Folifera v Maomatekwa [2013] SBHC 143; HCSI-CC 91 of 2009 (7 August 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 91 of 2009

BETWEEN:

FERRIS FOLIFERA
Claimant

AND:

CLEVAN MAOMATEKWA
First Defendant

AND:

THE ATTORNEY GENERAL

Second Defendant

DATE OF JUDGMENT: 7 August 2013

Ms. Ramo for Claimant
Mr. Tegavota for Defendant

JUDGMENT

1. Facts. The Claimant and the father of the First Defendant, Late Harold Mamatekwa ("the Deceased"), was the real brother of the Claimant. The Claimant owned a company called Richstone Real Estate Limited ("the company"). The company was managed by Mr. Rex Fera another brother of the Claimant. This company owned a Fixed Term Estate in Parcel Number 191-001-057 ("the land") in Auki. The company became bankrupt and was liquidated. Later the Claimant purchased the land under a contract for $50,000.00 from the Deceased. The Claimant paid $42,000.00 and the balance of $8,000.00 was to be paid upon the execution of the Transfer by the Deceased. The Deceased died before the transfer was signed. The land was later registered in the name of the First Defendant upon the payment of a consideration of $25,000.00 on 23 March 2011.
   
2. Material Agreed Facts. (1) The First Defendant was appointed administrator of the Deceased's Estate. (2) The Commissioner of Lands (COL) granted the Fixed Term Estate in the land to the company on 3 March 2000. (3) Mr. Rex Fera who was the Principal shareholder and Managing Director of the company was adjudged bankrupt on 13 June 2001. (4) The Trustees in bankruptcy of the Company entered into a Contract with the Deceased to purchase the land on March 2005 ("the First Contract"). (5) The Deceased purchased the land from the trustees of the company although title was never registered in the name of the Deceased. (6) The Deceased entered into an MOU dated 8 April 2005 to sale the land to the Claimant at a price of $50,000.00 of which part payments were made by the Claimant ("the second contract"). (7) The Deceased died before signing any transfer instrument with the Claimant. (8) The Deceased's letter of 5 September 2005 appeared to terminate the MOU dated 8 April 2005. (9) the land was registered in the name of the First Defendant since 23 March 2011. (10) The Claimant still occupies the land. (11) The Second Defendant has since resumed the land.
   
3. Claimant's Case. The Claimants case is that the contract between the Claimant and the Deceased dated the 8 April 2005 subsists. It was not revoked by the Deceased's letter on 5 September 2005. This is evident from the Claimant making additional payments towards the price of the land pursuant to that contract. The Claimant had derived ownership of the land subject to registration of the title to the land in his name. The First Defendant as the Administrator of the Deceased's Estate, would have the power to include the land as part of Estate of the Deceased.
   
4. First Defendant's Case. His case is that the First Defendant is neither the lawful owner nor registered owner of the land. The two agreements had been revoked by the Deceased. The First Defendant was never a party to the two agreements and was never a signatory to them. He is not bound by the agreements. That he did not fail, neglected or refused to honour both contracts. That the First Defendant as counter Claimant seeks relief against the Claimant as counter defendant seeks orders as enumerated in his further amended defence and amended counter claim filed on 6 March 2012.
   
5. Law. Sections 109, 110, and 117 of the Land and Titles Act all deal with registered interest on land. Section 215 deals the effect of transmission by death. But the personal representative of the Deceased could not transfer the land to the Claimant because the Deceased has no registered interest over the land before his death.
   
6. Decision. The view of this court is that the land is not liable to be part of the estate of the Deceased, since the title has not been transferred and registered in the name of the Deceased. The court is not satisfied that the First Defendant has committed fraud. There are no particulars and relevant submissions to support issue. The Second Defendant, who represents the Commissioner of Lands, has resumed and granted title to the First Defendant.
   
7. In the circumstances, the court will dismiss this claim with costs. The orders sought by the First Defendant are granted.
   

Order: 1. The Claim is dismissed with costs.
2. The orders sought by the First Defendants are granted.

Order accordingly

THE COURT