Golden Spring International (SI) Ltd v Solomon Islands Resorts Ltd [2016] SBHC 200; HCSI-CC 108 of 2014 (11 November 2016)

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

Civil Case No. 108 of 2014

Between:
Golden Spring International (SI) Limited
Claimant

And:
Solomon Islands Resorts Limited
1^st Defendant

And:
Attorney General
2^nd Defendants

(Representing Commissioner of Lands & Registrar of Titles)

Date of Ruling: 11^th November 2016

Mr. Afeau P for Claimant
Mr. Soma for 1^st Defendant
Mr. Muria J for 2^nd Defendant (sick and no appearance)

RULING

Introduction

The First Defendant is seeking orders under rule 9.75 of the Civil Procedure Rules 2007 (Rules) to strike out the claimant’s amended judicial review claim of the Commissioner of Land’s forfeiture of a fixed-term estate in parcel 191-001-175. The grounds are statute barred and or frivolous and vexatious thus discloses no reasonable cause of action.

Brief Background

The parcel no. 191-001-175 at West Honiara was first granted to Auauaá Industries Limited on 29^th September 1992. The instrument of conveyance at the Schedule contains a Deed. And Clause 4 of the deed requires the owner/claimant to erect a motel related development on the parcel of land.

On 10^th June 1993, the land was transferred to the Claimant for a consideration of $200,000.00.

On 19^th March 2013 the Commissioner of Land issued to the Claimant a Notice Before Forfeiture on fixed-term estate in parcel 191-001-175 followed by to a Notice of Re-entry on 19^th September 2013.

Upon the purported notices before forfeiture and re-entry the Commissioner of Land transferred the fixed term estate no. 191-001-175 to the First Defendant on 26^th March 2014.

On the 17^th April 2014, the Claimant filed Ex parte Application to restrain the 2^nd Defendant to transfer the titles to the first Defendant and other related orders followed by filing of a Judicial Review Claim on 5^th May 2014 and or with amended Judicial Review Claim on 26^th May 2014. By the leave of the court it was further amended on 23^rd July 2015.

The First Defendant on the 15^th October 2015 filed this application under 9.75 under the Rules

Defendant’s Application

The First Defendant argued the claimant had filed a proceeding to the court for the forfeiture outside the required 6 months under the Land and Titles Act (Cap 133) (Act).

As noted from the background and as fact, it was more than six months as required by the Lands and Titles Act i.e. 6 months from October 2013 to March 2014 with 11 days of September 2013 and 13 days of April 2014, makes it more than 6 months.
On that basis the filing of any action or claim by the claimant is out of time, therefore is statute barred and or frivolous and vexatious hence discloses no reasonable cause of action.

Claimant’s respond to the application

The Claimant said that by own act or omission has had its right to:-

(a) apply to the High Court pursuant to section 139 (2) of the Lands and Titles Act for any relief against the forfeiture; and or

(b) apply pursuant to rule 15.3.8 of the Civil Procedure Rules 2007 for a quashing order, extinguished by laches and without any reasonable justification for the delay in commencing the action.

The Claimant further said the application by the first Defendant must be rejected on the ground and among others, the land is not vacant and never been vacant at all relevant times. He said consequently the Commissioner of Lands has no power or authority to his right of forfeiture pursuant to section 136 (2)(b) of the Act right of re-entry and remain in possession of the land. The claimants as the owner and/or its agents were and are in occupation of the land, at the time when the Commissioner purported or allegedly re-entered the land.

Issues

The application is based on time by the claimant to take steps to file relief against forfeiture under the Lands and Titles Act i.e. within six months of the date of re-entry.

And the issue is whether claimant’s proceeding filed the 17^th April 2014 followed by judicial review claim on the forfeiture was taken within the required time or take steps to file relief against forfeiture under the Law.
The Law

The law is quite clear or requirement of the Act for an owner of the land to seek forfeiture relief commences at the date of re-entry. In this case it is the purported date when the commissioner of lands issued or posted the notice of entry to the land.

The applicable provisions are sections 136 – 139 of the Act and simply the Commissioners of Lands has right to forfeit an estate if the owner thereof fails to perform any obligation on his part incident to the estate.
Situations or circumstances under the Act to be occurred that would entitled the Commissioner of lands to exercise the forfeiture of an estate i.e. fail to pay rent and or fail to perform any obligation on the grant of the estate. For this case it is the later.

Section 139 of the Acts basically gives power for owner of the land to apply against whom the Commissioner of Lands is proceeding, by action or re-entry, to enforce his right of forfeiture, may apply to the High Court for relief. It may be so, or provided the application or relief sought is by the within the requirement of subsection (2) of this provision.

The provision under the Act provides for the Forfeiture and for the circumstance of this case it is the Commissioner of Lands’ right to forfeit an estate as the owner fails to perform an obligation...incident to the estate. There are options under section 136 of the Act which the Commissioner can exercise that right by re-entering the land, where neither the owner nor any person claiming through or under him is in occupation; or enforce it by taking action in the High Court.
The Commissioner took an option of re- entry by way of notice sent by post as it is said he exercised his right by re-entering the land.

This option itself may or to my view raises an arguable case on the fact there was no physical possession by the Defendants thus at the instance raises an issue with date of or re-entry on the land.

With this case there is question on possession by the Defendants with date of or re-entry on the land.

Rule 15.3.18 of the Civil Procedure Rules

There are pre-requisites set out in rule 15.3.18 of the Rules to be satisfied on this issue forfeiture.

The claimants as the owner and/or its agents were and are in occupation of the land, at the time when the Commissioner purportedly or allegedly re-entered the land. And further to what has been noted above an alleged or subsequent withdrawal of the Notice before Forfeiture by the Deputy Commissioner of Lands by letter dated 22^nd May 2013. And in all circumstances, the claimant is directly affected by the action of the forfeiture of FTE parcel no. 191-001-175.
These again raises arguable case that must be properly proved on the trail before the court may decide on the decision of the Commissioner of Lands in this matter.

Rule 9.75 (b) of the CPR 2007 (Rules) allows the court to order dismissal of the proceeding if no reasonable cause of action is disclosed by the claim. Strike out claim, and dismissing a case summarily is a drastic action which should be done only in very clear cases where the claim is baseless and does not disclose cause of action. It should be done only where the statement of claim and the ultimate facts asserted therein do not disclose even an arguable case. It is not in the interest of justice that such case should be allowed to proceed.

In Read v Brown (1888) 22 QC at p. 131 Lord Esher MR, has defines “cause of action” as every fact which it would be necessary for the claim to prove, if traversed, in every order to support his right to the judgment of the court. It does not compromise every piece of every evidences which necessary to prove each fact which is necessary to be proved.

The cause of action has two components with or must be a right which is given by law, such as, entitlement to reasonable damages for breach of human right under the Constitution and referred to as the form of action. Secondly, the pleading must disclose all the necessary facts which give rise to the form of action.

In simple terms, the principle established by Read v Brown case is that a cause of action exists where there is a right recognised in law and right has been violated. It is the violation of that right which gives rise to the remedy being sought. But the pleading must disclose all the necessary facts which gave rise to the remedy. In other words, remedy sought must be supported by facts pleaded. Where no facts have been pleaded in support, or where the facts pleaded do not support the remedy sought, there is no cause of action

It is not wise to determine the issue relates to statute barred of this claim with the current pleadings, and at this stage taking note of the method employed by the Commissioner of Lands to re- enter the parcel no. 191-001-175 and so on. And in all respect it is more favourable to allow the Claimant to proceed with their claim against the forfeiture at the trail.

From the reasons as I have stated above this claim must go on trial and therefore the application to strike out the judicial review claim is refused.

ORDERS

1. The application is refused,
   
2. The case be listed for directions on 23^rd November 2016
   
3. Cost in the cause
   

The Court

.............................
Maina LR
PJ