Laperouse Restaurant Co Ltd v Attorney General [2019] SBHC 16; HCSI-CC 82 of 2014 (7 January 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Laperouse Restaurant Co Ltd v Attorney General
Citation:
Date of decision:	7 January 2019
Parties:	Laperouse Restaurant Company Limited v Attorney General, Nazar Gold IS Limited Honiara Resort Solomon Limited v Nazar Gold SI Limited , Laperouse Company Limited, Commissioner of Lands Peter Fakaia, Robert Wasi, Martin Maekai and George Abana v Nazar Gold SI Limited, Laperouse, Commissioner of Lands
Date of hearing:	22 October 2018, 23 October 2018
Court file number(s):	CC 82 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	The Court is hereby adjourned to 31st January 2019. Commissioner of Lands and the Claimants in both cases CC 294 of 2014 and CC 45 of 2016 to attend and agree on the formulation and finalization of the court orders, including costs which I have awarded to the Claimants in those two cases the Defendants respectively
Representation:	Mr. J. Sullivan QC and Mr. Soma for the Claimant in CC 294 of 2014 and Claimants in CC.45 of 2016 No one for Laperouse Restaurant Company Limited in all three cases No one for Nazar Gold SI Limited in all three cases Mr. D. Damilea for the Attorney General and the Commissioner of Lands in all cases
Catchwords:
Words and phrases:
Legislation cited:	Land and Title Act, Companies Act
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 82 of 2014

LAPEROUSE RESTAURANT COMAPANY LIMITED
Claimant

V

ATTORNEY GENERAL
1^st Defendant
(Representing the Commissioner of Lands and Registrar of Titles)

NAZAR GOLD SI LIMITED
2^nd Defendant

Civil Case Number 294 of 2014

HONIARA RESORT SOLOMON LIMITED
Claimant

V

NAZAR GOLD SI LIMITED
1^st Defendant

LAPEROUSE RESTAURANT COMPANY LIMITED
2^nd Defendant

COMMISSIONER OF LANDS
3^rd Defendant

Civil Case Number 45 of 2016

PETER FAKAIA, ROBERT WASI, MARTIN MAEKAI AND GEORGE ABANA
Claimant
(As Trustees of and Representatives for the Olufera Tribe)

V

NAZAR GOLD SI LIMITED
1^st Defendant

LAPEROUSE RESTAURANT COMPANY LIMITED
2^nd Defendant

COMMISSIONER OF LANDS
3^rd Defendant

Date of Hearing: 22 October 2018, 23 October 2018
Date of Judgment: 7 January 2019

Mr. J. Sullivan QC and Mr. Soma for the Claimant in CC 294 of 2014 and Claimants in CC.45 of 2016
No one for Laperouse Restaurant Company Limited in all three cases
No one for Nazar Gold SI Limited in all three cases
Mr. D. Damilea for the Attorney General and the Commissioner of Lands in all cases

JUDGMENT

1. It was consented for all the cases be consolidated and be heard together as affirmed by an order of court on 14^th April 2016. The consolidation order was necessary because of the common denominator in all the cases, a dispute over ownerships of FTF in Parcel Nos. 191-014-100 and 191-014-121. Both parcels are located at Town Ground, North of the main West Honiara road, in Honiara.
2. Very unfortunate as it appears, Counsel Mr. Suri was granted leave on 20^th September 2018, to withdraw as Solicitor representing the Claimant in CC. 82/2014 and second Defendant in CC. 294/2014 and second Defendant in CC. 45/2016.
3. The same equivalent scenario was given to Mr. Pitakaka by granting him leave on the same date, to withdraw as Solicitor representing the second Defendant in CC. 82/2014 and first Defendant in CC.294/2014 and first Defendant in CC. 45/2016.

Brief outline of the Claims:

5. The Claimants in CC. 294 of 2014 and CC. 45 of 2016, who were represented by Sol-Law, claim ownership pursuant to section 224 and 225 of the Land Title Act, had acquired by prescription of the fixed term estates by actual peaceable, overt and uninterrupted adverse possession in parts of PN 191-014-100 and 191-014-121.
6. In CC. 82 of 2014, the Claimant’s major relief is for rectification under section 229(1) of the Land and Title Act, that the Registrar cancels the registration of the fixed term estates in PN 191-014-100 and PN 191-014-121 in the name of Nazar Gold SI Limited, and restoring the Claimant as registered owner of the two fixed term estates in those lands. One major reason the Claimant relies on is that the Commissioner of Lands had committed fraud to fast track registration in the name of Nazar Gold SI Ltd.
7. On 22^nd October 2018 when the trial was conducted, a call was made but no one appeared on behalf Nazar Gold SI Limited and Laperouse Restaurant Company Limited. Therefore their interests in all the cases are not advanced, either to prosecute or defend. It is unfortunate, but the court must proceed to hear the parties.
8. Out of the three cases the first one was filed in 2014 and the latest in 2016. To continue prolonging trial will prejudice the rights of the other parties, who desirous their case be heard with minimum delay and expenses.

Background facts:

9. At all material time until 2013, Laperouse Restaurant Company Limited was the registered owner of the two fixed term estates. Initially it was “Tourism Development Company Limited”, a company incorporated under Laperouse Restaurant Company Ltd which owned the fixed term estates.
10. As initially intended, PN 191-014-100 was for a France Restaurant, bar tea room and a tourist shop. In fulfilment of that purpose a restaurant building was constructed on the land, but was removed during ethnic tension and social unrest.
11. Parcel Number 191-014-121 was purposely for the use of a car park providing security parking for customers occasioning the restaurant and property, and as an open space.
12. On a date prior to 1996, Laperouse Restaurant Company Ltd constructed a fence on a north south axis through PN.191-014-100 and PN.191-014-121, as shown in map (Annexure A) of the trial exhibits, and colored in red boundaries.
13. On 4^th September 1996, Blue Lagoon Cruise (SI) Limited became the registered owner of PN 191-014-131 which was adjacent immediately to the west of PN 191-014-100. From 4^th September 1996 until 14^th December 2006 Blue Lagoon had actual peaceable, overt and interrupted adverse possession of part of PN 191-014-100.
14. Honiara Resort Solomon Limited then became the registered owner of PN 191-014-131 with effect from 14^th December 2006, pursuant to a transfer of that land for valuable consideration from Blue Lagoon, for a period of 50 years with effect from 21^st August 2006 pursuant to the deed of grant, commencing on 1^st February 2006.
15. Prior to 21^st August 2006, the Commissioner of Land was in possession of PN 191-014-199, adjacent to PN 191-014-121 and also in receipt of rents and profits therefrom, and there was no registration of a fixed term estate in that parcel. Later acquired by Honiara Resort Solomon Limited on the above date.
16. In or about 1999 and 2000 Laperouse Restaurant Company vacated and abandoned the Restaurant and both fixed term estates.
17. About 2001 the Claimant in CC NO. 45 of 2016 including some children settled and resided on the eastern part of the fence in those two lands continuously until today. Therefore claim they had acquired title to parts of those two parcels under the principle of actual peaceable, overt and uninterrupted adverse possession pursuant to sections 224 and 225 of the Land and Title Act.
18. On the other hand the Claimant in CC. 294 of 2014 and its predecessors had occupied parts of PN 191-014-100 and PN 191-014-121, a strip of land marked red in the map marked as Annexure “A”, relied on the same principle actual peaceable, overt and uninterrupted possession of the strip of land west of the fence constructed by Laperouse since 1996.
19. It is therefore crystalline clear that Claimant in CC.294 of 2014 and the Claimants in CC 45 of 2016, claim they had acquired ownership of those areas of the parcels of land well over 12 years counting from the dates they began to acquire and occupy the lands.
20. Then came 27^th November 2013, the Commissioner of Lands granted to Nazar Gold SI Ltd fixed term estates in PN 191-014-100 and PN 191-014-121 for a term of 50 years commencing 1^st January 2014
21. .

Relief sought by Laperouse:

22. The reliefs sought by Laperouse are twofold. One is for declaration orders that the Commissioner of Lands comply with sections 186(1) (2) and (3) and 187 to consider creation of road access or public right of way to the two fixed term states, or even to the extent to make enquires and make report thereafter, that the Commissioner created a right of way capable of being used by vehicles.
23. The second regime of relief is for the rectification of the titles in the fixed term estates, by cancelling the registration of the two fixed term estates in the name, of Nazar Gold SI Ltd, and restoring in the name of Laperouse Restaurant Company Ltd as registered owner of the titles in the fixed term estates.
24. The ground relied on by Laperouse for the grant of reliefs, are that the process of forfeiture was manifestly done by error, tainted with gross committal of fraud or mistake.
25. Having said that, I do not intend to draw full expository of Laperouse’s case, on the ground of its failure to attend trial, neither its Solicitor, nor agent to prosecute its case. Such circumstance warrants a clean dismissal as the only legal conclusion available which I can confidently draw.
26. In dealing with the first limb, the truth that unveils reality was the facts themselves. That in about 1999 or 2000 Laperouse vacated and abandoned the restaurant and the two parcels of lands. The reasons premise on social un-rest and ethnic tension.
27. About 9 or 10 years later, on 22^nd October 2009, Laperouse’s agent wrote a letter to the Commissioner of Lands to consider creating a public right of way to access the lands. Unfortunately nothing was done because of some other reasons.
28. What could have been the true position was that, on 1^st July 2010 there was a new Companies Act came into force, which required existing Companies to be re-registered. By then, Laperouse Restaurant Company Ltd was removed and de-registered. For all purposes, in terms of business undertaking and dealings, Laperouse was a nonexistence entity. The question whether the Commissioner of Lands had yielded responsibly to the application or not was a non-issue. If not, cannot be legally persuaded because Laperouse was de-registered and the status it acquired at that time as a business entity was inactive, not capable of performing usual business activities. It was duly incompetent at law, none existence and was removed from the register. And its fixed term estates were assumable vested in the Crown.
29. Nevertheless the Commissioner had attempted but not successful. That could possibly allowable within the first year after the application was received. The years that followed were removal years and the estates were vested on the Crown. That left nothing to Laperouse until it was re-registered on 20^th March 2014, after which all its capabilities and benefits revived.
30. By then it was about 13 years taken from 2001 when the first settlers resided on the parcel of lands. The settlers now claim acquisition of ownership to the lands under the principle of actual peaceable, overt and uninterrupted adverse possession under sections 224 and 225 of the Land and Titles Act. They have since 2001 been in possession of the lands and continue to do so uninterruptedly. That same principal in law is claimed by Honiara Resort Solomon Ltd for occupying uninterruptedly the west side of the fence constructed by Laperouse since 1996 including its predecessors Blue Lagoon Cruise and the Commissioner of Lands which were the registered owners of the adjacent lands, which later acquired by Honiara Resort Solomon Limited.
31. It could have been proper and less cumbersome and misery, if Laperouse applied for access road immediately after titles to the Lands were granted to it and became owner of the fixed term estates. Evidence had revealed that previously Laperouse was merely accessing to its restaurant through the twin towers which at all material time owned by the Commissioner of Lands.
32. Since 15^th August 1986, Laperouse had sufficient time to apply for access road. To wait until 2009 and 2011 applying was a mystery, particularly when the reasons given for access road was to enhance development in the two fixed tem estates. There was no evidence itemizing the class of development Laperouse intended to undertake. In fact the reliefs sought by way of declaration is to order the Commissioner to perform its statutory duties by creating a road access or public right of way, is an issue raised too late and unworthy to be considered at all.
33. The second limb in Laperouse’s claim was a challenge against the forfeiture process adopted by the Commissioner of Lands which it claimed succumbed by fraud or mistake under sections 136 and 138 of the Lands and Titles Act. The Claimants in the other two cases had rendered support, but that was not the gist of their claims. They were more focusing and relying on sections 224 and 255 of Land Title Act, which inhibit acquisition of the part of the lands by way of prescription that their acquisition and occupation of the part of the fixed term estates were by actual peaceable, overt and uninterrupted adverse possession. Since the process of forfeiture provides for common challenge, it is considered relevant to discuss it under that heading, see next sub-heading.

Forfeiture Process:

34. One Common aspect which all the Claimants, in the entire cases base their argument was that the Commissioner of Lands had failed to comply with the forfeiture process provided for under sections 136 and 138 of the land and Title Act.
35. On the outset, the Acting Commissioner of Lands who was called and gave evidence agreeing to the fact that the former Commissioner of Lands did not comply with the requirements under the above provisions, particularly related to the issuant and service of the notice before forfeiture and notice of re-entry which was not effectively done. He particularly concluded that if the court finds appropriate in setting aside the forfeiture, he consented that sub-division can be made to cater for four separate parcels of lands.
36. The evidence by the Commissioner of Lands (AG) who was the Defendant in all three cases had spoken, consented to none compliance to relevant statutory provisions by the former Commissioner of Lands.
37. The fact that he used the word “if”’ in his last paragraph when concluding his oral evidence in court, does not change his position. The utterance of the word “if”’ is merely attempting to allow the court to exercise its discretion.
38. The situation compounded by the Acting Commissioner was quite different. He had agreed to the defective nature of the forfeiture process which gave no effectiveness to the registration of the lands in the name of Nazar Gold. He also agreed that the two fixed term estates are to be sub-divided into four separate parcels. That itself appears as a concluded decision.
39. Therefore, there is no point identifying and particularizing the actual defectives. The Acting Commissioner had agreed that his office which was manned by the former Commissioner was wrong, it could be in terms of fraud or mistake or both (in his own words).
40. To give justice to the case, I sited a number of deficiencies committed when administering the forfeiture process. I will point out three major ones which occurred.
41. The challenge by Laperouse is that there was no notice before forfeiture served on it as a registered owner of the two fixed term estates being the subject of these cases.
42. The argument is that the notice before forfeiture was posted to Laperouse, addressed to P. O. Box 454, probably an address on record from previous dealings. The post office receipt was dated 26^th November 2013.
43. A prudent Commissioner would have noted that it was Michael Chan of Capital Real Estate, an appointed agent of the Claimant wrote two letters to him on 21^st October 2009 and 29^th November 2009, concerning request for creation of an access road, Mr. Chan’s post office box is not 454. As a result the notice was never received. It would be true that Mr. Chan or Laperouse were unaware of how the two fixed term estates were removed, because the notice was sent to a wrong address, an address which could have not existed and forgotten long ago.
44. The second mistake was that the Commissioner of lands relied on clause (4) and (5) in the first schedule of the grant instrument, as reasons for issuing notice before forfeiture. Those clauses refer to a class of building to be erected and the period to accomplish construction which is 24 months. As well, the building plan must be approved by the Town and Country Planning Board of Honiara City Council.
45. In my opinion the Commissioner was taken for granted that the notice before forfeiture was similar in all circumstances where the owner had failed right from the beginning to construct a class of building prescribed in the first schedule.
46. In this case distinction must be drawn because Laperouse had abandoned its restaurant building and the two fixed term estates due to ethnic tension and social unrest, a situation unforeseeable and not contemplated. In such situation it would have been proper and prudent for the Commissioner to mention Clause 7 in the notice before forfeiture. Apparently the Commissioner had failed and therefore a mistake was committed per se. Whether the mistake was done because of ignorant or otherwise, the letter of 1^st May 2002 (being the notice) contained nothing in respect to Clause 7.
47. By failing to expose full reasons in the notice, the notice before forfeiture was ineffective and of no force.
48. The third mistake is that, upon re-registration of Laperouse on 20^th march 2014, it is held as a conclusive evidence of its registration. That was affirmed by the Certificate of registration. The temporary removal from 1^st April 2011 to 20^th March 2014 had no force or effect. The reason being there was no order for compensation as required by s.146 of the Companies Act, and no transmission of two fixed term estates to be Commissioner of Lands was registered. Therefore all properties including the two lands vested on Laperouse as if it had never removed from the register after re-registration.
49. According to S.141(1) of the Lands and Title Act, a fixed term estate only ceases when the Commissioner of Lands lawfully re-entered and recovered possession of the land and entitled to be registered as the owner.
50. In this case the Commissioner of Lands was never entitled to be registered as the owner of the two fixed term estates, and was never practically and lawfully re-entry and took possession of the lands.
51. As required, any forfeiture of such fixed term estates must be done under section 136 and 138 of the land and Titles Act. In this case the Commissioner failed to comply with those two provisions.
52. Further the registration and cancellation of Leparouse’s ownership of the two fixed term estates and registration of Nazar Gold as owner of the fixed term estates, in the same parcels, done simultaneously with effect from 27^th November 2013 pursuant to the same dealing number 942/13.
53. Apparently there was no point in time; there was no fixed term estate of the said estates so that a new offer could be made to Nazar Gold. In the premises the purported forfeiture was invalid and of no effect. Therefore the registration of the fixed term estates in favour of Nazar Gold was invalid and ineffectual.

Ownership of title by prescription:

54. Both Claimants in CC 294 of 2014 and CC 45 of 2016, claim acquisition of the estates by prescription of the portion of land they had occupied by way of actual peaceable, overt and uninterrupted adverse possession of the lands for more than twelve years, in accordance with sections 224 and 225 of the Land and Title Act.
55. The claimant in CC 294 of 2014, claim acquisition of two portions of land west of the fence which are adjacent to parcel number 191-014-100 and parcel number 191-014-121. And the Claimants in CC 45 of 2016 the balance of the lands on the eastern portion of the fence.
56. At all material time Laperouse Restaurant Co Ltd was the registered owner of the two fixed term estates until 27^th November 2013.
57. At that time as well, Blue Lagoon Cruises (S9) Ltd was the registered owner of PN 191-014-131 with effect from 4^th September 1996. That land was adjacent and located west of the fence to PN 191-014-100. On 14^th December 2006, the Claimant in CC 294 of 2014 became the registered owner of PN 191-014-131.
58. On 21^st August 2006 the Claimant in CC 294 of 2014 became the registered owner of PN 191-014-199, situated to the west of the fence and adjacent to PN 191-014-121.
59. Actually the fence was not constructed in accordance with demarcated boundaries, but about 0.034 hectares inside of its PN 191-014-100, and 0.024 hectares inside of its PN 191-014-121.
60. Until 14^th December 2006 Blue Lagoon had actual peaceable, overt and uninterrupted adverse possession of part of PN 191-014-100 (0.034 Hectares) lying west of the fence which was later transferred to the Claimant in CC 294 of 2014 when it became registered owner on 14^th December 2006, pursuant to deed of grant for valuable consideration from the Commissioner of Lands. Until 21^st August 2006 the Commissioner of Lands, as the predecessor of Honiara Resort, was the registered owner of PN 191-014-199 receiving rents and profits therefrom.
61. In the premises, the evidence is clear and clean without any challenge. On the balance of probability, by prescription, the fixed term estates in part of Parcel No.191-014-100 and Parcel No.191-014-121 situated to the west of the said fence, comprising of 0.058 hectare as shown in Annexure A, was acquired by the Claimant in CC No.294 of 2014, pursuant to the principle in law advocated in sections 224 and 225 of the LTA, of which they had continuously occupying for more than twelve years including the years its predecessors Blue Lagoon Cruises and the Commissioner of Lands registered as owners of the fixed term estates.
62. As far as cc 45 of 2016 is concern, the Claimants also claim ownership premise on the same law principal. That they had occupied the fixed term estates by prescription for such period of actual peaceable, overt and uninterrupted adverse possession on the balance of those two fixed term estates east of the fence after Laperouse abandoned and vacated the estates in 1999 or 2000, during the ethnic tension and civil unrest.
63. Immediately after the tension evidence reveals that the following years about 14 families settled on the vacated lands. The first to settle was Kio’s family who settled in 2001. In 2002 four more families settled there. In 2003 there were two families settled in. In 2004 another two families settled. In 2005 two families settled in. In 2006 one family. The Claimants in this case had represented those families as trustees and representative of olufera clan.
64. The four name Claimants in this case had settled on the lands with their families in 2002. That is in accordance with the evidence in the sworn statement of Mr George Abana, see annexure marked “GA-3’’. The rest of the families settled later. The most recent families to settle was in 2007, there were two families.
65. Since 2001 there were children born from the families who came to occupy the lands. Their live peaceable, overt and uninterrupted adverse possession in the lands. They were never disturbed by any notice or case for eviction or order served on them. Any interruption could be expected from the agent of Laperouse Restaurant who was in Honiara and active in 2009 and 2011. By that time the period of possession by the claimants was far less than 12 years, in fact it was 8 years by then.
66. By now 12 families who are in continual adverse possession of the lands had occupied the lands for more than 12 years. Therefore they are entitled to the portions under S.224 and S.225 for being in adverse possession by prescription. The evidence is clear and without ambiguity. They have for more than 12 years had actual peaceable, overt and uninterrupted adverse possession of the balance of fixed term estates east of the fence.
67. By reason of law outline above, Laperouse would have been entitled for rectification of the titles, but by operation of this specific principle under section 224 and 225 of the Land and Titles Act, both Claimants in CC No 294 of 2014 and CC No 45 in 2016 are owners by adverse possession, be entitled to rectification of the land register to themselves as registered owners of the portions they had acquired east and west of the fence of the fixed term estates.
68. The court is hereby adjourned to 31^st January 2019 for mention so that the Commissioner of Lands and the Claimants in both cases CC 294 of 2014 and CC 45 of 2016 to attend and agree on the formulation and finalization of the court orders, including costs which I have awarded to the Claimants in those two cases against the Defendants respectively

THE COURT.
JUSTICE R FAUKONA
PUISNE JUDGE