Solomon Taiyo Ltd v Belande [1999] SBHC 40; HC-CC 228 of 1998 (20 April 1999)

HOURT OF SOLOMON ISLANDS

Civil Case No. 228 of 1998

SOLOMON TAIYO LIMITED

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PAUL BELANDE>

High Court of Solomon Islands
(KABUI, J)
Civil Cvil Case No. 228 of 1998

p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Hearing: 17th March 1999
Judgment: 20th April 1999

p class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> Mrs L. Tepai for the Plaintiff
Mr Leslie Kwaiga for the Defendant

JUDGMENT

(F. O. Kabui, J): This is an application by the Plaintiff by Originating Summons filed on 14th November, 1998 in the High Court for the following declarations:

1. &nbs; a declarathat ts the regisregistered owner of the property on fixed term estate in Parcel Number 191-035-61 located at Lot Number 249, Nicane, , Hon(&quo Propquot;e Plaintiff isff is the the legallegal own owner ofer of the Property and entitled to enter, possess and occupy it;

2. &nsp; a declar that the Defendanendant having retired from the employment of the Plaintiff on December 31, 1997 and continuing to occupy the Property amounts to the offence ospassefinethe Land and Titles Ales Act (Cct (Cap. 9ap. 93);

class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 0; margin-bottom: 0"> 3. nbsp; p; that efendant dant deliverliver up possession of the Property within seven (7) days;

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4. that the costs of acd intadental to this application be borne by the Defendant; and

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lass="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 0; margin-bottom: 0"> 5. & any oth r orherrther orderorder as the Court deems fit to make >

The Facts

The facts are not in dispute. The Defendant was an employee oyee of the Plaintiff since 1st June, 1997. He was allocated a staff house on 1 July, 1977 at Kukum, Honiara. The property can be identified as Lot Number 249 and Parcel Number 191-035-61. It is a fixed-term estate registered in the name of the Plaintiff. The property is however encumbered with a charge (33/95) in favour of the Solomon Islands National Provident Fund (the Fund) as part of the Plaintiff's total liability towards the Fund for the sum of $12,000,000. The Defendant retired on 1st December, 1997 but has refused to vacate the property. He had been informed by the Plaintiff of the need to vacate the property prior to the retirement date. He had also been given time in which to find alternative accommodation. Further efforts by the Plaintiffs to remind the Defendant to vacate the property have all failed to date. The Defendant does not in any way dispute the ownership of the property by the Plaintiff.

The- Defendant's case is in May 1997, he applied to the former Chairman of thof the Board of Directors of plaintiff, Mr. Dudley Tausinga, for the transfer of the title to the property to himself and that the price be determined by the Board of Directors. The basis for the Defendant's application to purchase the property was that he had been a long service employee of the Plaintiff. He also cited the case of Mr. Harry Manata to whom the Plaintiff in 1984 gave a piece of land in recognition of his long and dedicated service to the Plaintiff. Furthermore, the Defendant said that he had been assured by the former Chairman of the Board of Directors, Mr. Dudley Tausinga, in May 1997 that the property would be transferred to him on the date of his retirement and had told the Defendant to decline his candidacy for the office of President of the Honiara Town Council election because if elected, the Defendant would have to vacate the property and would forfeit the privilege to purchase the property from the Plaintiff. The Defendant accordingly declined to stand as one of the candidates for the office of President of the Honiara Town Council. The fact however is that the Plaintiff has not transferred the title to the property to him under the alleged agreement between him and the former Chairman of the Board of Directors of the Plaintiff. The Defendant therefore claims specific performance of that alleged agreement.

The Evidence

4.  p;&nssp; I was the Chae Chairman of the Plaintiff's Board from June 1995, to June 1997.

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On being cross-examined by Mr. Kwaiga, Counsel for the Defendefendant, the former Chairman said that although he had acknowledged receiving the Defendant's request in a letter and that in principle he personally did not have any objection to the Defendant's request, the matter must be first put to the Board of Directors of the Plaintiff for a decision. He said that was his intention. It would seem however that the matter never reached the Board of Directors as an item on its agenda for a decision of the Board of Directors. This in fact is the case despite the fact that the new Chairman of the Board of Directors, Mr. Hairiu, had acknowledged being aware of the minute signed by the former Chairman, Mr. Dudley Tausinga, and had written about it to the current General Manager, Mr. Furukatsu on 8th April, 1998. Mr Furukatsu, the General Manager of the Plaintiff confirmed in his affidavit filed on 2nd March, 1999 that he was not aware of any resolution of the Board of Directors to effect the transfer of title to the property to the Defendant. Nor was he aware of any binding agreement between the Defendant and the Plaintiff to effect the transfer of title to the property to the Defendant. The sympathetic attitude of the former Chairman, Mr. Dudley Tausinga, towards the Defendant in his attempt to purchase the property from the Plaintiff cannot constitute a binding agreement for sale of the property to the Defendant. The reason being that the Chairman of the Board of Directors of the Plaintiff cannot be a substitute for the quorum of the Board of Directors of the Plaintiff which is the governing body of the Plaintiff under the Companies Act (Cap. 175). The other reason being that the property is encumbered in favour of the Solomon Islands National Provident Fund. It is not free to be sold to the Defendant or anyone although the Defendant has not been informed of this. The Defendant would probably have been informed of this if his case had reached the attention of the Board of Directors at its Meeting. This being the case, the matter must now be regarded as having not been decided by the Board of Directors of the Plaintiff. The Defendant's case for specific performance is therefore not made out. There can also be no case for estoppel by conduct on the part of the former Chairman on behalf of the Board of Directors as his personal views or conduct cannot bind the Board of Directors of the Plaintiff unless ratified by the Board of Directors. There is no such ratification in this case. I therefore make the declarations 1 - 4 sought by the Plaintiff in its Originating Summons filed on 14th November, 1998. Before the Court rises, I wish to say this. When the hearing of this case was concluded on 17th March, 1999, Mr. Kwaiga, Counsel for the Defendant, said he would prefer to submit his final submission in written form. To this, Mrs Loa Tepei, Counsel for the Plaintiff agreed. With the consent of both counsel, I ordered that written submissions be filed within 7 days from 17th March, 1999. Neither Counsel for the Plaintiff nor for the Defendant had complied with that order by 23rd March, 1999 being the expiry date of that 7 days period for filing of written submissions. A further 7 days extension was however agreed on 24th March 1999 by both Counsel with the consent of the Court on the ground that Mr. Kwaiga had been ill and needed more time. Mrs Loa Tepei, Counsel for the Plaintiff, did file her written submission on 30th March, 1999 but was lost somewhere. Her written submission finally reached the Registrar safely on 7th April, 1999. Mr Kwaiga has not done so to date. Whilst it has been the practice that sometime written submission by counsel is accepted in lieu of oral submission, it must not be abused by Counsel. Such abuse is not in the interest of justice and much less in the interest of the parties to the dispute before the court. It may also be contempt of court. In this case, the delay by Counsel is cause of delay for this Court in not being able to deliver its judgment on an earlier date.

ed this 20th day of April 1999

At the High Court
Honiara

Frank O. Kabui
Judge