Waririu v Dora [2018] SBHC 80; HCSI-CC 224 of 2012 (20 June 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Waririu v Dora
Citation:
Date of decision:	20 June 2018
Parties:	Moses Waririu, Ruth Waririu v Henry Star Dora, Attorney General
Date of hearing:	26 April 2018, 31 May 2018
Court file number(s):	224 of 2012
Jurisdiction:	Civil
Place of delivery:	HCSI- Court Room six (6)
Judge(s):	Kouhota PJ
On appeal from:
Order:
Representation:	Laurere N. for the claimant K. Zama for the 1st Defendant D. Damilea for the 2nd Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 1.16, Lands and Titles Acts
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 224 of 2012

MOSES WARIRIU AND RUTH WARIRIU
Claimant

V

HENRY STAR DORA
First Defendant

ATTORNEY GENERAL
(Representing the commissioner of Lands and Registrar of Titles)
Second Defendant

Date of Hearing; 26 April 2018, 31 May 2018
Date of Judgment; 20 June 2018

L. Laurere for the Claimants
K. Zama for the first Defendant
D. Damilea for the second Defendant

JUDGMENT

The claimants by an amendment claim (category A) filed on 3rd September 2012 seeks the following reliefs;

(i) A declaration that the grant of the fixed term estate in parcel number 191-016-316 in the name of the First Defendant by the Second Defendant was void ab initio.
(ii) A declaration that the registration of the fixed term estates in parcel number 191-016-316 in the name of the First Defendant by the Second Defendant was also void.
(iii) A declaration that the First Defendant was not a purchaser in good faith.
(iv) An order sought as follows:

(a) The Registrar of Titles to rectify the Register of fixed-term estates by removing the name of the First Defendant as estate of parcel number 191-016-316.

(b) The Commissioner of Lands to re-execute a fresh grant with the Claimant over parcel number 191-016-316.

(c) The Registrar of Titles to register freshly executed grant by the Commissioner of Lands to the Claimant over parcel number 191-016-316.

(v) Costs.
(vi) Such further and other orders as this Honorable Court deems fit to make.

The Claimants sought the above reliefs against both the 1st and 2nd Defendants and relied on the following documents in support their claim:-

(i) Amended Claim filed on the 3rd September 2012.
(ii) Sworn statement of Tione Bugotu filed on the 10th October 2013.
(iii) Sworn statement of Alfred Soaki filed on the 10th October 2013.
(iv) Sworn statement of John Mae filed on the 10th October 2013 (admitted by leave of the Court).
(v) Sworn statement of Moses Waririu filed on the 5th December 2013, and
(vi) Sworn statement of Fleming Alick Pukakoqoro filed on the 14th March 2014.

The following agreed facts and issues were agreed to by the parties at the trial:

3. Agreed facts.

(i) The Commissioner of Lands had title over Parcel Number 191-016-102 in which the Claimants occupied part of, since 2003.
(ii) In 2011, the commissioner of Lands subdivided Parcel Number 191-016-102 and the Claimants were granted title over Parcel Number 191-016-320. Parcel Number 191-016-316 “the land” (which is the land in dispute in this case) remained with the Commissioner of Lands.
(iii) Prior to subdivision of Parcel Number 191-016-102, the Claimant had occupied Parcel Number 191-016-316 since 2005.
(iv) The Claimants and the First Defendant were applicants for grant of title over “the land’ Parcel Number 191-016-316 from the Commissioner of Lands.
(v) The First Defendant was registered as owner of Parcel Number 191-016-316 on the 17th May 2012.

4. Agreed issues for determination.

(i) Whether the grant of the title in Parcel Number 191-016-316 to the First Defendant by the Second Defendant was lawful or void?
(ii) Whether the registration of title in Parcel Number 191-016-316 to the First Defendant by the Second Defendant was lawful or void?
(iii) Whether there was mistake and/or fraud on the part of the Second Defendant in the process of granting and registration of Parcel Number 191-016-316 to the First Defendant?

Before I proceed to deal with the substantive issues in this case I consider it appropriate to first deal with an issue raised by counsel for the first defendant Mr. Zama. Mr. Zama submits that the claimants having wrongly filed their claim and amended claim as a category A claim, cannot seek declaration orders and quashing orders as the relief sought by way of declaration may only be commenced by way of category C claim.

Chapter 2.3 of the Rules states, the claimant must in the claim assign the proceeding to one of the 3 categories, A, B. or C.

In the present case the claimants assigned the proceeding to a category A proceeding, I see nothing wrong with that because this is a complex claim that need case management. I do not think the type of claim that can be assigned to category A proceeding is closed. If I am wrong I think Rule 1.16 will apply. The rule states “A failure to comply with these rules or direction of the court is an irregularity and does not make a proceeding or a document, step taken or order made in a proceeding a nullity.

I am also of the view that the assignment of claim to a category proceeding is for case management purposes and failure to assign a claim to the appropriate proceeding does not make a claim a nullity.

I now turn to the substantive issues identified by the parties as issues for determination.

Issue No. 1

‘Issue number 1 is ‘Whether the grants of the title in parcel Number 191-016-316 to the First Defendant by the Second Defendant was lawful or void?

This is the crucial question in this matter as the rights of the parties and all the other issues depend on whether the answer to the question is in the affirmative or the negative. The question can easily be answered by considering the facts of the case and the evidence adduced in support of the facts.

The process taken by both the claimants and the first defendant to acquire the disputed parcel of land goes back as far as 2003. The issues for determination however starts only at the time when the second defendant made the offers to the claimants and the first defendant. Whatever dealings with the land in dispute by any of the parties prior to the offers been made maybe irrelevant to the legal issues to be decided.

Offer to the Claimants

The second defendants made two offers to the claimants addressed to Moses Waririu and Ruth Waririu both dated 23rd January 2012, one is for parcel number 191-016-320 and one is for parcel number 191-016-316 ( land in dispute), the latter offer was in the following terms; I quote:-

“Dear Sir/Madam,
RE: Offer of Fixed Term Estate & Key conditions of grant Instrument
I am pleased to convey to you the Commissioner of Land’s approval to offer parcel 191-016-316 to you for a term of fifty (50) years.
The offer is subject to;

1. Payment of the schedule fees as below within 60 days from the date of this letter.
2. Signing of the declaration form accepting the key conditions of the grant instrument.” End of quote.

The total fee to be paid stated in the offer letter was $5,870.50. The offer was signed by Mr. Silver Dunge, Commissioner of Lands.

The evidence shows that to comply with condition 1 of the offer, the claimant paid the required fees of $5,870-50 on 30th January 2012, GTR No.B 1571369.

There was however no evidence that he had complied with condition 2 of the offer by signing the declaration for accepting the key conditions of the grant instrument. Further no grant instrument signed by the claimants and the second defendant was exhibited as evidence, but claimant in his sworn statement stated that the grant was executed in February 2012.

Offer to the First defendant.

The second defendants offer to the first defendant was addressed to Henry J Star Dora, dated 30th November 2011, it was in the following terms; I quote

“Dear Sir,
RE; Offer of Fixed term Estate & Key Conditions of Grant Instrument
I am pleased to offer you a fifty (50) years fix term estate over lots 1590/I/H, 1591/I/H, and 1593/I/H
The offer is subject to;
Payment of the schedule of fees as below within 60 days from the date of this letter.
Signing of the declaration form accepting the key conditions of the Grant Instrument” End of quote.

The total fee to paid for the 3 lots stated in offer letter offer was $12,400.40

The offer letter was signed by Mr Silver Dunge. Commissioner of Lands.

The offers and Acceptance

The evidence show that first defendant paid the required fee for the 3 lots, a total of $12,400-40 on 2nd December 2011 and also signed the Key grant considerations on the same date. Parcel number 191-016-316 is in lot number 1591/I/H

Since the two offers were made over the same parcel of land it appropriate to see which offer was first in time and which offer was first accepted? In this regard it is clear that offer over the parcel of land was made to the first defendant on 30th November 2011 and the offer to the claimants was on 23rd January 2012. It is therefore clear that the offer to the first defendant was first in time, one month and 23 days before the offer made to the claimants.

The first defendant accepted the offer and complied with the conditions by paying the required fee and signed the key grant Consideration on 2nd December 2011. The grant instrument was however not executed until 11th May 2012 but the contract was completed on the date the first defendant accepted the offer and complied with the subject requirements. The offer to the claimants was made on 23rd January 2012 but by that time the first defendant had accepted the offer and comply with the two required conditions, that concludes the agreement and he had acquired interest in the land for valuable consideration. The execution of the grant and registration of the grant are just formalities to seal the acquired interest.

Having reached that conclusion I declared that grant of title to the first defendant by the second defendant was lawful. That conclusion also means that the answer to the second question or issue must also be answered in the affirmative and that is, the registration is lawful.

This leaves only the third issue left to be decided. Section 229(1) of the Lands and Title Act, empowers the High Court to order rectification of land register by directing that registration be cancelled or amended, where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake. Such rectification however, is subject to subsection 2 of section 229 which states that the land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner has had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or cause such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

I had considered the evidence and found there is no evidence of fraud or mistake in registration of the title in the name of the first defendant. The only mistake if any was, the offer made to claimants by the second defendant because the property offered has already been acquired by the time he made the offer hence there is no property to offer and the offer is therefore void. The claimant may be in possession of the land but they have not legal title to the land and are deemed trespassers. In view of this there is no reason to order rectification of the estate in parcel number 191-016-316.

Consequently the declarations sought are refused and the claim is dismissed.

Counter claim.

The first defendant had also filed a counter claim on 12th October 2012 against the claimants and seek the following orders;

1. An order for possession of parcel number 191-016-316;
2. An order for damages for trespass limited to $100,000-00

100. An order for vacant possession and for the claimants, their servants and agents to remove their building from parcel number 191-016-316

4. An order that if the claimants refuse to remove the property that such property shall become the property of the first defendant and may disposed of them as he considers fit and appropriate
5. A permanent restraining order; and
6. Any such order as may be appropriate in the circumstances

In the circumstances the first defendant counter claim succeed in part and the court will orders as follows;

1. Order that the claimants their servants or agents vacate parcel number 191-016-316 and remove any building or structure from the land within 3 months;
2. Order for the first defendant took possession of the land.
3. Order that claimants, servants, relatives or agents from restrain from hindering the first defendant enjoyment of the land parcel number 191-016-316
4. Order for damages for trespass limited to $100,000.
5. Order that any caveat placed on the land by the claimant be discharge and removed forthwith.

Observation

Having read the materials in this case I feel I should make this observation before I conclude. The observation is; this case is a classic example of people who unashamed to enter onto crown land without legal title before they started taking steps to legally acquire the land and in some cases intimidating the Commissioner of Lands to yield to their demands. It also reveals the unfair allocation and distribution of land in Honiara. For example, why should these two individuals be granted two and three blocks of land each when many others are struggling to get land in Honiara but are unable to be given even single piece of land.

Cost is against the claimants.
Informed right of appeal.

The Court

Kouhota PJ