Palmer v GRP & Associates Ltd [2014] SBHC 9; HCSI-CC 431 of 2009 (12 February 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 431 of 2009

BETWEEN :

LEONARD SCOTT PALMER
Claimant

AND:

GRP & ASSOCIATES LIMITED
First Defendant

AND:

MICHAEL EDWARD HEMMER
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 18, 19 August 2012 and 17 October 2012
Date of Oral Judgment: 10 June 2013
Date of Reasons for Judgment: 12 February 2014

Messrs John Sullivan QC and John Katahanas for the Claimant.
Mr. Andrew Radclyffe for the First and Second Defendants.
No appearance for the Third Defendant by consent.

REASONS FOR JUDGMENTS

1. This claim was filed on 3 November 2009 and the court gave oral judgment in favour of the Claimant on 10 June 2013. The First Defendant is a company registered in Solomon Islands carrying on business of fuel deport Managers under the direction of the Second Defendant who is a businessman. The Third Defendant is jointed to represent the Commissioner of Lands, the Surveyor General and the Registrar of Titles who by nature of these proceedings are interested parties. The Claimant represents himself and his brother, Phillip David Palmer ("Palmer"), who died on February 2010.
   
2. The Commissioner of Lands granted Fixed Estimate in Parcel Number 097-004-18 ("the Estate") to Palmer and the Claimant's father, Ernest Ambrose Palmer at Gizo, Western Province, on 24 April 1975. The term of the Estate is 42 years from 1 January 1975. The area of the Estate is approximately 3.6642 hectors and is situated at the hill top. On 4 December 1986, Palmer and the Claimant became joint registered owners of the estate by transmission and transfer.
   
3. On 15 March 1995, the Second Defendant on behalf of the First Defendant and Palmer signed a Lease Agreement ("Exhibit 38"). The lessor was Palmer and the lessee was the First Defendant. Under this agreement, Palmer "will let certain specified areas of the Estate in perpetuity for use and development by the Second Defendant". There is no mention on the period of lease in that agreement.
   
4. On 18 September 2003, Palmer and the Claimant and the Second Defendant on behalf of the First Defendant signed a Transfer agreement ("Exh.19"). In that agreement, Palmer and the Claimant were the Transferors and the First Defendant was the transferee. In that agreement Palmer and Claimant agreed to subdivide the Estate into 3 lots and to transfer one of lots to the First Defendant. The consideration in the agreement was a debt of $68,617.55 owed by Palmer and the Claimant to the First Defendant. Although the agreement was signed on 18 September 2003, no stamp duty was paid on it until 9 November 2009.
   
5. On the same day of 18 September 2003, the Second Defendant prepared a letter ("Exh. 20") for Palmer and the Claimant to the Commissioner of Lands. In that letter they acknowledged that they were the registered owners of the Estate and have agreed to sell part of the Estate to the First Defendant. Further, they also appointed the Second Defendant to act as their agent to deal with the subdivision, survey and other matters to effect subdivision and transfer of part of the Estate to the First Defendant.
   
6. The Second Defendant made an application to the Western Provincial Government Town and Country Planning Board ("the Board") to construct a residential dwelling on the Estate prior to its first meeting on 7 February 1995. The Board approved the application, but advised the Second Defendant in a letter ("Exh.37") that he would have to have a written agreement between himself and Palmer as the land owner. The Second Defendant sent a copy of Exhibit 38 to the Senior Physical Planner (Ag) but was advised that there was no mention of the lease period in the agreement.
   
7. On 29 September 2003, the Second Defendant wrote a letter ("Exh.54") to the lands officer at Gizo, enclosing documents. In that letter, he said that the registered owners of the estate have agreed to subdivide their Estate. He stated that the Palmers have appointed him as their agent in relation to the Estate. He went on to say that, he wanted the subdivision of the Estate to be done quickly. He enclosed a copy of the agreement of 18 September 2003 ("Exh.19), a copy of the Fixed –Term register of the Estate and a sketch of a piece of land marked B, located within the Estate at the top of the hill where he now has a residential house.
   
8. The vital documents in this case are the written Agreements of 1995 (Exh.38) and 18 September 2003 ("Exh.19"). It is clear from the evidence that all agreements and the letter of 18 September 2003 ("Exh.20") were prepared by the Second Defendant. The court will now proceed to consider each of the Agreements to decide their nature and effect in law.
   
9. First, the Agreement of 1995 (Exh.38). The back ground to this Agreement is that the Second Defendant made an application to build a residential dwelling on the Estate to the Western Province town and country planning Board. Although the board approved the application, it required a written agreement between Palmer as owner of the estate and the Second Defendant. The Second Defendant then signed that Agreement with Palmer on 15 March 1995. The Second Defendant submitted a copy of it to the Board. On 27 April 1995, the Senior Physical Planner wrote a letter ("Exh.39) to the Second Defendant pointing out that there was no mention of the lease period in the agreement before a building permit is issued. The Second Defendant failed to fulfil that requirement to date. There is no room for the Claimant to rely on an oral agreement in view of the requirement by the Board and as well in law in relation to Leases, which require the period of leases to be specified in an agreement.
   
10. The Claimant was not a party and signatory to the agreement of 1995 (Exh. 38). In this country where two or more persons are joint owners of a registered interest in land, a disposition of the interest must be made by all joint owners pursuant to Section 200 (2) of the Land and Titles Act (Cap.133) ("LTA"). The period of lease must be definite. This rule is stated in G.G. cheshere's-Modern Law of Real Property 11th Edition, at page 370. "The period must be Definite. Though a lease may be limited to endure for any specific number of years, however many, it cannot be limited in perpetuity. The term must be for a definite period in the sense that it must have a certain beginning and a certain ending". This court finds that the 1995 Agreement (Exh. 38) to be inadmissible in Law. Section 9 of the Stamp Duties Act (cap. 126) states: "9. No document executed in Solomon Islands or relating, wheresoever executed, to any property situated in the Solomon Islands or to any matter or thing done in Solomon Islands except in civil proceedings by a collector to recover any duty or penalty under this Act, be pleaded or given in evidence or admitted to be good, useful or available in law or equality unless it is duly stamped in accordance with the law in force at the time when it was first executed." This Agreement relates to registered land situated in this country.
    
11. The Agreement dated 18 September 2003 (Exh.19) relates to land or property situated in Solomon Islands. It was sent to the Lands Officer at Gizo on 29 September 2003 by the Second Defendant. It was signed by the Second Defendant on behalf of the First Defendant. The Claimant denied executing the Agreement. His signature on the agreement was very different from his normal signatures in documents before the court. This document was merely stamped on 9 November 2009 after this case has been filed. It should have been filed before the claim was filed. The view of this court that this document is inadmissible within section 9 of the Stamp Duties Act and has no effect in law. The court relies on Austree Enterprises Pty Ltd and Zhong Wu Zhon and others SICOA Case No. 7 of 2012. The court finds Agreements of 1995 (Exh. 38) and 18 September 2003 (Exh.19) have no force in law and are inadmissible as evidence in this case.
    

In the result that the oral judgment of 10 June 2013 and the orders there under remain in favour of the Claimant. Accordingly, order that the First and Second Defendants pay the Claimant's cost in these entire proceedings. Order accordingly.

THE COURT