Baiabe v Tango [2021] SBHC 50; HCSI-CC 424 of 2016 (31 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Baiabe v Tango
Citation:
Date of decision:	31 May 2021
Parties:	John Herman Baiabe v Charlie Tango, Attorney General
Date of hearing:	9 September 2020 (Closing Submissions after trial)
Court file number(s):	424 of 2016
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Decline cancellation of the FTE in Charlie’s name. Refuse eviction orders. Charlie must pay to John $50,000.00 plus cost.
Representation:	Mr. B. Upwe for Claimant Mr. L. Kwana for 1st Defendant Mr. B. Pitry for 2nd and 3rd Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act Section 203 (1) [cap 133], Section 229 (1) and (2) [cap 133]
Cases cited:	Ika v Szetu [2005] SBHC 96, Billy v Daokalia [1995] SBCA 5

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 424 of 2016

BETWEEN

JOHN HERMAN BAIABE
Claimant

AND:

CHARLIE TANGO
1^st Defendant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
2^nd Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
3^rd Defendant

Date of Hearing: 9 September 2020 (closing Submissions after trial)
Date of Judgment: 31 May 2021

Mr. B. Upwe for Claimant
Mr. L. Kwana for 1^st Defendant
Mr. B. Pitry for 2^nd and 3^rd Defendants

JUDGMENT

1. John (Claimant) and Charlie (First defendant) are no strangers, at the material time. Charlie referred to John as his SDA pastor and a close family member through marriage. Charlie gave evidence that John’s former wife, from John’s first marriage was aunty to Charlie’s wife.
2. Based on this relationship John and Charlie have entered into verbal arrangement over the now disputed parcel – parcel number 191-001-267 (“PN 267”). There is no written agreement. Charlie says the arrangement was partly written and partly oral. But produced no evidence of the partly written agreement. John did not dispute the family relationship. And admitted the informal/oral agreement with Charlie. John says the oral agreement failed to materialise, because Charlie only paid $10,000.00 instead of paying the full agreed price of $35,000.00.
3. Charlie relied on the same verbal agreement and says the agreed price was $10,000.00, not $35,000.00. And that Charlie had already paid the $10,000.00. So Charlie subsequently pursued successfully the transfer of PN 267 to his own name.

Reliefs sought

4. John seeks the following reliefs in his further amended claim filed 17/10/2017.
   • (i) To cancel the registration of Charlie’s name as title holder of PN 267 and to register back the title to John’s name (rectification) because of fraud and or mistake.
   • (ii) That Charlie, his family and relatives be evicted from PN 267.

Agreed Issues

5. The issues for trial have been agreed. And are summarised as follows: -
   • (i) Whether the transfer and registration of PN 267 was valid?
   • (ii) Whether claimant was present and signed before an authorised officer on 5/02/2009?
   • (iii) Whether it was a mistake for the 2^nd defendant to cause or permit or grant to 1^st defendant consent to transfer FTE in PN 267?
   • (iv) Whether there was mistake on the part of the 3^rd defendant who registered the title in PN 267 to the 1^st defendant?

Agreed Facts

6. Counsel have also agreed on some facts as follow: -
   • (i) Claimant was the former registered owner of the FTE in PN 267 on or about 14/08/2008.
   • (ii) First defendant is now the current owner of the FTE in PN 267.
   • (iii) At the material time of transfer in 2009, the claimant was at his home in Bellona, as a pastor for the SDA church.
   • (iv) The 2^nd defendant grant a consent for the claimant to transfer the title of PN 267 to the 1^st defendant.
   • (v) The 3^rd defendant registered the title of the FTE in PN 267 to the 1^st defendant on 31/03/2009, at around 10:00am.

Case for the Claimant/John

7. John says that the transfer and registration of PN 267 to Charlie was obtained by mistake and or fraud. John denied signing or endorsing any of the documents that purportedly facilitated the transfer of the FTE in PN 267 to Charlie. John was not in Honiara to execute the transfer documents. John was in Bellona doing pastoral work at the material time (31/03/2009). So John (transferor) could not possibly have appeared before the authorising officer with Charlie (transferee) and Hakanoa (witness) on 5/02/2009 to execute the transfer of PN 267 to Charlie. John’s signature on the transfer or grant instrument was forged. The grant instrument is at page 118 of the Trial Book (TB). It shows that the transferor (John) transferred the FTE in PN 267 to the transferee (Charlie) on 5/02/2009. John denied been a party to the transfer of the grant instrument to Charlie. John says his signature on the grant instrument dated 5/02/2009 was forged. John did not sign the request letter for consent to transfer written to the 2^nd defendant. And that no fees were paid for consent.

Case for the 1st Defendant/Charlie

8. Charlie is the current owner of the FTE in PN 267, having taken ownership from John pursuant to an oral agreement made between John and Charlie. Acting under the oral agreement Charlie paid to John $10,000.00 the agreed purchase price. And a further $2,000.00 was later paid to John.
9. Then John executed the transfer documents to transfer the FTE in PN 267 to Charlie. Charlie says the transfer documents were signed and sent by John from Bellona. And sent over to Honiara, where the documents were witnessed by authorising officer arranged with claimant’s prior knowledge. Charlie’s mother in law brought the transfer documents from John signed in Bellona. But Charlie did not call his mother in law to give evidence in support of this fact, except Hakanoa who confirmed John signed and sent the documents from Bellona.

Court’s Analysis

10. Both John and Charlie did agree that there was an agreement for the transfer of the FTE in PN 267. And that agreement was partly written and partly oral. There is no dispute on this. Because the oral agreement was not disputed, I do not have to look for the partly written agreement or insist on a written agreement as a legal requirement. The only dispute was about the agreed price. John put the agreed price at $35,000.00. Charlie put the agreed price at $10,000.00. Charlie paid $10,000.000 initially. And a further $2,000.00 thereafter. From this evidence^[1] I can conclude that the agreed price was $35,000.00. For Charlie had not stopped at $10,000.00, when he paid a further $2,000-00 later. Charlie’s evidence said he paid $10,000.00 at Nicky’s restaurant. And paid an additional $2,000.00 later. So I am satisfied on the balance of probability that there was an oral contract between John and Charlie. The oral contract was to transfer FTE in PN 267 from John to Charlie. The agreed price was put at $35,000.00 by John. Charlie disagreed and say the price was $10,000.00. But altogether Charlie paid $12,000.00 – meaning the price agreed exceeded $10,000.00. Why would Charlie later pay $2,000.00, if the agreed price was only $10,000.00? I am satisfied on the evidence that the agreed price was $35,000.00. Charlie already paid $12,000.00. And the balance was $23,000.00.
11. The only serious point of contention was the signing of documents to finally transfer the FTE that was under contract. John says he was in Bellona and deny signing or sending any transfer documents over to Honiara. Charlie says John signed and sent the documents from Bellona to Honiara and presented to and witnessed by authorising officers from the Lands department. John says the signature on the documents sent over to Honiara was not his signature. The signature was forged. John however did not produce expert evidence to disprove his signature, which Charlie says was John’s signature. Therefore, I am not satisfied on the balance of probability (in the absence of expert evidence), that the signature was not John’s signature. So I am not satisfied that John’s signature was forged.
12. I cannot be satisfied on the allegation of fraud as to signature. So I revert back to the contract and conclude that John agreed to sell. So John agreed to the documents that facilitated the sell – the transfer documents. Silva Dunge says the documents were in order. The signature resembles John’s signature in the file. So he was satisfied and authorised the transfer documents, even though John did not appear personally before him. It was an agreed fact that John was away in Bellona, doing pastoral work, at the time of execution of the transfer documents.

Irregularities – Mistake and or Fraud?

13. The starting point is John agreed to give PN 267 to Charlie. The agreed price I found above was $35,000.00. Charlie already paid $12,000.00. Balance remaining is $23,000.00. So there was a meeting of the mind (oral contract – not disputed) for John to give PN 267 to Charlie. What appeared to be a problem and John says was fraud and or mistake was the paper work that facilitated the actual transfer. John says that he did not sign and request by letter to seek consent from the 2^nd defendant for the transfer. And fees were not paid. John says he did not sign the transfer instruments. John did not appear before the authorising officer (Silva Dunge) as is seen on the grant instrument. He was away in Bellona (agreed fact). And so the facilitation and execution of the transfer documents was procured by fraud and or mistake. But fraud and or mistake was not pursued against the Commissioner and Registrar at the material time of transfer. Both were not called to produce evidence on fraud and mistake against. So fraud and or mistake was not established against 2^nd and 3^rd defendants at the material time of transfer. The current Commissioner could only say the paper work on file review was in order.

Would it invalidate the transfer instrument if Charlie and Wesley Hakanoa appeared before an authorizing officer in the absence of John for the purpose of Section 203 of the Act?

14. Section 203 (1) of the Land and Titles Act (Cap 133) requires the appearance of both John and Charlie before an authorising officer to execute the transfer instrument. Regulation 8 of the Land and Titles (General) Regulations lists the persons eligible to be authorising officers for the purposes of Section 203 of the Act. No issue has been raised regarding the authority of Silva Dunge to verify the transfer instrument as he was an eligible authorising officer, being a Commissioner for Oaths, at the material time.
15. The High Court at paragraph 34 in Ika v Szetu^[2] says the requirements of verification in Section 203 of the Act are for the following purposes:-
    • (i) To establish the identity of the person executing the transfer instrument; and
    • (ii) To establish volition and comprehension in the execution process.
16. In Ika v Szetu, the authorising officer verified the transfer instrument in the absence of both the transferor and the transferee. However, the witness appeared before the authorising officer. This had raised the issue of whether the action of the authorising officer amounts to fraud when he verified the transfer instrument in the absence of both the transferor and the transferee except a witness.
17. High Court in paragraph 36 determined that there was no fraud committed on the part of the authorising officer, even though he verified the transfer instrument in the absence of both the transferor and the transferee, in the presence of a witness only. The authorising officer explained that he was familiar with the signatures of the transferee and the witnessing officer, though he was not familiar with the signature of the transferor. High Court considered and accepted his explanation. The authorising officer explained that he was satisfied in view of the fact that the documents were a mere formality to complete what was already agreed to by parties (transferor and transferee have a valid agreement). The processing of the documents was a mere formality sitting on a valid transfer agreement.
18. High Court further stated in paragraph 36 that despite the irregularity in the verification process, the Court is not satisfied that it was fraudulent. It looked at the evidence in totality to establish that there was in fact an intention to transfer the subject land. It also noted the inconsistency in the plaintiff’s evidence and discounted her denial that she had not sanctioned the transfer. Court stated in paragraph 36 that there was nothing wrong with the transfer documents, despite the irregularity of verification. High Court in paragraph 37 pointed out that the irregularity in verification was not fatal to the validity of the transfer documents.
19. In the present case, as agreed by parties, John (transferor) did not appear before the authorising officer (Dunge) at the material time of transfer. However, Wesley Hakanoa (witness) and Charlie (transferee) appeared before the authorising officer. Wesley Hakanoa in his sworn statement at paragraph 9 stated that John sent the transfer instrument from Bellona to Charlie in Honiara, to corroborate Charlie’s evidence.
20. Silva Dunge at paragraph 5 of his sworn statement at page 74 of the trial book confirmed that he knew Wesley Hakanoa as a friend. Silva Dunge also confirmed at paragraphs 7, 8 and 9 of his sworn statement that John’s signature on his consent letter request and on the transfer instrument were similar and/or consistent. That John’s signature on his consent letter request dated 15 September 2008 and other documents on the file were in order and the signatures were alike in his judgment. Dunge also relied on Wesley Hakanoa to verify that it was John’s true signature as the transferor on the instrument. And that Wesley Hakanoa is a cousin brother of John. So it was reasonable that Wesley Hakanoa would know the signature of the claimant. During the trial, counsel for the 1^st defendant asked this question to Silva Dunge during re-examination; “How did you know that it was Baiabe’s signature on the transfer instrument as the transferor?” Silva replied that he relied on the other documents in the Ministry file which has John’s signature and also Wesley Hakanoa who is John’s cousin. Fraud and or mistake was not established against 2^nd and 3^rd defendants. Fraud and or mistake was not established connecting Charlie to the 2^nd and 3^rd defendants (conspiracy) at the material time of transfer (Daokalia case^[3]). So rectification is not justifiable under Section 229 (1) and (2) of the Land and Titles Act (Cap 133).

Conclusion

21. Therefore, based on the ratio decidendi in Ika v Szetu, the absence of the transferor at the verification process before the authorising officer for verification purposes cannot invalidate the transfer instrument. Taking the totality of the other evidences, the authorising officer was satisfied with the transfer documents presented to him. In this case the transferee appeared with one other person (Hakanoa - witness) giving the authorising officer assurance that the transferor had consented to the transfer with the transferee. Ulterior motive was not suggested or established in evidence against the authorising officer or 2^nd or 3^rd defendants. There was no suggestion that the documents were defective either, because forgery was not proofed. I already found in this case that there was indeed a valid and undisputed verbal agreement between John and Charlie. Charlie did not complete the agreed price. So I will order Charlie to pay the outstanding $23,000.00. I will increase the outstanding arrears between two to three times. The value of the balance money has increased between two to three times in the last ten years. I award cost to John for this proceeding to be assessed if not agreed. I will assess cost.
22. In the final analysis, Court will pronounce the following orders: -
    • 22.1 Decline cancellation of the FTE in Charlie’s name.
    • 22.2 Refuse eviction orders.
    • 22.3 Charlie must pay to John $50,000.00 plus cost.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Sworn statement of Charlie Tango filed 31/01/2017, at paragraph 5, page 4 of supplementary trial book filed 29/5/2020.
^[2] Ika v Szetu [2005] SBHC 96; HCSI-CC of 2003 (8^th April 2005).
^[3] Billy v Daokalia [1995] SBCA 5; CA-CAC 001 of 1995 (27^th October 1995).