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Moon Pin Kwan v Attorney General [2021] SBHC 123; HCSI-CC 243 of 2018 (27 July 2021)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Moon Pin Kwan v Attorney General


Citation:


Date of decision:
27 July 2021


Parties:
Moon Pin Kwan v Attorney General


Date of hearing:
19 April 2021


Court file number(s):
243 of 2018


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Faukona; DCJ


On appeal from:


Order:
1. Order is hereby made restraining the Defendants from removing the Claimant’s name from the fixed term estate register in PN. 191-022-98.
2. Order declaring that the 1st Defendant’s forfeiture of the Claimant’s FTE interest in the land is null and void on the ground of non-compliance with the relevant provisions of Land and Titles Act.
3. Order declaring that 1st Defendant’s re-entry on the Claimants FTE interest in land is null and void on the ground of non-compliance with the relevant provisions of the Act.
4. A further consequential declaration that any removal of the Claimant’s name from the Land Register in respect of FTE in respect of the land was a mistake and was not lawful and in therefore null and void.
5. Consequential order hereby made that the Land register be rectified under section 229 of Land and titles Act to restore the Claimant’s name to the land register in respect of the land, in the event that his name had been removed from the Register.
6. Cost against the Defendants payable to the Claimant on standard basis.


Representation:
Mr. P Afeau for the Claimant
Ms P. Taki for the 1st to 3rd Defendant


Catchwords:



Words and phrases:


Legislation cited:
Land and Titles (Amendment) Act 2014 S. 139 (2) (b), S. 139 (2) (c), S 136 (1), S 136 (3), S 132 (2), Land and Titles Act S 138 (1), S 229


Cases cited:
Kii and Sons Construction Company Ltd v Vuvula Poultry Ltd [2017] SBHC 17, Vali v Commissioner of Lands [2017] SBHC 13; Liko Association Ltd v Commissioner of Lands [1999] SBHC 120, Wickham v Attorney General [2017] SBHC 140

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 243 of 2018


BETWEEN
MOON PIN KWAN
Claimant


AND:


ATTORNEY GENERAL
(Representing the Commissioner of Lands)
First Defendant


AND:


ATTORNEY GENERAL
(Representing the Land Board)
Second Defendant


AND:


Attorney general
(Representing the Registrar of Titles)


Date of Hearing: 19 April 2021
Date of Judgment: 27 July 2021


Mr. P. Afeau for the Claimant
Ms P. Taki for the 1st to 3rd Defendant

JUDGMENT

Faukona, DCJ: A category A claim was filed on 26th July 2018 by the claimant. The reliefs sought are:

  1. An injunction restraining the Defendants from removing the claimant’s name from the FTE in PN. 191-022-98.
  2. Declaration that forfeiture and re-entry processes in respect to the FTE is null and void on the ground of non-compliance.
  3. Consequentially declaration that by removing the claimant’s name from the FTE in PN.191-022-98 was a mistake and unlawful.
  4. Order for rectification and restoring the Claimant’s name to FTE PN. 191-022-98 in the event his name had been removed from the register.
  5. Costs on indemnity basis.

Background facts.

  1. On 17th October 2007, the Claimant was granted a fixed term estate in PN. 191-022- 098 by the first Defendant. The FTE was registered on 28th May 2008.
  2. The Claimant said he commenced work by excavating the land after he was granted consent by Honiara City Council after 25th May 2009. However, the work stopped because the National Parliament had erected a fence which blocked the access to the land.
  3. On 6th July 2018 the claimant received a notice before forfeiture dated 18th December 2017. The reason for forfeiture was because the claimant had failed to comply with clauses 4 and 6 of 1st Schedule of the grant, that he shall erect a residential building on the land within eighteen (18) months from the date of the grant, and at least shall cost $100, 000.00.
  4. Again on 6th July 2018, the Claimant received another envelope which contained a letter of notice of re-entry dated 18th June 2018. The reason for notice for re-entry was because the Claimant had failed to comply with clause 6 of the grant instrument to develop the estate with a building approved by the Town and Country Panning Board.
  5. By general perception the letters were received late, there was nothing the Claimant can do except to verify his position for being late to act.

The Delay.

  1. In an attempt to verify the delay, the Claimant attributed his reasons based on the scenario that parliament had constructed its perimeter fence which physically blocked the access into the land. Unfortunately, there was no alternative access sought or done until the claimant received the first notice on 6th July 2018 about ten (10) years and two (2) months after the grant. He could have rectified the delay within those years.
  2. From ordinary perspective, a delay that long is quite unreasonable, given 18 months agreed upon to build a class of building to satisfy the grantor, value at $100,000.00.
  3. The next delay the Claimant attested to was a delay to collect the notices from his Post Office box. His reason was between December 2017 and June 2018 he was in and out travelling overseas on numerous occasions.
  4. In both delays are occasions reflecting the Claimant’s own failures. They were not delays inflicted upon him by someone or from any forces outside but were occasions which he himself had controlled over which can be rectified by himself individually. Therefore I will not accept these reasons.
  5. Even in the midst of delays, the fact that the forfeiture processes were not complied with as will be explained later, the excuses must now fall on their part.

The forfeiture process, Notices.

  1. The Defendants aver that the Claimant has failed to comply with clauses 4 and 6 of the grant instrument by not developing the land for 9 years and 10 months was a situation that prompted the Land Board as considered proper and mandated which ought to issue notices of forfeiture and re-entry into the land. However, such notices are not guaranteed for a free ride, there are exceptional circumstances provided under the Land and titles Act, and the Amendment Act to consider as a pre-requisite requirements.
  2. Under the amendment S.136 (1) as conditioned by S.139 provides that the Commissioner has the right to forfeit an estate on two grounds, one when the owner fails to pay any rent upon its becoming due, or fail to perform any obligation on his part incident to the estate. In this case the Commissioner resumes to ground 2 as his basis for issuing notices for forfeiture and re-entry.
  3. There is no issue about the notices being served via post office box number owned by the Claimant. The Claimant on the other hand did receive those notices and admitted his failure not to enter appearance responding in tune as required to seek relief under S.139(2) (b) of Land and Titles Act as amended.
  4. The argument raised by the Counsel for the Claimant about time bar premise on the late application for relief as expose by S.139(2) (b) but in respect of S.139(2)(c) because this is not a proceeding instituted by the Commissioner through the notice of forfeiture issued on 19th December 2017. Apparently the Claimant has never entered appearance and his excuse for being late from 19th December 2017 until filing of this claim, was 6 months and 19 days, more than one month statutory required by the above section. Yet the commissioner was silence about it. See. Wickham & Anor v AG[1].
  5. In the case of Liko Association V commissioner of Lands[2], His Lordship Palmer J, as he was then, outlined three different dates in relation to the question of re-entry. From the case, conclusion can be drawn that date of re-entry must be prior to notice of re-entry dated 18th June 2018. Which means the right of forfeiture by re-entry must be exercised by actual re-entry on the land and remaining in possession. This means physical re-entry under the control of the Commissioner.
  6. This will lead us to the next issue, whether the Commissioner had physically re-entered the land for the purpose of possession and remain therein. I will return to this issue later.

Requirements for completion of forfeiture process.

  1. Sections 136 to 139 sets out necessary requirements in order to fulfil a complete forfeiture process. So far I have covered notices before forfeiture and re-entry. The question then who are other persons entitled to be served with notices. S.138 outlines apart from the owners, every other person shown by the land register to be interested must be served with notices.
  2. It is a fundamental requirement that notices be serviced on other interested person as shown by the registrar. If not the service tantamounts to invalid service and the forfeiture process was incomplete. Other persons as shown by the register included ANZ Bank which has a registered charge over the land.
  3. There is no issue that ANZ bank has a land charge registered on the Claimants land and it is admitted that no notice was served on ANZ Bank.
  4. It is prudent that a Bank that has a registered charge on someone’s land must be served with a notice of forfeiture if the Commissioner intends to do; otherwise it will prejudice the Bank and its rights.
  5. If forfeiture process has been concluded and re-entry been done, the land will be finally forfeited to the state, then what would happen to the Bank loan? How could the Bank enforce its rights because the owner’s right to the title has been relinquished by the forfeiture process? Subsequently the Bank will lose its money and loose its rights to enforce the charge.
  6. Therefore by not serving the notice before forfeiture upon ANZ Bank had rendered the Commissioner of Lands had failed to comply with the requirements under section 138(1), hence the forfeiture process was incomplete

Waiver of right to forfeit estate

  1. Section 136 (3) Land and Titles Act as amended in 2014 states, “The rights of forfeiture shall be taken to have been waived if the Commissioner;
  2. It is not an issue the Claimant has failed to comply with clause 6 of the schedule of the Grant Instrument dated 17th October 2007 to develop the land in PN.191-002-98. However, it was about 9 years and 2 months of inaction until the notice before forfeiture was served on 18th December 2017.
  3. This anomaly cannot be treated as escaping the awareness by the Commissioner. It does not require diligence step be taken, it was a self-manifestation and should attract the Commissioner’s awareness undoubtedly and promptly. To wait for nine years and two months before issuing notice before forfeiture was grave delay; could have done immediately after 18 months had elapsed. Such delay has waived the Commissioner’s right of forfeiture. There is no evidence otherwise.
  4. Yet the Commissioner accepted $432.00 as payment for full annual rental for the land on 18th July 2018. By accepting the rent at that moment operates as a waiver in this case? The Counsel for the Defendants argue that the payment was made after the completion of the forfeiture process and after the notice of re-entry was sent to the Registrar of Titles.
  5. She attributed that the payment was made purposely to take advantage of S.136 (3) for the Commissioner to waive his right. But that does not remedy the failure in compliance.
  6. The significant point is that the Commissioner can only argue after accepting the rent if that was paid after he has filed an action in the High Court. The Commissioner decided not to take that cause, instead resume to forfeiture process through issuing of notices before forfeiture.
  7. It ought to be noted that failure to pay rental or to develop the land are two basic reasons for forfeiting the land. If the owner fails on both there is no excuse. If the owner fails to develop but still pay up to date rentals, and has been accepted by the Commissioner, provided the payment was done before filing of an action in the High Court, then the payment must operate as a waiver and the Commissioner has no right to forfeit the land.
  8. This is exactly what happens in this case. The rentals paid had in fact remedied the forfeiture and the Commissioner has therefore waived his rights under S. 136 of the Amendment Act 2014.
  9. In the case of Wickham and Anor V AG[3], Brown J stated; at page 4,
  10. A similar circumstance applies in this case. I am satisfied and must conclude that the Commissioner by accepting the payment of rentals, as it falls due, has therefore waived his rights to pursue the forfeiture process.

Entry into the land and remain in possession:

  1. Section 132 (2) of the Land and Titles Act as amended provides for two ways which the Commissioner may exercise his right to forfeit. The relevant provision is subsection (a) which states, ‘where neither the owner or other persons claiming through or under his occupying the land, by entering the land and remain in possession.
  2. In such circumstances the Commissioner must physically enter the land and must remain in possession of the land.
  3. The Claimant argues there was no physical entry into the land and remains in possession of it. Therefore S. 136 (2) have not been satisfied.
  4. The law on entry and take possession of the land is very clear. The Courts affirm the view that that entry simply mean physical entry or actual re-entry and re-possess the land. See the case of Monica Vali v Commissioner of Lands and Others[4]. In the case of Wickham His Lordship Brown J stated at page 5;
  5. I would agree with the law and the versions expose by the Judge in those cases. However, the commissioner of lands is a title given to a human person who holds the Officer of the Commissioner of lands. And his seat of Office is within the Ministry of land and Housing based in Honiara.
  6. An important question to pose is how would he enter the land physically and take possession. Would he organize his agent or someone from his office to physically enter and erect a tent, or pin up a notice to show entry, meaning the Commissioner has taken control of the land.
  7. With respect, the Land and Title Act, including the Amendment, both have failed to prescribe the manner in which the Commissioner will enter the land take possession of it physically.
  8. Neither Courts in various cases implicated how the Commissioner would physically enter and take possession. All that the cases concluded was in favour of physical entry and taking possession of the land.
  9. If the Commissioner assumed taking over, and verified in the notice that he did, then the Claimant has establish that the Commissioner has never entered the land.
  10. If the Commissioner did enter by putting a step into the land as a requirement, but the owner was not available at that moment, then that renders the gravity of his evidenced questionable.
  11. Lack of legislative provisions and domestic case law had fostered me to think which I attempted to express in the case of Kii V Vuvula [2017] SBHC 17, HCSI. CC 264 of 2013 (16 March 2017).
  12. In Kii’s case physical entry was not the only issue considered. Fraud and time limitation were other issues. I may be wrong but legislation should cover gaps profoundly so as not to allow influx assumable.
  13. In any event I agree physical entry is the expression the law favours. Has it been proved in this case? I doubt it, because there is no direct evidence coming from the Claimant and no evidence coming from the Commissioner that he did, so doubt must be pleaded upon the re-entry.

Time Limit.

  1. Section 39 (2) (c) of the Act states, “No application by the owner of an estate for relief against forfeiture of the estate under subsection (1) shall be entertained by the Court in the case of forfeiture effected by re-entry unless, it is made within one month of the date of re-entry”.
  2. The crucial question is, has the Claimant filed this application for relief against forfeiture within one month as required by law.
  3. The notice for re-entry was served by registered post on 21st June 2018. It was a mode of service approved by law. The Claimant then filed this case on 26th July 2018. In physical observation the claimant was late by 5 days.
  4. The Claimant, despite acknowledging being late, argued that the view expressed by His Lordship Palmer J in Liko Association’s case is correct. That is to say;
  5. Apparently, since the date of re-entry is dwindled, therefore there is no date of re-entry to actually count from. The laws have disqualified counting form the date the notice was registered in Post Office. Therefore the argument by the Defendants cannot stand.

Orders:

  1. Order is hereby made restraining the Defendants from removing the Claimant’s name from the fixed term estate register in PN. 191-022-98.
  2. Order declaring that the 1st Defendant’s forfeiture of the Claimant’s FTE interest in the land is null and void on the ground of non-compliance with the relevant provisions of Land and Titles Act.
  3. Order declaring that 1st Defendant’s re-entry on the Claimants FTE interest in land is null and void on the ground of non-compliance with the relevant provisions of the Act.
  4. A further consequential declaration that any removal of the Claimant’s name from the Land Register in respect of FTE in respect of the land was a mistake and was not lawful and in therefore null and void.
  5. Consequential order hereby made that the Land register be rectified under section 229 of Land and titles Act to restore the Claimant’s name to the land register in respect of the land, in the event that his name had been removed from the Register.
  6. Cost against the Defendants payable to the Claimant on standard basis.

The Court.

[1] HCSI CC No. 30.of 2015.
[2] [1999] HCSI CC No. 263 of 1999.
[3] HCSI CC No. 30 of 2015.
[4] [2017] CC No. 368 of 2013.

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