West v Attorney General [2019] SBHC 92; HCSI-CC 296 of 2014 (29 November 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	West v Attorney General
Citation:
Date of decision:	29 November 2019
Parties:	Dona Hatamali West, George West v Attorney, Red Devil Transport Limited, Joseph Douglas
Date of hearing:	15February 2019 (Closing Submission)
Court file number(s):	296 of 2014
Jurisdiction:	Civil
Place of delivery:	High Court Of Solomon Islands, Honiara
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Claim is not made out and dismissed. In view of the difficulties, I will not order cost against any particular party. Parties will meet their own costs
Representation:	Ms. M Bird for the First and Second Claimants Mrs. R m Soma for the First and Third Defendants Mr. C Hapa for the Fourth Defendant (Not filed closing written submission-delay case) No Appearance for the Fifth Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s229 (1) (2)
Cases cited:	Malaita Development Authority v Ganifiri [2002] SBHC 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 296 of 2014

DONA HATAMALI WEST
First Claimant

GEORGE WEST
Second Claimant

V

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
First Defendant

ATTORNEY GENERAL
(Representing the Registrar of Titles)
Second Defendant

ATTORNEY GENERAL
(Representing the Premier of Western Province)
Third Defendant

RED DEVIL TRANSPORT LIMITED
Fourth Defendant

JOSEPH DOUGLAS
Fifth Defendant

Date of Hearing: 15 February 2019 (Closing Submission)
Date of Judgment: 29 November 2019

Ms M Bird for the First and Second Claimant
Mrs R M Soma for the First –Third Defendant
Mr. C Hapa for the For the Fourth Defendant (Not filed closing submission-delay case)
No Appearance for the Fifth Defendant

JUDGMENT

Introduction

1. Mr. and Mrs. West, first and second claimants, are a couple, operating tourism-related businesses in Gizo, Western Province. The couple are trading under the business name “GD Trace Corporation Limited.” To expand their tourism business intentions, the couple applied to the Commissioner of Lands (COL) for two plots of lands, on Nusatupe Island, where the airport presently sits, just off Gizo Island, Western Province.
2. Couple’s attempts to obtain 2 plots of lands on the airport island goes back to 2002, with a lot of difficulties. The couple applied for lease of Lots 1 and 3 on 22^nd April 2002^[1]. Plots applied for were unsurveyed and unidentified sites. Application was made to the Provincial Secretary, Western Province (Province), whilst COL was the owner of the relevant Perpetual Estate (PE) for the whole island. Provincial Executive endorsed the couple’s intention. And did the right thing, by referring the couple to the Lands officer Gizo - the COL being the PE owner, of the 2 plots on the airport island, at the material time.
3. On 25^th June 2003, Lands officer Gizo, Mr. Zutu, confirmed “conditional acceptance”. And asked the couple to pay fees for survey^[2]. I say “conditional acceptance” because, a survey and sub-division are yet to be made, before final offer and acceptance are exchanged to conclude a finalised binding contract. The couple paid the survey fees on 25/06/2003^[3]. Survey and sub-division were necessary to ensure, no development would obstruct the airport (landing and take-off of aircrafts). Survey instruments were signed by Surveyor General on 30/8/2007^[4]. The Survey was for Lots 1 and 2 – LR 613. This Lot, then, had the Parcel Number 097-018-1 – whole of Nusatupe island. The COL was then the PE owner.
4. On 19/8/2008, COL offered Lots 2 and 3 instead to the couple^[5]. Couple claimants accepted the offer about a year later on 30/9/2009, through payment of the consideration price, stated in the offer^[6]. In the normal course of things, a contract was concluded between COL and the couple on 30/9/2009. But as the evidence shows, the PE for the lots/plots concerned (whole of Nusatupe island) was already transferred from the COL to the Province on 29/9/2008^[7] (will return to this in the analysis). Not only that difficulty, but on 23/11/2009, the COL had also terminated the contract (purportedly made on 30/9/2009^[8]). Among other reasons, the COL cited late payment of contract price, for the termination, according to submission by Counsel Soma. The COL terminated the contract because it alleged the couple paid for the contract price, outside of the 60 days period for payment stipulated in the contract (grant). Will return to this in the analysis later.
5. The couple’s unceasing effort to get the 2 plots did not stop in November 2009. For the evidence shows that by 20/03/2012, COL executed a Grant of Fixed Term Estate in favor of the couple, in respect of PN 097-018-004 and PN 097-018-005^[9]. These were 2 of the 4 sub-divided plots as noted in paragraph 8 below. The Grants were however not registered, triggering the filing of this claim in 2014. Claim seeks declaratory and compelling reliefs against the Registrar of Title (ROT) and COL to complete registration of the Grant made on 20/03/2012. Claim also seek declaration that the lease on PN 097-018-005 and PN 097-018-004 to 4^th and 5^th defendants respectively were secured by fraud and or mistake. And therefore null and void ab initio. Consequently the couple prays that a new grant is made in their favor through rectification under Section 229 (1) and (2), of the Land and Titles Act (Cap 133), on the ground of mistake and/or fraud. The couple seeks the ultimate relief that the names of the 4^th and 5^th defendants be removed from the two said parcels. And the couple’s names inserted there on the register.

Issues

6. Was PN 097-018-005 and PN 097-018-004 registered in the names of the 4^th and 5^th defendants respectively, by fraud and/or mistake? And should the register be rectified accordingly pursuant to Section 229 (1) of the Land and Titles Act (Cap 133), as amended? Was there a binding contract between the couple and COL on 30/9/2009? Did the COL lawfully terminate the said contract on 23/11/2009? Can the COL lawfully deal with the sub-divided 2 parcels (PN 097-018-005 and PN 097-018-004), when COL had already transferred the PE in PN 097-018-1 (original plot) to the Province, as noted in paragraph 7 below (on 11/05/2009)?

Analysis

7. The couple’s purported contract was made on 30/9/2009, after hefty struggles since 2002/2003. The 30/09/2009 purported contract was made at a time when COL, no longer had title to the PE or FTE in the 2 parcels concerned (PN 097-018-005 and PN 097-018-004). For evidence shows that on 29/09/2008, the PE in PN 097-018-1 (whole of Nusatupe island - original plot from which the said 2 parcels emerged through sub-division, engineered by the Province) was already transferred to the Province. What happened as discovered in oral evidence of Bobby Waitara, at trial was that, the PE in PN 097-018-1, underwent a sub-division engineered by the Province under Mutation No. 70/08, resulting in the current four (4) sub-divided parcels: 097-018-003, 097-018-004, 097-018-005 and 097-018-006. Sub-division was made after the Province obtained the PE of the original PN 097-018-1 on 29/09/2008. Transfer of PE to the Province was subsequently registered on 11/05 2009. Couple claimants did not know about this transfer and only referred to it as compulsory acquisition in their statement evidence^[10]. But at trial it was uncovered in oral and statement evidence of Bobby Waitara, that COL had actually transferred PE in PN 097-018-1, along with other PE’s in 69 other parcels to the Province on 29/09/2008. The PE in PN 097-018-1 was registered to the Province on 11/05/2009.
8. And so the COL made a mistake on 30/09/2009, when it executed a “Grant” in favor of the couple, in respect of PN 097-018-004 and PN 097-018-005 in year 2012. COL made a mistake because, it was contracting with the couple, for two (2) properties it did not own any more as of 29/09/2008 or 11/05/2009. For the COL granted PE in PN 097-018-01 to Province on 29/9/2008 and ROT registered it to the Province on 11/05/2009. And the Province sub-divided PN 097-018-01 (original PE – whole island into 4 sub-divided plots after 11/05/2009), as noted in paragraph 7 above.
9. The COL cannot lawfully give to the couple what it did not own, as of 11/5/2009. That was a mistake according to case law cited by Counsel for the claimants^[11]. And so the contract between COL and the couple was void ab initio and null and void. The COL’s termination on 23/11/2009, was irrelevant, because the contract was void ab initio as from 11/5/2009 (time when PE was already transferred and got registered to the Province). Similarly and for the same reason, the COL cannot lawfully give/grant to the couple what it did not own in 2012. So the COL’s termination in 2013 was irrelevant, because the contract was void ab initio as from 11/05/2009. As a matter of fact and law, the COL could not lawfully deal with the original plot or sub-divided plots, after 11/05/2009. For ownership had already passed to the Province on 11/05/2009.
10. It was rather unfortunate, that the contract between the couple and the COL was not brought to fruition, in time, before the COL transferred the PE to the Province. But I cannot say that was a mistake or fraud. Certainly fraud was not established. Did the COL made a mistake, by not honoring its commitments with the couple? There was no serious and binding commitment as in a binding contract. For, as I already found, there was no binding contract. Couple had applied. The COL had indicated intentions to give the lands concerned to the couple through requiring the couple to pay for survey fees. And through carrying out of survey work, prior to sub-division. And then to be followed through by making offer of a grant, of the sub-divided plots. However what matters most in law did not happen. And that is offer of the sub-divided plots and acceptance of the offer of any sub-divided plots, following the survey, was not made in time before 11/5/2009. As noted above, couple gave acceptance to the offer on 30/9/2009 (Repeat paragraphs 4 and 7).
11. Now can we say it was a mistake or fraud because the couple were led to belief that sub-division would eventually result in offering the sub-divided plots to them, upon payment for the survey and sub-division fees. Like I said above, there was no binding contract concluded, before the COL could transferred the whole island to the Province. Court cannot interfere in the decision of the COL to deal with crown lands, unless there was mistake or fraud involved. The decision to transfer PE in PN 097-018-001 to the Province was a discretion of the COL.

Was transfer to 4th and 5th defendants secured by mistake and or fraud?

12. Again I could not find any mistake or fraud in the transfer of PN 097-018-005 and PN 097-018-004 from the Province to the 4^th and 5^th defendants. I noted above that COL transferred the PE in PN 097-018-001 to the Province on 20/09/2008 and registered on 11/05/2009. The Province subdivided PN 097-018-1 into four new Parcels (as noted in paragraph 7). The Province gave PN 097-018-005 to 4^th Defendant, PN 097-018-004 to 5^th defendant and PN 097-018-003 to the couple. There is no fraud or mistake because you cannot connect, whatever had been communicated between COL and the couple, to whatever decisions the Province made, as the new owner of the PE after 11/5/2009. After sub-division, the Province made a decision to give 3 of the 4 sub-divided plots as it deemed fit, an exercise of discretion vested on the Province, as the PE holder. And the Court cannot interfere with the decisions, unless there was fraud or mistake. And I could not quite found there was fraud or mistake involved. The couple did not get all they wanted. But they got something after the Province got the PE in PN 097-018-1, and subdivided it into 4 new Parcels. One of the 4 new parcels was given to the couple.

Conclusion

13. What really happened was the couple had been victims of delay in processing of their land applications. Those delays were because of survey and sub-division, dealings with different land officers, sickness and Tsunami (couples personal problems) and the subsequent transfer of PE in PN 097-018-001 to the Province. I could not really put my hands on any fraud/mistake made by the COL or the Province either in dealings in regards to PN 097-018-001 (original plot) or the four subsequent newly sub-divided parcels. Therefore the claim is not made out and dismissed. In view of the difficulties, I will not order cost against any particular party. Parties will meet their own costs.

THE COURT
JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] Page 7 Court Book 2 – Specific Lots 1 and 3 were not mentioned in the letter, but certainly plots on Nusatupe Island.
^[2] Page 17 Court Book 2.
^[3] Page 19 Court Book 2.
^[4] Page 21-22 Court Book 2.
^[5] Page 40 – 44 Court Book 2.
^[6] Page 46 and 48 of Court Book 2.
^[7] Page 165 – 168, where COL transferred to the Province the PE in 69 Parcels. Parcel Numbered 66 in the Schedule is the original plot PN 097-018-001.
^[8] See termination on page 178, Court Book 2.
^[9] Page 52-53, Court Book 2.
^[10] Paragraph 27 of statement of Dona filed 5/09/2014.
^[11] Malaita Development Authority v Ganifiri & Others [2002] SBHC 5; HC-CC 217 of 2000 (30^th January 2002).