Shi Xiao Hua v Dominic [2023] SBHC 161; HCSI-CC 21 of 2021 (31 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Shi Xiao Hua v Dominic
Citation:
Date of decision:	31 October 2023
Parties:	Shi Xiao Hua v Ben Dominic, Commissioner of Lands, Registrar of Titles, Danny Lam
Date of hearing:	26 & 27 September 2023, 19 & 26 October 2023
Court file number(s):	21 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Fixed Term Estate of parcel no. 191-007-49 is ordered to be rectified pursuant to Section 229 of 2. The Land and Titles Act cancelling the registration of the title in the names of the First Defendant and the Fourth Defendant and restoring title in the name of the Claimant. 3. The First Defendant is to pay the costs of the Claimant on an indemnity basis. 4. The Second, Third and Fourth Defendants are to bear their own costs.
Representation:	Mr L Kwaiga and Ms R Danitofea for the Claimant Mr R Dive for the First Defendant Ms P Rofeta for the Second and Third Defendant Mr F Samani for the Fourth Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 229, S 229 (2)
Cases cited:	Walter Billy v Paul Daokalia [1995] SBCA 5, Malefo v Malefo [2017] SBHC 156

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 21 of 2021

BETWEEN

SHI XIAO HUA
Claimant

AND:

BEN DOMINIC
First Defendant

AND:

COMMISSIONER OF LANDS
Second Defendant

AND:

REGISTRAR OF TITTLES
Third Defendant

AND:

DANNY LAM
Fourth Defendant

Date of Hearing: 26 & 27 September 2023, 19 & 26 October 2023
Date of Ruling: 31 October 2023

Mr L Kwaiga and Ms R Danitofea for the Claimant
Mr R Dive for the First Defendant
Ms P Rofeta for the Second and Third Defendant
Mr F Samani for the Fourth Defendant

RULING

1. The Claimant has brought a claim seeking rectification of title of the fixed term estate parcel number 191-007-49 [‘the estate’].
2. The Claimant was granted the fixed term estate by the Second Defendant by way of a grant dated 20 December 2011.
3. The Fixed Term Estate Register records that grant was for a term of 50 years from 20 December 2011. The Register shows that the estate was transferred to the First Defendant for nil consideration with the document being recorded as presented on 10 March 2014.
4. The next entry on the Register records the estate being transferred to the Fourth Defendant for a consideration of $150,000.00, with the transfer document being presented on 6 November 2014.
5. The basis for the application for rectification is the assertion by the Claimant that the registration of the transfer to the First Defendant was obtained by fraud or mistake. He relies on section 229 of the Land and Titles Act.
6. In his statement sworn on 8 February 2021, the Second Defendant confirmed that the estate was registered to the Claimant on 21 December 2011. He said and confirmed in evidence that on 4 December 2013 the then acting Commissioner gave consent for the transfer of the estate from the Claimant to the First Defendant but there was no request for such consent found on the file. The Second Defendant annexed a copy of the Transfer document giving rise to that transfer. The document records a consideration of $90,000.00 had been received by the Claimant from the First defendant. It records that the person purporting to be the Transferor was identified to the relevant officer as being Shi Xiao Hua the Claimant in these proceedings. That identification was made by the First Defendant.
7. The signature of the Transfer bears no resemblance to the signature of the same person shown as the Grantee in the grant of 20 December 2011. The signature on the grant document is consistent with the signature of the Claimant as shown in his passport.
8. If the Claimant had not requested or consented to the transfer then it follows that the Transfer was obtained by fraud or mistake.
9. The evidence of the Claimant is set out in his statement sworn on 1 September 2021. His signature is consistent with that on each annexure cover sheet, with the grant document dated 20 December 2011 and the identification page of the Passport of the Claimant annexed at SXH-5.
10. The evidence of the Claimant was not challenged. He was not required for cross-examination. The Court therefore accepts his evidence as being unchallenged. He says the transfer to the First Defendant was without his knowledge or consent. He says he did not take part in the transfer and at paragraph 17 confirms he did not give consent to the transfer. He says at paragraph 20 that he did not sign any transfer instrument and the signature on the transfer instrument is not his.
11. Accepting that evidence then, the person identified to the registering officer by the First Defendant was not the Claimant. There is no doubt that the transfer was obtained by fraud and that the consent by the Second Defendant and the registration by the Third Defendant were both obtained by mistake. The Claimant was entitled to quiet enjoyment of the estate without the First Defendant identifying some unknown person to the relevant officer and thereby obtaining the transfer.
12. It is significant that the First Defendant did not provide any evidence, by sworn statement or otherwise and did not challenge the evidence of the Claimant. The Court is satisfied to the requisite standard that the registration of the transfer to the First defendant was obtained by fraud.
13. That however is not the end of the matter. On 5 November 2014 the estate was transferred from the First Defendant to the Fourth Defendant with both the transfer document and the Register showing a consideration of $150,000.00.
14. The Fourth Defendant relies on Section 229(2) of the Land and Titles Act to protect his interest.
    • Section 229(2) provides:
    • “The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission fraud or mistake in consequence of which the rectification is sought or caused such omission fraud or mistake or substantially contributed to it by his act, neglect or default.”
15. The Fourth Defendant filed a statement sworn on 17 May 2023 in which he deposes that he acquired the estate in accordance with the Land and Titles Act, that he paid $150,000.00 as valuable consideration from the First Defendant without any knowledge of fraud or mistaken. He says he now owns the estate.
16. In a second statement he deposed as to documents in his possession, custody or power in accordance with his discovery obligations. He was called to give viva voce evidence and was cross-examined.
17. He said he was approached by the First Defendant who he said wanted the Fourth Defendant to buy a piece of land. He said he went to the Registrar of Titles office and that he was told the Title is correct and that the land belongs to the First Defendant. There was no objection to this piece of evidence. He said that he then made an agreement to transfer the title. He confirmed he was the person who signed the transfer document as transferee.
18. In cross-examination he said the First Defendant did not tell him that he, the First Defendant, had bought the land from someone. He said the First Defendant just gave him the title. He said at the Lands office he was not told of the First Defendant had bought the land from someone. He said he only asked if the First Defendant is the one on the title. When asked if there was any mention of Shi Xiao Hua he did not answer. He later repeated that he only asked about the First Defendant being on the title. He was asked about the title and pointed out the name of the Commissioner of Lands. He then was asked about the entry in the name of the Claimant and he said he only looked at entry 6 being the First Defendant.
19. He confirmed that the First Defendant still resides on the land. While his evidence was far from compelling there was nothing to suggest he was part of the arrangement that led to the estate being transferred from the Claimant to the First Defendant.
20. The Court is satisfied that he acquired his interest in the land for valuable consideration and without knowledge of the fraud or mistake that led to the land being registered in the name of the First Defendant. While the arrangement must have seemed suspicious to him because it was the First Defendant who initiated the idea that he purchase the estate, the Claimant has not shown on the balance of probabilities that the Fourth Defendant caused or substantially contributed to the fraud or mistake by his act neglect or default.
21. It is extraordinary that in the circumstances the Fourth Defendant did not seek legal advice from a legal practitioner before agreeing to pay the $150,000.00. However contrary to the submission of his Counsel that is not the end of the matter. Before he can rely on the protection of Section 229 (2) he must first be an owner in possession. He made no such claim in his sworn statement nor his evidence and in cross examination said that the First Defendant still resides on the land. In the circumstances the Court finds that the Fourth Defendant is not in possession of the land. It is still in the possession of the First Defendant.
22. Counsel for the First Defendant submitted that the writing on the transfer document could have been by the Claimant using a different signature. If that proposition is to have any weight at all it was incumbent on counsel to cross examine the Claimant to challenge his evidence that he did not sign it.
23. Counsel for the Second and Third Defendants submits that even though there was no challenge to the evidence of the Claimant, the evidence is insufficient to show how mistake or fraud was committed when the registration of the transfer of the estate from the Claimant to the First Defendant was undertaken. There is no logic to this submission. If the transfer document purports to transfer the estate was not undertaken by the Claimant, which is unchallenged, someone has wrongly signed and presented that document. That person has been identified by the First Defendant to the certifying officer as the Claimant. It was not in fact the Claimant. There is no evidence of a request to the Commissioner of Lands to transfer the title. The evidence is that the Claimant made no such request. As set out by the Court of Appeal in Walter Billy v Paul Daokalia and Others [1995] SBCA 5, the fraud/mistake is linked to the time when registration was obtained.
24. Counsel has also referred to Malefo v Malefo [2017] SBHC 156. However the present situation is quite different. In the present case, the First Defendant was instrumental in fraudulently obtaining registration in his name. He would not have been protected by Section 229(2). The Fourth Defendant can only claim the protection if he were in possession of the land. The evidence before the Court satisfies the Court he was and is not in possession of the estate.
25. It follows that the Claimant is entitled to have the title rectified.

Orders

1. The Fixed Term Estate of parcel no. 191-007-49 is ordered to be rectified pursuant to Section 229 of
2. The Land and Titles Act cancelling the registration of the title in the names of the First Defendant and the Fourth Defendant and restoring title in the name of the Claimant.
3. The First Defendant is to pay the costs of the Claimant on an indemnity basis.
4. The Second, Third and Fourth Defendants are to bear their own costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge