Solong Seafood Development v Attorney General [2021] SBHC 91; HCSI-CC 526 of 2019 (8 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solong Seafood Envelopment v Attorney General
Citation:
Date of decision:	8 October 2021
Parties:	Solong Seafood Development v Attorney General, Solomon Tropical Products Limited
Date of hearing:	25 May 2021
Court file number(s):	526 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. This court hereby declares that notice before forfeiture issued in respect of the fixed term estate in PN: 098-009-27 dated 6th December 2013 was not sent to the Claimant, or served on it, therefore the forfeiture process was incomplete and is invalid right from the beginning. 2. That order is hereby made for the rectification of the register for the said fixed term estate in favor of the Claimant on the grounds of mistake. 3. Cost of this hearing is be paid by the Defendants to the Claimant on standard basis if not agreed upon.
Representation:	Mr. A Radclyffe for the Claimant Mrs V. Muaki for the 1st and 2nd Defendants Mr. B. Upwe for the 3rd Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 252, S 136 (1), S 136 (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 526 of 2019

BETWEEN

SOLONG SEAFOOD DEVELOPMENT
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
Second Defendant

AND:

SOLOMON TROPICAL PRODUCTS LIMITED
Third Defendant

Date of Hearing: 25 May 2021
Date of Judgment: 8 October 2021

Mr. A Radclyffe for the Claimant
Mrs. V Muaki for the 1^st and 2^nd Defendants
Mr. B Upwe for the 3^rd Defendant

JUDGMENT

Faukona, DCJ: A claim in Category A was filed on 23^rd September 2019. In the Claim the Claimant sought two major reliefs. One the court to declare that notice before forfeiture of FTE 098-009-27 dated 6^th December 2013 was not sent or served. Secondly that the Land register kept by the Registrar of Titles be rectified on the grounds of mistake.

2. The Fixed Term Estate (FTE) in Parcel No. 098-009-27 was originally registered in the names of Goodwood (Solomons) Ltd on 11^th November 2004. The FTE was then transferred to the Claimant on 14^th January 2013.
3. It would appear to the Commissioner of Lands (COL) that the Claimant had failed to comply with one of the requirements under S.136 (1) of Land and Titles Act (LTA). The requirement is the failure to perform his obligations incident to the estate. In precise, the Claimant had failed to comply with Clause 6 of the grant of FTE which required him to erect on the land a building valued at a minimum of SBD$100,000.00 for industrial purposes within 24 months from the date the Grantor signed the instrument.
4. As it may, the Commissioner then resumed by exercising its powers under S. 136 (1) of the Land and Titles Act, by issuant of notice before forfeiture on 6^th December 2013, to be served on the Claimant.

Forfeiture process.

5. An important question to pose is the forfeiture process under SS.136 and 138 of the Land and Titles Act had been complied with by the Commissioner of Lands in his quest to retain the land?
6. S.138 mandated the Commissioner not to exercise the right of forfeiture until he has served on the owner of the estate notice (a) specifying the particular breach complained of, and (b) if the breach is capable of remedy, requiring the owner to remedy within reasonable period specified in the notice.
7. In this case notice before forfeiture was dated 6^th December 2013. It was prepared by the Commissioner of Land and sent by registered mail addressed to the Claimant at P O Box 730, Honiara. This is the Claimant’s address on the FTE register. It was the Post Office Box of the Accountants Yam and Company, the Claimants registered office.
8. According to its sworn statement the Claimant concedes that the notice before forfeiture was prepared may have sent to it by registered mail on 6^th December 2013. However, the Claimant in evidence denied receiving the notice, or was not brought to its attention at that time.
9. I have read the sworn statement of Mr. McNeil filed on 31^st August 2020. Attach to that sworn statement was a Post Office receipt dated 6^th December 2013. The receipt indicated the address of the Claimant and Post Office Box number 730. There is no dispute it was the Claimant’s address on the FTE register, and Post Office Box of Yam and Company, the Claimant’s registered Office.
10. Once a Post Office receipt was issued across the counter for a letter marked registered, it connotes service was done, and if the address is correct then service was completed. See s. 252 of Land and Titles Act as well.
11. Despite the foregoing the Claimant insisted it did not receive the notice before forfeiture. However one mischief noted is stated in paragraph 30 of the submissions by the Counsel for the Attorney General. It said the notice before forfeiture and notice of re-entry in PN 098-009-19 were posted to the Claimant on the same date as that of PN 098-009-27.
12. Unfortunately something unexpected could have happened. The documents could have been sent on one envelope which at the end thereof only one receipt was issued. Or the notice in this case was not sent at all. Or the Claimant is not telling the truth. In any event the Counsel for the Claimant submits that evidence could have been led and the Post Office registrar book should be made available as to who actually signed and collected the register mail upon producing the register mail card, and on what date. That has not been done, otherwise would have been the best evidence regards registered post and service.
13. In this case the Claimant has agreed to the address and the Post Office Box number as its registered office, but challenged it did not received the notice. The evidence to finally affirm the Claimant had received notice before forfeiture was not proved on the balance of probability. The Post Office registered book was not produced in court as material evidence to show who singed for the registered mail. Therefore the forfeiture process was not completed and I must accept.

Transfer of title from Goodwood (SI) Ltd to Claimant.

14. Originally the land was granted to Goodwood (SI) Ltd by the Commissioner of Lands on 5^th October 2004. The grant instrument contained a provision that Goodwood (SI) Ltd to develop the land within 24 months.
15. Eventually the land with another was sold to the Claimant on 14^th January 2013. That transaction was consented to by the Commissioner of Lands. From the date the land was sold to the Claimant to the date of the notice before forfeiture was 10 months and 22 days.
16. It could appear to the Commissioner of lands that upon transfer of the land clause 6 of the grant imposed upon Goodwood (SI) Ltd would have same and continued to have effect upon the Claimant. Hence, one would question, was 24 months condition apply to the Claimant? As clear as crystal the Claimant only owned the land for 10 months and 22 days before it was issued with notice before forfeiture.
17. The question to pose is the Commissioner complying with law? And if so, the Court needs to be provided with that law. There was nothing on file. There is no grant instrument on file as well to enable the Court verify the date the Grantor signed the grant instrument. This is very significant to assist the Court calculate if 24 months apply and when it started to run? It cannot be the same grant. The old one had expired and long gone. A grant in this nature is an agreement. To make a new agreement with a new buyer terms and conditions ought to change unless the new buyer accepts liability of the old grant from the date of new registration.
18. I am optimistic that 24 months should start to run for the Claimant to be fair and should start on 14^th January 2013. Therefore, the issuant of the notice after Claimant owned the FTE for only 10 months and 22 days is unfair. Not only that but it was not according to clause 6 of the grant.
19. In a related issue was the omission taken by the Commissioner of Lands for not issuing notice before forfeiture to Goodwood (SI) Ltd for none compliance with clause 6 or for not payment of rentals upon it becoming due, which ever necessary for the Commissioner of Lands.
20. Goodwood (SI) Ltd had title to the land for about 8 years and 3 months without complying with clause 6, erecting a building costing a minimum of $100,000.00 for industrial purposes. Is that period not beyond 24 months? Had the Commissioner diligent and proactive in his duties he would have done what the law required of his office. And the impasse now before the Court would not have arisen at all.
21. The action expected from the Commissioner of Lands was long overdue. He would have issued the notice before forfeiture to Goodwood (SI) Ltd before endorsing new grant with the Claimant, who expended a lucrative amount of money to purchase the land. In this case the Commissioner was not consistence with his functions.

Right of Forfeiture waived.

22. S. 136 (1) provide two grounds upon which the COL exercise his rights to forfeit an estate. S.136 (2) provides legal avenue which the COL to resume to in exercise of his rights of forfeiture by entering upon and remaining in possession of the land.
23. S.136 (3) (a), makes provision where the Commissioner of Lands accepts rent his right of forfeiture is taken to have been waived. The Defendants argue that acceptance of rent only applies to right to forfeit where the owner fails to pay any rent when it becomes due. If that is the position in law then there is no waiver at all where the owner fails his obligation under clause 6 of the grant instrument. The Counsel for the Claimant argues that waiver provided in S.136 (3) applies to both situations.
24. I noted the Defendants argument that the acceptance of rental goes towards none payment of rental is implied by the words in the section. If payment was accepted and the owner of the estate continues not erect a building he agrees to build, that would buy time for him even for the next decay, he could still not complied with the condition of the grant.
25. However, having perused the provisions in depth, I am able to conclude that why should the Land and Title Act has a waiver that only applies to one condition that legally mandates the Commissioner of Lands right to forfeit. If the Commissioner accepts rental it will allow the owner time to extend into further years without complying with condition of the grant. In other words the waiver will apply if the payment of rent is accepted when due, but should not apply where the condition of the grant is not complied with. This is where the gap is. There should be a clear precise description in law to avoid ambiguity. As the law stands it has not, it is the only waiver in my view applicable to both situations and that cannot be changed for time being.
26. In both situations the Commissioner has a choice to exercise his right of forfeiture. Either to enforce in Court or issue notice before forfeiture. If the Commissioner decided to enforce any failure in Court by accepting the rent after filing of a case, that does not operate as a waiver in both situations. If the law provides for that, then acceptance of rent becomes a waiver to both situations provided the acceptance was not done after the case was filed; waiver does operate in both situations.
27. There is no dispute rent was paid and the Commissioner of Land had accepted it. By that action therefore waived his right to forfeit under the condition of con-compliance to the grant. Therefore, the notice was invalid.
28. I noted the third Defendant was a bone fide purchaser according to S.229 (2) of Lands and Title Act. He might have complied with the processes. However, his application was dated before the forfeiture process began. It may be a force behind the forfeiture. Unfortunate on his part, the land is still vacant and undeveloped. He has also failed to comply with the grant instrument and also not in possession of the land. May be he is next in line to be issued with notice before forfeiture.
29. With the reasons alluded to above I therefore concluded that the Claimant is entitled to the reliefs sought in the claim.

Orders:

1. This court hereby declares that notice before forfeiture issued in respect of the fixed term estate in PN: 098-009-27 dated 6^th December 2013 was not sent to the Claimant, or served on it, therefore the forfeiture process was incomplete and is invalid right from the beginning.
2. That order is hereby made for the rectification of the register for the said fixed term estate in favor of the Claimant on the grounds of mistake.
3. Cost of this hearing is be paid by the Defendants to the Claimant on standard basis if not agreed upon.

The Court.