Bartlett v Hai Way International Co Ltd [2017] SBHC 50; HCSI-CC 244 of 2011 (10 November 2017)

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

Civil Case No. 244 of 2011

BETWEEN: ALEX BARTLETT - Claimant

AND: HAI WAY INTERNATIONAL COMPANY LTD - First Defendant

AND: LEE KWOK KUEN & COMPANY LTD - Second Defendant

AND: ATTORNEY GENERAL - Third Defendant
(Representing Commissioner of Lands &
Registrar of Titles)


Date of Judgment: 10^th November 2017

Mr B. Upwe for the Claimant
Mr G. Faiatoa for the First Defendant
Mr W. Rano for the Second Defendant

JUDGMENT

Maina PJ:

Introduction

This is a claim for rectification of the land register under section 229 of the Land and Titles Act (Cap 133) on the grounds that the Defendants obtained the title of Parcel no: 192-007-192 from the Claimant by fraud or mistake.

The Claimant by the amended claim seeks the following reliefs/remedies:

1. A declaration that the surrender and transfer of the title in Parcel no: 192-007-192 from the Claimant to the Commissioner of Lands to enable the Commissioner grant title of the said property to the first Defendant under the term of the Agreement dated 28^th February 2007 between the Claimant and the First Defendant was void and registration obtained by fraud and or mistake.
   
2. A declaration that the subsequent transfer of the title made by the Commissioner of Lands to the first Defendant purportedly, acting under the terms of the said agreement and registration of the title in favour of the First Defendant, executed on or around 7^th March 2007, was void and registration obtained by fraud and or mistake
   
3. A declaration that the subsequent transfer of the title of the said property to form the First Defendant to the Second Defendant between 20^th March 2017 to 11^th June 2007 was void and registration obtained by fraud and or mistake to the extent that the transfer and registration was made contrary to the terms of the said Agreement between the Claimant and the first Defendant
   
4. Owing the above the Claimant is entitled to rectification of the land register, by removing the name of the second as registered owner of Parcel no: 192-007-192 (the property) and replace therewith the name of the Claimant.
   
5. A declaration that the Claimant has an overriding interest in Parcel no: 192-007-192 by virtue of his actual occupation of the land and erection of six permanent houses.
   
6. Other orders deem fit and necessary, and
   
7. Costs.
   

Facts

There are cases related to Parcel no: 192-007-192 between the Claimant and First and Second Defendants which the High Court and the Court of Appeal had made ruling or judgment on them.

Firstly the Claimant in HCSI-CC no. 258 of 2007 filed a claim for specific performance of a Memorandum of Understanding (MOU) against the First Defendant and rectification of the title against the Second Defendant. The High Court on 9^th November 2010 declared the MOU was void and on appeal CC no. 18 of 2010 (9 May 2011), the Court of Appeal dismissed the appeal and upheld the decision that MOU is void and unenforceable for uncertainty.

The Claimant then commenced this case (HCC Case no. 244 of 2011) and claim that the transfer or surrender to the commissioner of land was made by fraud or mistake, thereby the transfer to the second Defendant was flawed by fraud or mistake.

Second Defendant applied to strike out the claim on the ground of res judicata or the matter had been decided in the case HCSI-CC no. 258 of 2007 but Manesalua J dismissed the application on the reason that there is a fresh evidence that relate to the acts of late counsel Presley Watts who acted for the First Defendant to negotiate the surrender by the Claimant to Commissioner of Lands and for the first Defendant to transfer certain titles to the Claimant. It claimed that late counsel Watts was improperly influenced by the second Defendant.

The second Defendant appealed against the decision but the Court of Appeal rejected and upheld the ruling of the High Court, although they not fully agree with the reasons of the judge.

And it is not disputed or the Second Defendant accepted that the Claimant had erected six buildings on the land which he recurrently owns them. Second Defendant is also seeking for orders to remove the buildings.

Issue

What is the evidence of fraud or mistake adduced by the Claimant the purpose of being or to be described as fresh evidence in this case or to support the claim of fraud and mistake?

The court

The Claimant in the final submission stated that he acted on the mistaken belief that the agreement was valid or for that matter the MOU. However and as noted from the above judgment in the case HCSI-CC no. 258 of 2007, the MOU was void and the Court of Appeal upheld that decision. This fact is well acknowledged or accepted by the Claimant when Counsel for the Claimant’s in his opening written submission stated at sub-paragraphs 2.8 that:

“2.8 The MOU was no longer relied on as the Court of Appeal has ruled that it is void”.

What is void? The Osborn’s Concise Law Dictionary, Eighth Edition, London-Sweet and Maxwell 1993 define void as “Of no legal effect; a nullity e.g. An agreement of immoral consideration. A contract may be void on the face of it or evidence may be required to show that it is void.”

The fact that it is of no effect means or at all circumstances is nothing. It cannot be used to cause any undertaking of a person or make an act to be right. In the ordinary language I would say when it is void it is nothing at all and or seems not to exist at all.

The submission for the Claimant is contradict or controvert when at sub-para 2.8 as quoted above he said the MOU was no longer relied on but in sub-para. 3 he stated that “The Claimant claims that the purported transfer of the whole of PN 192-007-192 to the 2^nd Defendant was in breach of the MOU, hence, this action.” What seems to be clear from this very submission is that claimant still base is argument on the MOU that had been declared void. The fact that the MOU is void and that too does not concerns the Second Defendant, not even a party to that MOU. The question relates to the MOU is already been settled by the HCSI-CC no. 258 of 2007 and the decision was upheld by the Court of Appeal.

It is not disputed that the First Defendant transferred the land to the Second Defendant with various payments for the land. And late Presley Watts acted for the First Defendant and drafted the MOU which had been declared void. The claimant is alleging or what he describes as fresh evidence on fraud or mistake and the onus is on them to adduce evidence to proof that act of fraud or mistake by late Presley Watts. So far there is no evidence or for that matter as “fresh evidence”. Claimant only made reference to the MOU which had already declared by the court as void. Nor do the Claimant tendered any sworn statement or mentioned anything from late Presley Watts, to be said as fresh evidence.

I noted that there is a sworn statement of Late Presley Watts used by the First Defendant in the HCSI-CC no. 258 of 2007.

For the court to exercise its discretion under section 229 of the Lands and Titles Act, it is for the Claimant to proof by evidences the act of the Second Defendant amount to fraud or mistake, but so far nothing at all or the old evidences which was used on the case HCSI-CC no. 258 of 2007 thus is res judicata.

There is also no fresh evidences against the Commissioner of Lands or Registrar of Titles to enable the court to exercise the discretion under section 229 of the Act.

The Claimant’s claim for the rectification of the land register, by removing the name of the second as registered owner of Parcel no: 192-007-192 (the property) and replace therewith the name of the Claimant has no basis and therefore the claim by the Claimant is dismissed.

ORDERS

1. The claim is dismissed,
   
2. The Claimant to vacate the on Parcel no: 192-007-192,
   
3. The six buildings on Parcel no: 192-007-192 is owned by the Claimant,
   
4. An option for the Second Defendant to buy the buildings on a value price to be agreed by the Claimant and Second Defendant.
   
5. If no settlement is made by the parties for the sale of the buildings within six months as from the date of this judgment, the court will decide the method for the disposal for the properties or I will hear argument or submission for the disposal of the properties.
   
6. The cost is awarded to the second Defendant.
   

THE COURT

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