Amalo v Attorney General [2017] SBHC 151; HCSI-CC 144 of 2014 (16 January 2017)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Amalo v Attorney General
Citation:
Date of decision:	16 January 2017
Parties:	Patterson Amalo v Attorney General, Li Ping Ma
Date of hearing:	17 October 2016
Court file number(s):	144 of 2014
Jurisdiction:	Civil
Place of delivery:	HCSI- Court Room 1
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. Claimant’s claim dismissed accordingly with costs awarded to all the Defendants on indemnity basis. 2. That Judgment is granted to the fourth defendant in her counter claim. 3. Order that Claimant remove the building encroaching on the fourth Defendant’s land within two months. 4. Order awarding damages to the fourth Defendant to be assessed on a date to be fixed by the Registrar of the High Court.
Representation:	Ms. M Bird for the Claimant Mr. E. Kii for the First to Third Defendant Mr. A. Radclyffe for the fourth Defendant.
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Maneniaru v Attorney General and others, Lodani v Attorney General and others

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 144 of 2014

PATTERSON AMALO
Claimant

v

ATTORNEY GENERAL
(On behalf of the Premier of Western Provincial Government)
First Defendant

ATTORNEY GENERAL
(On behalf of the Western provincial Executive)
Second

ATTORNEY GENERAL
(On behalf of the commissioner of Lands and Registrar of Titles)
Third Defendant

LI PING MA
Fourth Defendant

Date of Hearing: 17 October 2016
Date of Judgment: 16 January 2017

Ms. M Bird for the Claimant
Mr. E. Kii for the First to Third Defendant
Mr. A. Radclyffe for the fourth Defendant.

JUDGMENT

Faukona PJ: An amended claim in category A was filed by the Claimant on 17th November 2014, supported by a sworn statement filed on 15th May 2014. The fact is that it was the same sworn statement was relied on to support the original claim and the amended claim as well. Hence, the date of filing of the sworn statement was earlier than the date of filing of the amended claim. Nevertheless date variance should not bring about any misconception.

2. The claim actually seeks order to rectify the land registry of the lease estate in PN: 097-005-32, on the ground of mistake. The land is situated in Gizo Township in the Western Province.

BACKGROUND FACTS

3. The land being the subject to this dispute was originally registered in the name of Chan Cheung Rendova Trading Company Ltd, sometimes known as RTC. It was a 40 years grant started on 1st July 1950 and was expected to expire on 1st July 1990.
4. During the course of the period, there was an agreement made between Chan Cheung RTC and the Claimants family whereby rights to use and develop the property was vested upon the Claimants family. Certain amounts of money were paid for the two blocks of lands including lot 139 (the disputed land); the amounts totalled up to $3,000.00 and were paid in 1978 and 1983 respectively.
5. After the grant of the fixed term estate expired on 1st July 1990 there was no renewal made.
6. On or about 11th May 2009, the Commissioner of Lands transferred the Perpetual Estate interest of the land to the Premier of Western Provincial Government.
7. On 4th March 2011 the fourth Defendant applied for the land. On 20th April 2011, the Claimant submitted his application for the land.
8. In its Executive meeting of the first and second Defendants on 15th, 18th and 19th July 2011, the Executive resolved to re-tender the land.
9. On 8th September 2011, the Commissioner of Lands advised RTC that consent was given to transfer the land to the Claimant and one Mr. Mathias Amalo; Land rental fee of $850.00 were paid to secure conformity to the consent. The amount was paid a day after consent was given.

10. On the 5th Executive meeting on 21st September 2011, the Executive endorsed to lease the disputed land to the fourth Defendant. In implementing that decision an offer was made to the fourth Defendant on 6th October 2011 and all fees as required were paid on the same date.

11. On 17th January the land was registered in the name of the fourth Defendant.

THE ISSUE

12. The issue in this case is one of registration by mistake pursuant to section 229 of the Land and Title Act.
13. The legal obligation is vested upon a party alleging fraud or mistake (in this case the Claimant) to establish mistake and at the same time to satisfy the court that the mistake cause the registration to occur – see Maneniaru v AG and Others (^[1]). Further, in a definitive manner, the case of Iodani v AG & Others^[2] , stated by defining that “mistake not only signifies a positive belief in the existence of something which does not exist but also may include sheer ignorance of something relevant to the transaction in land”.
14. The question to pause is, is there any hidden agenda existed which the Claimant belief that the first and the second Defendants had wrongly considered which tantamount to mistake which induce them to make an offer to the fourth Defendant. Or is it a sheer ignorance of the rightful processes which led to mistake which this court ought to consider before formulating an order for rectification.
15. In an attempt to establish the allegation of mistake the Claimant relies on three grounds. One is the agreement made between the Claimants and Chan Cheung Rendova Trading Company on 8th October 1978, which gave right to use, develop and occupy the disputed land, hence authorized the Claimant to occupy the land for 30 years.
16. Another ground is that the Provincial Executive had made mistake by abandoning its decision on its 4th meeting to re-tender the land as a commercial site, instead the Provincial Executive made a direct allocation.
17. The third reason is that the Commissioner of lands had advised Chan Cheung RTC to transfer the FTE in PN 097-005-32 and 097-005-082 to the Claimant and another by a letter dated 8th September 2011.

THE AGREEMENT ON 9TH OCTOBER 1978

18. Page 20 of the court book contains a purported agreement of sale executed by Mr William Chan, the Managing Director of RTC and Mr S. Kodovaru, the grandfather of the Claimant. The properties being subject of the purported sale were lots 233 and 139. Pursuant to receipts for payments only lot 233 was completely paid but not lot 139.
19. There are certain aspects noted which in my view has invalidated such purported sale. First that Lot 139 which is subject to this case was not completely purchased, only Lot 233. Secondly, it would be proper if the sale was completed and that the land was transferred to the Claimant’s grandfather when the FTE was yet held by Mr Chan RTC after the last payment was made on 21st May 1983. Unfortunately that cannot be done as far as Lot 139 is concerned because it was never completely paid.
20. This boils down to the next reason relies on, where the letter of 8th September 2011 by the Commissioner of Lands was a consent and approval of the transfer of the fixed term estates to the Claimant and another, having considered previous land dealings and transactions.
21. The fault in that letter is that at that time when it was written, the Commissioner of lands did not own the PE in the land, therefore had no right to consent to transfer the FTE in PN 097-005-32. In fact, the reality is that the PE in the land had been transferred to the Premier on behalf of the Western Provincial Government on 11th May 2009. By that transaction the Commissioner’s letter purported to transfer the interest in the land to the Claimant is ineffective and void. Ignorant by the Claimant of such transfer is immaterial and not a good excuse in law.
22. On that note, it is of significant as well, that at that time of the intended consent to transfer the FTE in the land, Cheung Chan RTC fixed term estate had been expired since 1st July 1990. By 8th September 2011 it did not own the fixed term estate in the land any more. Logically it has nothing left to transfer. Therefore the Claimant cannot rely on the Commissioner’s letter as consent authorizing a transfer of the FTE to him. That is absolutely meaningless and has no legal basis.

RE-TENDERING OF THE LAND

23. The facts reveal that both the Claimant and the fourth Defendant had applied to develop the land and had attached their respective proposed building plans. On the fourth executive meeting held on 15th, 18th and 19th July 2011, the Executive resolved to re-tender PN 097-005-32. However, it is clear that in September 2011 meeting the Provincial Executive had changed their mind and made a direct allocation to the fourth Defendant personally without re-tendering.
24. As the owner of the PE the first Defendant was not legally obliged to put the property out on tender. He can dispose it by other ways and means. He could lease it to whoever he thought fit. He did lease it to the fourth Defendant.
25. In evidence the Claimant said he obtained the title to neighbouring PN 097-005-33 without going through tender process. If tendering was a compulsory process why did it not happen to the Claimant’s case? The fourth Defendant is a bone fide purchaser for value of the interest in the land and is in possession of it.

UNITERRUPTED ADVERSE POSSESSION

26. Arguments related to the issue of uninterrupted adverse possession is quite minimal without any authorities provided. It only surfaces at the submissions. Even so, not as a major point in my view. However, any occupation or possession by the Claimant was only done in accordance with initial agreement with Cheung Hong Chan RTC who consented to such. It would be proper if the Claimant or his grandfather pursue a transfer from Mr Cheung after the last payment was transacted. Nevertheless there would still be defect because the subject land was not fully and completely paid. Therefore acquiring land by prescription for a period of twelve years should have entitled the Claimant to pursue that right from Mr Cheung RTC and not the Commissioner of lands or the first and second Defendants which only received the PE by way of transfer from the Commissioner of Lands on 11th May 2009. To rely on 30 years occupation as uninterrupted adverse possession is not possible. It might be possible with the Commissioner of Lands after Mr Cheung RTC FTE expired in 1990. The Claimant had failed to take necessary steps with Mr Cheung or RTC or the Commissioner of Lands as early as possible.
27. From those reasons, the Claimant’s claim based on assertions advance, including the principle of legitimate expectation must fail. On that basis I must refuse to grant all reliefs sought by the Claimant and grant judgment in favour of the Defendants and more specifically to the fourth Defendant in her counter claim.

ORDERS

(1) Claimant’s claim is dismissed accordingly with costs awarded to all the Defendants on indemnity basis.
(2) That judgment is granted to the fourth Defendant in her counter claim.
(3) Order that Claimant remove the building encroaching on the fourth Defendant’s land within two months.
(4) Order awarding damages to the fourth Defendant to be assessed on a date to be fixed by the Registrar of the High Court.

THE COURT

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^[1] CAC 39 of 2014, para 24 of judgment
^[2] Not Supplied.