Bartlett v Haiway International Ltd [2021] SBHC 87; HCSI-CC 244 of 2011 (30 August 2021)

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Case name:	Bartlett v Haiway International Ltd

Citation:

Date of decision:	30 August 2021

Parties:	Alex Bartlett v Haiway International Limited, Lee Kwok Kuen & Company Limited

Date of hearing:	4 February 2021

Court file number(s):	244 of 2011

Jurisdiction:	Civil

Place of delivery:

Judge(s):	Kouhota; PJ

On appeal from:

Order:	1. That the second defendant to pay the claimants buildings at a price of $10,000,000-00 or otherwise sell part of the land where the claimant’s houses are located to the claimant for a sum of $450,000-00.

Representation:	Upwe B for the Claimant Lepe R for the Defendants

Catchwords:

Words and phrases:

Legislation cited:	Land and Titles Act S 114 (g)

Cases cited:	Leavers Solomon Ltd v Attorney General and Tigiki Sikele HCSI 150 of 2008 , Waririru v Dora HCSI –CC 224 OF 2012

On 10^th November 2017 His Lordship Maina J dismissed the claimants claim for rectification but made the following orders. The orders were perfected on 22 December 2017, they are as follows;

Now before the court are two applications, the first is an application by the second defendant and the second is an application by the claimant. I believe the applications were made pursuant to order 5 above and to a further order of this court perfected on 15^th March 2019. Both orders relate to the disposal of the buildings.

The application by the second defendant is an application for possession of the land PN 192-007-192. In the application the second defendant seeks to recover possession of parcel number 192-007-192 with 21 days and for the claimant to remove from parcel number 192-007-192 within 28 days of the order.

As alluded earlier the applications were made or should be made pursuant to order 5 of Maina J and a later court order perfected on 15^th March 2019. In this respect the 2^nd defendant’s application are seeking reliefs which have already been considered by the court previously and ruling was already made on them.

When one consider the judgment and orders of Maina J and the second defendant refusal of the option to buy the buildings the only outstanding issue before the court is how to dispose of the claimants building that are still on the 2^nd defendants land. It is not the function of this court to review the judgment of Maina J, the court can only make orders based on his Lordship’s judgment.

With regard to the disposal of the buildings the claimant in his application sought to have the land sub-divided so that part of the land on which the buildings are located be transfer to the claimant on the basis of section 114 (g) of the Land and Title Act and on the principle of Equity. The claimant is seeking sub-division not seeking rectification so res-judicator does not apply to his application.

To fully appreciate the issue regarding the buildings it is desirable to look at the chronology of events leading to the present proceeding. The chronology of events are contained in the 2^nd defendant’s counsel submission. They can be summarised as follows;

Parcel number 192-007-192 (the land) was owned by the first defendant Haiway International Ltd. The first defendant surrendered the land to the Commissioner of Lands. The Commissioner of Lands sub-divide the land then grant the FTE of one of the parcels PN 192-007-192 to the claimant. The claimant and the First defendant then entered into a Memorandum of understanding (MOU) for the claimant to surrender the land and the first defendant not to pursue any legal proceeding against the claimant. The claimant consequently surrender the FTE to the COL. COL then granted the FTE back to the first defendant. Thereafter the first defendant sold the land to the second defendant and the FTE was registered in the name of the second defendant.

For the purposes of these two applications the chronology of events is relevant to a certain extend. Counsel for the claimant submit that the claimant build the house in good faith when he holds the title to the land. I agree with Mr Upwe submission that this was recognised in order 2 and 5 of Maina J’s orders. Those orders are final orders and have not been appealed so they remain on foot.

I also took note of the judgments of Chetwynd J in the case between the claimant and first defendant regarding a memorandum of understating (MOU) over the same land. The claimant’s claim to e0nforce the MOU was dismissed for uncertainty and rightly so. In any event the claimant’s attempt to enforce the MOU was bound to fail anyway, not only for the reason of uncertainty but also for what an MOU is, that is, it is merely an understanding reduced to writing hence it is not an agreement or a contract. Sometimes MOUs are not worth the papers they are written on for the same reason.

Chetwynd J in his judgment mention something to the effect that fraud or criminal offence could be the basis for the MOU, be that as it may, the claimant was never convicted of fraud or any criminal offence in relation to the transactions relating to the land in dispute so the submission by counsel for second defendant that Mr Bartlett does not come to court with clean hands must be rejected. In fact Chetwynd J in his earlier judgment referred to in the chronology of events and states that the evidence all parties involved in dealing with the land in disputed are not wholly the truth and that Mr Lee for the second defendant cannot escaped the taint of duplicity.

In considering these two application and in the absence of any evidence to the contrary I consider that the buildings were build when the claimant held the Fix Term estates in the land and that he was not a trespasser thus the circumstances of this case can be distinguished from the case of Leavers Solomon Ltd v The Attorney General and Tigiki Sikele HCSI 150 of 2008 and Waririru v Dora HCSI –CC 224 OF 2012. This is where equity comes in despite the rigidity of the law. In this respect granting the orders sought by the second defendant would be using the rigidity of the law for an unfair advantage in their favour, tantamount to unfair enrichment.

It must however, be clear that in the proceeding of the substantive claim, Maina J concluded and order that the buildings belong to the claimant but the land belong to the 2^nd defendant. In that respect the second defendant is not legally obliged to give away any part of his property. However, in view of Maina J’s judgment that the houses belong to the claimant it is only fair that the second defendant pay to the claimant the value of the houses only. The value of the house has already been determined by a qualified Property Valuer at $10,000,000-00, if the second defendant refused to buy the buildings he must sell to the claimant part of the land where the claimants buildings are standing at price of $450,000-00 equivalent to the half the amount they purchased the land from the first defendant who acquired the land from the Commissioner of Lands for about $1,500-00 but then sold it to them for a sum of $900,000-00. The value of the claimants’ houses on the land is already before the court and how much the second defendant bought the land from the first defendant is also before the court and need no further assessment. The orders that I make will be based on those evidence. I Orders as follows.

High Court of Solomon Islands

Bartlett v Haiway International Ltd [2021] SBHC 87; HCSI-CC 244 of 2011 (30 August 2021)