Kii and Sons Construction Company Ltd v Vuvula Poultry Ltd [2017] SBHC 17; HCSI-CC 264 of 2013 (16 March 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 264 of 2013

BETWEEN: KII AND SONS CONSTRUCTION COMPANY Claimant
LIMITED
(Company No: 201221136)

AND: VUVULA POULTRY LIMITED First Defendant

AND: COMMISSIONER OF LANDS Second Defendant

AND: REGISTRA OF TITLES Third Defendant

AND: ATTORNEY-GENERAL Fourth Defendant

CIVIL CASE NO. 351 OF 2013

BETWEEN: WINNER PROPERTIES LIMITED Claimant

AND: ATTORNEY-GENERAL
(On behalf of the Commissioner of Lands) First
Defendant

AND: VUVULA POULTRY LIMITED Second Defendant

CIVIL CASE NO. 133 OF 2016

BETWEEN: ANTHONY CHEE MING WONG Claimant

AND: VUVULA POULTY LIMITED Frist Defendant

AND: ATTORNEY-GENERAL Second (As representing Commissioner of Lands) Defendant

AND: ATTORNEY-GENERAL Third
(As representing the Registrar of titles) Defendant

Mr G. Suri for the Claimant in Civil No. 264 of 2013
Mrs C. Ziru for the Claimant in Civil Case No. 351 of 2013
Mr C. Hapa for the Claimant in Civil Case No. 133 of 2016
Mr A. Radclyffe for Vuvula Poultry Limited, First Defendant in CC No.264 of 2013, Third Defendant in CC No.351 of 2013 & First Defendant in CC No.133 of 2016
Mr S. Banuve for Attorney General representing Second and Third Defendants
in CC No.264 of 2013, First and Second Defendants in CC No. 351 of 2013 and Second and Third Defendants in CC No. 133 of 2016

Date of Hearing: 5^th November 2016, 8^th December 2016, 9^th December 2016

Date of Judgment: 16^th March 2017

JUDGMENT

Faukona, PJ: There are three separate claims filed in this Court. One is a claim for judicial review filed by Kii and Sons Construction Company, the second one is an amended claim in category B filed by Winner Properties Limited and third one is a claim in category A filed by Anthony Chee Ming Wong.

2.	By orders of 11th April 2016 all the Civil Cases were to be consolidated. The Basic reasons were because they emerged from one cause of action and they concerned the same two Fixed Term Estates in PN-191-037-40 (Lot 3122) and PN-191-037-41 (Lot 3123). The two parcels of land are located at Kukum in Honiara.
3.	Previously the FTE in the parcel numbers were registered in the name of Winner Properties Limited, the Claimant in Civil Case No. 351 of 2013. That registration occurred on 29th August 2002.
4.	At present the two parcel numbers are registered in the name of Vuvula Poultry Limited one of the Defendants in all the cases.
5.	As time went on the Claimant in Civil Case No. 351 of 2013, Winner Properties Limited, failed to honour clause 6 of the first schedule of the grant instrument which required that within 24 months the grantee (the Claimant) erected on both lands, to the satisfaction of the grantor, a building for business or commercial purposes. Having failed to construct a commercial building of the required value, the Commissioner of lands then issued notice before forfeiture to Winner Properties Limited on 13th December 2012.
6.	The notice at paragraph 5 warned should the notice was not complied with in three (3) months the Commissioner of Lands will exercise its powers under Section 136 of the Lands and Titles Act and forfeit the fixed term estates in both parcels of land.
7.	On 11th April 2013 a notice of re-entry was issued to Winner Properties Limited in regards to PN 191-037-040. A similar notice was issued in regards to PN-191-03-041 on 24th April 2013.
8.	In respect of PN 191-037-40 Mr Eddie Waneolofia endorsed as a witness who put up a notice of re-entry on specific forfeited site. With PN-191-037-041 Mr Augustine Houha’aoli endorsed that he posted the notice of re-entry on the parcel number.
9.	Before the notice for forfeiture was issued on 13th December 2012, there were three applications for the two lands already being filed with the Commissioner of Lands. Vuvula’s application was submitted to the Commissioner of Lands on 6th March 2012, Kii & Sons application was dated 1st July 2012 and Anthony Wong’s application was dated 5th July 2012.
10.	Two concepts can be noted at the initial stage; one that the applicants would have had prior knowledge that Winner Properties Limited had failed to comply with the covenant to develop within 24 months; Secondly with three applications on foot, would have motivated the Commissioner of Lands to issue notice of re-entry to Winner Properties Limited. Whether those applications had played and entertained with force is a non-issue.
11.	By letter dated 25th April 2013 the first Defendant’s application was accepted and an offer for the two parcels of lands was made on 26th April 2013. The first Defendant responded by accepting the offer and paid the premiums, land rents and other fees totalling $153,192.40 on 29th April 2013.
12.	On 24th April 2013 a letter of offer by the Commissioner of Lands was made to the Claimant in Civil Case No. 264 of 2013; in respect to Lot 3123 PN 191-037-41 only. Despite an offer made for one parcel number the Claimant had paid fees of $21,141.00 for each of the two lands including Lot 3122 PN 191-037-40.
13.	So far as the application by Mr Wong is concerned, there was no offer ever made to him. Therefore his case should fall on its face.
14.	It would appear that the Claimant in Civil Case No. 264 of 2013, Vuvula Poultry Limited and the Claimant in Civil Case No. 133 of 2016 had applied for the same parcel numbers before the process of forfeiture commenced. It is not new or strange that several applicants can apply for the same lots of lands with the same parcel numbers. Practically, the Commissioner of Lands had the discretion to exercise in determining who he should make an offer to. Of course he can’t make an offer to two different persons over the same parcel numbers, even at different times.
15.	If such situation arises, what would be the best option to deal with? The Court has jurisdiction to entertain, however, can only rely on the evidence available before it to justify its decision.
	Process of forfeiture:
16. 17.	Section 136(1) spells out the Commissioner’s right of forfeiture in two circumstances. One that the owner fails to pay any rent incident to the estate or secondly that the owner fails to perform any obligation on his part. Any of the two is breached by the owner the Commissioner will intervene and exercise his rights of forfeiture. This case concerns the second failure. There are arguments that the process of forfeiture was not fully completed. I noted, notices before forfeiture had been issued pursuant to Section 138 of the Land and Titles Act. The reasons for issuant of such notices were also given. An option to remedy the breach was also given which Counsel for Mr Wong had exercised by writing a letter to the Commissioner of Lands. As a result, the Commissioner on 7th March 2013 wrote to the Registrar of Titles informing him that forfeiture notices on 13th December 2012 were withdrawn. That paved the way for payment of non-development fee of $24,250.00 on 7th March 2013, and that variation documents disclosed were to be registered. Unfortunately those documents were not registered and hence returned to the Commissioner of Lands by letter dated 13th August 2013.
18.	Despite issuant of the withdrawal letter on 7th March 2013, and before withdrawal was returned on 13th August 2013 unregistered, the Commissioner had issued notices of re-entry dated 11th April 2013 and 24th April 2013. Undoubtedly that action seemed to pre-empt knowledge that the registration of the documents would never be occurred. Whether that is an action calculated is unsubstantiated, rather an opinion drawn from the circumstances of the case.
19.	Though hazy as it may, has very little effect on the crux of the arguments. Mr Suri argues that the forfeiture and re-entry procedures were not complied with or was incomplete. Having agreed that is an issue, the Court ought to consider the question whether the Commissioner actually re-entered and remained in possession of the lands. Mr Suri emphasized that Section 136 (2) required forfeiture is exercised by entering upon the land and not by re-entry notice. He then refers to the case of Moveni V Chaffers[1].
20.	I would agree with Mr. Suri to certain extend, concerning his view on S.136 (2). However Section 136 (2) though may not mention re-entry, but S.139 (1) do and expressly stated that the owners of an estate upon whom a notice has been served under Section 138, or against whom the Commissioner is proceeding, by action or re-entry to enforce his right of forfeiture.
21.	I noted the ratio decindi in Moveni’s case uphold the interpretation that possession mean “actual possession”. And S.136(2)(a) almost sing the same tune.
22.	In an ordinary English language actual possession would mean actual physical possession of an estate. In such circumstances it would require the Commissioner of Lands, its agents or whomever it choses, to enter the estates and physically take possession of the lands. Only then those estates can be converted as vacant land where any interested persons can apply and express their interest, and which can then be recognized as accomplishing the forfeiture process.
23.	If that is what the law requires including the interpretation in Moveni case, is it practicable for one Commissioner of Lands with assistance to physically entered the land and take possession of it. Or will it require other Officials in the Lands Department or may be agents be physically placed on the estates to secure that they are vacant lands and own by the state.
24.	When we look at the concept of vacant land after the forfeiture process, it makes no difference with all other vacant land own by the state before the offers were made. Secondly if the Commissioner of Lands had completed forfeiture processes in respect to a dozen land in a week, would it be possible he physically placed himself on those estates to implicate they are now vacant and had been reverted back to the Commissioner for reallocation. It would be impracticable for the Commissioner to physically entered and take possession of the estates. The word “possession” which means actual possession in Moveni’s case refers to an owner of an estate in possession of the land and not Commissioner of Lands in possession of it.
25.	Secondly the word “re-entry” must be given proper interpretation. Practically the Commissioner had never entered all the state lands previously and takes possession so that by forfeiture process he would re-enter again. The function of the Commissioner is basically to deal by way of management and administration of all state lands on behalf of the Government of Solomon Islands, see S.4(4) of the Land and Titles Act. The Commissioner has the power to grant to any person a fixed term estate in any public land, see S. 13 (1) (b) of the Act.
26.	Any organization cannot function well if there are impracticable difficulties in emulating its business aspirations and strategies. This boils down to the issue where at the time of administering the forfeiture process there were already people occupying the land. Would the Commissioner forced its way through, or would it be a risk to physically enter and possess the estates.
27.	I do not think that re-entry, as a step to accomplish the forfeiture process requires physical entry by the Commissioner or its agents or staff members. A notice as it was done by Mr E. Waneolofia and Mr A. Houla’aola are sufficient re-entry upon the two estates. Of course if people had already occupied the land, they would destroy it, or deny that it was never done.
	Offers made by the Commissioner of Lands:
28.	Having satisfied that the forfeiture processed had been complied with and had been completed therefore rendered the status of the two parcels of lands reverted back to vacant lands. As I noted in paragraph 9 above, there were three applications showing interest in the lands. Two applications were given offers and third one by Anthony Wong was not given any offer.
29.	On 24th April 2013, a letter of offer was made to Kii and Sons concerning PN 191-037-41. The offer was accepted, and on 30th April 2012, paid the fees of $40,282-00 on the same date, see annexure “LK3”.
30.	The problem with Kii and Sons is that Lot 3123 was not included in their application letter dated 1st July 2012; see Exh “LK1” .If that was the only application submitted, then the purported offer made in respect of Lot 3123 PN 191-037-41 was given without being applied for. There was no mention of Lot 3123; PN 191-037-41 in the application letter at all, therefore, no offer was made in that respect correspondingly.
31.	I noted the application letter is clear and without any ambiguity. Lot numbers were written clearly and precisely. The offer was for only one Lot unspecified in the application. Then a mystery emerged, fees of $40, 282.00 were paid for two parcels of lands. It can’t be so, documentary evidence rely on do not harness with one another. Secondly if the offer was made on 24th April 2013 in respect to application concerning multi parcel numbers (more than two) why there was no explanation as to what had become of the rest of the lots applied for. One conclusion I would draw is that there was no reply to Kii and Sons’ application at all. The offer made was perhaps for a different application not connected to their application as exhibited. I cannot rely on assumption that it was done because the required fees were paid. The required fees were paid in excess of the offer made, material evidence does not match, hence no proof.
32.	On 26th April the Commissioner responded to Vuvula’s application by conveying a letter of offer and was concluded by payment of the required fees of $153,192.40 for both lands on 28th April 2013. Vuvula’s application was not marred by any confusion or complications.
33.	Concerning Mr Anthony Wong’s case, there was no evidence that an offer was made to him though there was an application submitted on 5th July 2012. If there was no offer, legitimately, there cannot be any acceptance, therefore no contract concluded; see case of Eta V AG.[2] Mr Wong’s assertion that Vuvula and Kii and Son’s applications were back dated was supported with no evidence at all. Meantime, the importance is a valid conclusive contract before one can able to argue his rights and obligations should there be braches; in Wong’s case there was no contract at all.
34.	Material evidence shows some aspect of reality often confronted by the office of the Commissioner of Lands. In this case there were three applications for the same two lands to be considered. The Commissioner decided to convey offers to two applications which is quite rare.
35.	In my observations there were up-normalities cited. The major one relates to how Ki’i or Sons’ application was administered, how two offers were conveyed in respect of the same lands. Certainly there were errors in administration and on the part of Kii and Sons as well. Those errors cannot be remedied but must have effects on their case. Apart from defects in Kii and Son’s application, offer and the amount paid, there was a big difference in the amount paid compared to Vuvula, a difference of $112,910.40.
36.	However, I noted, quite often different applications were received by different Officers, not necessary the Commissioner at the initial stage. And perhaps those Officers will continue manage the files until such time it requires the Commissioners endorsement. In this case both lands were administered by one and the same officer, and then by expectation, a universal and consistent fee should be reflected in the offer. With an exorbitant of high difference, reflected lack of consistency, lack of proper land management policy or procedures in place. In other words, the Land and Titles Act should provide for regulatory provisions or procedures in administering allocation of state lands. In the absence of such the Act is prone to convolution.
37.	In the final analysis it matters little as to who first received an offer, but it does, in my view, as to who actually paid the required fees first, because that would validly concluded an enforceable contract. Of course it was a bad practice to issue offers to two people concerning the same lands within a matter of days. I noted the case of SMM Solomon Limited & Others V Axiom KB Ltd & Other concerns with Part V division 1 of the Lands and Titles Act which deals with acquisition and registration of customary land. In that case the Court of Appeal found the Commissioner failed to comply with the requirements of the Division therefore contravening the intention of the section and should be corrected.
38.	The Axiom case deals with different facts from this case and concern two different status of lands. In that case there was contravention of law; in this case there was contravention of logic unwritten law. I do not think Axiom case applies here.
39.	In returning to the issue of fees, Vuvula Poultry Limited paid the required fees on 28th April 2013, first in time before Kii and Sons could pay their fees on 30th April 2013. The argument that Kii and Sons were conveyed with the offer first time therefore nothing was left to offer, was absolutely incorrect. Payment of required fees is a test as to which contract of sale concluded first. As between Vuvula and the rest of the parties, Vuvula had paid the fees first in time therefore concluded the sale of land contract. There was no land left to be contracted to anyone else.
40.	Even if Kii and Sons paid the required fees first in time which is not, their case had been riddled with defects and faults and could not be accepted.
41.	After sales contract had been concluded the next step is registration process; an administrative function regulated by law. A person finally concluded as owner of a fixed term estate has to be registered followed by endorsements of the rest of the formalities. An owner, who went through the processes from the beginning to registration stage without decay and fault, fostered a legal obligation upon the Registrar to register the grant of the estates in it name, in this case to Vuvula.
42.	A grant of parcel no. 191-037-40 to Kii or Sons was not signed by the Commissioner of Lands hence not registered in their names. There was no grant to Kii and Sons for parcel No. 191-037-41. Mr Kii said he thinks he signed two grants; there is no material evidence to support such an assertion.
	Rectification by the Court:
	The Law:
43.	Section 229(1) of the Lands and Titles Act says; “subject to subsection (2) the High Court may order rectification where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.”
44.	Section 229 (2) says “that rectification cannot take place so as to effect the title of the owner who is in possession and acquired the interest for valuable consideration, or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default”.
45.	In a claim for rectification of a title the test is set down by the Court of Appeal decision in Maneniarau V Attorney General and Others[3] paragraph 24, the Court said,
		“It is our respectable view that for a party seeking rectification under section 229 of the Land and Titles Act, it is not sufficient to prove that a mistake occurred in the course of a transaction which ultimately concluded in registration of the interest which it is sought to have removed from the register. In terms of Section 229 the Court must be satisfied that registration has been obtained, made or omitted by fraud or mistake. This section imposes a causal requirement. There must be a link between the mistake and the registration. The onus is on the party seeking rectification not only to establish a mistake, but also to satisfy the Court that it caused the registration to occur”
46. 47.	Mr Suri’s argument premises on the error that there was no actual entry. Therefore rendered the forfeiture processes incomplete. That error is an error of law and extends to anything improperly done, or omitted to be done...” And that those errors are not limited to errors or mistakes occasioned by someone other than the Commissioner of Lands or the Registrar of Titles, see the case of Hiva V Mindu[4]. In that case the Court decided that the qualification or exception imposed by Section 229 (2) has no application because the land acquired by the appellant was not acquired by them for valuable consideration.
48.	I have dealt with the forfeiture process and am satisfied that the process was completely done. The issue of re-entry has been addressed. As a result Winners’ title had been properly forfeited. There is no merit for reconsideration so as to rectify or cancel the effect of registration.
49.	I noted the argument pose by the Solicitor General that Kii and Sons cannot seek rectification pursuant to Section 229 within a judicial review claim.
50.	I have outlined my reasons for concluding why the forfeiture process had been done. In my view the issue of re-entry had been succinctly dealt with and should become a non-issue. Therefore has no merit in revisiting it again.
51.	Another issue raise is in the context of Section 229 (2) “possession” means “actually possession” in accordance with the case of Moveni V Chaffers”[5]. Actual possession must be by the owner who acquired the interest for valuable consideration. There is evidence that Vuvula Paultry did not physically inhabit or possessed the lands, a fact that has never been disputed but continued paying the rentals. There is also evidence that one of the reasons why the original owner Winner Properties Limited could not able to develop the lands because there were trespassers living on the lands, which they continue to do so during the time of Vuvula.
52.	Whilst actual physical possession of the estates is the current law, it would be impossible and would deprive Vuvula Poultry the owner to have actual possession as a result of actions of trespassers who continue to dwell in the lands. Evidence reveals that the trespassers had been there but the former owners did not evict them. The counter-claim in CC 351 of 2013 by Vuvula Poultry was intended to cater for this.
53.	I find there is no evidence adduced by Kii and Sons to proof fraud or mistake linked with the registration of Vuvula Poultry Limited as legal owner of the two lands.
54.	In Mr Wong’s case (CC 133 of 2013) indeed there was no contract concluded between him and the Commissioner for Lands which he could rely on. The Commissioner of Lands has the right to make an offer of the lands to whoever he chooses from three applications before him. Mr Wong’s application was not considered. Instantaneously his case should be faced out. I do not think exercise of such discretion contain any action of fraud or mistake. In fact Mr Wong does not have any interest capable of being rectified. The reliefs he sought are not the ones ought to be granted pursuant to the statutory provisions, see Eta V Attorney-General[6] as well.
55.	I find there is no shred of evidence available to proof fraud or mistake link to the registration of the two fixed term estates in the name of Vuvula Poultry Limited. Neither there is evidence that Vuvula had knowledge of such or omitted such to occur, or substantially contributed to it, but rather an owner who acquired the interests for valuable consideration. I must therefore dismiss all the claims against Vuvula Poultry Limited, and relief sought in counter-claim in Civil Case No. 351 of 2013 be granted accordingly.
	Orders:
	1.		All Claims against Vuvula Poultry Limited dismissed.
	2.		Declaration is hereby made that Vuvula Poultry Limited is entitled to possession of the Lands.
	3.		Order that Winner Properties Limited, its servants or agents and other occupants of the lands vacate the same immediately.
	4.		Cost of this case to be paid by all the Claimants to Vuvula Poultry Limited and the Attorney-General.
	The Court.

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^[1] (2014) SBCA 14; SICOA-CAC 34 of 2013 (9 May 2014).
^[2] (2015) SBCA 15; SICOA – CAC of 2013 (9 October 2015)
^[3] CA 39 of 2014
^[4] (2009) SBCA; Civil Case Appeal 13 of 2008
^[5] Ibid (1)
^[6] Ibid(2)