Yam and Co Ltd v Bana [2019] SBHC 6; HCSI-CC 40 of 2017 (11 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Yam and Co. Ltd v Bana
Citation:
Date of decision:	11 February 2019
Parties:	Yam and Company Limited v Lydia Bana, Attorney
Date of hearing:	16 November 2018
Court file number(s):	Civil Case Number 40 of 2017
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Paragraph 16 of the Grant Instrument, is valid, lawful and binding on the claimant (affirmative). Yes COL had made a valid, lawful and binding offer of part of PN 206 to Mrs. Bana after the forfeiture process completed against John Wong and before the FTE in the land was registered to claimant. Mrs. Bana is yet to pay for the offer, because part of PN 206 is yet to be sub-divided. Contract with Mrs. Bana will still be paid for after sub-division and valuation is completed by relevant Government agencies (SG, COL and or ROT). COL do not have power to deal with FTE in PN 206, prior to forfeiture on 26/09/2014. Mrs. Bana do not have any overriding interest over PN 206, prior to forfeiture on 26/09/2014. Parties meet their own cost. Yam & Company limited and Mrs. Bana to cooperate and engage with COL, SG and ROT to sub-divide part of PN 206 to Mrs. Bana to implement condition 16 of Grant Instrument to claimant registered on 31st May 2016.
Representation:	Mr. P Afeau for the Claimant
	Mr. C Ruele for the First Defendant Second Defendant- No Appearance(Dormant Party)
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 40 of 2017

YAM AND COMPANY LIMITED
First Defendant

V

LYDIA BANA
First Defendant

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

Date of Hearing: 16 November 2018(Closing oral Submission)
Date of Decision: 11 February 2019

Mr. P Afeau for the Claimant
Mr. C Ruele for the First Defendant
Second Defendant- No Appearance (Dormant Party)

JUDGMENT

Introduction

1. Claimant was registered as Fixed Term Estate (FTE) owner of the disputed property, Parcel Number 191-029-206 (PN 206) on 31^st May 2016^[1], after many years of struggle, dating back to 1993. At time of registration of FTE title on 31^st May 2016, first defendant had already occupied and constructed family houses on parts of PN 206. Claimant therefore filed this claim seeking eviction orders, permanent injunction and mesne profit against the first defendant (Mrs. Bana).
2. Mrs. Bana after many years of struggle dating back to 2007, had moved in around year 2011 and had actually built 3 family houses on parts of PN 206. Mrs. Bana is renting out one of the 3 family houses built on PN 206.
3. The many years of past struggle for both parties are immaterial to the resolution of this dispute. For instance claimant applied and got offered the disputed property in 1993. However that contract failed. For by 29/01/1997^[2], the FTE was registered instead in the name of one named Mr. John Wong. Claimant did not challenge John Wong’s registration. Mr. John Wong flee the country in year 2000 due to the ethnic tension. Claimant in later years entered into contract with Mr. John Wong. Again that contract failed because FTE in PN 206, was not registered to the claimant, though a transfer instrument was already executed between claimant and John Wong on 10/02/2015^[3]. On 26/09/2014, Commissioner of Lands (COL) resumed back the FTE title after a successful forfeiture against Mr. John Wong. Then on 17^th May 2016, COL granted the FTE to claimant. Claimant finally got the registered FTE title on 31^st May 2016.
4. For Mrs. Bana she applied and was offered the land in March 2011. The problem is the COL did not own the FTE in 2011, because Mr. John Wong had the FTE until forfeiture on 26/09/2014. So whatever contract Mrs. Bana had entered into with COL in 2007, 2011 or prior to 26/09/2014, cannot be enforced in law. For it was a mistake that Mrs. Bana was contracting with COL. At the material time Mr. John Wong was the FTE owner, not the COL. For purpose of this claim, Court will concentrate on transactions between the COL and claimant and/or Mrs. Bana, after COL had resumed FTE back through forfeiture on 26/09/2014. The date of forfeiture is crucial. To make it clear; Court will not consider as valid all past dealings that COL has had with both parties prior to forfeiture on 26/09/2014.

Date COL had forfeiture of PN 206 from Mr. John Wong 26/09/2014

5. COL gave notice before forfeiture by letter dated 21/02/2013^[4]. That notice was followed by Notice of Re-entry dated 26/09/2014^[5]. So at 26/09/2014, the COL had taken back possession of FTE in PN 206, from Mr. John Wong; noting that there is no challenge to the Forfeiture and Re-Entry proceedings by Mr. John Wong. The date 26/09/2014 was about 1 year and 7 months following Notice before Forfeiture. Notice of Re-entry dated 26/09/2014 is at page 68 of Court Book. So I can safely conclude that COL had valid title to the FTE in PN 206 on 26/09/2014. The importance of this date is that for any dealings between COL and claimant or Mrs. Bana to be valid, lawful and enforceable in contract law, such dealing must come after 26/09/2014. Before this date, the COL does not have the FTE. And cannot therefore lawfully transact the FTE with anyone.

Offer to claimant and Mrs. Bana contained in one letter 17/05/2016

6. We see in evidence that COL offered the FTE in PN 206 to claimant on 17^th May 2016^[6]. Claimant denied receipt of that letter and was only made aware on 30/06/2016^[7]. Claimant also alleged that it was not made aware of paragraph 16 or condition 16 of the grant instrument when executing it. Had claimant had knowledge, it would seek clarification. But claimant did not raise any complain against the COL. Claimant did not allege any wrong doing against COL. Court will not take this denial further. Issues to do with this denial are matters to pursue with COL. Grant of the offered FTE was eventually registered to claimant on 31^st May 2016. COL in the same letter of 17^th May 2016, offered to Mrs. Bana part of PN 206. And that the grant to claimant had a grant condition that obliged claimant, at condition No 16, to sub-divide and transfer parts of PN 206 to Mrs. Bana.

Previous Allocation via COL’s intention to offer part of PN 206 to Mrs. Bana 9/02/2015

7. Another offer COL made to Mrs. Bana was prior in time dated 9/02/2015^[8]. This letter was not really an offer, but a confirmation to a third party (Director of Housing) that Mrs. Bana was already in the COL’s log book for allocation of parts of PN 206. This letter read with the letter of 17^th May 2016 speak of one thing. That Mrs. Bana has had some previous allocation to part of PN 206, even before claimant was offered the FTE on 17^th May 2016.
8. It is not surprising that the letter of offer to claimant on 17^th May 2016, specifically stated that “Mrs Lydia Bana had already been offered part of the land during the period, after, the forfeiture and Re-Entry process has been completed. She fully paid the offer including land rentals from the year 2005 to 2013”. The last sentence of this letter, though has inadequacy in law^[9], shows that Mrs. Bana has had previous contacts with COL over the FTE in parts of PN 206. These 2 letters are evidences of condition 16, which says the grant to claimant was made subject to claimant sub-dividing PN 206 with one “previous allocation”. Besides Mrs. Bana, there is no evidence before me of any other person having a “previous allocation”; after 2014 forfeiture. Eliminating Mr. John Wong and Claimant after forfeiture, the only previous allocation is non-other than Mrs. Bana. The previous allocation here is the allocation intent letter dated 9/02/2015 (only allocation after forfeiture would be valid not the correspondences or offers or allocations prior to forfeiture). This allocation is in the form of a letter to a third party. It is not the usual offer letter that COL would normally issue to people. But nevertheless it speaks of the intention by COL to allocate parts of PN 206 to Mrs. Bana once outstanding matters like sub-division is done away with (connecting this letter to offer letter of 17^th May 2016). Court noted in the letter of 17^th May 2016, that COL acknowledged past errors causing long delay and wrong registration. Court also noted the inadequacy in law of the last sentence of paragraph 2; in reference to rentals Mrs. Bana paid from years 2005 - 2013. Similar error is also contained in paragraph 1, of letter of 9/02/2015; in reference to allocation to Mrs. Bana on 1^st April 2011.
9. So when you look at the background facts to PN 206, culminating with the correspondences on 9/02/2015, 17^th May 2016 coupled with Mrs. Bana’s frequent contact^[10] with COL’s office since 2014, it is not too remote to draw the conclusion that Mrs. Bana was offered parts PN 206. And that the grant registered to claimant on 31^st May 2016, was made by COL conditional upon sub-division to Mrs. Bana. If one looks at the closeness of time interval between the letter of 9/02/2015 and 17/05/2016; there is no other probable conclusion, than to say that claimant was offered PN 206, subject to Mrs. Bana’s previous allocation. Claimant was offered PN 206, subject to Mrs. Bana’s interest on 17^th May 2016. That letter read with condition 16 of the grant can be linked to Mrs. Bana’s previous allocation intent letter (9/02/2015). And condition 16, of the grant registered to claimant on 31^st May 2016, provides for a logical link to be made to Mrs. Bana. The closeness in time interval (9/02/2015^[11] – 17/05/2016^[12] – 31/05/2016^[13]) means that you cannot eliminate Mrs. Bana from PN 206. All these transactions took place after COL had valid FTE title on 26/9/2014.

Claimant’s counter argument – No possible link to Mrs. Bana

10. Claimant’s counter argument to any possible link to Mrs. Bana, I can summarise and conclude on as follows:

(I) On condition 16, Mrs. Bana did not admit in oral evidence that she received any offer from COL in 2014, 2015 and 2016. So there is no factual basis to support condition 16 and COL’s letter of 17^th May 2016. And therefore it seems clear that COL must have been referring to letter dated, 1^st April 2011. Court already held that any dealing by the COL prior to forfeiture (26/09/2014) is invalid, because COL did not own FTE from 1997 26/09/2014. But there is documentary evidence that COL offered part of PN 206 to Mrs. Bana after forfeiture by letter dated 9/02/2015, prior to the 17^th May 2016^[14] offer letter, to the claimant. Though the 9/02/2015 letter made reference to allocation on 1^st April 2011; that is a clear mistake because COL did not own FTE then. That mistake aside, what the letter is saying on 9/02/2015, is COL by 2015, still maintain intention to give part of PN 206 to Mrs. Bana. And then the intention was cemented by the offer to Mrs. Bana (17/05/2016^[15]) (Repeat Paragraph 6 above). I do not think a witness in the witness box would recall all documents. But the documents (letters dated: 9/02/2015 and 17/05/2016), Mrs. Bana had them disclosed in her sworn statement (ss) filed 17/03/2017^[16]. Mrs. Bana also maintained in oral evidence she was making frequent contact with the COL, since 2014. All contacts before forfeiture (29/09/2014) are irrelevant. But all correspondence and contacts after 29/09/2014 are relevant.
(II) Mrs. Bana is not privy to contract between COL and claimant. So Mrs. Bana cannot claim any right under condition 16, of the grant. I found that the letter of offer to claimant on 17^th May 2016 was also an offer to Mrs. Bana. And so the grant registered on 31^st May 2016, imposed a condition on claimant to sub-divide part of PN 206 to Mrs. Bana. Grant to claimant was conditional upon claimant sub-dividing part of PN 206 to Mrs. Bana.
(III) That paragraph 16 (condition 16) is imprecise, ambiguous and incapable of implementation and therefore void for absence of specific details. Specific details like part of PN 206 to be sub-divided; who to meet cost of any sub-division; who to supervise sub-division; who to determine value of the part and how it should be determined; what if claimant and Mrs. Bana cannot agree on any of these outstanding matters. So it would be a futile exercise to implement condition 16. This is where the intervention of this court is necessary. And the view of this court, is that these matters are easy to implement. For instance the part of PN 206 to sub-divide is easy to identify because Mrs. Bana already has family houses built on PN 206. On cost of sub-division, that can be sorted out. I am definitely sure Mrs. Bana will be willing to meet the cost, because she is renting out a house now. And she has been after this land for so many years. So whatever cost involved now, I would imagine she would gladly embrace. She say in oral evidence she will pay for any sub-division costs. Sub-division is the duty of Surveyor General (SG) we know. The value of the land will definitely be a matter for COL, to determine. Mrs. Bana will have to pay for the determined value of the newly created Lot number coming out after sub-division. If claimant and Mrs. Bana cannot agree on things then COL may be pulled in to facilitate OR they may seek further assistance from the court, on outstanding disputes.
(IV) Claimant also argue that the letter of 1^st April 2011 was invalid because COL did not own FTE at that time. Similarly rental payments made prior to forfeiture are not good consideration. I agree with these submissions because I found above that any dealings by both claimant and Mrs. Bana with COL prior to forfeiture in 2014 is invalid and not enforceable. For the same reason, Mrs. Bana’s claim for overriding interest will also fail because her occupation of the land prior to forfeiture, was unlawful. Not lawful because all dealings by COL prior to forfeiture are also unlawful, in that COL did not have FTE at all those material time. Before I answer the issues posed for determination in this trial, I wish to repeat that after COL forfeited PN 206 in 2014, he had offered PN 206 to both claimant and Mrs. Bana. That offer will be fully implemented with cooperation of both parties to ensure condition 16 is implemented. In implementing; both parties will have to go back to the COL, SG and Registrar of Title (ROT) to facilitate the sub-division in condition 16. If there are outstanding issues they can come back to seek ancillary orders from this court. That option will remain open until sub-division is finally completed.

Conclusion and Orders

11. Finally I answer the issues posed for trial as follows:-
    • 11.1 Paragraph 16 or condition 16 of the Grant Instrument, is valid, lawful and binding on the claimant (affirmative).
    • 11.2 Yes COL had made a valid, lawful and binding offer of part of PN 206 to Mrs. Bana after the forfeiture process completed against John Wong and before the FTE in the land was registered to claimant. Mrs. Bana is yet to pay for the offer, because part of PN 206 is yet to be sub-divided. Contract with Mrs. Bana will still be paid for after sub-division and valuation is completed by relevant Government agencies (SG, COL and or ROT).
    • 11.3 COL do not have power to deal with FTE in PN 206, prior to forfeiture on 26/09/2014.
    • 11.4 Mrs. Bana do not have any overriding interest over PN 206, prior to forfeiture on 26/09/2014.
    • 11.5 Parties meet their own cost.
    • 11.6 Yam & Company limited and Mrs. Bana to cooperate and engage with COL, SG and ROT to sub-divide part of PN 206 to Mrs. Bana to implement condition 16 of Grant Instrument to claimant registered on 31^st May 2016.

THE COURT
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JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See page 178, Court Book (CB).
^[2] See pages 194 - 197; CB.
^[3] See pages 203 – 206, CB.
^[4] See pages 98 - 99, CB.
^[5] See page 68, CB.
^[6] See page 219, CB.
^[7] See Claimant’s Reply to 1^st defendant’s amended defense on page 15, CB.
^[8] See page 129, CB.
^[9] Inadequacy in law – COL did not own FTE from 2005 – 2013.
^[10] Mrs. Bana maintained in oral evidence that she was in frequent contact with COL since 2014 forfeiture and verbal assurances were given to her by officials from the COL.
^[11] Letter to third party indicating Mrs. Bana was in the COL’s log book for allocation of part of PN 206.
^[12] Letter of offer of PN 206 to both claimant and Mrs. Bana.
^[13] Time grant of FTE in PN 206 was registered in claimant’s name; with condition 16 attached.
^[14] Court conclude in paragraph 6, that COL offered part of PN 206 to Mrs. Bana in the same letter of 17/05/2016.
^[15] Same letter of offer to claimant was copied to Mrs. Bana on her official address.
^[16] See ss at pages 91 – 145, CB.