Jack v Commissioner of Lands [2016] SBHC 129; HCSI-CC 12 of 2014 (4 August 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 12 of 2014

BETWEEN: WOO FON JACK - Claimant

AND: COMMISSIONER OF LANDS - 1^st Defendant

AND: BRUNO OIGA - 2^nd Defendant

Date of Ruling: 4^th August 2016

Andrew Radclyffe for Claimant
No appearance for the Defendants

JUDGMENT

Maina PJ:

Introduction

The claimant is seeking the declarations of the Court on the forfeiture and re-entry issued by the 1^st defendant on Parcel Nos 191-025-83 and 191-025-126 are void. And he seeks rectification of the titles of the said parcels in favour of the claimant on the ground of mistake. The claimant seeks the following declarations:

1. A declaration that the notices before forfeiture and notices of re-entry are void;
   
2. Relief against forfeiture of fixed term estates in Parcel Nos 191-025-83 and 191-025-126;
   
3. Rectification of the register for the said fixed term estates in favour of the Claimant on the ground of mistake;
   
4. An order for possession of the said parcels;
   
5. Such further or other relief as the court thinks fit; and
   
6. Cost.
   

Brief Background

The claimant were granted fixed term estates for 50 years from 1^st January 1995 of Parcel No. 191-025-83 and 50 years from 1^st January 1995 of Parcel No. 191-025-126. The parcels of land are charged to the ANZ Banking Corporation.

The claimant went overseas and was away from about 23^rd April to November 2013. On his return he checked his Post Office Box (P.O. Box 863) on 26^th November 2013 and found a registered mail card. The card was dated 10^th October 2013 and showed that claimant had 4 registered articles were available for collection. The receipt numbers of the registered articles were 930, 931, 932 and 933.

The claimant collected the 4 registered envelopes and when he opened them, they contained the following documents from the defendant:

1. a notice before forfeiture for Parcel No. 191-025-83 dated 12^th February;
   
2. a notice before forfeiture for Parcel No. 191-025-126 dated 7^th February 2013;
   
3. a notice of re-entry for Parcel No. 191-025-83 dated 14^th May 2013: and
   
4. a notice of re-entry for Parcel No. 191-025-126 dated 10^th May 2013.
   

The first defendant filed a defence and denied the claim. At the trial date of the case neither the defendants nor their counsels attended.

The issue

This is the case that questions the power of the Commissioner of Lands when he forfeited and re-entered the Parcel Nos. 191-025-83 and 191-025-126. And the issue is whether the Commissioner of Lands properly forfeited and re-entered the two fixed term estates of the claimant.

The Law

The Commissioner of Lands has power to forfeit and re-enter an estate under the Lands and Titles Act. And section 136 of the Act states the Commissioner shall have the right to forfeit an estate on failure by the owner to pay rent when it is becoming due or to perform any obligation on his part incident to the estate.
Also section 138 of the Act states the Commissioner shall not be entitled to exercise right of forfeiture until he has served on the owner of the estate and on every other person shown by the land register to be interested a notice. And the notice must specify the particular breach complained of.

The Court

The Commissioner of Land’s notices before forfeiture of the two parcels of land was dated 12^th February 2013 and 7^th February 2013. The notices stated that the claimant had not erected on the lands to the satisfactory of the grantor a building for commercial purposes and related matters. There is nothing further of the breach from the Commissioner of Lands on the notices.

There are two situations or circumstances under the Act if occurred would entitled the Commissioner of Lands to exercise the forfeiture of an estate i.e fail to pay rent and fail to perform any obligation on the grant of the estate.

With the later situation for the claimant, the annual land rent for 2013 and the previous years for the two parcels were paid or the First Defendant accepted the payments. And on the former situation, the claimant had developed the lands by constructing a two story commercial premises. A photo of the premises was exhibited or produced in the court. And according to the sworn statement of the claimant and documentary evidences the premises were destroyed in the China Town riot. Some other properties of the claimant in China Town were also destroyed in the riot. Claimant concentrated his effort and finance to rebuild them.

On that, it is clear that the claimant had acted or complied and met the requirement of the Grantor except that the commercial premises built by the claimant were destroyed during the China Town riot. An act or cause that destroyed the premises was beyond the claimant’s control.

For this case, the Commissioner of Lands in his purported notices did not specify the particular breach complained of than just stated that the claimant had not erected on the lands to the satisfactory of the grantor a building for commercial purposes and related matters. However these notices did not contain the information or does not satisfactorily show or describe the related matters that were breach by the claimant and to the requirement of sections 136 and 138 of the Lands and Title Act.

On that basis, there is no evidence to show that the complaint had breach the terms and conditions of the grant to lease the Parcel Nos 191-025-83 and 191-025-126.

And or further the purported the notices before forfeiture of Parcel Nos 191-025-83 dated 12^th February 2013 and 191-025-126 dated 7^th February 2013 were said to be posted by registered mails.

The claimant prior to his departure from Solomon Islands on or about 23^rd April 2013 checked his Post Office box but no registered mail card or registered mail envelopes from the defendant were sent to him in 2013 before his departure.

There is an evidence from claimant and shown by the copies of registered mail receipts or documents used and presented to the court, the receipt numbers of the 4 registered envelopes are consecutive (930, 931, 932 and 933) which indicates they were not posted in February and May 2013 but several months later after the alleged dates and were sent to claimant at the same time, in October 2013.

And lastly the parcels of land are charged to the ANZ Banking Corporation but no notices before forfeiture was issued or served them as also required by section 138 of the Land and Titles Act.

It is clear or the evidences bring out to surface the mistake or flaw in this case. It was not done with due diligences on part of the Commissioner of Lands in his dealings and according to the requirement of law.

I am satisfied and accordingly granted all the declarations sought by the claimant. The notices before the forfeitures and notices of re-entry are null and void.

ORDERS

1. The declarations sought in 1, 2, 3 and 4 is granted to the claimant.
   
2. Cost is awarded to the claimant on indemnity basis.
   
3. No further orders.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge