Wewela v Commodities Export Marketing Authority [2018] SBHC 45; HCSI-CC 149 of 2014 (24 April 2018)

RUBEN WEWELA (Claimant)

v

THE COMMODITIES EXPORT MARKING AUTHORITY (Defendant)

HIGH COURT OR SOLOMON ISLANDS
(Faukona, PJ)

Civil Case No. 149 of 2014

Between:	RUBEN WEWELA Claimant
AND:	THE COMMODITIES EXPORT MARKETING AUTHORITY 1st defendant

Date of Hearing:	28th April 2017, 9th September 2017, 1st February 2018 (submissions)
Date of Judgement:	24th April 2018

Mr P. Tegavota for the Claimant
Mr G. Fa’aitoa for the Defendant

JUDGMENT

Faukona, PJ:
A claim in category (c) was filed on 16^th May 2014. There were four reliefs sought including costs.

2.The relevant reliefs are paraphrased here under:

1.

Declaration that the offer made by the Defendant by letter dated 22nd July 2002, for the purchase of Varacreek Property PN: 191-028-03 for the sum of $74, 000.00 was accepted by the Claimant by letter dated 23rd July 2002 coupled with the following;

		a.	Payment of $23,500.00 for the months from July 2002 to July 2009.
		b.	Instalment made between September 2008 to July 2009; and
		c.	A tendering of $50,000.00 constituted a valid contract to sell the said property to the Claimant.
	2.	The refusal by the Defendant to accept the sum of $50,000.00 in July 2013 tendered by the Claimant.
3.	In the defence and counter-claim the Defendant claims that the agreement made by the parties on 23rd June 2002 had been rescinded by the Defendant for breach by the Claimant.
	Brief facts:
4.	The Claimant was a former employee of the Defendant. On 31st January 2005 the Claimant was made redundant from employment. Whilst still being employed in 2002, an offer was made to him by the Defendant’s letter date 22nd July 2002, for the purchase of Varacreek property PN:191-028-03 for the value of $74,000.00.
5.	The underlying reason for sale was to procure funds to address the Defendant’s precarious financial situation.
	The Sales Contact:
6.	On 23rd July 2002, by letter, the Claimant accepted the Defendant’s offer to purchase the property at the price of $74,000.00.
7.	On the date of acceptance a contract for sale was finally concluded. Thus can be described as, there was a meeting of the minds of the parties, and the onus was on them to honour their obligations under the terms of the contract. In the case of SI Broadcasting Corporation V Mark Bisili [1] His Lordship Kabui J stated;

“... a contract is binding at law when founded on the agreement between two parties to the contract. There must be meeting of the minds as it is often said in the law of contract”.

8.	Unfortunately a copy of the Defendant’s letter of offer of 22nd July 2002 cannot be located; therefore, the relevant term related to time line given to complete the purchase cannot be verified.
9.	The Defendant is relying on the practice and usages commonly exercised by the Defendant in such situation. Reference is made to similar actions taken by the Defendant in such situation in other sale transactions conducted; see pages 93, 95 and 97 of the court trial book?
10.	The practice was that letters contained offers were made to employees of the Defendant to purchase properties of the Defendant. In those letters date line for purchase was expressly stated. If the Defendant is adopting the same format in this case, is acceptable, but is irrelevant. A copy of the offer letter is very significant to affirm the final date of purchase. In the absence of such, cannot be of any constructive assistance to the Defendant. The Court has to adjudicate on the material evidence available before it, and reject any assumption of consistent equitable practice.
11.	After a valid contract was concluded on 23rd July 2002, there was a voidable period of none compliance with obligations until the first instalment payment of $20,000.00 was made on 4th April 2006, three years and 9 months after the contract was concluded.
12.	If the Defendant is so concerned about practices and usages, then why not conveyed warning to rescind the contract as it did to others after being failed to pay, at least within a year, see documents on pages 99, 101, 103 and 105 in the court trial book. Why the Defendant should treat the Claimant differently from others. Is that good practice and common usage? No, the Defendant cannot return and cry foul for its own failure to maintain consistency in its actions and dealing with contracts which itself was a major party.
13.	By accepting the first payment of $20,000.00 after three years and nine months implied that the Defendant had accepted instalment payment arrangement. I noted from similar offers instalment payment was not part of any term agreed upon, or conceded to in the later part after coming together of the minds.
14.	The issuant of a receipt for $20,000.00 paid was a clear affirmation that instalment arrangement was conceded to, see page 79 of the court trial book. The Defendant cannot now deny its own action which inspired its right mind of thinking at that point in time. It does not end there. The Defendant had also accepted six (6) other instalment payments with the total of $3,000.00.
15.	After $20,000.00 was paid, the Claimant then paid $1,000.00. That payment was made 2 years and 5 months after the first instalment payment. The Defendant still accept that by issuing a receipt on 9th September 2008. In August 2009 the Claimant and Mr Steven agreed that certain portion of the Claimant’s wages be deducted towards payment of the property. There is no evidence to affirm any deduction at all.
16.	If the Claimant is so concerned about irregularities of payment, inconsistence with diversified amount, then at that stage the Defendant would have rescinded the contract. But still the Defendant behaved as allowing more time manifesting leniency approach. With the rate of payment, how many more years would the Defendant expected the instalment transaction will continue for.
17.	Reasonable corporate body should assess the payment rate and where necessary terminate the contract. Who would live, or continue to work for the next twenty years. Evidence had revealed that it took the Claimant 7 years before he paid $23,500.00. To complete payment would take another 20 years or so.
18.	The last payment of $500.00 was made on 28th September 2009. By then it was 7 years and 2 months from the date the contract was agreed upon. The balance at that time was $50,500.00. At that stage the Defendant would have rescinded the contract. The delay of payment and acceptance of it was beyond the motive to procure immediate funds. Nevertheless, the Defendant still receipted the $500. 00, a manifestation of continuous action of self-defiant.
19.	At some stage in time, on 23rd December 2009, the General Manager issued final notice for up-payment to the Claimant. Perhaps attached to the notice was a re-structured or rescheduled monthly payment of $8,416.67 up to June 2010. By then the outstanding amount should be fully paid.
20.	After the notice was issued there was no payment even for the first instalment. That prompted the General Manger to convey the Boards resolution by letter on 17th March 2010 offering two options to the Claimant. Neither option was accepted by the Claimant even before the date-line on 23rd March 2010.
21.	By 23rd March 2010, no further amounts were paid and 7 years and 8 months had gone. It would appear the Claimant had exhausted all his financial resources and capabilities.
22.	Then on 27th May 2013, 10 years and 10 months after the contract was concluded the Chairman of the Defendant’s Board wrote to the Claimant requesting him to vacate the compartment of the house.
23.	At that stage, it would have been proper, as I perceived that long delay in payment of the property was a result of miss-management of the sale. A large corporate body established by an Act of Parliament should be more vigilant in administering its activities and businesses. One important requirement was that the letter of offer and acceptance did not mention of any consideration, something of value to secure the Claimant’s acceptance of the offer which will create a legal bond on the parties.
24.	Secondly, there was no proper legal written agreement for sale. The parties were actually involved in dealing with a state registered land, located in the heart of commercial centre of the country. Any sale of a state land must be done formally and properly with documentations and execution properly done. The documents should contain the terms and obligations conferred upon the parties to fulfil their obligations.
25.	Lack of proper administration of the sale, and lack of proper management and better monitoring system as to the obligation of the parties, had resulted in irregularly prolonging the sale and many misunderstandings.
26.	It was after the notice to vacate was issued that the Claimant in his letter dated 22nd July 2013 offered to pay the outstanding amount of $50,500.00.
27.	That amount was a paper figure contained in a letter. The figure is not a legal tender note or cash at hand. In reality the $50,500.00 in the letter was a mere offer with uncertainty and ambiguity. There was no mention of time line to pay. There was no mention of any arrangement as to the source of income, if from bank time must be considered. Indeed it was a blank offer.
28.	In the absence of certainty and relevant evidence to support financial capability, makes $50,500.00 a mere paper offer. If it was part of a new payment structured plan, then that ought to be clarified. In any event the Defendant had refused to accept the offer. Even if it was a propose payment by conduct was not accepted as well.
29.	The Claimant cannot rely on unmeritorious offer, or insufficient proposal at the last minute, to persuade the Defendant to accept.
30.	From July 2002 to July 2013, is eleven (11) years. The Claimant had undoubtedly acknowledged the Defendant’s leniency by accepting instalment payments, a practice indifferent from other employees who were also offered to pay the Defendant’s properties.
31.	The Claimant would have appreciated that in the midst of his failures, the Defendant proposed to re-schedule instalment payments for him to complete payment within the span of six months. However the Claimant still failed to comply.
32.	From there on, was the time the Claimant would no longer accepted continue to residing but have to vacate the property. Notices to vacate were issued. It was a reflection of no leniency anymore. Therefore the Defendant has all the rights, whether by its Board or General Manager, to refuse to accept the Claimant’s offer of $50,500.00
33.	In my opinion it’s more than late to make any proposal or offer. The Defendant just needs the balance to be paid in full if the Claimant had the money. If the Claimant had the money readily available at hand, should not write a letter and made an offer or attempt to convince the Defendant to give further time, but paid the money straight away.
34.	Eventually the Defendant’s Board came to its conscience and hence issued a notice dated 31st March 2014 for the Claimant to vacate the premises with immediate effect, from the date of the letter. Failure to comply will result in legal action taken. That letter should be an ultimatum affirming the General Mangers refusal to accept the Claimant’s offer of $50,500.00.
35.	On the entire assessment all of the evidence before this Court, the claim should be dismissed. There was enough time granted though sloppy administration and leniency approach demonstrated by the Defendant. Instalment payment was accepted, though not so clear as one of the terms in the contract. A further re-scheduling of instalment was given but was never complied with by the Claimant. The final offer by the Claimant for one payment of the outstanding balance was a picture money which the Defendant had the right to refuse, and ultimately was refused. The Claimant has no legal authority to enforce such offer, it does not provide and conclude any liability by the Defendant should it be refused.
36.	I noted after the agreement for sale of the property was concluded, the Claimant continued to inhabit the residence until 16th May 2014, when the Claimant filed this cause of action.
37.	In respect to the counter-claim, I have covered much of it in the discussions I have formulated above. Ultimately the orders awarded hereunder are combination of reliefs sought in both the claim and counterclaim.
38.	For the period the Claimant had resided in the premises, by evidence, he had expended money on materials to renovate the house – see page 20 – 21 of the court trail book. Materials purchased per invoice on page 19 was repeated per invoice on page 20 with the same amount. Therefore I have refused to accept the figure $1,332.00 being repeated. The total amount computed being spent shown on invoice is $7,897.00. This amount must be paid to the Claimant.
	Orders:
	1.	The claim is hereby dismissed.
	2.	Refuse to grant order for specific performance sought against the Defendant.
	3.	Orders for damages for trespass are to be assessed.
	4.	Order that the Claimant vacates the said property and deliver immediate possession to the Defendant.
	5.	Order that the sum of $23,500.00 paid as instalment by the Claimant be forfeited as part of rental for using the house which can be deducted from the award of mesne profits on assessment.
	6.	Order that Mesne Profit at the rate of $2,500.00 per month from 27th May 2013 until possession of the premises is obtained.
	7.	Order that $7,897.00 money expended on material and repairs be paid to the Claimant, if not deducted from mesne profit on assessment.
		8.	No order as to interest.
	9.	Order that the Claimant bears the Defendant cost of and incidental to this proceeding.
	The Court.

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^[1] (2000) SBHC 5; HC-CC 218 of 1998