RANADI INDUSTRIAL

Am here following up the Re-Entry Notice Declaration & Vesting Order I lodged to your office this date 6/11/92.

Grateful if your office could advise me what action you have taken to repossess the above title from Andrew Baker.

I attach here copy of the said lodged document. Thank you for your early response.

B. Tabiru
for: Commissioner of Lands
Ministry of Lands"

Paragraph 1 of that letter indicates the Re-Entry Notice was lodged with the Office of the Registrar of Titles on 6^th November 1992. This is undisputed evidence. Baddeley Tabiru gave evidence before this Court and was never cross-examined about this evidence. It necessarily follows from this re-entry must have been effected sometime prior to 6^th November 1992. The actual date of re-entry should be contained in that Re-Entry Notice. Unfortunately copy of said Re-Entry Notice has not been submitted as an exhibit.

RE-ENTRY ON 11 SEPTEMBER 1995?

What of the date of 11 September 1995 recorded ill the fixed-term estate register of Parcel No. 192-010-68 as the suggested date of re-entry relied on by Mr. Manetoali? With respect, that date not only can be distinguished, but in my respectful view is erroneous and should be corrected by the learned Registrar of Titles, under section 228 of the LTA. It seems on the facts before this Court, the date of 25th September 1995, was the date an entry eventually came to be made on said fixed-term estate register, after the Notice of Re-Entry was lodged for registration on or about 6 November 1992. It took almost three years (2 year and 10 months) to be exact for that simple entry to be made on the register. That with respect can only be described as inordinate and excessive, delay. Re-entry in my respectful view was not made on 11 September 1995. It was made way back sometime before 6 November 1992. The letter from the Registrar of Titles dated 19th September 1995 (Document No. 24) is consistent with this view. It is my respectful view, the “date of re-entry” in paragraph 139(2)(c), is the date re-entry was effected by the. Commissioner on the said Land for the purpose of re-taking possession of the Land

There are therefore three different dates which should be borne in mind in relation to the question of re-entry. First is the date of re-entry on the Land itself. This is the date re-entry was made on the Land by the Commissioner and re-possession taken of the Land. Then there is the date the Notice of Re-entry is lodged for entry in the fixed-term estate register at the Office of the Registrar of Titles. The third date is the date entry was actually made on the register. In this instance the date of 11 September 1995 was the date entry was made on the fixed-term estate register of Parcel No. 192-010-68. The date Notice of Re-Entry was lodged at the Office of the Registrar of Titles was the date of 6 November 1992 (see Document No. 20). And the date re-entry was actually made on the Land by the Commissioner must have been on a date prior to 6 November 1992. The period of six months provided for under section 139(2)(c) within which an owner of an estate has right to apply to this Court for relief is defined as commencing from “date of re-entry”, not date of entry on the fixed-term estate register. The appeal period given in the letter of 19 September 1995 (Document No. 24) by the Registrar of Titles as commencing from 11 September 1995 accordingly is wrong. The period of six months should run from date of re-entry. This is why it is important to get the correct dates right so that the correct details are entered on the register. If there is no application made to the High Court for relief within that period of six months, the rights of the registered owner are determined with effect from that date of re-entry (section 137 of the LTA). In the facts of this case no application was made to this Court within the period of six months from date of re-entry. Accordingly title of Max Andrew Barker was determined with effect from date of re-entry (which would be sometime before 6 November 1992).

THE IMPLICATIONS ON THE GRANT MADE TO LAL

The implications to be drawn from the above conclusions mean the submissions of learned Counsel Mr Manetoali, that the grant to LAL was void ab initio must be rejected. The grant was made on 7 December 1993 well after re-entry and possession had been effected. The said grant instrument therefore was valid and binding on the Commissioner.

RELIEF SOUGHT.

Relief sought is rectification of the fixed-term estate register for Parcel No. 192-010-68 on the grounds of mistake. Powers of rectification of this Court are provided for in section 229 of the Land Titles Act [Cap. 133]. I quote:

“(1) Subject to (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that’s any registration has been obtained by, made or omitted by fraud or mistake.”

Court can order rectification where registration had been obtained, made or omitted by mistake. Plaintiff relies on this ground for rectification of said fixed-term estate register.

HAS A MISTAKE BEEN COMMITTED?

Mr. Radclyffe submits a mistake was committed by the Commissioner in making a second grant to the Third Defendant over the fixed-term estate in Parcel No. 192-010-68 and lodging for registration when he was akready bound by the first grant to LAL. With respect, I agree. Not only is that second grant ineffective no explanation whatsoever had been provided by the Commissioner for his actions. No evidence has been adduced either, other than submission from Counsel Mr. Maneatoali that no mistake had been committed.

To the contrary, there is clear evidence from the former Lands Officer, Baddeley Tabiru who dealt with LAL’s application and grant, that the matter was simply awaiting clearance from the Registrar of Titles that forfeiture proceedings had been completed before lodging LAL’s application for registration. All the necessary documents had been completed and requisite fees paid. There was simply nothing outstanding. As observed in this judgement, due to unfortunate misunderstandings and inordinate delay from the Office of Registrar of Titles, LAL’s application was never lodged for registration. Mr. Tabiru explained in evidence before this Court, that the reason for not lodging application for registration until he received confirmation from the Office of the Registrar of Titles that forfeiture proceedings had been completed, was to avoid unnecessary costs to LAL if the application is rejected. His evidence is supported by numerous correspondences made to that effect (see Documents No. 20, 21, and 22).

Commissioner had not given evidence and so never denied the submission that had he been conscious of the fact a first grant had previously been made to LAL, he would not have lodged second grant for registration. It is not in dispute, a binding for the grant of the fixed-term estate in said parcel existed well before any offers were made to the third Defendant and accepted. No explanation has been produced, whether in evidence or otherwise, that anything other than mistake was the explanation for the Commissioner’s actions. I reach the inevitable conclusion with little hesitation, that mistake had indeed been committed by the Commissioner, that had he been aware, or it had been brought to his attention a binding contract existed with the plaintiff, he would not have executed the relevant documents granting the fixed-term estate in Parcel No. 191-010-68 to the third Defendant. That was a clear mistake on the facts before me, though it is surprising the Commissioner had not even bothered to admit this and save the Plaintiff unnecessary costs in having to come to this Court for rectification. This in my respectful view must be reflected in the order for costs.

SECTION 229(2) OF THE LTA

Subsection 229(2) of the LTA provides:

“The land re register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act neglect or default.”

Before rectification could be considered by this Court the provisions of subsection (2) above would have to be considered by this Court whether they apply to the facts of this case or not. One of the crucial requirements of subsection (2) above is that title holder is in possession of the said property. That is not the case here. Third Defendant has not entered appearance and there is no suggestion whatsoever he was or is in possession of said property at any time. The provisions of subsection 229(2) therefore do not apply to this case.

ORDERS OF THE COURT

1. Enter judgement for the plaintiff for rectification of the fixed-term estate register for parcel no. 192-010-68 on the grounds of mistake.

2. Direct that the registration of Kwan Wai Man (the third defendant) as registered owner of the fixed-term estate in parcel number 192-010-68, be cancelled forthwith.

3. Grant declaration under section 18(1) of the crown proceedings act (cap. 8) that the plaintiff (liko association limited) is entitled to be registered as the owner of the fixed-term estate in parcel no. 192-010-68.

4. Costs of the plaintiff are to be borne by the first defendant (commissioner of lands) on indemnity basis.

THE COURT