Friendship Trading Ltd Co v Attorney General [2023] SBHC 155; HCSI-CC 536 of 2021 (6 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Friendship Trading Ltd Co. v Attorney General
Citation:
Date of decision:	6 December 2023
Parties:	Friendship Trading Limited Company v Attorney General
Date of hearing:	17 November 2023
Court file number(s):	536 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	1. The claim is strike out 2. Cost for the Defendant/Applicant to be assed if not agreed.
Representation:	Pitry B for the Applicant/Defendant To’ofilu for the Claimant/ Respondent
Catchwords:
Words and phrases:
Legislation cited:	Company Act 2009, S 210 (2), S 210 (4), , S 210 (1), S 6, S 151 (2), S 152 (1), S 146 (3), S 146 (4), S 146 (5)Companies Regulation 2010, r 11 (4)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 536 of 2021

BETWEEN

FRIENDSHIP TRADING LIMITED COMPANY
Claimant

AND:

ATTORNEY GENERAL (REPRESENTING THE COMMISSIONER OF LANDS)
Defendant

Date of Haring: 17 November 2023
Date of Ruling: 6 December 2023

Pitry B for the Applicant/Defendant
To’ofilu J for the Claimant/ Respondent

RULING ON APPLICATION TO STRIKE OUT A CLAIM

KOUHOTA J

The claimant on 20^th September 2021 filed a category A Claim against the Attorney General seeking the following orders;

1. A declaration that the Notice Before Forfeiture dated the December 2021 and Notice of Re-entry dated 19^th Feberuary2021were based on mistake and thus void and of no effect;
2. Consequent to order (1) above, a declaration order that forfeiture of Fixed Term Estate in Parcel number 192-004-0117 is invalid and of no effect.
3. An order directing the rectification of register for the said Fixed term estate in favour of the Claimant by restoring of the Claimant’s name in the land register on the ground of mistake
4. Such further relief as the Court thinks fit and
5. Cost against the Defendant.

A same claim was previously filed by the Claimant against the Defendant in Civil Case No.300 of 2021. That claim was struck out by this Court on legal grounds but the Claimant was allowed to file a fresh claim hence this claim.

Now before the Court is an application by the Defendant to strike out the claim. The application seek the following orders;

1. That the claim filed on 20^th September 2021 be struck out or dismissed pursuant to Rule- 9.75 on the basis that it is frivolous and vexatious, it discloses no reasonable cause of action and it is an abuse of the Court process.

The Applicant its statement and submission stated that the Claimant was registered on 20^th July 2021 however stated and submitted that;

1. The process for re-registration of the Claimant that was removed pursuant to section 210(2) of the Company’s Act 2009, is as stipulated under section 210(1) to (10) read together with Regulation 11 (4) of the Companies Regulations 2010.
2. The Registrar of Companies had not exercised her discretion pursuant to her discretionary powers under Regulation 11 (4) in the purported restoration of the Respondent/Claimant on 20^th July 2021.
3. The Claimant failed to lodge prescribed Form 24 application pursuant to Regulation which would warrant it to obtain re-registered Company status.
4. The Claimant instead lodged Form 1 Application for its re-registration or restoration.
5. The Form 1 Application lodged by the Claimant for its purported re-registration on 20^th July 2021 is for the registration of new company under the Regulation read with section 6 of the Act.
6. That in view of paragraphs 6, 7 and 8 above, the Claimant is totally a new legal entity or company which become registered only on 20^th July 2021, therefore do not have any interest over FTE in PN 192-004-117. Therefore, the Claimant’s lodgement of Form 1 Application does not give the Claimant a re-registration status.

Counsel for the Defendant/Applicant submit the Claimant is estopped by res-judicata from re-raising the issue of re-registration prior to 20^th July 2021 as the Claimants was adjust in CC 300 of 2021 to have no standing as a consequence of it being removed or de-registered at the time of CC 300 of 2021.

The Defendant/Applicant also submit that the Claimant has no locus standi because of the manner in which the Director of the Company/Claimant went about the registration of the Claimant. The applicant submitted that re- registration application must be made with the prescribe form as require by section 210(4) of the Company’s Act 2009 and Regulation 11 of the Company Act which set out the mandatory requirements.

The following facts relevant to the Claimant’s claim are mostly not in dispute;

1. That a company of the same name as the Claimant (Friendship Trading Limited) was incorporated on 1^st June 1993 by its director Mr Michael Chan. On 2^nd September 1997, the estates in PN 192-004-117 and PN 192-004-174 were transferred by Levers Solomon Limited to Friendship Trading Limited, the company incorporated on 1^st June 1993. The said company, Friendship Trading Limited by virtue of section 210(2) was removed from the company Haus Registry 9 months after the Companies Act 2009 came into force on 1^st July 2010. That the claimant Friendship Trading Limited never applied for re-registration using Form 24 pursuant to Part 4, Regulation 11 as stipulated by section 210 (1) of the Companies Act 2009, which is a mandatory requirement,

The evidence before the Court showed that the Friendship Trading Limited, the company incorporated on 1^st June 1993 never applied to be re-registered as required by section 210(1) after it was removed from the Company Registry.

The claimant instead applied for registration under section 6 of the Companies Act 2009. Application under section 6 of the Act is an application to register as a new company. The registration of the Company, Friendship Trading Limited (Company) on 20^th July 2021 was a new incorporated company and new entity different from the Friendship Company Limited previously incorporated on 1^st June 1993.

Because of this, the applicant therefore says that the estate in PN 192-004-117 does not belong to the Claimants because it is a new entity from the company in cooperated on 1^st June 1993.

Section 151(2) of the Companies Act 2009 states “A company that is restored to the Solomon Islands register is deemed to have continued in existence as if it had not been removed from the register.

Section 152 (1) states “Subject to this section, property of a company that is, restored at the time the time the company is restored to the Solomon Islands register, vested in the crown pursuant to section 146, vest in the company on its restoration to Solomon Islands register as if the company had not been removed from Solomon Islands register.

However, in the present case since the company, (Friendship Trading) incorporated on 1^st June 1993 was removed from the register was not restored to the registry pursuant to section 210(1) of the Companies Act 2009, the estate in PN 192-004-117 does not fall under section 152(1) of the companies Act 2009.The reason is that the company (Friendship Trading) incorporated on 20^th July 2021 is a different entity from the Friendship company Limited incorporated on 1^st June 1993.

Counsel for the claimant submitted that the defendant cannot commenced forfeiture against the Friendship Company Limited incorporated on 1^st June 1993 because it did not exist at the time forfeiture was commenced. Counsel may be correct in his submission but it only means that since the company incorporated on 1^st June 1993 no longer exist it does not own the properties in PN 192-004-117 because the property was already vested in the crown by virtue of section 146 of the Companies Act 2009, which states “Property that immediately before the removal of a company from Solomon Islands register, had not been distributed or disclaimed, vest in the crown with effect from removal of the company from Solomon Islands register”

In view of this the Minister should take steps under section 146 (3) of the Companies Act 2009 in respect of the property so the claimant may utilise the provisions of section 146(4) so the court may deal with the issue under section of 146(5) of the Act.

I intend to deal first with this issue of locus standi because if it succeeds this should be the end of the matter.

The evidence of the Deputy Registrar of Companies Mr. Tobit Taravu filed on 29^th August 2022 and relied on by the applicant/defendant in support of its application clearly show that a company Friendship Trading Limited was incorporated on 1^st June 1993. That the company was removed from company Haus register pursuant to section 210(1) of the Companies Act 2009. That company never applied to be re-registered again as required under section 210(1) of the Act, as a result was removed from the register by virtue of section 210(2) of the Act.

That company never applied for re-registration under section 210(1) of the Act. The Claimant was incorporated on 20^th July 2021. The claimant application for registration was under section 6 of the Act so it is a registration of a new entity from the company Friendship Trading Limited incorporated on 1^st June 1993. The Registrar of Companies never extend a period of re-registration to that company, Friendship Trading Limited incorporate on 1^st June 1993. In that respect the company incorporated on 20^th July 2021 who is the claimant in the present case is a new company and new entity from the company that was removed from the registry under section 210(1) of the Act.

In view of the above evidence, since the claim is a new entity it never owned PN 192-004-117.On that basis the Claimant has no locus standi to bring this claim against the Defendant over PN 192-004-117 as such the claim is considered frivols and vexatious and an abuse of the process of the Court thus the claim must be strike out

Orders

1. The claim is strike out
2. Cost for the Defendant/Applicant to be assed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge