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Singwong v Commissioner for Lands [2023] SBHC 163; HCSI-CC 326 of 2021 (27 April 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Singwong v Commissioner for Lands


Citation:


Date of decision:
27 April 2023


Parties:
Andrew Chee Singwong v Commissioner for Lands, Registrar of Titles, Attorney General


Date of hearing:
21 February 2023


Court file number(s):
326 of 2021


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Lawry; PJ


On appeal from:


Order:
1. The power of forfeiture provided in section 136(1) of the Land and Titles Act may only be exercised following a prior express determination by the Land Board. That right cannot be delegated to the Commissioner of Lands.
2. Where the owner of an estate, or a person claiming through or under him, is in actual occupation of the land comprised in that estate the right of forfeiture of an estate in land under section 136 (1) may only be exercised pursuant to an order of the High Court after an action for forfeiture has been commenced in that Court.
3. In the case of a fixed term estate and upon the proper construction of section 136(2) of the Land and Titles Act as read with sections 137, 138, 139 (as amended by section 12 of the Land and Titles (Amendment) Act 2014) and 141(1) of that Act, the right of forfeiture of an estate in land under section 136(1) (as amended), forfeiture must be effected by the Commissioner of Lands actually re-entering and taking physical possession of the subject land.


Representation:
Mr J Sullivan QC for the Claimant
Mr N Ofanakwai for the First, Second and Third Defendants


Catchwords:



Words and phrases:


Legislation cited:
Lands and Titles (Amendment) Act 2014 S 8C (2), S 8C (1), S 82, Lands and Titles Act S 138, S 139 (as amended by S 12, Lands and Titles Act [cap 133] S 136 (1) (as amended by S 4 and 11, Lands and Titles Act S 136 (2) [cap 133], S 136 (1), S 137, 138, 139 (as amended by S 12 of the lands and Titles (Amendment) Act 2014, S 141 (1), S 136 (1A), S 4 (4) (as amendment Act), S 4 (4) (a), S 4(4) (b), S 136 (2) (a), S 144 (2), S 229 (2), S 139 (1) , S 139 (2) (c),


Cases cited:
Yam and Co. Ltd v Bana [2019] SBHC 6, JJ Ltd v Attorney General [2016] SBCA 5, Moveni v Cheffers [2014] SBCA 14, Bekwith v The Queen [1976] 135, Kii and Sons Construction Company Limited v Vuvula Poultry Ltd & Others [2017] SBHC 17,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 326 of 2021


BETWEEN


ANDREW CHEE SINGWONG
Claimant


AND:


COMMISSIONER FOR THE LANDS
Firs Defendant


AND:


REGISTRAR OF TITLES
Second Defendant


AND:


THE ATTORNEY GENERAL
(Representing the Land Board)
Third Defendant


Date of Hearing: 21 February 2023
Date of Ruling: 27 April 2023


Mr J Sullivan QC for the Claimant
Mr N Ofanakwai for the First, Second and Third Defendant


Lawry; PJ

RULING

  1. On 10 October 1989 the Commissioner of Lands (‘the Commissioner’) made a grant of a fixed term estate in land with Land Parcel Numbers 192-004-44 and 192-004-45. A condition of the grant of the land was that it be used for agricultural purposes and in accordance with good agricultural practice, but it did not contain any time limit for compliance. There were subdivisions of the land. The Claimant became registered as the owner of one of those subdivisions being the fixed term estate in Parcel Number 192-004-116, with effect from 31 July 2014, pursuant to a transfer for valuable consideration.
  2. In 2014 the Land and Titles Act (‘LTA’) was amended with the amendments coming into force on 1 December 2014.
  3. On 12 December 2017 the Land Board passed a resolution which read:
  4. The minutes of the Board also included the following:
  5. The Land Board Annual Report 2020 recorded that since the 2014 Act came into force, the Land Board had delegated various powers to the Commissioner pursuant to section 8C (2) of the Act including to issue notices before forfeiture for failure to either pay land rents or meet obligations on conditions of a fixed term estate, but not to consent to re-allocation of the land.
  6. On or about 8 December 2020 the Commissioner issued a document entitled ‘Notice Before Forfeiture’ directed to the Claimant alleging the Claimant had not complied with the conditions of the grant stating that the land would be forfeiture by the Commissioner after one month.
  7. On or about 19 February 2021 the Commissioner issued a document entitled ‘Notice of Re-entry: Parcel Number 192-004-116’ directed to the Claimant alleging the Claimant had failed to comply with the terms of the ‘Notice Before Forfeiture’ dated 8 December 2020 and made pursuant to section 138 of the Land and Titles Act and that ‘the Commissioner of Lands hereby re-enter and take possession of Parcel Number 192-004-116 pursuant to section 139 (as amended by section 12 of the Land and Titles Amendment Act 2014).’
  8. The Claimant has filed an application pursuant to Rule 12.11 of the Solomon Islands Courts (Civil Procedure) Rules 2007 to determine preliminary matters. These are set out as follow:-

Issue 1

Whether, upon the proper construction of ss.4(4) and 136(1) of the Land and Titles Act (cap.133) as amended by ss.4 and 11 of the Land and Titles (Amendment) Act 2014 -

Or

(b) Such power of forfeiture may only be exercised following a prior express determination by the Land Board (as the Claimant contends).

Issue 2

Whether, upon the proper construction of s.136 (2) of the Land Titles Act (cap.133) and where the owner of an estate is in actual occupation of the land comprised in that estate -

Or

(b) The provisions of s.136 (2) confers alternative rights (as the Defendants contend).

Issue 3

Whether, in the case of a fixed term estate and upon the proper construction of s.136(2) of the Land and Titles Act (cap.133) as read with ss.137, 138, 139 (as amended by s.12 of the Land and Titles (Amendment) Act 2014) and 141(1) of that Act -

Or

(b) Such forfeiture must be effected by the Commissioner of Lands actually re-entering and taking physical possession of the subject land (as the Claimant contends).

Issue 1

  1. Prior to 1 December 2014, section 136(1) of the LTA provided:
  2. Section 11 of the Land and Titles Amendment Act 2014 (‘LTA Amendment Act’) repealed s.136(1) and replaced it with the following:-
  3. The LTA Amendment Act then specifically removed from the Commissioner the power to forfeit an estate and gave that power to the Land Board.
  4. Section 136 (1A) confirms that it is the Land board that exercises the right to forfeit.
  5. Counsel for the Defendants submits that the Land Board has delegated the power of forfeiture to the Commissioner. He relies on section 4(4)(b) of the LTA as amended by the LTA Amendment Act and submits that it allows the Commissioner to perform any powers vested in the Land Board as provided for under the provisions of the Act subject to any general or special direction of the Board. Section 4(4) of the LTA Amendment Act provides:
  6. Section 4(4) (a) gives the Commissioner power to hold and deal with interests in land subject to section 8C of the LTA. Section 4(4) (b) gives the Commissioner power to execute instruments relating to an interest in land. It also affirms that the Commissioner has such other powers as are provided for under the Act. Significantly it does not provide that the Commissioner can exercise any powers vested in the Land Board, as submitted by counsel. Also, under Section 4(4) (b) of the LTA the Land Board to may give specific or general directions to the Commissioner regarding the exercise of the Commissioner’s powers not the Land Board’s powers. It does not give the Land Board the power to delegate its power of forfeiture.
  7. Section 8C (referred to in section 4(4) (a) of the LTA was inserted into the LTA by section 5 of the LTA Amendment Act. Some of the powers of the Land Board are set out in section 8C(1) of the LTA which provides:
  8. Section 8C(2) of the LTA provides:
  9. Section 8C(2) of the LTA then permits the Land Board to delegate any of those powers set out in section 8C(1) to the Commissioner.
  10. The power of the Land Board to forfeit land comes from Section 136(1). That power is not one that is listed in section 8C (1). The only reference to the power to forfeit set out in section 8C (1) is at paragraph (e). Paragraph (e) is limited to determining whether land already forfeited or surrendered is available for allocation. It does not give a power to forfeit land.
  11. Counsel for the Defendants submits that the use of the words ‘such other powers as are provided for under the provisions of the Act’ in section 4(4) (b) includes the power to forfeit under section 136(1). That cannot be so.
  12. Such an interpretation would mean that the Board could delegate all its powers and the LTA Amendment Act does not so provide. Secondly in relation to forfeiture such an interpretation would undermine the clear intention of Parliament in repealing the former section 136(1) of the LTA and replacing it with the new s.136 (1).
  13. Counsel has referred the Court to the minutes of the Land Board made on 12 December 2017. The minutes show that the Land Board delegated the power of forfeiture to the Commissioner on a six months trial. Even if the Land Board had power to delegate the power of forfeiture, which it does not, the minute limited the delegation to the period between 12 December 2017 and 12 June 2018, that being six months after the date of the decision.
  14. The recorded decision however only reads as follows:
  15. In its Annual Report for 2020 the Land Board recorded on page 4 that it had used its power to delegate under section 8C(2) to issue notices before forfeiture for failure to either pay land rents or meet obligations/conditions of a Fixed Term Estate, but not to consent to re-allocation of the land.
  16. The power to issue notices is quite different from the power to forfeit. It is the Land Board that must make the decision for forfeit not the Commissioner. The Land Board can direct the Commissioner to issue the notices but it is the Board that must make the decision to forfeit land.
  17. On issue 1 the power of forfeiture is vested in the Land Board. That power cannot be delegated to the Commissioner.

Issue 2

  1. Section 136(2) of the LTA provides:
  2. It is not disputed that the right of forfeiture may be exercised in either of two ways. The second of those ways, set out in section 136(2) (b) is by enforcing forfeiture by an action in the High Court. The first of those ways is by entering upon then remaining in possession of the land. However there is a precondition to that first means of exercising forfeiture. It is only available where neither the owner of the Fixed Term Estate nor a person claiming through or under him is in occupation of the land.
  3. Both counsel accepted that this must be the meaning of section 136(2) of the LTA. Put another way where an owner of a fixed term estate is in occupation of the land or someone claiming through or under that owner is in occupation the right to forfeiture must be exercised by action in the High Court.
  4. Counsel for the Defendants submitted initially that provided there is compliance with section 138 the Commissioner may exercise the right of forfeiture. Section 136(2) (a) provides for how the right of forfeiture may be exercised if the owner or someone claiming through the owner is not in occupation of the land. Section 138 sets out a precondition for that exercise. Section 138 provides:
  5. Paragraphs (a) and (b) require that the notice served pursuant to section 138 must specify two things. It must specify the breach that the owner has failed to comply with and it must specify the time (being a reasonable period) within which the breach must be remedied, if it is capable of remedy.
  6. For issue 2 then, if a notice that complies with section 138 has been served and the owner has failed to remedy the alleged breach within the reasonable time specified in the notice, section 136(2) provides that the right of forfeiture may be exercised by entering on and remaining in possession of the land if the owner and those claiming through or under him are not in occupation. If the owner or someone claiming through or under the owner is in occupation the right of forfeiture cannot be exercised by entering and remaining on the property but must be by way of enforcement by action in the High Court.

Issue 3.

  1. The central issue for the third question is what is meant by the words in section 136(2) ‘by entering upon the remaining in possession of the land.’
  2. The 1996 reprint of the Revised Laws of Solomon Islands clearly has a typing error in section 136(2). Section 136(2) was previously section 144(2) and is in identical terms to section 136(2) of the 1996 reprint except after the words ‘by entering upon’ the word ‘the’ has replaced the word ‘and’.
  3. There does not appear to have been any amendment to section 144(2) that would account for the word ‘and’ being changed to the word ‘the’. I accept that the final clause in section 136(2) (a) is ‘by entering upon and remaining in possession of the land.’
  4. For the Claimant it is submitted that the Commissioner exercising the right of forfeiture must be effected by actually entering upon the land and remaining in physical possession of the land. For the Defendants it is submitted that forfeiture was effected by a notice of re-entry following the notice before forfeiture posted to the mailbox of the Claimant.
  5. Counsel for the Defendants submits that as the word ‘actual’ does not appear before the word ‘entry’ and because the word ‘physical’ does not appear before the word ‘possession’ the Court should not consider actual entry or physical possession to be necessary. Counsel submits that the Court should focus on the words ‘entering’ and ‘possession’ in section 136(2) (a) of the LTA.
  6. Counsel referred to the decision of Yam and Co Ltd v Bana [2019] SBHC 6. That case was not about the meaning of entry and remaining in possession. It was simply that part of the background had been that the Commissioner had served a notice before forfeiture following by a notice of re-entry. The Court noted that there was no challenge to the forfeiture and re-entry proceedings. Indeed neither party in Yam v Bana appear to have been concerned about that process.
  7. Counsel has referred the Court to the Court of Appeal decision of JJ Ltd v Attorney General [2016] SBCA 5. The Court of Appeal reviewed the forfeiture process. At paragraph [25] the Court said, “The undisputed evidence shows that Mrs Chow was unable to comply within the time allowed by the notice and, on 15 June 2006, more than six months after the notice, on the instruction of the Commissioner; the Registrar noted the Commissioner’s re-entry on the certificate of title.” In paragraph [26] the Court recorded: “The owner of the land in question was not in occupation and the Commissioner exercised his right to re-enter the land under section 136(2).”
  8. For the Claimant, counsel referred the Court to the Court of Appeal decision of Moveni v Cheffers [2014] SBCA14. The Court was concerned with the application of section 229(2) of the LTA rather than section 136(2). However the principal issue was whether, for the purpose of section 229(2) of the LTA, ‘possession’ means actual possession. The Court rejected the acquirement that possession is an attribute of ownership and rejected the proposition that it is sufficient that the person in question is registered as the owner. The Court said if that were so the words ‘who is in possession’ would be superfluous and add nothing. The Court noted that the Court of Appeal in the United Kingdom had held that possession meant actual physical possession.
  9. With this background then, what is meant by the words ‘entering upon the land;’ and ‘remaining in possession of the land’? Of significance, the LTA does not set out how entry on the land is to be effected. If in the case of the Commissioner Parliament had intended that entry on the land may be effected by serving on the owner a notice of entry, it could have done so.
  10. The High Court of Australia in Beckwith v The Queen [1976] 135 CCR 569 at 574 said: “As a general rule a court will adopt that construction of a statute which will give effect to all of the words it contains.” What then is the construction that gives effect to the wording of section 136(2) (a)? Counsel for the Defendants submitted that the requirement to enter and remain in possession of land only applies to ordinary citizens and does not apply to the Commissioner. He said to require the Commissioner to actually enter land and be in physical possession of the land is impractical.
  11. Section 136(1) before the LTA Amendment Act was concerned with the right to forfeit land vested in the Commissioner and the rest of section 136 was concerned with forfeiture by the Commissioner. After the LTA Amendment Act the right to forfeit was changed from the Commissioner to the Land Board. With the exception of an amendment to the proviso in subsection (3) (which is not relevant to these proceedings) subsection (2) and (3) remained unchanged. It is the Land Board that exercises the right of forfeiture and the function of the Commissioner to carry out that decision. Section 136(2) (a) can only apply to the Commissioner and those persons in section 3 of the LTA who are charged with administering the LTA. It cannot apply to other members of the public as they would not have the right of forfeiture. It follows that Parliament intended that a person charged with administering the Act would need to actually enter the land and actually remain in possession of it. This could clearly be done a number of ways without the Commissioner himself having to enter and remain on land. If that were not so the words used in section 136(2) would be superfluous.
  12. To accept the submission of Counsel for the Defendants would require the Court to disregard the words of the section. The Court cannot say that the statute requires particular actions but because they are said to be inconvenient or impractical those actions can be ignored. When it comes to the forfeiture of land, such consequences can have significant impact on the lives of those involved in it therefore important that the Court gives meaning to all the words of the statute.
  13. Counsel has submitted that in Solomon Islands, land registration follows the Torrens System and therefore registration is proof of ownership. He submits that as a result there is no need to enter on to land or remain in possession as all that is needed is for title to change. As set out above, if that is so then the words of the section would be superfluous and the legislation could have provided that as the process.
  14. Counsel has drawn the Court’s attention to the decision in Kii and Sons Construction Company Limited v Vuvula Poultry Ltd & Others [2017] SBHC 17. While the learned Judge pointed out in the circumstances of that case the difficulties of re-entry, in the present case section 136(2)(a) deals with ‘entry’ and as a result I am bound to follow the guidance given by the Court of Appeal in Moveni v Cheffers referred to above where possession was held to mean actual physical possession.
  15. That being so, it follows that ‘entry’ must mean actual entry in order for the entry to lead to actual physical possession. Section 136(2) (a) requires one of those charged with administering the LTA to actually enter and take physical possession of the subject land.

Section 139

  1. At the Commencement of the hearing Counsel for the Defendants sought a ruling that the hearing should not take place because of the amendment to section 139(2) (c) which now requires an application for relief against forfeiture to be made within one month of the re-entry. It is not appropriate to raise such an issue on the morning of the hearing. It there was an issue it ought to have been addressed before the hearing was about to commence.
  2. In any event the relief sought in the amended claim is two-fold. The main relief sought is not relief against forfeiture under section 139(1) of the LTA, that is the alternative relief sought. Section 139(2) (c) only applied to an application made under section 139(1) of the LTA.
  3. Counsel has also made submissions on the ‘Notice Before Forfeiture’. It is therefore relevant to consider the notices served. The notice dated 7 December 2020 headed ‘Notice Before Forfeiture’ does not comply with section 138 of the LTA. The failure complained of is clearly capable of remedy. The notice required both specification of the breach and a requirement for the owner to remedy the breach within such reasonable period as is specified in the order. The notice made no requirement to remedy the breach nor did it provide a reasonable time within which to remedy the breach. The notice was that the land would be forfeit to the Commissioner in one month.
  4. Counsel submitted that the reference to the land being forfeit in one month was in effect the time permitted to remedy the breach. That is not what the notice provided. A reasonable interpretation was that the owner had one month to remove from the land anything he wished to retain. The second notice signed 19 February 2021 alleged that there had been failure to comply with the notice dated 8 December 2020 and made pursuant to section 138 of the LTA. The notice gives notice that the Commissioner ‘hereby re-enter and take possession of parcel number 192-004-0116 pursuant to section 139 (as amended by section 12 of the Land and Titles Amendment Act 2014).’
  5. Section 12 of the LTA Amendment Act did indeed amend section 139. However, section 139 did not confer a power either to the Commissioner or the Land Board the right to forfeit land. That cannot be a typing error. The reason for this is that section 136 confers a right of forfeiture but it was not amended by section 12 of the LTA Amendment Act but section 139 was so amended.
  6. The notice dated 8 December 2020 made no requirement of the owner. There has therefore not been a valid notice under section 138.
  7. The Court was not prepared to further delay the hearing of the application filed as long ago as 2 September 2022, nearly six months before the date of hearing the application.

Orders

  1. The power of forfeiture provided in section 136(1) of the Land and Titles Act may only be exercised following a prior express determination by the Land Board. That right cannot be delegated to the Commissioner of Lands.
  2. Where the owner of an estate, or a person claiming through or under him, is in actual occupation of the land comprised in that estate the right of forfeiture of an estate in land under section 136 (1) may only be exercised pursuant to an order of the High Court after an action for forfeiture has been commenced in that Court.
  3. In the case of a fixed term estate and upon the proper construction of section 136(2) of the Land and Titles Act as read with sections 137, 138, 139 (as amended by section 12 of the Land and Titles (Amendment) Act 2014) and 141(1) of that Act, the right of forfeiture of an estate in land under section 136(1) (as amended), forfeiture must be effected by the Commissioner of Lands actually re-entering and taking physical possession of the subject land.

By the Court
Hon. Justice Howard Lawry
Puisne Judge

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