Kuden v Commissioner of Lands [2003] SBHC 74; HC-CC 166 of 2003 (24 October 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 166 of 2003

JOHN KUDEN AND EDMUND HEDEMANN

–V-

COMMISSIONER OF LANDS, REGISTRAR OF TITLES
AND STEVE GOODHEW

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 24^th October 2003
Date of Judgment: 24^th October 2003

A Radclyffe for the Plaintiffs
G Deve for the 1^st Defendant
S. Toito’ona for the 2^nd Defendant
I Kako for the 3^rd Defendant

REASONS FOR DECISION

MURIA, CJ; On 24^th October 2003, I granted the following order sought by the plaintiffs in this matter.

“UPON hearing Council for the parties and upon reading the affidavits filed on their behalf IT IS ORDERED as follows:

1. that the fixed term estate in Parcel No. 120-003-1 be rectified on the grounds of mistake so that the names of the Plaintiffs are restored to the register as fixed term estate owners in place of the Third Defendant;
   
2. that the Third Defendant, his servants or agents are restrained from entering upon Parcel No. 120-003-1;
   
3. that the First and Second Defendants pay the costs of this action to be taxed if not agreed.”
   

I said I would publish brief reasons for granting the Order, and that I now do so.

The Plaintiffs were the registered owners of the fixed term estate in Parcel No. 120-003-1, being Kolohite Island in the Western Province. Without any knowledge by the plaintiffs, a grant of the fixed term estate was made by the first defendant (Commissioner of Lands) to the third defendant (Steve Goodhew) over the same Parcel of land on or about 19^th November 2002. A Notice of Re-entry dated 28^th November 2002 was said to have been issued by the first defendant alleging that the plaintiff had failed to comply with the terms of the Notice Before Forfeiture dated 16^th March 1988. The said notice of re-entry was posted on the land in question on 5^th December 2002. The cancellation of the registration of the plaintiffs as owners of the fixed term estate in the land was said to have been done following the acceptance of the re-entry, and thereafter a new grant was made to the third defendant.

Irregularities of the Process

A number of irregularities were highlighted by Mr Radclyffe of Counsel for the plaintiffs. One of them was the absence of Notice Before Forfeiture. A search in the relevant files kept by the office of the first defendant did not reveal that any Notice Before Forfeiture was ever issued and served on the plaintiffs as required by section 138 of the Lands and Titles Act. The first defendant admitted that there was no such notice on the record despite the assertion contained in the annexure “ST3” to the affidavit of Stephen Toito’ona filed on 20^th October 2003 on behalf of the second defendant. Nevertheless, Mr Toito’ona also deposed that he could not locate any Notice Before Forfeiture in the file on the said parcel of land.

Interestingly, the alleged Notice Before Forfeiture was said to have been issued on 16^th March 1988. However, there was no record of it on the file nor was there any evidence adduced before this Court that such notice was ever issued. Further, both the office of the Commissioner of Lands and that of Registrar of Titles did not have and/or cannot produce any evidence to suggest that the said notice was ever issued at all to the plaintiffs.

It was said on behalf of the second defendant that the notice of Re-entry was accepted (although it is not clear, by whom) before the plaintiffs’ fixed term estate title was cancelled and the new grant of fixed term estate made to the third defendant. It defies logic for one to accept that the cancellation of the plaintiffs’ title and new grant of fixed term estate to third took place after the issue of the Notice of Re-Entry in this case. When one looks at the said Notice, it was issued on 28^th November 2002, posted to the plaintiffs on 5^th December 2002 but the grant of the fixed term estate to the third defendant was made on 19^th November 2002. It defies common sense either.

A further concern could also be noted on the Grant Instrument itself. The grant was made on 19^th November 2002 but there was no date of registration mentioned on the Instrument. In the plaintiffs’ Statement of Claim, it was claimed that the registration of the fixed term estate in the third defendant’s name was done on or about 19^th November 2002. There was no dispute to that. In fact in his Defence, the second defendant admits registering the fixed term estate in the land in the third defendant’s name on 19^th November 2002 which was the same date the application for registration was made.

Having considered the whole circumstances surrounding the transaction leading to the registration of the fixed term estate in Parcel No. 120-003-1 in the third defendant’s name, both the first and second defendants could not possibly justify their actions in canceling the plaintiff’s fixed term title to the land, granting and registering the fixed term estate in the third defendant’s name.

Concern over land registration process

Concern over the process on dealings and registration over registered land conducted by the Offices of the Commissioner of Lands and Registrar of Title had been expressed in this Court in a number of cases. This case is clearly one of such cases. There had not been any satisfactory explanation for the way the land dealings were conducted by those responsible in those cases. See the cases of Best Distributors and Services –v- Premier Guadalcanal Province, James Tetea Tura, Winner Properties Ltd and Registrar of Titles^[1] and Cheungs Construction Ltd –v- KCM Properties Ltd, Guadalcanal Provincial Assembly and Attorney General ^[2].

Regrettably, I have to say that I found the affidavit evidence filed by the Senior Legal Officer in the office of the second defendant to be very unsatisfactory. Annexed to that affidavit was the copy of a registration with no date of registration entered on it in the space provided for that to be done. Mr Toiton’ona (deliberately or not) failed to depose as to when the registration of the fixed term estate in the third defendant’s name was made. Instead the affidavit simply repeated the very same facts which supported the plaintiffs’ allegations in this case. Public Officers, particularly those legally trained, owe a duty to the public to be vigilant in ensuring that they perform their public duties with candour.

Conclusion

The image painted by the materials placed before the Court in this case, adds one more reason for the need of scrutiny and improvement in the offices of the first and second defendants. The plaintiffs in this case were justified in coming to this Court to ask for the orders they now seek. I granted those orders for the reasons which I now publish.

(Sir John B. Muria)
Chief Justice

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^[1] Best Distributors and Services –v- Premier Guadalcanal Province, James Tetea Tura, Winner Properties Ltd and Registrar of Titles ( 29^th May 2003), High Court, Civil Case No. 281 of 2002.

^[2] Cheungs Construction Ltd –v- KCM Properties Ltd, Guadalcanal Provincial Assembly & Attorney General (16^th October 2003), High Court, Civil Case No. 191 of 2003.