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Chow v Attorney General [2011] SBHC 58; HCSI-CC 262 of 2010 (3 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 262 of 2010

BETWEEN

MARY CHOW
Claimant

And

ATTORNEY GENERAL
(Representing Commissioner of Lands And Registrar of Titles)
First Defendant

And

JJ Ltd
Second Defendant

Mr Tigulu for the Claimant (not appearing)
Ms Folaumoetui for the First Defendant
Mr Pitikaka for Second Defendant

Date of Hearing: 1st June 2011
Date of Judgment: 3rd August 2011

RULING

1. This matter came before the court for the purposes of a conference as required by Rule 15.3.16 [1]. At such a conference the Claimant has to establish, to the court's satisfaction, that various conditions are met. Those conditions are set out in Rule 15.3.18. As is rightly submitted by the First Defendant, the Claimant has to satisfy all of the conditions. If any one of the conditions is not or cannot be met the court must decline to hear the claim and dismiss the case.

2. These proceedings are a consolidation of two cases. The consolidation was ordered by me following pre-trial conferences held on 14th February 2011 and in accordance with the ruling and order of 16th February. The Claimant has now filed an amended claim (on 16th March 2011), the First Defendant a defence (on 11th April) and the Second Defendant a defence and counterclaim (on 6th April). The Rule 15.3.16 conference should have taken place on 1st June but Mr Tigulu was not available. He did have the courtesy, for which I thank him, to write and explain his difficulties and, in order to avoid further delay, it was agreed the conference could be dealt with by written submissions.

3. Some semblance of order has now been established in these proceedings. However there still appears to be confusion in relation to what this case is all about. It concerns two distinct issues under the Lands and Titles Act [Cap. 133] ("the Act"). The first relates to forfeiture and the second to resumption.

4. Forfeiture is governed by sections 136 to 139 of the Act. The Commissioner (of Lands) has the right to forfeit an estate "if the owner fails to pay any rent" or "perform any obligation...incident to the estate" [2]. The Commissioner can exercise that right by re-entering the land, where neither the owner nor any person claiming through or under him is in occupation; or enforce it by taking action in the High Court [3]. The Commissioner took no action to enforce forfeiture, instead it is said he exercised his right by re-entering the land.

5. Resumption is entirely different. It arises from the terms of the grant. As is clearly set out by the Court of Appeal [4], it is a reservation to the grantor (here it would be the Commissioner) to terminate the "owners" rights or otherwise bring the fixed estate to an end. There can be no dispute that the grant to the Claimant dated 10th October 1996 contained such a reservation.

6. In considering this case in relation to a Rule 15.3.16 conference the court should limit itself to consideration of the pleadings. It is difficult to do that in this case but it is the pleadings which take precedence. The pre-requisites set out in Rule 15.3.18 must be satisfied in respect of both the issues identified above, that is the forfeiture and the resumption. Again, that may be difficult in this case because for various reasons the two issues have become inextricably linked. On that basis the starting point is the amended claim.

7. Does the Claimant have an arguable case? The answer to that question must be yes. The Claimant is seeking to set aside the Commissioner's decision to forfeit the grant of fixed term estate made in October 1996 and to exercise his right by re-entry. His decision was based on the breach of the obligation to develop as set out in clause 6 of the First Schedule to the grant. The Claimant does not have to establish a cast iron case at this stage, all she needs to do is show that if the facts, as set out in her claim, are later proved would the court be able to say the Commissioner's decision was flawed. That is a matter of evidence and whilst it may well be difficult for her to establish that the Commissioner was wrong to exercise his right by re-entry some 7 years after she should have met her obligations, she has raised arguments which might have that result. She clearly has an arguable case in one respect because Section 139(2)(c) of the Act allows her to seek relief "within six months of the date of re-entry". The date of re-entry appears to be sometime in June 2006. The original claim was commenced in August 2006, well within the six months. Section 137 of the Act provides that forfeiture determines, or brings to an end, her interest in the land except where the High Court grants relief in which case her interest "shall be deemed not to have determined". The application for relief has yet to be dealt with. Technically her interest has determined, it came to an end when the Commissioner re-entered the land. However, if she obtains relief from the court her interest will be deemed never to have come to an end.

8. It is clear that the Claimant is directly affected by the subject matter of the claim. No more needs to be said about that.

9. Given the comments above (paragraph 7) the Claimant cannot be said to have been guilty of delay in making her claim. It was made within the six months timeframe allowed for in the Act and the rules relating to judicial review [5]. The Act allows six months from the date of re-entry not the date of the forfeiture notice. In my view, time in any judicial review proceedings must start to run from date of re-entry as well. It would be somewhat strange to hold that the Claimant would be entitled under the Act to seek relief but not under the Rules. She did not unduly delay making her claim. Whether she has been guilty of delay in pursuing her claim is an entirely different matter and not one for consideration at this time.

10. The question of whether there is any other remedy that resolves the matter is slightly more complex. Is a claim for relief under section 139 different to a claim for judicial review? There is no separate cause of action for relief from forfeiture set out in our present rules. They amount to one and the same thing. True, one arises by reason of a statutory provision and the other is akin to an equitable remedy but to say the Claimant cannot seek a review because she has a separate statutory right to seek exactly the same thing would be wrong.

11. In relation to the claim for judicial review of the forfeiture (and re-entry) by the Commissioner It has to be said the Claimant satisfies the requirements of Rule 15.3.18.

12. In relation to the question of resumption, the Claimant is on shakier ground. Her claim seems to be based on the premise that forfeiture and resumption are one and the same thing. They are not. Forfeiture can only be based on a breach of the obligations under the grant (and in this case, as has been explained, it is based on the breach of the obligation to develop) whereas resumption is a right reserved to the Commissioner. He can exercise his reservation even if the "owner" has been a perfect tenant. He, of course, can only do so in the circumstances and for the purposes set out in the reservation. In other words he can only exercise the reservation after giving one months notice, upon payment of compensation for actual loss in respect of improved land and on the basis the land resumed is required for road construction or other public purposes. There is nothing wrong, in law, in the Commissioner seeking both to exercise his right of forfeiture and to resort to the reservation at the same time.

13. In seeking a review of the Commissioner's decision to exercise the reservation the Claimant says the Commissioner acted unreasonably and in bad faith. She says it prejudiced her application for relief from forfeiture. It did not, that is an entirely separate matter. She may succeed in one but not the other. She also says the notice was not served on her properly. She does not explain this in the statement of case. However, there is evidence she was served with or had proper notice of the Commissioners intention to resume the land between December 2009 and April 2010 [6]. The exhibit she produces is dated February 2010. There is other evidence that, in any event, as at 19th April 2010 she had been served. The Commissioner was entitled, under the notice served on her, to take over the land one month from that date. He would have had to pay or agree to pay compensation for improvements, he says there was none. The Claimant then raises the issue of her gifting the land to the National Council of Women. Whether that constitutes use of the land for a public purpose is neither here nor there. It is not the Claimant's intentions but the Commissioner's that are relevant in the exercise of the reservation contained in the grant. She then says the Commissioner's actions are ultra vires because instead of resuming the land he granted an estate to the Second Defendant. That cannot be right. The notice of resumption was only served in 2010. The "grant" of the new estate took place, on the assumption it was effective, in 2006 which was well before.

14. Having said that, the "grant" to the Second Defendant is an added complication. If the Claimant is denied relief from forfeiture then section 137 of the Act comes into play. The Claimant's estate determined, or came to an end, in June 2006, the date of actual re-entry. The notice of resumption, as against the Claimant, is superfluous. As between the Claimant and the Commissioner there would be nothing for the latter to resume. However, if she is granted relief her estate is deemed not to have come to an end. She would still be subject to the notice of resumption and may well have the right to compensation. It is difficult to see, for the reasons above and given the decision in the Wong case, how she could resist the Commissioner's exercise of the reservation in the grant.

15. If relief from forfeiture is granted how does that affect the Second Defendant? That is not an issue raised in this case. The Second Defendant only has a monetary claim against the Claimant just as she only seems to have a claim for damages against the Company. Again it is not an issue raised in this case, but the Company would probably have nothing except possibly the counter-claim and possibly a monetary claim against the Commissioner. That is the logical conclusion based on the fact that the Claimant's estate is deemed not to have determined. How could the Commissioner grant a new estate when the Claimant's still subsisted? As indicated that is not a finding or question that needs to be dealt with in this case at the moment.

16. If relief against forfeiture is denied then the grant to the Company may well be effective. That begs the question of whether the notice the Commissioner intends to resume the land is effective against the Company. The exact same reservation is contained in the "grant" to the Second Defendant. The Company is aware of the notice even though it was not addressed to or served on it. This issue is not raised in the pleadings except the First Defendant says in the defence filed, "..a notice of resumption had been issued to the Second Defendant". As to the Second Defendant, it seems to raise the same point as the Claimant, namely it will allow the public to use the land. That will not prevent a notice of resumption taking effect as against the Company. The defence continues that, "it is not a term of the grant that the land can only be used for public purpose, free of charge". That may well be true but it completely misunderstands the effect of the reservation in the grant. The effect of the reservation to resume land was more than adequately set out by the Court of Appeal. In the most simplest of terms, if the Commissioner wants land for public purposes and if a reservation is contained in the grant of the estate, he can give notice that he intends to resume the land and it matters little that there has been no breach by the owner of any other of the terms in the grant. There is little the Second Defendant can do to challenge the intention to resume the land under the terms of the "grant" to it. The company could possibly challenge the amount of compensation or raise the issue of the public purpose for which the land is required but those matters are not raised in the defence and counterclaim except in the misconceived manner referred to above.

17. In all the circumstances my inclination is to allow the Claimant to proceed with her claim in respect of the forfeiture issue but to dismiss that part which relates to resumption. This would be on the basis she has no arguable case on that issue. However, in the interests of justice, it seems sensible to leave the claim intact. The parties can then first argue the issue of forfeiture. The Second Defendant would be entitled to be heard on that issue because of the 2006 "grant" to it. As set out above, if the Claimant successfully obtains relief from forfeiture her estate will be deemed to have subsisted and any interest the Second Defendant has in the land would be subject to her interests. She may then decide to continue her claim with regard to resumption but it would have to be on the basis that her claim is properly argued in that respect. If she fails then the issue of resumption does not concern her. The matter should be set down as soon as possible to deal with the sole question of forfeiture. I will hear from counsel on the question of a date and whether any further directions are needed.

Chetwynd J

^[1] Solomon Islands Courts(Civil Procedure) Rules 2007
^[2] Section 136 (1) of the Act
^[3] Section 136(2) (a) and (b) of the Act
^[4] Wong v. AG and Commissioner of Lands Civil Appeal case 3 of 2010
^[5] See Rule 15.3.9
^[6] See Claimant’s sworn statement in former case 337 of 2006 filed 14^th July 2010