Iodanis v Attorney General [2011] SBHC 62; HCSI-CC 408 of 2009 (12 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 408 of 2009.

BETWEEN:

LOUIS IODANIS
Claimant.

AND:

THE ATTORNEY GENERAL (Representing the Commissioner of Lands and Registrar of Titles)
First Defendant.

AND:

JOHN BEN KULUWAI
Second Defendant.

Date of Hearing: 5th August 2011.
Date of Ruling: 12th August 2011

Dr. Tagini: For the Claimant.
Mr Muria (J): For First Defendant.
Second Defendant: Not present.

RULING

Faukona J: This is an application for declaratory orders rectifying the Land Register of a fixed term estate in PN 191-032-142, in the name of the Claimant, on the ground of mistake.

2. The second Defendant is not present in Court, though was served on three occasions. By his conduct, it appears he has refused to participate in this proceeding. An application for default judgment is reserved should the first defendant is successful in its defence; see Shell Company (Pacific Islands) Ltd V Korean Enterprises Limited and Premier of Guadalcanal Province[1].

Background facts:

3. The Claimant is an Australian citizen who carried on business in Solomon Islands. On or about 11th September, 2001, he applied to the Commissioner of Lands (First Defendant) seeking to lease a vacant piece of land known as Lot 3184, at Bahai sea front, Honiara. In fact it was an adjoining piece of land to hes. On 18th June, 2002, the first Defendant approved the Claimant's request. Prior to 12th February 2003, an undated letter signed by John Hikimae of Lands Department, was sent to the Claimant offering a fifty (50) years fixed term estate in Lot 3184, subject to payment of the relevant fees of $1507.00. On 12th February, 2003, the fees were paid by the Claimant. And they were specifically for premium, rental, registration and stamp duty.

4. On 5th November 2001, the second Defendant applied for the same land for the purpose of car washing business. At that time he was an officer in the Lands Department office.

5. By letter dated 28th February, 2002, signed by Silva Dunge of the Lands Department, approved the allocation to the second Defendant for the propose development plan. That did not last when Mr. Dunge again by a letter dated 13th March 2002, advised the second Defendant that approval previously issued under his hand now withdrawn.

6. Despite the formal withdrawal, per se, a letter of 8th July, 2003, signed by Daniel Likaveka (Ag Commissioner of Lands), offer a fifty (50) years fixed term estate on Lot 3184 Bahai centre to the second Defendant, for a consideration of $2688.00 as relevant fees. On 29th September 2003, the second Defendant paid the required fees.

7. At this juncture it was apparent that the first defendant had contractual obligations to two separate parties over the same block of land.

8. It does not end there. On 1st November, 2004, a grant of fixed term estate was executed and made to the second Defendant.

9. By a letter dated 12th August, 2004, before the grant of fixed term estate was executed and made to the second defendant, the claimant wrote to the Registrar of Titles, intending to lodge a caveat on PN 191-032-142, after learning that the second Defendant was claiming the same land. In his letter he explained plainly the existence of a problem whereby the Commissioner of Lands had completed two contracts of sale in respect of one and the same land to two different individuals. He also showed by contrast which contact was concluded first in time.

10. Following that letter, on 25th August, 2004, a formal caveat was lodged. In respond a notice of dealing pursuant to section 223 (1) (с) of the land and Titles Act, dated 7th December, 2004, was issued to the Claimant advising him to file, with the Registrar, a certified copy of a pending proceeding in the High Court before expiration of 30 days. Failure to do so the grant of fixed term estate will be registered. Two weeks notice of extension was granted upon request to the notice of dealing.

11. Subsequently the Claimant failed to serve a copy of a pending High court proceeding upon the Registrar. Despite all odds the grant of fixed term estate was executed and made to the second Defendant on 1st November 2004. In fact the application for grant was lodged on 21st March, 2005 and was back dated to begin running on 1st November, 2004. Eventually the land was registered in the name of the second defendant on 16th July 2008.

12. The Claimant did not sit back. Within the 30 days he consulted Douglas Hou from Pub-Sol who did file a case in the High Court on 17th January, 2005, but could not advance the case forward as he was going on studies. The Claimant then consulted Mr. Watts who did file a case at the High Court but failed to serve copies upon the Registrar of Titles.

The issues

13. (1). Whether the Registrar had by mistake registered the property in the name of the second defendant.

(2). Whether or not the Claimant through his behaviour of not responding to the first Defendant's request to challenge the registration, is estopped from questioning the registration.

The Law on "mistake"

14. The Counsels have submitted the relevant laws that apply to the element of mistake in land registration.

15. The general rule is that once rights or interest in land are officially registered they cannot be challenged, or it is indefeasible. The effect of registration is that it formalises the title in the name of the owner, free from all interest and claims and which the law recognizes. However there are exceptions – See S.110 of the land and Titles Act.

16. Section 229(1) of the Act vested powers on the High Court to order rectification of the land registry by directing that the registration be cancelled or amended, where it is satisfied that such registration has been obtained, made or omitted by fraud or mistake.

17. Under Subsection (2) the Claimant must show that

(a). The second defendant who is in possession and acquired interest for valuable consideration had knowledge of the mistake; or

(b). That the second defendant caused such mistake or substantially contribute to it by his act, neglect or default.

18. I appreciate Counsels for furnishing case authorities on the issue of mistake as one of the exceptional element in the process of rectification of the lands register.

19. Halsbury's Laws[2] stated that a person is mistaken;

When, had he known the true state of affairs, he would not have conferred the benefit of the defendant and, for this purpose, it does not matter when he conferred the benefit as a result of a misunderstanding, incorrect information or "sheer ignorance".

20. In the case of David Securities Pty Ltd V Commonwealth Bank of Australia[3] referring to a quote in Winfield "Mistake of Law" (1943) 59 Quarterly Review 327 said;

"mistake not only signifies a positive belief in the existence of something which does not exist but also may include "sheer ignorance of something relevant to the transaction in hand." The ignorance must relate to a factor relevant to the decision to transfer the asset[4]

21. In Re139 Deptford High Street, Ex parte British Transport Commission[5], Wynn-Parry J said,

"The Court must determine in every case whether there has been a mistake in the registration of the title and if so whether justice requires that the register should be rectified".

22. In the famous Solomon Islands case Walter Billy V Paul Daokalia and Others[6] the Court of Appeal said,

"The claims of fraud or mistake therefore must necessarily be linked to the time when registration was obtained, made or omitted.

23. Other Solomon Islands case applied the test in Billy's case are:

(1). Henry Ha'aina V Robert Taloaniwaiau and Attorney General.[7]

(2.) Y. Sato and Company V Jesse Tiare, Catherine Tiare, Anthony Tiare and Registrar of Titles[8].

The Claimant's Case:

24. The first Defendant made mistake in that there is "sheer ignorance" on his part when he offered to the second Defendant land which was already been offered and duly accepted by the Claimant by payment made on 12th February, 2003. He further submits that Mr. Likaveke occasioned a land sale to the second Defendant through mistake, because in law, what had been sold is no longer available to be disposed off. In fact, there was a mistake according to documentary evidence that Mr. John Hikimae had sold the piece of land.

2nd Defendant's case.

25. Mr Muria (Jr) submits that the onus is on the Claimant to prove in evidence that the second Defendant at the time of registration had knowledge of the mistake, or cause such mistake or substantially contribute to it. The circumstances in this case is such that it is not appropriate for an order of rectification of the register because of mistake. Further he submits that, on the application of Billy's case, mistake must be linked to the time when registration was obtained and does not apply at the initial stages of offer and acceptance.

Has the Commissioner of Lands made a mistake.

26. In normal contractual relationship where an offer has been accepted by conduct, upon payment of the consideration as required, the contract should thereby concluded. Once that has been done, the contractual obligations rest on the parties, free from interference from the whole world. If it concerns a sale of the same land, there is no more land left for sale. In this case the first contract for sale was concluded with the Claimant on 12th February, 2003 and the second one was concluded with the second Defendant on 29th September, 2003, seven months after the first contract. It is amazing to note that officers in the Lands Department had failed in their duty to check the records properly, rather than ignorantly making a fresh and second offer of grant. There should be a collaboration of services among officers to enhance a workable administrative policy blended with transparency and accountability. The system should have a central controlling measure to check on records and files to avoid mishaps, file loss and disgruntles.

27. It does not end there, despite the formal withdrawal of the approved allocation by Mr Dunge, the second Defendant received an offer from the Acting Commissioner of lands himself. There is no evidence that his approved allocation was reinstated. This clearly demonstrated that something fishy and mischievous was going on in the Lands Department. And perhaps breeding and thriving on employees. I have no doubt there could have been influence and interference by the second Defendant as he was a Lands Officer himself. He could have realised his chances and interest was at stake, therefore deliberately acted in defiance of all administrative and decent procedures. Of course he would have knowledge of the progress the Claimant was advancing.

28. In Malaita Development Authority V Marilyn Ganifiri and David Ganifiri, Commissioner of Lands and Registrar of Titles[9] a similar factual situation arose and His lordship Palmer ACJ stated on page 3 para 2.

"A binding agreement thus existed between the commissioner and the Plaintiff. In order for the Commissioner to be able to make a valid offer to the first Defendant, the original agreement would first have to be discharged"

29. In reference to the above case there are number of ways an agreement can be discharged. It can be discharged by accord and satisfaction or by agreement. There is no evidence to show that the agreement between the Commissioner of lands and the Claimant was discharged by virtue of accord and satisfaction or by agreement. There is no evidence that the agreement was discharged by breach and even if that was so the Claimant had accepted it.[10]

30. On page 3 paragraph 4 His Lordship continue and stated;[11]

"The effect of this means the Commissioner had no right in law to make a fresh offer of a grant in respect of Lot 450/A to the first Defendants. He had nothing to offer as to what he initially had, had been divested of his control. The purported offer made by the Commissioner and signed by J.W.Nahge on the 18th December 1996 therefore was nullify. The Commissioner cannot give what it does not have. Acceptance of that invalid offer would have made no difference. The purported grant of the fixed term estate in parcel no.171-001-343 in turn was nullify, based on the mistaken belief that the Commissioner had power to make such grant".

31. A similar situation has arose in this case. It may be due to deliberate influence or collegial priority or ignorant (which I doubt) or other causes whatsoever, the fact is that the purported grant of parcel no.191-032-142 to second Defendant the second time was nullity based on the mistaken belief that the Commissioner had power to make the second grant which by law after the first grant there was nothing left to grant.

Why no grant of fixed term estate lodge on behalf of the Claimant:

32. One wonders why after completing a valid contract of sale, there was no document of grant of fixed term estate in PN.191-032-142 lodged with the Registrar on behalf of the Claimant. Was he failed to pursue after concluding a valid contract, or was he not aware of the processes, or was he ignorant of it all?

33. I noted there are evidence in the second statement by the Claimant filed on 8th December, 2010. After concluding the valid contract Mrs Violet from the Registrar's Office advised the Claimant to check in a couple of weeks. For the next two months the Claimant did check regularly but no title was issued. The Claimant then inquired with Mr Joseph Pinita of the Lands Department about the delay, only to be told that his file was missing and could not be located. Mr Pinita then requested the Claimant to make copies of all the land documents in his possession so that a new file be created and stored in the Lands office. The Claimant did as he was advised. Despite that the land was never registered in his name.

34. About July, 2003, the Claimant again checked with Mr Pinita and he was told that the second Defendant was also interested in the same land, and there was nothing the office could do since the second Defendant was also an officer in the Lands Department.

35. On another occasion in July, 2003, the Claimant returned to the Lands Department to check. The second Defendant then approached him in the car park area and told him not to pursue the land further. The second Defendant then punched the Claimant's head from behind and pulled his hair. The Claimant without retaliation went into the Office and told Mr Hikimae and Mr Pinita of what had happened.

36. Despite that it did not deter the Claimant to give up. For the next five months he sent someone to check and made appointment to see the Commissioner of Lands (Ag) Mr. Likaveke. Eventually the Claimant consulted with Mr. Likaveke and conveyed his plight. Mr Likaveke then suggested to him to refund his monies back rather than assisting. That suggestion was not accepted by the Claimant as he required the land than money.

37. Those allegations against the second Defendant were not rebutted, because having served thrice failed to respond to the claim and had refused to participate in this proceeding.

38. The evidence reveals an amazing attitude of the second Defendant and his colleagues in the Lands Department. The second Defendant's attitude of threat, violence and influence had made it impossible for the Claimant to lodge a grant instrument to register the fixed term estate. The situation prompt me to suggest that the Lands Department required a strong leadership, a leadership that leads by example ensuring all staff are well discipline and are considerate to provide proficiency, effective and honest services which are expected of such important public office. By acknowledging such, is the humble birthplace of authentic servanthood.

39. From the unchallenged evidence the action by the second Defendant was purposely to deter the Claimant from lodging his grant instrument, leaving no option, but him. The question is has the Registrar of Titles aware of the behaviour of the second Defendant. He should with no doubt. The two offices are closed by and located within one boundary. Dissemination of information in a close environment is expected to flow freely and with faster pace.

40. I have no doubt that the Registrar of Titles had prior knowledge of what had been done by the Commissioner of Lands. The Claimant had informed him by his letter of intention to lodge a caveat. By ignoring that and ignoring his knowledge about the interest amount to sheer ignorance of something relevant to the transaction at hand. And that is mistake on behalf of the Registrar. He would have made an enquiry upon lodgement of the caveat. Not necessary with the High Court but with the Commissioner of Lands. Had he done so, he would have versed himself with the real situation. It may not be part of his duty as emphasized in Hwang Shu Fen and Ors V NBSI and Ors[12] which confine to registering of documents and ascertaining whether requirements are met and not to go behind the documents as present to him. However, there is no law that gated him not to do so. In my humble view, it should be seen as part of providing efficient service to people and ensuring he satisfies himself with facts before decided to register the documents, in particular in a situation where prior allegation was received.

41. In the light of evidence I am satisfied there is prove that the second Defendant, being a lands officer himself had knowledge of the mistake. His intention was to derail the progress advanced by his rival, the Claimant, and of course has direct link to the process of registration. Being opted to threat and violence undoubtedly cause the mistake which himself contributed substantially to. It cannot be true to say he was not aware of what was going on in the Registrar's Office. He knew every single step and monitor it with the hope that at end thereof he will acquire registration of the land. It is a calculated approach to deprive the Claimant who had taken time and money to comply with the required processes. In the end he losses out.

Rectification

42. This Court has power under section 229 of the Land and Titles Act to order rectification of the land register where it is satisfied registration had been obtained by mistake. I am satisfied on the evidence before me that registration of PN 191-032-142 in favour of the second Defendant had been done as a result of mistake. It is a proper case that justice requires the register be rectified – see Deptford's case above[13]. Accordingly the purported registration of the second Defendant over the fixed term estate respectfully must be cancelled. In Malaita Development Authority case, His Lordship Palmer ACJ define rectification on page 4 paragraph 4, stated;

"...rectification includes the correction of an error in a register or instrument see Osborn's Concise Law Dictionary sixth edition.. In Black's Law Dictionary sixth edition rectification of register means; In old English Law, the process by which a person whose name is wrongly entered on (or omitted from) a register may compel the keeper of the register to remove (or enter) his name[14].

43. The meaning of rectification, as His Lordship continue is not merely confine to cancellation but correction. Further, section 229 expressly gives power to this Court not merely to cancel but to amend. The meaning of amend includes change, correct or revise (see Black's Law Dictionary). Amend is also define in the Interpretation and General Provisions Act (Cap.85):

"includes repeal, revoke, rescind, cancel, replace, add to or vary and that the doing of any two or more of such things simultaneously in the same Act or instrument[15]

44. I noted there are arguments suggesting this course of action is not appropriate. Other options as judicial review or claim for damages for breach of contract is more relevant. From the outset, in my view, the course of action opted here is more relevant than others. Noting a number of years had elapsed after grant instruments were lodged with eventual registration. For judicial review there is further legal hurdles required. A claim for damages will only confine to part of the full entire case. The case as it is, is pertinent, so that the Court will scrutinize full evidence of the entire process from application to registration.

45. I am satisfied the Claimant is entitled to the declaration sought that he be registered as owner of the fixed term estate in the said land.

Orders of the Court.

(1). Grant order for rectification of the fixed term estate register in PN 191-032-142 on the ground of mistake by having the registration in favour of the Claimant, Mr. Louis Iodanis.

(2). Grant declaration that the Claimant is entitled to lodge grant instruments to have the fixed term estate in PN 191-032-142 registered in his name.

(3). The cost of this case be borne by first defendant.

The Court.

---

^[1] HC-CC 323 of 2000, 5/10/2000, Page 19, para 4.
^[2] Volume 40(2) paragraph 1328.
^[3] [1992] HCA 48; (1992) 109 A.L.R 57, page 12.
^[4] Halsbury’s law Vol 40 (2) para 1328.
^[5] [1951] CL 884
^[6] Unreported, CAP, Civil Case No. 1 of 1995.
^[7] Unreported HCCC No. 331 of 2001.
^[8] Unreported HCSI Civil Case No. 133 of 1997.
^[9] Unreported HCSI Civil Case No. 217 of 2000.
^[10] Ibid
^[11] Ibid
^[12] Unreported HCSI Civil Case No. 364 of 2008
^[13] Ibid.
^[14] Ibid
^[15] Ibid