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Baiabe v Ghemu [2021] SBHC 141; HCSI-CC 423 of 2016 (18 November 2021)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Baiabe v Ghemu


Citation:


Date of decision:
18 November 2021


Parties:
John Herman Baiabe


Date of hearing:
23 November 2020 (Closing Oral submission)


Court file number(s):
423 of 2016


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Keniapisia; PJ


On appeal from:


Order:
(i) The transfer was valid because there is no justifiable case to warrant rectification of the register under Section 229 (1) and (2) of the LTA.
(ii) Claimant was not present to sign before an authorised officer but that fact alone does not warrant rectification under Section 229 (1) and (2) of the LTA.
(iii) It was not a mistake and or fraud for 2nd defendant to grant to 1st defendant consent to transfer the FTE in PN 266.
(iv) It was not a mistake and or fraud for the 3rd defendant to register the FTE in PN 266 in the name of 1st defendant.


Representation:
Mr Upwe for the Claimant
Mr Ghemu for the 1st Defendant
Mr Pitry for the 2nd and 3rd Defendant


Catchwords:



Words and phrases:


Legislation cited:
Land and Titles Act S 229 (1) and (2)[cap 133], S 117


Cases cited:
Billy v Daokalia [1995] SBCA 5, Denia v Imaw You [1994] SBHC 87,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 423 of 2016


BETWEEN


JOHN HERMAN BAIABE
Claimant


AND:


IVAN GHEMU
1st Defendant


AND:


ATTORNEY GENERAL
(For Commissioner of Land)
2nd


AND:


ATTORNEY GENERAL
(For Registrar of Titles)
3rd defendant


Date of Hearing: 23 November 2020 (Closing of Oral Submissions)
Date of Decision: 18 November 2021


Mr. Upwe for the Claimant
Mr. Ghemu for the 1st Defendant
Mr. Pitry for the 2nd and 3rd Defendant


Keniapisia; PJ

Judgment

Introduction

  1. It was difficult for me to understand what this claim is about in terms of a clear frame work. The claim was amended two times. Claimant wants the Fixed Term Estate (“FTE”) in PN 191-001-266 (“PN 266”) to be rectified. To cancel 1st defendant’s name to give way for claimant’s name to be restored back. Restored back because claimant was the FTE owner prior to the transfer and registration of the FTE in year 2009 to the 1st defendant (Mr Ghemu). Mr Ghemu was registered as the FTE owner on 9th September 2009.
  2. Claimant (Mr Baiabe), wants the FTE to be restored back to him because he says the transfer of the FTE to Mr Ghemu was null and void ab-initio (first declaratory relief). Because the transfer was null and void ab-initio, Mr Baiabe also wants the Court to make a consequential declaratory order to cancel the registration of the FTE in PN 266, in the name of Mr Ghemu. And to restore back the FTE to Mr Baiabe’s name, under Section 229 (1) and (2) of the Land and Titles Act (Cap 133) - LTA (second relief sought). Then for the Court to evict Mr Ghemu from PN 266 (third relief sought). These are the three core declaratory reliefs sought in the further amended claim filed 17/10/2017.
  3. In essence, Mr Baiabe wants the Court to restore back the FTE to him, by rectification, under Section 229 (1) and (2) of the LTA. Mr. Baiabe is saying that the transfer and registration of PN 266 to Mr Ghemu was procured by fraud and or mistake. Fraud and or mistake are grounds for the Court to order rectification under Section 229 (1) and (2) of the LTA.
  4. Summary of particulars of fraud alleged are: -
  5. Summary of particulars of mistake alleged are: -

Agreed Facts

  1. Parties have agreed on some facts as follows: -

Agreed Issues

  1. The issues were also agreed and are recited as follows:-
With consent, I have directed fraud to be added to mistake. There was obvious error because rectification under Section 229 (1) and (2) of the LTA is on the ground of fraud and or mistake. And the claim should allege both fraud and or mistake. So the issue should also include, both fraud and or mistake.

Case for the Claimant

  1. Mr Baiabe denied that he had entered into any written agreement to give the land to Mr Ghemu. Mr Baiabe denied he wrote any letter to the COL to request consent to transfer the land to Mr Ghemu. Mr Baiabe denied he signed the grant instrument with Mr Ghemu. That he was away in Bellona, at the material time. And could not have possibly been at the Anthony Saru Office belonging to Mr Ghemu to execute the Grant Instrument. That Mr Baiabe did not appear before the Senior Lands Officer to sign before the said authorising officer. Mr Baiabe denied that he signed any of the documents involved to transfer the land to Mr Ghemu. Mr Baiabe said his signatures appearing on the transfer documents were all forged. The transfer documents here are: letter to request consent from the COL (“Consent”) and Grant Instrument (“Grant”).

Case for the Defendant

  1. Mr Ghemu says that the claimant agreed to give him the land because they were good friends. That he had rendered many friendship assistances to the claimant. That he had paid for the claimant’s school fees attending Bible College. That he had given money from time to time to the claimant. As a result, the claimant gave the land to him. And the claimant signed the Grant in his office at Anthony Saru building at the material time in 2009. This was an informal arrangement rooted in a long standing friendship arising from church connections. So there was no need to enter into written agreement.

Court Analysis
Fraud not established due to lack of expert evidence on alleged forgery of signature

  1. Mr Baiabe’s allegation that his signature appearing on all major transfer documents (Consent and the Grant) were forged is not established in evidence because claimant did not provide expert evidence to confirm that his signatures on the major transfer documents were all forged. It was rather unfortunate that expert on signatures are not readily available in country. And so claimant was not able to procure expert evidence on signatures to assist him. Allegation of fraud and or mistake on the basis of forgery of Mr. Baiabe’s signature fails, due to lack of expert evidence.

Mistake not established via a link between Ghemu, COL and ROT at time of registration

  1. Mr Baiabe’s allegation of any wrong doing (mistake) against the COL and ROT was also unsafe to rely on. The concerned COL and ROT in 2009 were no longer in office by the time of trial. And claimant could not summon them to give evidence. And so it would be very hard to connect the COL, ROT and Mr Ghemu, to any allegation of collective mistake at the material time of transfer, in 2009, to anchor a case for rectification under Section 229 (1) and (2) of the LTA. This is an important link that must be established at the material time of registration to justify rectification according to the case of Billy Daokalia[1]. In Daokalia the Court of Appeal said: “Fraud or mistake must be linked to the time when registration was obtained, made or omitted. The knowledge referred to in subsection 2 accordingly must also be confined to that time period when registration was obtained or made. If the registered owner had obtained possession and acquired the interest for valuable consideration without knowledge of the omission, fraud or mistake, then he is entitled to rely on the protection in Section 229 (2) of the Lands and Titles Act” This makes it hard for me to order rectification under Section 229 (1) and (2) of the LTA and to go behind the veil of indefeasible title guaranteed by registration. The paper work looked orderly as stated by the COL, Mr McNeil, in his oral evidence to the Court. The COL, Mr McNeil was not at post in 2009. So there is nothing much we could gather from him on the allegations of mistake and or fraud. He was merely commenting on the documents in the file. And the documents in the file that he reviewed, the transfer looked orderly. The COL McNeil even said that the Grant was the contract to transfer the FTE in PN 266 from Mr Baiabe to Mr Ghemu.

No written contract so transfer of PN 266 is null and void ab initio

  1. That leaves me with claimant’s strongest argument that the transfer is null and void ab-initio because there was no written agreement to start with. And that a written agreement is a requirement in law for a valid transfer of interests in registered land. Any transaction affecting registered interest in land (FTE in this case), in the absence of any note or memoranda, will have no effect. This trite position in law had its origin in the statute of fraud and re-iterated in the law of Property Act 1925 of England and re-stated in the LTA. In Deni v Imaw You [1994] SBHC; HCSI-CC 59 of 1993 (28th December 1994), Chief Justice Muria re-iterated the trite law position under LTA. The new provision under the 1996 revised laws is in Section 117 of LTA. Consequently, the verbal agreement between Mr. Baiabe and Mr. Ghemu was null and void ab-initio. However that does not affect the registration under Section 229 (1) and (2) on the ground of mistake for the same reasons espoused in paragraph 11 above – i.e. no mistake nexus was established between Mr. Ghemu, COL and ROT at the material time of registration to justify rectification. Mr. Ghemu’s evidence was, the claimant and him were very good church friends. So claimant gave him the land without the need for formalities like written agreement. Claimant did not deny friendship, except to say there was no written agreement, to transfer PN 266.

Conclusion and Orders

  1. All these make it hard for me to be satisfied on the balance of probability to grant what is sought in the claim – rectification under Section 229 (1) and (2) of the LTA. It is not a straight forward case for rectification under Section 229 (1) and (2) of the LTA. I will reject the three core declaratory reliefs sought in the further amended claim. I will not order cost as normal because cost is at my discretion. Parties will pay their own cost. Mr. Baiabe and Mr. Ghemu were very good church friends. Their relationship just turned sour resulting in this dispute. So I will not order cost. It may be that through this decision, restoration may come to the distorted brotherly divine relationship. Consequently, I will answer the issues posed for trial as follows: -

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

[1] Billy v Daokalia [1995] SBCA 5; CA-CAC 001 of 1995 (27th October 1995).

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