Sea King Holdings Ltd v Registrar of Titles [2020] SBHC 93; HCSI-CC 384 of 2019 (30 September 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sea King Holdings Ltd v Registrar of Titles
Citation:
Date of decision:	30 September 2020
Parties:	Sea King Holdings Limited v Registrar of Titles, Commissioner of Lands, Japhet Limou
Date of hearing:	7 September 2020 and 14 August 2020
Court file number(s):	384 of 2019
Jurisdiction:	Civil
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. That the register be rectified in favour of the Claimant of the FTE in Parcel No. 191-023-190 on the ground of mistake. 2. That the PE in PN. 191-023-190 in the name of the third Defendant be converted into FTE and be granted to the Claimant by the second Defendant, the Commissioner Lands. 3. Cost of this hearing be paid by the all the Defendants to the Claimant.
Representation:	Mr. A. Radclyffe for the Claimant Mr. N. Ofanakwai for the 1st and 2rd Defendant Mr. N. Puhimana for the 3rd Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, S.230 (1) (b), S. 228 (1), S. 229 (2), S.62, Land and Titles Act Part V, Division 1
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 384 of 2019

BETWEEN

SEA KING HOLDINGS LIMITED
Claimant

AND:

REGISTRAR OF TITLES
First Defendant

COMMISSIONER OF LANDS
Second Defendant

JAPHET LIMOU
Third Defendant

Date of Hearing: 7 September 2020 and 14 August 2020
Date of Judgment: 30 September 2020

Mr. A. Radclyffe for the Claimant
Mr. N. Ofanakwai for the 1^st and 2^nd Defendants
Mr. N. Puhimana for the 3^rd Defendant

JUDGMENT

Faukona PJ: A claim was filed by the Claimant on 9^th July 2019 for rectification of register for the fixed term estate in Parcel Number: 191-023-177 or 191-023-190 in its favor on the grounds of mistake.

2. Or in the alternative should rectification is not granted an indemnity from the Government pursuant to section 230(1) (b) of the Land and Titles Act be paid and interest.
3. There are two major issues which form the core basis of this case. One is whether the procedures to cancel the title of the Claimant in Parcel Number. 191-023-77 complied with the relevant provisions of the Land and Titles Act.
4. And the other is whether the third Defendant in acquiring the PE (Perpetual estate) tittle to Parcel Number. 191-023-190 was lawful.

Background facts.

5. The Claimant is a registered company incorporated in Solomon Islands. The Company was owned by the members of the family who were registered as owners of the fixed term estate in Parcel Number 191-023-177.
6. In May 2012 the Claimant applied to the Commissioner of Lands for an extension to that parcel. The then Commissioner of Lands granted the extension of the fixed term estate in PN. 191-023-177 to the Claimant after the necessary fees were paid. The Claimant then became the registered owner of the parcel in May 2015.
7. The creation of PN. 191-023-177 was done by a purported mutation process to an area of land called “remainder” parcel (191-023-176) which the Commissioner of Lands owned the perpetual Estate. As a result two parcels were created and one of which was PN. 191-023-177 granted to the Claimant. According to the first Defendant, this was where the mistake lies.
8. Whereas in reality PN. 191-023-177 was below high water mark and was not registered, neither form part of PN. 191-023-176. Naturally the Commissioner of Lands did not have PE over that area and which cannot exercise power to deal with.
9. Let me now deal with the issue of complying with the cancellation of FTE.

Has the Registrar of Title Comply with cancellation process?

10. The first Defendant argues that since PN. 191-023-177 is part of the customary land below high water marks, and which do not form part of PN. 191-023-176 therefore was a mistake to undergo a mutation process to create PN. 191-023-177 out from PN. 191-023-176.
11. Having realized the process was done by mistake, the Registrar upon S. 228 (1) of the Land and Titles Act cancelled the grant and rectified the title of the Claimant under S. 229 (2) of the Land and Titles Act having satisfied it was obtained by mistake.
12. Amidst that argument the Claimant expose that the purported cancellation did not comply with S. 228 (1) of the Act. The requirement under S. 228 legally urge the Registrar, after taking steps fit to do, bring by way of notice to a person (in here the Claimant) as shown by the register, as having interest in the land, and gave him opportunity to be heard, before he can rectify the register.
13. The Claimant denies receiving any notice of cancellation from the Registrar. After 4 years up to January 2019, the 3^rd Defendant emailed Yam and company, the Claimant’s accountants, that the grant in FTE PN. 191-023-177 had been cancelled and a new parcel created and the PE was registered in the name of the 3^rd Defendant.
14. I noted in the submissions by the Claimant, the Counsel mention notice of forfeiture. That is an over statement. In fact it should be a notice of cancellation. Further, the Claimant denied not been given opportunity to be heard.
15. In the proviso S. 228 (1) describe that “provided it shall not be necessary to bring the rectification to the notice of any person shown in the land register ... and to give such person opportunity to be heard ...”
16. The question to pause is it necessary for the Registrar to comply with the requirement, if so what would be his possible reasons rather than merely relying on the provision without any substance.
17. I noted without any challenge, that none of the letters regarding the cancellation exhibited to the Registrar of Titles sworn statement was copied to the Claimant. There is no reason given why copies of these letters were not sent, and the Claimant was not invited to be heard.
18. What apparently reflected the reality is that the Registrar had failed to comply with the requirement of S. 228 before invoking S.229 (2) of the Land and Titles Act. Such act of mismanagement, and legal administrative failure cannot be treated as in formal matters or minimal or trivial in nature and assume will have no adverse effect on the Claimant, that is absolutely a wrong perception.
19. The Claimant had acquired the land in good faith; it paid necessary fees and premium. As a result of the purported cancellation, the Claimant had lost its property without being compensated, or even ever thought of by the Registrar. Certainly it affected its interest and cancelled any development plan the Claimant intended to pursue on the land.
20. I agree the land below high water mark may be customary land and need a different process to acquire it. However a diligent Commissioner could have identified the right process and made initial decisions as to what right process to apply.
21. Nevertheless, after realizing the mistake, the Registrar ought to have complied with the law, as to how it would inform the Claimant about the mistake it had committed and remedy by money value if possible. I must therefore declare the Claimant must benefit out of the Defendant’s failure. Also declare the action taken by the first Defendant to cancel FTE in PN. 191-023-177 was unlawful.

Has the 3rd Defendant acquired PE title in PN. 191-023-190 lawful.

22. There is no dispute the third Defendant was appointed acquisition Officer by the then Commissioner of Lands to acquire an area of the foreshore and seabed in Honiara which the Commissioner and the acquisition officer thought was customary land and was capable of being owned by anyone.
23. The major function to perform is spell out in S.62 of the Land and Titles Act, that is to identify the customary landowners who will sell or lease the acquired land to the Commissioner of Lands.
24. At the conclusion of his assigned function, the Acquisition Officer, who was the third Defendant and who claimed to have acquired the land, did not vest or leased to the second Defendant. Instead it was wrongly vested upon the purported landowners.
25. As the Counsel for Crown submits, by vesting the land upon the customary landowners without requiring them to execute a lease in favour of the Commissioner of Lands, the then Commissioner of Lands had violated the purpose of Part V Division 1 of the Land and Titles Act.
26. Further to that, the third Defendant also entered into contracts with the so called landowners, including Vincent Kurilau, where the third Defendant received payments of money and the Perpetual Estate in PN.191-023-190 in return for the services.
27. It is clearly indicated and accepted that the Commissioner of Lands and the Acquisition Officer had violated the purpose for the acquisition processes.
28. If it was the government’s desire to acquire the so called customary land for public purposes, then both the Acquisition Officer and the Commissioner of Lands ought to comply with Part V, Division 1, of the Land and Titles Act.
29. By appointing an agent, an Acquisition Officer to perform the functions on behalf of the principle, the Commissioner of Lands under Part V Division 1, of the Land and Titles Act must be complied with strictly.
30. The Counsel for the third Defendant exposes his clients stand point, but has failed or silent about the irregularity result of the determination by and the action of the third Defendant. Basically he is concern about the fact that there was no appeal, or that the Commissioner of Lands has yet to challenge the determination and the action of the 3^rd Defendant.
31. To put the records in order, the Commissioner of Lands had never been a party to the acquisition process, but a principle who hired the third Defendant to perform work on his behalf. As such an appeal cannot be expected from the Commissioner of Lands. But as a principle he can decide on what is best in the situation, acknowledging the fact that the whole entire acquisition process was invalid, according to the Crown’s submissions. A dead end decision should be made there and then to finalize the end of the acquisition process.
32. The best option after some consideration is for the rectification of the register in favor of the Claimant of the FTE in Parcel No. 191-023-190 on the ground for mistake. The reason is that it is a fair approach as far as the circumstances of this case is concern. The second reason is that the above PE parcel number, on record is current. Thirdly to expose that the full acquisition process is invalid as the Council for the Attorney General describe.

Orders.

1. That the register be rectified in favour of the Claimant of the FTE in Parcel No. 191-023-190 on the ground of mistake.
2. That the PE in PN. 191-023-190 in the name of the third Defendant be converted into FTE and be granted to the Claimant by the second Defendant, the Commissioner Lands.
3. Cost of this hearing be paid by the all the Defendants to the Claimant.

The Court