Yeo v Iromea [2017] SBHC 142; HCSI-CC 374 of 2012 (12 May 2017)

LYDIA YEO AND HYMIN YEO -V- STEPHEN SETI IROMEA
(Claimants) (AKA JOHN SETI IROMEA)

AND JOHN SETI ROFETA JUNIOR AND OTHERS

(Defendants)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No.374 of 2012

Date of Hearing: 29 March 2017
Date of Judgment: 12 May 2017

Mr. B. Upwe for Claimant
Ms. K. Kohata for 1^st Defendant
Mrs. L. Fineanganofo for 2^nd Defendant

Judgment in relation to registered owners application for possession against previous owners.

Brown J:

By Category C Claim, reliant on registration as owners by transfer from the defendants for valuable consideration of Fixed Term Estate 192-007-165, the claimants seek an order for vacant possession of the property as well as mesne profits for continued occupation together with a restraining order directed against the defendants’ intimidation of the claimants.

The claim was instituted in October 2012. By amended defence and counterclaim, the 1^st defendants, Stephen Seti Iromea (Aka John Seti Iromea) and John Seti Rofeta (Jnr) seek an order rectifying the title to the property on the ground of mistake or fraud for that the purported sale agreement of the property by the defendant Stephen Seti Iromea (Iromea) acted in equity to server the joint Tenancy for the said John Seti Rofeta (Rofeta) was not a party to the agreement or the transfer of the subject land to the claimants.

Rectification by recognition of Rofeta’s right to an undivided one half share as tenant in common with the claimants is pleaded by way of counter claim, the defence for reasons particularised, denies any right in the claimants for any part of the relief sought.

Prior to registration of the transfer on the 1 December 2011, Iromea and Rofeta were registered owners following acquisition on first registration from the Commissioner of Lands by Grant on 8 January 2008.

It is convenient to set out the particulars of facts on which these 1^st defendants rely for they state the events giving rise to the registration of these claimant’s as owners on the title register to the land and why mistake or fraud contributed to that registration. On the defendants’ case the argument relies wholly on one of fraud, for the transfer, it is alleged was not executed by the transferors, yet accepted by the transferees in full knowledge of that fact.

“Particulars

1. At all the relevant times the said John Seti Rofeta Iromea (Jr) has never consented to the sale of the land to the Claimants by his father Stephen Seti Iromea and:
2. Has never consented and signed the purported agreement of sale signed by his father;

100. The signature on the said agreement was not that of John Seti Rofeta Iromea (Jr) but that of his other brother named Martin who signed without the consent of the said John Seti Rofeta Iromea(Jr) at the instigation of the said Claimants and their servants or agents;

4. In the first place, Stephen Seti Iromea signed in the place of the said John Seti Rofeta (Jr) even without the knowledge and consent of the said John Seti Rofeta Iromea (Jr.);
5. That signature was again crossed and signed by the said Martin without the knowledge and consent of the said John Seti Rofeta Iromea (Jr.) on another date and in the absence of either Stephen Seti Iromea or John Seti Rofeta Iromea.”
6. Both defendants have never signed any transfer documents to transfer the land to the Claimants and their signatures have been signed by persons other than the defendants.”
   

In support of the claimants’ case, Mr. Upwe of counsel, read the supporting statements of Lydia Yeo, Michael Reola and Gwen Tanto.

Their statements were read in support of the Claim and the Amended Reply and Defence to counter claim filed on 16 July 2013 (page 15 of the Court Book).

Before going to the claimants’ case, the agreed facts accept the claimants as the joint registered owners of the fixed term estate as evidenced by the copy Land Register of fixed term estates. Prior to registration of the transfer documents, the 1^st defendants were joint owners of the property at Burns Creek, Honiara.

To address the claims of mistake and fraud alleged by the defendants in their defence, the amended reply by the claimants recites that Iromea, (the father of Rofeta) transferred the estate for valuable consideration “with the full knowledge, consent and participation of” Rofeta. The claimants allege that Iromae with the full knowledge and consent of Rofeta, offered the property for sale and on the 14 September 2011 signed a sale purchase agreement in respect of Fixed Term Estate Parcel no. 192-007-165. By amended reply, at (3), the claimants admits not knowing Rofeta but say that Iromea presented “someone whom he identified as his son, the defendant (Rofeta) and witnessed (the agreement) accordingly by the said Michael Riole.”

A deposit was paid in the sum of $ 3,500 and at (5) “on the 12 May 2012, the claimant paid to and the defendant (Rofeta) together with his father, the defendant (Iromea) and brother Martin Asilaua did receive from the claimant for their benefit the sum of
$ 38,550 as full and final settlement of the transfer consideration” for the property.

Since the agreed facts acknowledge the joint ownership of both Iromea and Rofeta, it stands to reason that both need agree to the sale which needs be evidenced in writing. Section 4 of the Statute of Frauds [UK] provides;-
“ No action shall be brought ..., whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; ..., or upon any contract or sale of lands, tenements or hereditaments, or any other interest in or concerning them; ..., unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.”
[Law of Property Act 1925 {15 & 16 Geo. V, c. 20} s. 40[1].

To support their case the claimants have filed the sworn statement of the witness to the sale agreement, Michael Riola.
By statement filed on 21 August 2015, (at 100 of the Court Book) Riola says he witnesses the sale agreement but confusingly says both Iromea and Rofeta were present (paragraph 4) at the signing, yet (at paragraph 5) says only Martin Asilaua and not Rofeta, were at the signing,.

Whilst Riola says these people are his relatives and all live at Burns Creek, and he made no mistake in their identity, it is clear he did not witness Rofeta’s signature to the sale agreement for Rofeta was not present. Nor did he annex the contract for sale as he deposed, although an agreement was annexed to the statement of Gweneth Tauto’o who also gave evidence in support of the claimants.

Gweneth Tauto’o statement, (page 103 -107 of the Court Book) apart from her opinions and hear-say on matters in the statement, recites that she witnessed an agreement (annexed to her statement) between Iromea and Rofeta “ to vacate the Lot 802 within parcel 192-007-165 locate at Burns Creek” she said, at 6: “ I recognized them as owners of the said land because they came in several times before to meet with my boss- Lydia Yeo when they initially started to negotiate for the sale of their land at Burns Creek to Lydia Yeo”
This was not the sale agreement.
I am not willing to accept her evidence as proof those persons she saw were in fact the “owners” of the land in question on the basis of her unsupported assertions about them coming in several times before, nor that she knew them to be those two persons she wholly named in her statement, for no-where had she said, for instance they had introduced themselves to her by those full names; rather her statement would appear rather to be a series of presumptions as a consequence of relationship with her employer, one of the claimants, and her understanding of the material contained in the document with her name as witness. She wholly omits to mention one “Martin Asilaua” who was also is named as a Vendor in the document, not the sales agreement, but a later document dealing with an agreement to vacate. This annexed document, with the stamp of the Commissioner of Stamp Duties for the nominal amount of duty, $ 100 is set out:^[1]
“Agreement Promised to vacate the lot 802 within PN -192-007-0165
This promised is made on 12^th May 2012.
By Vendors
Stephen Seti Iromea, John Seti Rofeta Junior and Martin Asilaua of Burns Creek.
They Promised:

1. On 12^th May 2012 they received $ 38,550.00 complete payment for lot-802 within 192-0165 and properties stated in the first agreement.
2. To leave the said land within one month (12^th May – 12^th June 2012) commences on the day sign this agreement.

100. The fence to be constructed as the demarcation of boundary line as soon as possible.

Vendors signed”

1. Stephen Seti Iromea ( indeaperable handwriting )
2. John Seti Rofeta Junior (indecipherable handwriting)
3. Martin Asilaua (indecipherable handwriting)

Witness Signed:
Gweneth Tauto’o (indecipherable handwriting)
Jonathan Aba
Date: 12/5/2012
Witness- Allan S (indecipherable handwriting)”

The “first agreement” referred to is presumably the contract for sale, item (5) Part 1, Schedule 1 of the claimants sworn list of documents (page 44 of the Court Book) is “copy agreement for sale and purchase of real estate.”
By her statement filed 13 August 2015 (page 79-court Book) she annexed a true copy of the purchase agreement dated the 20 December 2010, signed on the 14 September 2011.

The purchase price was to be $ 50,000. The annexure, “Exhibit LY 1” is headed “Agreement for the sale and purchase of Real Estate”.

It bears no stamp of the Commissioner of Stamp Duties. In accordance with section 9 of the Act (Cap 126) the document may not be used in evidence in Court proceedings.
“ No document executed in Solomon Islands or relating, wheresoever executed, to any property situate in Solomon Islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings and 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 equity unless it is duly stamped in accordance with the law in force at the time when it was first executed.”
Section 204 of the Land and Titles Act also applies.

The document, “agreement promised to vacate the lot 802 within PN 192-007-0165” with its nominal duty stamp, specifically refers to “payment for lot-802 within 192-0165 and properties stated in the first agreement” and does not nor can be construed to be an agreement for sale of land or a note or memorandum sufficient to be construed as such an agreement. In any event it does not have duty paid beyond that nominal amount for a plain agreement.

The first and second issues for determination (18 of Court book) relate to whether or not Rofeta consented to the sale of the property and whether he had consequently signed the agreement for sale.

The failure to have stamped the contract for sale and the consequent effect on its evidentiary purpose to satisfy the requirements of the Land & Titles Act, a purpose relied upon by the claimants in reply to the defences of mistake or fraud (S.229 of the Land & Titles Act) raised by the defendants, effectively undermines their reliance on S.110 of the Land and Title Act (“The rights of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-
(a). to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by the Act; and
(b). to such liabilities, rights and interests as affect the same and are declared by section 114 (which relates to overriding interests) not to require noting in the register:
Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.”

While the statement of Martin Asilaua filed on the 27 August 2014^[2] on the defendants’ behalf says, at paragraph 1 and 2
“1. That Ms Lydia Yeo gave me the sum of $ 3500.00 after she had given my father Stephen Seti Iromea the money.
2. Every time I see her she would give me $100.00 or so forcing me to sign the agreement dated 14/9/2011. This is usually when I visit her at Perch school. Ms. Yeo picked me up at home and they went down to Nicky’s Fast bar, she gave him $3500.00 and told me to sign on behalf of John Rofeta. She told me that it would be alright. I took the money before I signed. We signed the agreement at Nicky’s. There was no one else there with us.” and at paragraph 5: “I never signed the transfer document. I only signed one document and that was the agreement” , it is plain he is referring to the contract for sale dated 14 September 2011. He had no part in the agreement for sale of land since he was not a party, nether a vendor nor purchaser. By sworn statement, Michael Riola says Martin Asilaua signed the agreement and he witness it.
Rofeta was not present.

Had the document of the 14 September been stamped, it may well have become the focus of the issues 1 & 2 for determination. On the evidence as it stands, it is probable Rofeta neither agreed to the sale nor signed the contract for sale so long after it had been prepared in December 2010 but dated 14 September 2011.

The document, however, is not in evidence. It must follow that the requirements of the Statute of Frauds in relation to the agreement for sale having been evidenced by a note or memorandum have not been complied with and the basis for seeking any equitable relief, as a registered owner, relied upon by the claimants, is absent.

In the face of the denial by Rofeta to having signed the instrument of transfer whereby the claimants became registered on the title, and apparently reliant upon and entitled to the protection afforded them by S.110 of the Land and Title Act, it is necessary to look to the instrument^[3] to be satisfied the safeguards incorporated into the Act to ensure, if possible, the persons able to sign (eg, the owners as transferors) have been properly identified.

In this case the persons named as having identified both the transferors and transferees have their names written in long hand, so poorly that they cannot be properly made out. Their addresses are not on the instrument. They have not been called in evidence to have the fact of their signature to the instrument affirmed nor the basis of their knowledge of identity of these particular individuals. Since it is a material issue, the onus of proof rests with the claimants to prove on the balance of probabilities compliance with the statute, if indefeasibility of title is to follow.

By notes-6, on page 4 of the instrument^[4] authorized officers able of certify satisfaction in relation to the necessity to properly identify the parties to the transaction (going to prevent mistaken or fraudulent dealing in land) are referred to by naming those listed in Regulation 8 of the Land and Titles General Regulations. On the instrument document, what appears to be an initial is written above the words, “An Authorised Officer.” No seal or stamp or title of Authorised Officer has been affixed adjacent, as required, to the initial on the document. Section 203 of the Land and Titles Act has not been satisfied. These are material omissions of such significant as to vitiate the execution by the parties to the transfer.

The instrument of transfer does not satisfy the form of instrument required by S.201 of the Land and Titles Act. [See S.229 of the Land and Titles Act]. I am satisfied the claimants had knowledge of such omissions in the instrument of transfer [S. 229(2)] and consequently registration of the transfer had been mistakenly effected by the Registrar of Titles. The Court does not intend to enter upon any question concerning the fraud alleged in the alternative by the defendants since, while there is evidence going to the question, on the facts found omission in terms of S.229 of the Land and Titles Act has been proven.

Whilst the defendants, by 6 of the Counter Claim^[5] only seek rectification by the Registrar of Titles to the effect that the property be held as to an undivided share by claimants and the other undivided share by Rofeta, it is for the reasons given incumbent on this Court to make orders for rectification wholly in favour of the defendants. Mistakes underly both the purported sale document and the transfer instrument, and cannot be distinguished in the manner pleaded by the defendants since the court is obliged, having found facts, to apply the law to such findings.

The Court also accepts the Counter Claim at 19^[6] and finds against the claimants in relation to their claim for possession.

The defendants shall have their costs on the 3^rd schedule basis.
I order rectification by the Registrar of Titles to correct the mistaken registration of the instrument of transfer by having the registration of the transfer to the Claimants as owners of Fixed Term Estate parcel no. 192-007-165 cancelled.

__________________
BROWN J

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^[1] Court Book 107
^[2] Court Book page 76-77
^[3] Court Book page 120-123
^[4] Court Book page 123
^[5] Court Book page 14
^[6] Court Book page 19